Citizens United v. Federal Election Commission

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––Decided January 21, 2010
As amended by §203 of the Bipartisan Campaign Reform Act of 2002(BCRA), federal law prohibits corporations and unions from usingtheir general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech thatexpressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “any broadcast, cable, orsatellite communication” that “refers to a clearly identified candidatefor Federal office” and is made within 30 days of a primary election,§434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2),which in “the case of a candidate for nomination for President . . . means” that the communication “[c]an be received by 50,000 or morepersons in a State where a primary election . . . is being held within 30 days,” §100.29(b)(3)(ii). Corporations and unions may establish apolitical action committee (PAC) for express advocacy or electioneer-ing communications purposes. 2 U. S. C. §441b(b)(2). In McConnell
v.
Federal Election Comm’n, 540 U. S. 93, 203–209, this Court upheld limits on electioneering communications in a facial challenge, relyingon the holding in Austin v. Michigan Chamber of Commerce, 494
U.
S. 652, that political speech may be banned based on the speaker’s corporate identity.
In January 2008, appellant Citizens United, a nonprofit corpora-tion, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primaryelections, Citizens United produced television ads to run on broadcast
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CITIZENS UNITED v. FEDERAL ELECTION COMM’N Syllabus
and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive re-lief, arguing that (1) §441b is unconstitutional as applied to Hillary;and (2) BCRA’s disclaimer, disclosure, and reporting requirements,BCRA §§201 and 311, were unconstitutional as applied to Hillaryand the ads. The District Court denied Citizens United a prelimi-nary injunction and granted appellee Federal Election Commission(FEC) summary judgment.
Held:
1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppres-sion upheld in Austin. Pp. 5–20.
(a)
Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not“publicly distributed” under 11 CFR §100.29(a)(2); that §441b maynot be applied to Hillary under Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b uncon-stitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), deter-mining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretationother than as an appeal to vote for or against a specific candidate,” id., at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has alower risk of distorting the political process than do television ads;and that there should be an exception to §441b’s ban for nonprofitcorporate political speech funded overwhelming by individuals—arenot sustainable under a fair reading of the statute. Pp. 5–12.
(b)
Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here be-cause the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughoutthe litigation, Citizens United has asserted a claim that the FEC hasviolated its right to free speech; and (3) the parties cannot enter intoa stipulation that prevents the Court from considering remedies nec-essary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial valid-ity. Any other course would prolong the substantial, nationwide
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chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertaintycaused by the Government’s litigating position; (2) substantial timewould be required to clarify §441b’s application on the points raisedby the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, anyspeech arguably within the reach of rules created for regulating po-litical speech is chilled. The regulatory scheme at issue may not be aprior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavycosts of defending against FEC enforcement must ask a governmen-tal agency for prior permission to speak. The restrictions thus func-tion as the equivalent of a prior restraint, giving the FEC poweranalogous to the type of government practices that the First Amend-ment was drawn to prohibit. The ongoing chill on speech makes itnecessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity hasbeen demonstrated. Pp. 12–20.
2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.
(a) Although the First Amendment provides that “Congress shallmake no law . . . abridging the freedom of speech,” §441b’s prohibitionon corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the factthat a PAC created by a corporation can still speak, for a PAC is aseparate association from the corporation. Because speech is an es-sential mechanism of democracy—it is the means to hold officials ac-countable to the people—political speech must prevail against lawsthat would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Gov-ernment to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmentalpower, the First Amendment stands against attempts to disfavor cer-tain subjects or viewpoints or to distinguish among different speak-ers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain
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preferred speakers. There is no basis for the proposition that, in thepolitical speech context, the Government may impose restrictions oncertain disfavored speakers. Both history and logic lead to this con-clusion. Pp. 20–25.
(b)
The Court has recognized that the First Amendment appliesto corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of politicalspeech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429. Address-ing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18
U.
S. C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25–26. However, the Court in-validated §608(e)’s expenditure ban, which applied to individuals,corporations, and unions, because it “fail[ed] to serve any substantialgovernmental interest in stemming the reality or appearance of cor-ruption in the electoral process,” id., at 47–48. While Buckley did not consider a separate ban on corporate and union independent expendi-tures found in §610, had that provision been challenged in Buckley’s wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doc-trine to suggest that §608(e)’s expenditure ban would have been con-stitutional had it applied to corporations and unions but not indi-viduals. Notwithstanding this precedent, Congress soon recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaf-firmed the First Amendment principle that the Government lacks thepower to restrict political speech based on the speaker’s corporate identity. 435 U.S., at 784–785. Thus the law stood until Austin up-held a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest inpreventing “the corrosive and distorting effects of immense aggrega-tions of [corporate] wealth . . . that have little or no correlation to thepublic’s support for the corporation’s political ideas.” 494 U. S., at
660. Pp. 25–32.
(c)
This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post-Austin line permitting them. Neither Austin’s antidistortion rationale nor the Government’s other justifica-tions support §441b’s restrictions. Pp. 32–47.
(1)
The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in politicalspeech, but Austin’s antidistortion rationale would permit the Gov-ernment to ban political speech because the speaker is an associationwith a corporate form. Political speech is “indispensable to decision-
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making in a democracy, and this is no less true because the speechcomes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protec-tions do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley, supra, at 49. These conclusions were re-affirmed when the Court invalidated a BCRA provision that in-creased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n, 554 U. S. ___, ___. Distinguishing wealthy indi-viduals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, in-cluding individuals and the media, use money amassed from the eco-nomic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Al-though currently exempt from §441b, they accumulate wealth withthe help of their corporate form, may have aggregations of wealth,and may express views “hav[ing] little or no correlation to the public’ssupport” for those views. Differential treatment of media corpora-tions and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amend-ment’s original meaning would permit suppressing media corpora-tions’ political speech. Austin interferes with the “open marketplace”of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast inits reach, suppressing the speech of both for-profit and nonprofit,both small and large, corporations. Pp. 32–40.
(2) This reasoning also shows the invalidity of the Govern-ment’s other arguments. It reasons that corporate political speechcan be banned to prevent corruption or its appearance. The BuckleyCourt found this rationale “sufficiently important” to allow contribu-tion limits but refused to extend that reasoning to expenditure limits,424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruptionor the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials
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are corrupt. And the appearance of influence or access will not causethe electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40–45.
(3)
The Government’s asserted interest in protecting share-holders from being compelled to fund corporate speech, like the anti-distortion rationale, would allow the Government to ban politicalspeech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be impli-cated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.
(4)
Because §441b is not limited to corporations or associa-tions created in foreign countries or funded predominately by foreignshareholders, it would be overbroad even if the Court were to recog-nize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.
(d)
The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its an-nouncement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that re-stricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consid-eration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest jus-tifies limits on the political speech of nonprofit or for-profit corpora-tions. Pp. 47–50.
3. BCRA §§201 and 311 are valid as applied to the ads for Hillaryand to the movie itself. Pp. 50–57.
(a) Disclaimer and disclosure requirements may burden the abil-ity to speak, but they “impose no ceiling on campaign-related activi-ties,” Buckley, 424 U. S., at 64, or “ ‘ “prevent anyone from speak-ing,” ’ ” McConnell, supra, at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing “the electorate with information” about election-related spending sources. The McConnell Court applied this interest in rejecting facialchallenges to §§201 and 311. 540 U. S., at 196. However, the Court
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acknowledged that as-applied challenges would be available if agroup could show a “ ‘reasonable probability’ ” that disclosing its con-tributors’ names would “ ‘subject them to threats, harassment, or re-prisals from either Government officials or private parties.’ ” Id., at
198. Pp. 50–52.
(b) The disclaimer and disclosure requirements are valid as ap-plied to Citizens United’s ads. They fall within BCRA’s “electioneer-ing communication” definition: They referred to then-Senator Clintonby name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broad-cast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell. This Court also rejects their contention that §201’s disclosure requirements must be confined to speech thatis the functional equivalent of express advocacy under WRTL’s test for restrictions on independent expenditures, 551 U. S., at 469–476(opinion of ROBERTS, C.J.). Disclosure is the less-restrictive alterna-tive to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United’s ar-gument that no informational interest justifies applying §201 to itsads is similar to the argument this Court rejected with regard to dis-claimers. Citizens United finally claims that disclosure requirementscan chill donations by exposing donors to retaliation, but offers noevidence that its members face the type of threats, harassment, orreprisals that might make §201 unconstitutional as applied. Pp. 52–
55.
(c) For these same reasons, this Court affirms the application ofthe §§201 and 311 disclaimer and disclosure requirements to Hillary. Pp. 55–56.
Reversed in part, affirmed in part, and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opin-ion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 08–205
CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[January 21, 2010]
JUSTICE KENNEDY delivered the opinion of the Court.
Federal law prohibits corporations and unions from using their general treasury funds to make independentexpenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McCon-nell v. Federal Election Comm’n, 540 U. S. 93, 203–209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Com-merce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity.
In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (SCALIA, J., concurring in part and concurring in judgment). We agreewith that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Govern-
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ment may regulate corporate political speech throughdisclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us.
I
A
Citizens United is a nonprofit corporation. It broughtthis action in the United States District Court for the District of Columbia. A three-judge court later convened to hear the cause. The resulting judgment gives rise to this appeal.
Citizens United has an annual budget of about $12million. Most of its funds are from donations by individu-als; but, in addition, it accepts a small portion of its fundsfrom for-profit corporations.
In January 2008, Citizens United released a film enti-tled Hillary: The Movie. We refer to the film as Hillary. It is a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party’s 2008 Presidential primary elections. Hillary mentions Senator Clinton by name and depicts interviews withpolitical commentators and other persons, most of themquite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video-on-demand.
Video-on-demand allows digital cable subscribers to select programming from various menus, including mov-ies, television shows, sports, news, and music. The viewer can watch the program at any time and can elect to re-wind or pause the program. In December 2007, a cable company offered, for a payment of $1.2 million, to make Hillary available on a video-on-demand channel called “Elections ’08.” App. 255a–257a. Some video-on-demand services require viewers to pay a small fee to view a se-
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lected program, but here the proposal was to make Hillary available to viewers free of charge.
To implement the proposal, Citizens United was pre-pared to pay for the video-on-demand; and to promote thefilm, it produced two 10-second ads and one 30-second ad for Hillary. Each ad includes a short (and, in our view,pejorative) statement about Senator Clinton, followed bythe name of the movie and the movie’s Website address. Id., at 26a–27a. Citizens United desired to promote thevideo-on-demand offering by running advertisements onbroadcast and cable television.
B Before the Bipartisan Campaign Reform Act of 2002(BCRA), federal law prohibited—and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or inde-pendent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, inconnection with certain qualified federal elections. 2
U. S. C. §441b (2000 ed.); see McConnell, supra, at 204, and n. 87; Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 249 (1986) (MCFL). BCRA §203 amended §441b to prohibit any “electioneering communication” as well. 2 U. S. C. §441b(b)(2) (2006 ed.).An electioneering communication is defined as “any broad-cast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is madewithin 30 days of a primary or 60 days of a general elec-tion. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering com-munication as a communication that is “publicly distrib-uted.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President . . . publicly dis-tributed means” that the communication “[c]an be receivedby 50,000 or more persons in a State where a primary
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election . . . is being held within 30 days.”§100.29(b)(3)(ii). Corporations and unions are barred fromusing their general treasury funds for express advocacy orelectioneering communications. They may establish,however, a “separate segregated fund” (known as a politi-cal action committee, or PAC) for these purposes. 2
U. S. C. §441b(b)(2). The moneys received by the segre-gated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions,members of the union. Ibid.
C Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008primary elections. It feared, however, that both the film and the ads would be covered by §441b’s ban on corporate-funded independent expenditures, thus subjecting thecorporation to civil and criminal penalties under §437g. In December 2007, Citizens United sought declaratory and injunctive relief against the FEC. It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie. The District Court denied Citizens United’s motion for a preliminary injunction, 530 F. Supp. 2d 274 (DC 2008) (per curiam), and then granted the FEC’s motion for summary judgment, App. 261a–262a. See id., at 261a (“Based on the reasoning of our prior opinion, we find that the [FEC] is entitled to judgment as a matter of law. See Citizen[s] United v. FEC, 530 F. Supp. 2d 274 (D.D.C.2008) (denying Citizens United’s request for a preliminary injunction)”). The court held that §441b was faciallyconstitutional under McConnell, and that §441b wasconstitutional as applied to Hillary because it was “sus-ceptible of no other interpretation than to inform the
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electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should voteagainst her.” 530 F. Supp. 2d, at 279. The court also rejected Citizens United’s challenge to BCRA’s disclaimer and disclosure requirements. It noted that “the Supreme Court has written approvingly of disclosure provisionstriggered by political speech even though the speech itself was constitutionally protected under the First Amend-ment.” Id., at 281.
We noted probable jurisdiction. 555 U. S. ___ (2008).The case was reargued in this Court after the Court askedthe parties to file supplemental briefs addressing whether we should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U. S. C. §441b. See 557 U. S. ___ (2009).
II Before considering whether Austin should be overruled, we first address whether Citizens United’s claim that §441b cannot be applied to Hillary may be resolved onother, narrower grounds.
A Citizens United contends that §441b does not cover Hillary, as a matter of statutory interpretation, becausethe film does not qualify as an “electioneering communica-tion.” §441b(b)(2). Citizens United raises this issue for the first time before us, but we consider the issue because “it was addressed by the court below.” Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379 (1995);see 530 F. Supp. 2d, at 277, n. 6. Under the definition of electioneering communication, the video-on-demand show-ing of Hillary on cable television would have been a “cable . . . communication” that “refer[red] to a clearly identifiedcandidate for Federal office” and that was made within 30
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days of a primary election. 2 U. S. C. §434(f)(3)(A)(i).Citizens United, however, argues that Hillary was not “publicly distributed,” because a single video-on-demand transmission is sent only to a requesting cable converter box and each separate transmission, in most instances, will be seen by just one household—not 50,000 or more persons. 11 CFR §100.29(a)(2); see §100.29(b)(3)(ii).
This argument ignores the regulation’s instruction onhow to determine whether a cable transmission “[c]an bereceived by 50,000 or more persons.” §100.29(b)(3)(ii).The regulation provides that the number of people who can receive a cable transmission is determined by thenumber of cable subscribers in the relevant area. §§100.29(b)(7)(i)(G), (ii). Here, Citizens United wanted to use a cable video-on-demand system that had 34.5 million subscribers nationwide. App. 256a. Thus, Hillary could have been received by 50,000 persons or more.
One amici brief asks us, alternatively, to construe thecondition that the communication “[c]an be received by50,000 or more persons,” §100.29(b)(3)(ii)(A), to require “a plausible likelihood that the communication will be viewed by 50,000 or more potential voters”—as opposed to requir-ing only that the communication is “technologically capa-ble” of being seen by that many people, Brief for Former Officials of the American Civil Liberties Union as Amici Curiae 5. Whether the population and demographic sta-tistics in a proposed viewing area consisted of 50,000 registered voters—but not “infants, pre-teens, or otherwise electorally ineligible recipients”—would be a requireddetermination, subject to judicial challenge and review, inany case where the issue was in doubt. Id., at 6.
In our view the statute cannot be saved by limiting thereach of 2 U. S. C. §441b through this suggested interpre-tation. In addition to the costs and burdens of litigation, this result would require a calculation as to the number of people a particular communication is likely to reach, with
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an inaccurate estimate potentially subjecting the speakerto criminal sanctions. The First Amendment does not permit laws that force speakers to retain a campaignfinance attorney, conduct demographic marketing re-search, or seek declaratory rulings before discussing themost salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech:People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” Con-nally v. General Constr. Co., 269 U. S. 385, 391 (1926).The Government may not render a ban on political speech constitutional by carving out a limited exemption throughan amorphous regulatory interpretation. We must rejectthe approach suggested by the amici. Section 441b covers Hillary.
B Citizens United next argues that §441b may not be applied to Hillary under the approach taken in WRTL. McConnell decided that §441b(b)(2)’s definition of an“electioneering communication” was facially constitutional insofar as it restricted speech that was “the functional equivalent of express advocacy” for or against a specific candidate. 540 U. S., at 206. WRTL then found an uncon-stitutional application of §441b where the speech was not “express advocacy or its functional equivalent.” 551 U. S., at 481 (opinion of ROBERTS, C. J.). As explained by THE CHIEF JUSTICE’s controlling opinion in WRTL, the func-tional-equivalent test is objective: “a court should find that [a communication] is the functional equivalent of expressadvocacy only if [it] is susceptible of no reasonable inter-pretation other than as an appeal to vote for or against a specific candidate.” Id., at 469–470. Under this test, Hillary is equivalent to express advo-cacy. The movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator
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Clinton for President. In light of historical footage, inter-views with persons critical of her, and voiceover narration, the film would be understood by most viewers as an ex-tended criticism of Senator Clinton’s character and her fitness for the office of the Presidency. The narrative maycontain more suggestions and arguments than facts, but there is little doubt that the thesis of the film is that she is unfit for the Presidency. The movie concentrates on al-leged wrongdoing during the Clinton administration, Senator Clinton’s qualifications and fitness for office, and policies the commentators predict she would pursue ifelected President. It calls Senator Clinton “Machiavel-lian,” App. 64a, and asks whether she is “the most quali-fied to hit the ground running if elected President,” id., at 88a. The narrator reminds viewers that “Americans have never been keen on dynasties” and that “a vote for Hillary is a vote to continue 20 years of a Bush or a Clinton in the White House,” id., at 143a–144a.
Citizens United argues that Hillary is just “a documen-tary film that examines certain historical events.” Brief for Appellant 35. We disagree. The movie’s consistent emphasis is on the relevance of these events to SenatorClinton’s candidacy for President. The narrator begins byasking “could [Senator Clinton] become the first femalePresident in the history of the United States?” App. 35a.And the narrator reiterates the movie’s message in hisclosing line: “Finally, before America decides on our nextpresident, voters should need no reminders of . . . what’s at stake—the well being and prosperity of our nation.” Id., at 144a–145a.
As the District Court found, there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton. Under the standard stated in McConnell and further elaborated in WRTL, the film qualifies as the functional equivalent of express advocacy.
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C
Citizens United further contends that §441b should beinvalidated as applied to movies shown through video-on-demand, arguing that this delivery system has a lower risk of distorting the political process than do televisionads. Cf. McConnell, supra, at 207. On what we might call conventional television, advertising spots reach viewers who have chosen a channel or a program for reasons unre-lated to the advertising. With video-on-demand, by con-trast, the viewer selects a program after taking “a series ofaffirmative steps”: subscribing to cable; navigating through various menus; and selecting the program. See Reno v. American Civil Liberties Union, 521 U. S. 844, 867 (1997).
While some means of communication may be less effec-tive than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the par-ticular type of message and speaker would raise questionsas to the courts’ own lawful authority. Substantial ques-tions would arise if courts were to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux. See Turner Broadcasting System, Inc. v. FCC, 512
U. S. 622, 639 (1994).
Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used todisseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all tointerpret a law that beyond doubt discloses serious First Amendment flaws. The interpretive process itself wouldcreate an inevitable, pervasive, and serious risk of chillingprotected speech pending the drawing of fine distinctions
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that, in the end, would themselves be questionable. First Amendment standards, however, “must give the benefit ofany doubt to protecting rather than stifling speech.” WRTL, 551 U. S., at 469 (opinion of ROBERTS, C. J.) (citing New York Times Co. v. Sullivan, 376 U. S. 254, 269–270 (1964)).
D
Citizens United also asks us to carve out an exception to§441b’s expenditure ban for nonprofit corporate politicalspeech funded overwhelmingly by individuals. As an alternative to reconsidering Austin, the Government also seems to prefer this approach. This line of analysis, how-ever, would be unavailing.
In MCFL, the Court found unconstitutional §441b’srestrictions on corporate expenditures as applied to non-profit corporations that were formed for the sole purposeof promoting political ideas, did not engage in businessactivities, and did not accept contributions from for-profit corporations or labor unions. 479 U. S., at 263–264; see also 11 CFR §114.10. BCRA’s so-called Wellstone Amend-ment applied §441b’s expenditure ban to all nonprofit corporations. See 2 U. S. C. §441b(c)(6); McConnell, 540
U. S., at 209. McConnell then interpreted the Wellstone Amendment to retain the MCFL exemption to §441b’sexpenditure prohibition. 540 U. S., at 211. Citizens United does not qualify for the MCFL exemption, however,since some funds used to make the movie were donations from for-profit corporations.
The Government suggests we could find BCRA’s Wellstone Amendment unconstitutional, sever it from the statute, and hold that Citizens United’s speech is exempt from §441b’s ban under BCRA’s Snowe-Jeffords Amend-ment, §441b(c)(2). See Tr. of Oral Arg. 37–38 (Sept. 9, 2009). The Snowe-Jeffords Amendment operates as a backup provision that only takes effect if the Wellstone
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Amendment is invalidated. See McConnell, supra, at 339 (KENNEDY, J., concurring in judgment in part and dissent-ing in part). The Snowe-Jeffords Amendment would ex-empt from §441b’s expenditure ban the political speech of certain nonprofit corporations if the speech were funded“exclusively” by individual donors and the funds were maintained in a segregated account. §441b(c)(2). Citizens United would not qualify for the Snowe-Jeffords exemp-tion, under its terms as written, because Hillary was funded in part with donations from for-profit corporations.
Consequently, to hold for Citizens United on this argu-ment, the Court would be required to revise the text of MCFL, sever BCRA’s Wellstone Amendment, §441b(c)(6),and ignore the plain text of BCRA’s Snowe-Jeffords Amendment, §441b(c)(2). If the Court decided to create a de minimis exception to MCFL or the Snowe-Jeffords Amendment, the result would be to allow for-profit corpo-rate general treasury funds to be spent for independent expenditures that support candidates. There is no princi-pled basis for doing this without rewriting Austin’s hold-ing that the Government can restrict corporate independ-ent expenditures for political speech.
Though it is true that the Court should construe stat-utes as necessary to avoid constitutional questions, the series of steps suggested would be difficult to take in viewof the language of the statute. In addition to those diffi-culties the Government’s suggestion is troubling for still another reason. The Government does not say that it agrees with the interpretation it wants us to consider. See Supp. Brief for Appellee 3, n. 1 (“Some courts” have im-plied a de minimis exception, and “appellant would appearto be covered by these decisions”). Presumably it wouldfind textual difficulties in this approach too. The Govern-ment, like any party, can make arguments in the alterna-tive; but it ought to say if there is merit to an alternative proposal instead of merely suggesting it. This is especially
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true in the context of the First Amendment. As the Gov-ernment stated, this case “would require a remand” toapply a de minimis standard. Tr. of Oral Arg. 39 (Sept. 9, 2009). Applying this standard would thus require case-by-case determinations. But archetypical political speech would be chilled in the meantime. “‘First Amendment freedoms need breathing space to survive.’” WRTL, supra, at 468–469 (opinion of ROBERTS, C. J.) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). We decline to adopt aninterpretation that requires intricate case-by-case deter-minations to verify whether political speech is banned,especially if we are convinced that, in the end, this corpo-ration has a constitutional right to speak on this subject.
E As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. See Morse v. Frederick, 551 U. S. 393, 403 (2007). It is not judicial restraint to accept an unsound, narrow argument just so the Court canavoid another argument with broader implications. In-deed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consid-eration of the continuing effect of the speech suppressionupheld in Austin. Citizens United stipulated to dismissing count 5 of itscomplaint, which raised a facial challenge to §441b, eventhough count 3 raised an as-applied challenge. See App.23a (count 3: “As applied to Hillary, [§441b] is unconstitu-tional under the First Amendment guarantees of freeexpression and association”). The Government arguesthat Citizens United waived its challenge to Austin bydismissing count 5. We disagree.
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First, even if a party could somehow waive a facialchallenge while preserving an as-applied challenge, that would not prevent the Court from reconsidering Austin or addressing the facial validity of §441b in this case. “Our practice ‘permit[s] review of an issue not pressed [below] so long as it has been passed upon . . . .’” Lebron, 513
U. S., at 379 (quoting United States v. Williams, 504 U. S. 36, 41 (1992); first alteration in original). And here, the District Court addressed Citizens United’s facial chal-lenge. See 530 F. Supp. 2d, at 278 (“Citizens wants us to enjoin the operation of BCRA §203 as a facially unconsti-tutional burden on the First Amendment right to freedom of speech”). In rejecting the claim, it noted that it “wouldhave to overrule McConnell” for Citizens United to prevail on its facial challenge and that “[o]nly the Supreme Court may overrule its decisions.” Ibid. (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989)). The District Court did not provide much analysis regarding the facial challenge because it could not ignore the controlling Supreme Court decisions in Austin or McConnell. Even so, the District Court did “‘pas[s] upon’” the issue. Lebron, supra, at 379. Fur-thermore, the District Court’s later opinion, which grantedthe FEC summary judgment, was “[b]ased on the reason-ing of [its] prior opinion,” which included the discussion of the facial challenge. App. 261a (citing 530 F. Supp. 2d 274). After the District Court addressed the facial validity of the statute, Citizens United raised its challenge to Austin in this Court. See Brief for Appellant 30 (“Austin was wrongly decided and should be overruled”); id., at 30–
32. In these circumstances, it is necessary to consider Citizens United’s challenge to Austin and the facial valid-ity of §441b’s expenditure ban.
Second, throughout the litigation, Citizens United has asserted a claim that the FEC has violated its First Amendment right to free speech. All concede that this
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claim is properly before us. And “‘[o]nce a federal claim isproperly presented, a party can make any argument insupport of that claim; parties are not limited to the precisearguments they made below.’” Lebron, supra, at 379 (quoting Yee v. Escondido, 503 U. S. 519, 534 (1992); alteration in original). Citizens United’s argument that Austin should be overruled is “not a new claim.” Lebron, 513 U. S., at 379. Rather, it is—at most—“a new argu-ment to support what has been [a] consistent claim: that [the FEC] did not accord [Citizens United] the rights itwas obliged to provide by the First Amendment.” Ibid.
Third, the distinction between facial and as-applied challenges is not so well defined that it has some auto-matic effect or that it must always control the pleadings and disposition in every case involving a constitutionalchallenge. The distinction is both instructive and neces-sary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint. See United States v. Treasury Employees, 513 U. S. 454, 477– 478 (1995) (contrasting “a facial challenge” with “a nar-rower remedy”). The parties cannot enter into a stipula-tion that prevents the Court from considering certainremedies if those remedies are necessary to resolve a claimthat has been preserved. Citizens United has preserved its First Amendment challenge to §441b as applied to the facts of its case; and given all the circumstances, we can-not easily address that issue without assuming a prem-ise—the permissibility of restricting corporate politicalspeech—that is itself in doubt. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv.
L. Rev. 1321, 1339 (2000) (“[O]nce a case is brought, nogeneral categorical line bars a court from making broaderpronouncements of invalidity in properly ‘as-applied’ cases”); id., at 1327–1328. As our request for supplemen-tal briefing implied, Citizens United’s claim implicates the validity of Austin, which in turn implicates the facial
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validity of §441b.
When the statute now at issue came before the Court in McConnell, both the majority and the dissenting opinions considered the question of its facial validity. The holding and validity of Austin were essential to the reasoning of the McConnell majority opinion, which upheld BCRA’sextension of §441b. See 540 U. S., at 205 (quoting Austin, 494 U. S., at 660). McConnell permitted federal felonypunishment for speech by all corporations, including nonprofit ones, that speak on prohibited subjects shortly before federal elections. See 540 U. S., at 203–209. Four Members of the McConnell Court would have overruled Austin, including Chief Justice Rehnquist, who had joined the Court’s opinion in Austin but reconsidered that conclu-sion. See 540 U. S., at 256–262 (SCALIA, J., concurring inpart, concurring in judgment in part, and dissenting in part); id., at 273–275 (THOMAS, J., concurring in part,concurring in result in part, concurring in judgment inpart, and dissenting in part); id., at 322–338 (opinion of KENNEDY, J., joined by Rehnquist, C. J., and SCALIA, J.). That inquiry into the facial validity of the statute was facilitated by the extensive record, which was “over100,000 pages” long, made in the three-judge DistrictCourt. McConnell v. Federal Election Comm’n, 251
F. Supp. 2d 176, 209 (DC 2003) (per curiam) (McConnell I). It is not the case, then, that the Court today is prema-ture in interpreting §441b “‘on the basis of [a] factually barebones recor[d].’” Washington State Grange v. Wash-ington State Republican Party, 552 U. S. 442, 450 (2008) (quoting Sabri v. United States, 541 U. S. 600, 609 (2004)).
The McConnell majority considered whether the statutewas facially invalid. An as-applied challenge was broughtin Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 411–412 (2006) (per curiam), and the Court confirmed that the challenge could be main-tained. Then, in WRTL, the controlling opinion of the
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Court not only entertained an as-applied challenge but also sustained it. Three Justices noted that they would continue to maintain the position that the record in McConnell demonstrated the invalidity of the Act on its face. 551 U. S., at 485–504 (opinion of SCALIA, J.). The controlling opinion in WRTL, which refrained from hold-ing the statute invalid except as applied to the facts then before the Court, was a careful attempt to accept the essential elements of the Court’s opinion in McConnell, while vindicating the First Amendment arguments made by the WRTL parties. 551 U. S., at 482 (opinion of ROBERTS, C. J.).
As noted above, Citizens United’s narrower argumentsare not sustainable under a fair reading of the statute. In the exercise of its judicial responsibility, it is necessarythen for the Court to consider the facial validity of §441b.Any other course of decision would prolong the substan-tial, nation-wide chilling effect caused by §441b’s prohibi-tions on corporate expenditures. Consideration of the facial validity of §441b is further supported by the follow-ing reasons.
First is the uncertainty caused by the litigating positionof the Government. As discussed above, see Part II–D, supra, the Government suggests, as an alternative argu-ment, that an as-applied challenge might have merit.This argument proceeds on the premise that the nonprofit corporation involved here may have received only de minimis donations from for-profit corporations and thatsome nonprofit corporations may be exempted from theoperation of the statute. The Government also suggests that an as-applied challenge to §441b’s ban on books may be successful, although it would defend §441b’s ban asapplied to almost every other form of media including pamphlets. See Tr. of Oral Arg. 65–66 (Sept. 9, 2009). The Government thus, by its own position, contributes tothe uncertainty that §441b causes. When the Government
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holds out the possibility of ruling for Citizens United on a narrow ground yet refrains from adopting that position, the added uncertainty demonstrates the necessity to address the question of statutory validity.
Second, substantial time would be required to bring clarity to the application of the statutory provision on these points in order to avoid any chilling effect caused by some improper interpretation. See Part II–C, supra. It is well known that the public begins to concentrate on elec-tions only in the weeks immediately before they are held.There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The deci-sion to speak is made in the heat of political campaigns,when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the election will be over and the litigants in most cases will have neither the incentive nor, perhaps, the resources to carry on, even if they couldestablish that the case is not moot because the issue is “capable of repetition, yet evading review.” WRTL, supra, at 462 (opinion of ROBERTS, C. J.) (citing Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911)). Here, Citizens United decided to litigate its case to the end. Today,Citizens United finally learns, two years after the fact,whether it could have spoken during the 2008 Presidentialprimary—long after the opportunity to persuade primaryvoters has passed.
Third is the primary importance of speech itself to theintegrity of the election process. As additional rules are created for regulating political speech, any speech argua-bly within their reach is chilled. See Part II–A, supra. Campaign finance regulations now impose “unique and
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complex rules” on “71 distinct entities.” Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11–12. These entities are subject to separate rules for 33 differenttypes of political speech. Id., at 14–15, n. 10. The FEC has adopted 568 pages of regulations, 1,278 pages of ex-planations and justifications for those regulations, and 1,771 advisory opinions since 1975. See id., at 6, n. 7. In fact, after this Court in WRTL adopted an objective “ap-peal to vote” test for determining whether a communica-tion was the functional equivalent of express advocacy, 551 U. S., at 470 (opinion of ROBERTS, C. J.), the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling. See 11 CFR §114.15; Brief for WyomingLiberty Group et al. as Amici Curiae 17–27 (filed Jan. 15, 2009).
This regulatory scheme may not be a prior restraint onspeech in the strict sense of that term, for prospectivespeakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712–713 (1931). As a practical matter, however, given the complex-ity of the regulations and the deference courts show toadministrative determinations, a speaker who wants toavoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a govern-mental agency for prior permission to speak. See 2
U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus function as the equivalent of prior restraint by givingthe FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmen-tal practices of the sort that the First Amendment was drawn to prohibit. See Thomas v. Chicago Park Dist., 534
U. S. 316, 320 (2002); Lovell v. City of Griffin, 303 U. S. 444, 451–452 (1938); Near, supra, at 713–714. Because the FEC’s “business is to censor, there inheres the dangerthat [it] may well be less responsive than a court—part of
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an independent branch of government—to the constitu-tionally protected interests in free expression.” Freedman
v. Maryland, 380 U. S. 51, 57–58 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden(and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but soci-ety as a whole, which is deprived of an uninhibited mar-ketplace of ideas.” Virginia v. Hicks, 539 U. S. 113, 119 (2003) (citation omitted). Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 58.
This is precisely what WRTL sought to avoid. WRTL said that First Amendment standards “must eschew ‘the open-ended rough-and-tumble of factors,’ which ‘invit[es]complex argument in a trial court and a virtually inevita-ble appeal.’” 551 U. S., at 469 (opinion of ROBERTS, C. J.) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995); alteration in original).Yet, the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litiga-tion and the possibility of civil and criminal penalties, theymust either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprece-dented governmental intervention into the realm of speech.
The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity hasbeen demonstrated. See WRTL, supra, at 482–483 (ALITO,
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J., concurring); Thornhill v. Alabama, 310 U. S. 88, 97–98 (1940). For these reasons we find it necessary to recon-sider Austin.
III The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been at-tempted at different stages of the speech process—all laws found to be invalid: restrictions requiring a permit at the outset, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150, 153 (2002); imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 108, 123 (1991); seeking to exact a cost after the speech occurs, New York Times Co. v. Sullivan, 376 U. S., at 267; and subjecting the speaker tocriminal penalties, Brandenburg v. Ohio, 395 U. S. 444, 445 (1969) (per curiam). The law before us is an outright ban, backed by criminalsanctions. Section 441b makes it a felony for all corpora-tions—including nonprofit advocacy corporations—eitherto expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general elec-tion. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucialphase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favorslogging in national forests; the National Rifle Associationpublishes a book urging the public to vote for the chal-lenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Unioncreates a Web site telling the public to vote for a Presiden-
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tial candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
Section 441b is a ban on corporate speech notwithstand-ing the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330–333 (opinion of KENNEDY, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expendi-ture ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation tospeak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive toadminister and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preservereceipts for three years, and file an organization statementand report changes to this information within 10 days.See id., at 330–332 (quoting MCFL, 479 U. S., at 253– 254).
And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur:
“‘These reports must contain information regardingthe amount of cash on hand; the total amount of re-ceipts, detailed by 10 different categories; the identifi-cation of each political committee and candidate’s au-thorized or affiliated committee making contributions, and any persons making loans, providing rebates, re-funds, dividends, or interest or any other offset to op-erating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized
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or affiliated committees to whom expenditures aggre-gating over $200 have been made; persons to whomloan repayments or refunds have been made; the totalsum of all contributions, operating expenses, out-standing debts and obligations, and the settlement terms of the retirement of any debt or obligation.’” 540 U. S., at 331–332 (quoting MCFL, supra, at 253– 254).
PACs have to comply with these regulations just tospeak. This might explain why fewer than 2,000 of themillions of corporations in this country have PACs. See Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11 (citing FEC, Summary of PAC Activity1990–2006, online at http://www.fec.gov/press/press2007/ 20071009pac/sumhistory.pdf); IRS, Statistics of Income: 2006, Corporation Income Tax Returns 2 (2009) (hereinaf-ter Statistics of Income) (5.8 million for-profit corporationsfiled 2006 tax returns). PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time tomake its views known regarding candidates and issues in a current campaign.
Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend onpolitical communication during a campaign,” that statute “necessarily reduces the quantity of expression by restrict-ing the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buck-ley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government couldrepress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251 (opinion of SCALIA, J.) (Government couldrepress speech by “attacking all levels of the production
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and dissemination of ideas,” for “effective public communi-cation requires the speaker to make use of the services ofothers”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restric-tion on speech. Its purpose and effect are to silence enti-ties whose voices the Government deems to be suspect.
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informedchoices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition toenlightened self-government and a necessary means toprotect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaignfor political office.” Eu v. San Francisco County Democ-ratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley, supra, at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”).
For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadver-tence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to provethat the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551
U. S., at 464 (opinion of ROBERTS, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides asufficient framework for protecting the relevant FirstAmendment interests in this case. We shall employ it
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here.
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certainsubjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated:Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulatingcontent, moreover, the Government may commit a consti-tutional wrong when by law it identifies certain preferredspeakers. By taking the right to speak from some andgiving it to others, the Government deprives the disadvan-taged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
The Court has upheld a narrow class of speech restric-tions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school educa-tion”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimatepenological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quota-
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tion marks omitted)); Civil Service Comm’n v. Letter Car-riers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than politi-cal service”). The corporate independent expenditures at issue in this case, however, would not interfere with gov-ernmental functions, so these cases are inapposite. These precedents stand only for the proposition that there arecertain governmental functions that cannot operate with-out some restrictions on particular kinds of speech. Bycontrast, it is inherent in the nature of the political proc-ess that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue.
We find no basis for the proposition that, in the context of political speech, the Government may impose restric-tions on certain disfavored speakers. Both history andlogic lead us to this conclusion.
A 1
The Court has recognized that First Amendment protec-tion extends to corporations. Bellotti, supra, at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeast-ern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC,
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520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512
U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Com-munications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Land-mark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970).
This protection has been extended by explicit holdings tothe context of political speech. See, e.g., Button, 371 U. S., at 428–429; Grosjean v. American Press Co., 297 U. S. 233, 244 (1936). Under the rationale of these precedents,political speech does not lose First Amendment protection“simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion)(“The identity of the speaker is not decisive in determiningwhether speech is protected. Corporations and otherassociations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bel-lotti, 435 U. S., at 783)). The Court has thus rejected theargument that political speech of corporations or other associations should be treated differently under the FirstAmendment simply because such associations are not “natural persons.” Id., at 776; see id., at 780, n. 16. Cf. id., at 828 (Rehnquist, J., dissenting).
At least since the latter part of the 19th century, thelaws of some States and of the United States imposed a ban on corporate direct contributions to candidates. See
B. Smith, Unfree Speech: The Folly of Campaign Finance Reform 23 (2001). Yet not until 1947 did Congress firstprohibit independent expenditures by corporations and
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labor unions in §304 of the Labor Management Relations Act 1947, 61 Stat. 159 (codified at 2 U. S. C. §251 (1946 ed., Supp. I)). In passing this Act Congress overrode theveto of President Truman, who warned that the expendi-ture ban was a “dangerous intrusion on free speech.” Message from the President of the United States, H. R. Doc. No. 334, 89th Cong., 1st Sess., 9 (1947).
For almost three decades thereafter, the Court did not reach the question whether restrictions on corporate and union expenditures are constitutional. See WRTL, 551
U. S., at 502 (opinion of SCALIA, J.). The question was inthe background of United States v. CIO, 335 U. S. 106 (1948). There, a labor union endorsed a congressionalcandidate in its weekly periodical. The Court stated that “the gravest doubt would arise in our minds as to [the federal expenditure prohibition’s] constitutionality” if itwere construed to suppress that writing. Id., at 121. The Court engaged in statutory interpretation and found the statute did not cover the publication. Id., at 121–122, and
n. 20. Four Justices, however, said they would reach theconstitutional question and invalidate the Labor Man-agement Relations Act’s expenditure ban. Id., at 155 (Rutledge, J., joined by Black, Douglas, and Murphy, JJ., concurring in result). The concurrence explained that any “‘undue influence’” generated by a speaker’s “large expen-ditures” was outweighed “by the loss for democratic proc-esses resulting from the restrictions upon free and fullpublic discussion.” Id., at 143.
In United States v. Automobile Workers, 352 U. S. 567 (1957), the Court again encountered the independent expenditure ban, which had been recodified at 18 U. S. C.§610 (1952 ed.). See 62 Stat. 723–724. After holding onlythat a union television broadcast that endorsed candidates was covered by the statute, the Court “[r]efus[ed] to an-ticipate constitutional questions” and remanded for the trial to proceed. 352 U. S., at 591. Three Justices dis-
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sented, arguing that the Court should have reached theconstitutional question and that the ban on independent expenditures was unconstitutional:
“Under our Constitution it is We The People whoare sovereign. The people have the final say. The leg-islators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that all channels of communications be open to them duringevery election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.” Id., at 593 (opinion ofDouglas, J., joined by Warren, C. J., and Black, J.).
The dissent concluded that deeming a particular group“too powerful” was not a “justificatio[n] for withholdingFirst Amendment rights from any group—labor or corpo-rate.” Id., at 597. The Court did not get another opportu-nity to consider the constitutional question in that case;for after a remand, a jury found the defendants not guilty. See Hayward, Revisiting the Fable of Reform, 45 Harv. J.Legis. 421, 463 (2008).
Later, in Pipefitters v. United States, 407 U. S. 385, 400– 401 (1972), the Court reversed a conviction for expendi-ture of union funds for political speech—again without reaching the constitutional question. The Court would not resolve that question for another four years.
2 In Buckley, 424 U. S. 1, the Court addressed various challenges to the Federal Election Campaign Act of 1971(FECA) as amended in 1974. These amendments created 18 U. S. C. §608(e) (1970 ed., Supp. V), see 88 Stat. 1265,an independent expenditure ban separate from §610 that applied to individuals as well as corporations and laborunions, Buckley, 424 U. S., at 23, 39, and n. 45.
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Before addressing the constitutionality of §608(e)’sindependent expenditure ban, Buckley first upheld§608(b), FECA’s limits on direct contributions to candi-dates. The Buckley Court recognized a “sufficiently impor-tant” governmental interest in “the prevention of corrup-tion and the appearance of corruption.” Id., at 25; see id., at 26. This followed from the Court’s concern that large contributions could be given “to secure a political quid pro quo.” Ibid.
The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions tocandidates from independent expenditures. The Court emphasized that “the independent expenditure ceiling . . . fails to serve any substantial governmental interest instemming the reality or appearance of corruption in the electoral process,” id., at 47–48, because “[t]he absence ofprearrangement and coordination . . . alleviates the dan-ger that expenditures will be given as a quid pro quo for improper commitments from the candidate,” id., at 47. Buckley invalidated §608(e)’s restrictions on independent expenditures, with only one Justice dissenting. See Fed-eral Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 491, n. 3 (1985) (NCPAC).
Buckley did not consider §610’s separate ban on corpo-rate and union independent expenditures, the prohibition that had also been in the background in CIO, Automobile Workers, and Pipefitters. Had §610 been challenged in the wake of Buckley, however, it could not have been squared with the reasoning and analysis of that precedent. See WRTL, supra, at 487 (opinion of SCALIA, J.) (“Buckleymight well have been the last word on limitations onindependent expenditures”); Austin, 494 U. S., at 683 (SCALIA, J., dissenting). The expenditure ban invalidatedin Buckley, §608(e), applied to corporations and unions,424 U. S., at 23, 39, n. 45; and some of the prevailing plaintiffs in Buckley were corporations, id., at 8. The
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Buckley Court did not invoke the First Amendment’s overbreadth doctrine, see Broadrick v. Oklahoma, 413
U. S. 601, 615 (1973), to suggest that §608(e)’s expenditureban would have been constitutional if it had applied only to corporations and not to individuals, 424 U. S., at 50. Buckley cited with approval the Automobile Workers dis-sent, which argued that §610 was unconstitutional. 424
U. S., at 43 (citing 352 U. S., at 595–596 (opinion of Doug-las, J.)).
Notwithstanding this precedent, Congress recodified §610’s corporate and union expenditure ban at 2 U. S. C.§441b four months after Buckley was decided. See 90 Stat.
490. Section 441b is the independent expenditure restric-tion challenged here.
Less than two years after Buckley, Bellotti, 435 U. S. 765, reaffirmed the First Amendment principle that theGovernment cannot restrict political speech based on thespeaker’s corporate identity. Bellotti could not have been clearer when it struck down a state-law prohibition on corporate independent expenditures related to referenda issues:
“We thus find no support in the First . . . Amend-ment, or in the decisions of this Court, for the proposi-tion that speech that otherwise would be within the protection of the First Amendment loses that protec-tion simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. . . . [That proposi-tion] amounts to an impermissible legislative prohibi-tion of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that thespeaker have a sufficiently great interest in the sub-ject to justify communication.
. . . . .
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“In the realm of protected speech, the legislature is constitutionally disqualified from dictating the sub-jects about which persons may speak and the speak-ers who may address a public issue.” Id., at 784–785.
It is important to note that the reasoning and holding of Bellotti did not rest on the existence of a viewpoint-discriminatory statute. It rested on the principle that theGovernment lacks the power to ban corporations fromspeaking.
Bellotti did not address the constitutionality of the State’s ban on corporate independent expenditures to support candidates. In our view, however, that restriction would have been unconstitutional under Bellotti’s central principle: that the First Amendment does not allow politi-cal speech restrictions based on a speaker’s corporateidentity. See ibid.
3 Thus the law stood until Austin. Austin “uph[eld] adirect restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] his-tory.” 494 U. S., at 695 (KENNEDY, J., dissenting). There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a spe-cific candidate. Michigan law, however, prohibited corpo-rate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition. To bypass Buckley and Bellotti, the Austin Court identi-fied a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compel-ling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealththat are accumulated with the help of the corporate formand that have little or no correlation to the public’s sup-
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port for the corporation’s political ideas.” 494 U. S., at 660; see id., at 659 (citing MCFL, 479 U. S., at 257; NCPAC, 470 U. S., at 500–501).
B The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged thesame proposition before this Court. See MCFL, supra, at 257 (FEC posited that Congress intended to “curb the political influence of ‘those who exercise control over largeaggregations of capital’” (quoting Automobile Workers, supra, at 585)); California Medical Assn. v. Federal Elec-tion Comm’n, 453 U. S. 182, 201 (1981) (Congress believed that “differing structures and purposes” of corporations and unions “may require different forms of regulation in order to protect the integrity of the electoral process”). In neither of these cases did the Court adopt the proposition. In its defense of the corporate-speech restrictions in§441b, the Government notes the antidistortion rationaleon which Austin and its progeny rest in part, yet it all butabandons reliance upon it. It argues instead that twoother compelling interests support Austin’s holding that corporate expenditure restrictions are constitutional: ananticorruption interest, see 494 U. S., at 678 (STEVENS, J., concurring), and a shareholder-protection interest, see id., at 674–675 (Brennan, J., concurring). We consider the three points in turn.
1 As for Austin’s antidistortion rationale, the Government
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does little to defend it. See Tr. of Oral Arg. 45–48 (Sept. 9, 2009). And with good reason, for the rationale cannot support §441b.
If the First Amendment has any force, it prohibits Con-gress from fining or jailing citizens, or associations ofcitizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, itwould permit Government to ban political speech simply because the speaker is an association that has taken onthe corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation.See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26–31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation fromexpressing political views in media beyond those pre-sented here, such as by printing books. The Government responds “that the FEC has never applied this statute to abook,” and if it did, “there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability incivic discourse that the First Amendment must secure.
Political speech is “indispensable to decisionmaking in ademocracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (theworth of speech “does not depend upon the identity of itssource, whether corporation, association, union, or indi-vidual”); Buckley, 424 U. S., at 48–49 (“[T]he concept thatgovernment may restrict the speech of some elements of our society in order to enhance the relative voice of othersis wholly foreign to the First Amendment”); Automobile Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO, 335 U. S., at 154–155 (Rutledge, J., concurring in result).This protection for speech is inconsistent with Austin’s
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antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corpora-tions from obtaining “‘an unfair advantage in the politicalmarketplace’” by using “‘resources amassed in the eco-nomic marketplace.’” 494 U. S., at 659 (quoting MCFL, supra, at 257). But Buckley rejected the premise that the Government has an interest “in equalizing the relativeability of individuals and groups to influence the outcomeof elections.” 424 U. S., at 48; see Bellotti, supra, at 791,
n. 30. Buckley was specific in stating that “the skyrocket-ing cost of political campaigns” could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.” Id., at
49.
The Court reaffirmed these conclusions when it invali-dated the BCRA provision that increased the cap on con-tributions to one candidate if the opponent made certainexpenditures from personal funds. See Davis v. Federal Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 16) (“Leveling electoral opportunities means making and implementing judgments about which strengths should bepermitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Repre-sentatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices”). The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.
Either as support for its antidistortion rationale or as afurther argument, the Austin majority undertook to dis-tinguish wealthy individuals from corporations on the ground that “[s]tate law grants corporations special ad-
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vantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” 494 U. S., at 658–659. This does not suffice, however, to allow laws prohibiting speech. “It is rudimen-tary that the State cannot exact as the price of thosespecial advantages the forfeiture of First Amendment rights.” Id., at 680 (SCALIA, J., dissenting).
It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, includingindividuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (KENNEDY, J., dissenting) (“Many persons can trace theirfunds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”).
Austin’s antidistortion rationale would produce thedangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell, 540 U. S., at 283 (opinion of THOMAS, J.) (“The chilling endpoint of the Court’s reasoning is not difficult toforesee: outright regulation of the press”). Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast accumula-tions of unreviewable power in the modern media em-pires”). Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporationsoften “have little or no correlation to the public’s support”for those views. Austin, 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations
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could have their voices diminished to put them on parwith other media entities. There is no precedent for per-mitting this under the First Amendment.
The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish betweencorporations which are deemed to be exempt as media corporations and those which are not. “We have consis-tently rejected the proposition that the institutional presshas any constitutional privilege beyond that of other speakers.” Id., at 691 (SCALIA, J., dissenting) (citing Bel-lotti, 435 U. S., at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985) (Bren-nan, J., joined by Marshall, Blackmun, and STEVENS, JJ., dissenting); id., at 773 (White, J., concurring in judgment).With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.
The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidis-tortion rationale. And the exemption results in a further,separate reason for finding this law invalid: Again by itsown terms, the law exempts some corporations but coversothers, even though both have the need or the motive tocommunicate their views. The exemption applies to mediacorporations owned or controlled by corporations that havediverse and substantial investments and participate inendeavors other than news. So even assuming the mostdoubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and anunrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure,
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would be forbidden to speak or inform the public about thesame issue. This differential treatment cannot be squaredwith the First Amendment.
There is simply no support for the view that the FirstAmendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360–361 (1995) (THOMAS, J., concurring in judgment). Yet television networks and major newspapers owned by media corporations havebecome the most important means of mass communication in modern times. The First Amendment was certainly notunderstood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press thathad existed in England and the heavy taxes on the pressthat were imposed in the colonies. See McConnell, 540
U. S., at 252–253 (opinion of SCALIA, J.); Grosjean, 297
U. S., at 245–248; Near, 283 U. S., at 713–714. The greatdebates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication ofthat era—newspapers owned by individuals. See McIn-tyre, 514 U. S., at 341–343; id., at 367 (THOMAS, J., con-curring in judgment). At the founding, speech was open,comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowl-edge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) (“Any number of people could join insuch proliferating polemics, and rebuttals could come fromall sides”); G. Wood, Creation of the American Republic 1776–1787, p. 6 (1969) (“[I]t is not surprising that theintellectual sources of [the Americans’] Revolutionary thought were profuse and various”). The Framers may have been unaware of certain types of speakers or forms of
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communication, but that does not mean that those speak-ers and media are entitled to less First Amendment pro-tection than those types of speakers and media that pro-vided the means of communicating political ideas when the Bill of Rights was adopted.
Austin interferes with the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see ibid. (ideas “may compete” in this marketplace “without government interference”); McConnell, supra, at 274 (opinion of THOMAS, J.). It permits the Government to banthe political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corpora-tions filed 2006 tax returns). Most of these are small corporations without large amounts of wealth. See Supp.Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96% of the 3 million busi-nesses that belong to the U. S. Chamber of Commerce have fewer than 100 employees); M. Keightley, Congres-sional Research Service Report for Congress, Business Organizational Choices: Taxation and Responses to Legis-lative Changes 10 (2009) (more than 75% of corporationswhose income is taxed under federal law, see 26 U. S. C. §301, have less than $1 million in receipts per year). This fact belies the Government’s argument that the statute is justified on the ground that it prevents the “distortingeffects of immense aggregations of wealth.” Austin, 494
U. S., at 660. It is not even aimed at amassed wealth.
The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McCon-nell, supra, at 257–258 (opinion of SCALIA, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing thespeech of manifold corporations, both for-profit and non-
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profit, the Government prevents their voices and view-points from reaching the public and advising voters onwhich persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrust-ing the people to judge what is true and what is false.
The purpose and effect of this law is to prevent corpora-tions, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin’s antidistortion rationale all the more an aberration. “[T]he First Amendment protects the right ofcorporations to petition legislative and administrative bodies.” Bellotti, 435 U. S., at 792, n. 31 (citing California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510–511 (1972); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137–138 (1961)).Corporate executives and employees counsel Members of Congress and Presidential administrations on many is-sues, as a matter of routine and often in private. An amici brief filed on behalf of Montana and 25 other States notes that lobbying and corporate communications with electedofficials occur on a regular basis. Brief for State of Mon-tana et al. as Amici Curiae 19. When that phenomenon is coupled with §441b, the result is that smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are coop-erating with the Government. That cooperation maysometimes be voluntary, or it may be at the demand of aGovernment official who uses his or her authority, influ-ence, and power to threaten corporations to support theGovernment’s policies. Those kinds of interactions are often unknown and unseen. The speech that §441b for-bids, though, is public, and all can judge its content and
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purpose. References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.
Even if §441b’s expenditure ban were constitutional,wealthy corporations could still lobby elected officials,although smaller corporations may not have the resourcesto do so. And wealthy individuals and unincorporatedassociations can spend unlimited amounts on independent expenditures. See, e.g., WRTL, 551 U. S., at 503–504 (opinion of SCALIA, J.) (“In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142million to [26 U. S. C. §527 organizations]”). Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.
When Government seeks to use its full power, includingthe criminal law, to command where a person may get hisor her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
2 What we have said also shows the invalidity of other arguments made by the Government. For the most part relinquishing the antidistortion rationale, the Government falls back on the argument that corporate political speechcan be banned in order to prevent corruption or its ap-pearance. In Buckley, the Court found this interest “suffi-ciently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, itfound “that the governmental interest in preventing cor-ruption and the appearance of corruption [was] inade-quate to justify [the ban] on independent expenditures.” Id., at 45.
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With regard to large direct contributions, Buckley rea-soned that they could be given “to secure a political quid pro quo,” id., at 26, and that “the scope of such pernicious practices can never be reliably ascertained,” id., at 27. The practices Buckley noted would be covered by briberylaws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrange-ment were proved. See Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo, 519 F. 2d 821, 839–840, and nn. 36–38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contri-butions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U. S., at 260; NCPAC, 470 U. S., at 500; Fed-eral Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982) (NRWC). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of cor-ruption. That case did not extend this rationale to inde-pendent expenditures, and the Court does not do so here.
“The absence of prearrangement and coordination of anexpenditure with the candidate or his agent not onlyundermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Buckley, 424 U. S., at 47; see ibid. (inde-pendent expenditures have a “substantially diminished potential for abuse”). Limits on independent expendi-tures, such as §441b, have a chilling effect extending wellbeyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not suffi-cient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States. See Supp. Brief for Appellee 18, n. 3; Supp. Brief for Chamber of Commerce of the United States of
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America as Amicus Curiae 8–9, n. 5.
A single footnote in Bellotti purported to leave open thepossibility that corporate independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For the reasons explained above, we now conclude that inde-pendent expenditures, including those made by corpora-tions, do not give rise to corruption or the appearance of corruption. Dicta in Bellotti’s footnote suggested that “acorporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal independent expenditure ban, 424
U. S., at 46, and a law review student comment, Bellotti surmised that “Congress might well be able to demon-strate the existence of a danger of real or apparent corrup-tion in independent expenditures by corporations to influ-ence candidate elections.” 435 U. S., at 788, n. 26. Buckley, however, struck down a ban on independent expenditures to support candidates that covered corpora-tions, 424 U. S., at 23, 39, n. 45, and explained that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” id., at 42. Bellotti’s dictum is thus supported only by a law review studentcomment, which misinterpreted Buckley. See Comment, The Regulation of Union Political Activity: Majority andMinority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408 (1977) (suggesting that “corporations and labor unions should be held to different and more stringent standardsthan an individual or other associations under a regula-tory scheme for campaign financing”).
Seizing on this aside in Bellotti’s footnote, the Court in NRWC did say there is a “sufficient” governmental inter-est in “ensur[ing] that substantial aggregations of wealth amassed” by corporations would not “be used to incur
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political debts from legislators who are aided by the con-tributions.” 459 U. S., at 207–208 (citing Automobile Workers, 352 U. S., at 579); see 459 U. S., at 210, and n. 7; NCPAC, supra, at 500–501 (NRWC suggested a govern-mental interest in restricting “the influence of political war chests funneled through the corporate form”). NRWC, however, has little relevance here. NRWC decided no more than that a restriction on a corporation’s ability tosolicit funds for its segregated PAC, which made directcontributions to candidates, did not violate the First Amendment. 459 U. S., at 206. NRWC thus involved contribution limits, see NCPAC, supra, at 495–496, which, unlike limits on independent expenditures, have been anaccepted means to prevent quid pro quo corruption, see McConnell, 540 U. S., at 136–138, and n. 40; MCFL, su-pra, at 259–260. Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.
When Buckley identified a sufficiently important gov-ernmental interest in preventing corruption or the ap-pearance of corruption, that interest was limited to quid pro quo corruption. See McConnell, supra, at 296–298 (opinion of KENNEDY, J.) (citing Buckley, supra, at 26–28, 30, 46–48); NCPAC, 470 U. S., at 497 (“The hallmark of corruption is the financial quid pro quo: dollars for politi-cal favors”); id., at 498. The fact that speakers may haveinfluence over or access to elected officials does not mean that these officials are corrupt:
“Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contribu-tors who support those policies. It is well understood that a substantial and legitimate reason, if not the
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only reason, to cast a vote for, or to make a contribu-tion to, one candidate over another is that the candi-date will respond by producing those political out-comes the supporter favors. Democracy is premisedon responsiveness.” McConnell, 540 U. S., at 297 (opinion of KENNEDY, J.).
Reliance on a “generic favoritism or influence theory . . . isat odds with standard First Amendment analyses becauseit is unbounded and susceptible to no limiting principle.” Id., at 296.
The appearance of influence or access, furthermore, willnot cause the electorate to lose faith in our democracy. Bydefinition, an independent expenditure is political speech presented to the electorate that is not coordinated with acandidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.This is inconsistent with any suggestion that the elector-ate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corpora-tion or any other speaker. McConnell, supra, at 144 (quot-ing Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)).
Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge wasrequired to recuse himself “when a person with a personal stake in a particular case had a significant and dispropor-tionate influence in placing the judge on the case by rais-ing funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at14). The remedy of recusal was based on a litigant’s dueprocess right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be
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recused, not that the litigant’s political speech could be banned.
The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . ex-penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expendi-tures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence thatindependent expenditures even ingratiate. See 251
F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.).Ingratiation and access, in any event, are not corruption.The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gainaccess to elected officials. McConnell, supra, at 125, 130– 131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471–481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842– 843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose anunconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expe-diency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of theseinfluences. The remedies enacted by law, however, mustcomply with the First Amendment; and, it is our law andour tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech duringthe critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.
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3
The Government contends further that corporate inde-pendent expenditures can be limited because of its interest in protecting dissenting shareholders from being com-pelled to fund corporate political speech. This asserted interest, like Austin’s antidistortion rationale, would allow the Government to ban the political speech even of media corporations. See supra, at 35–37. Assume, for example,that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper ex-presses. See Austin, 494 U. S., at 687 (SCALIA, J., dissent-ing). Under the Government’s view, that potential dis-agreement could give the Government the authority torestrict the media corporation’s political speech. The First Amendment does not allow that power. There is, further-more, little evidence of abuse that cannot be corrected byshareholders “through the procedures of corporate democ-racy.” Bellotti, 435 U. S., at 794; see id., at 794, n. 34.
Those reasons are sufficient to reject this shareholder-protection interest; and, moreover, the statute is both underinclusive and overinclusive. As to the first, if Con-gress had been seeking to protect dissenting shareholders, it would not have banned corporate speech in only certainmedia within 30 or 60 days before an election. A dissent-ing shareholder’s interests would be implicated by speechin any media at any time. As to the second, the statute is overinclusive because it covers all corporations, including nonprofit corporations and for-profit corporations withonly single shareholders. As to other corporations, the remedy is not to restrict speech but to consider and ex-plore other regulatory mechanisms. The regulatorymechanism here, based on speech, contravenes the First Amendment.
4 We need not reach the question whether the Govern-
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ment has a compelling interest in preventing foreign individuals or associations from influencing our Nation’spolitical process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominatelyby foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Gov-ernment has a compelling interest in limiting foreigninfluence over our political process. See Broadrick, 413
U. S., at 615.
C Our precedent is to be respected unless the most con-vincing of reasons demonstrates that adherence to it putsus on a course that is sure error. “Beyond workability, therelevant factors in deciding whether to adhere to theprinciple of stare decisis include the antiquity of theprecedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (over-ruling Michigan v. Jackson, 475 U. S. 625 (1986)). We have also examined whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555
U. S. ___, ___ (2009) (slip op., at 8) (overruling Saucier v. Katz, 533 U. S. 194 (2001)).
These considerations counsel in favor of rejecting Aus-tin, which itself contravened this Court’s earlier prece-dents in Buckley and Bellotti. “This Court has not hesi-tated to overrule decisions offensive to the First Amendment.” WRTL, 551 U. S., at 500 (opinion of SCALIA, J.). “[S]tare decisis is a principle of policy and not a me-chanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U. S. 106, 119 (1940).
For the reasons above, it must be concluded that Austin was not well reasoned. The Government defends Austin,
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relying almost entirely on “the quid pro quo interest, the corruption interest or the shareholder interest,” and not Austin’s expressed antidistortion rationale. Tr. of Oral Arg. 48 (Sept. 9, 2009); see id., at 45–46. When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is dimin-ished. Austin abandoned First Amendment principles, furthermore, by relying on language in some of our prece-dents that traces back to the Automobile Workers Court’s flawed historical account of campaign finance laws, seeBrief for Campaign Finance Scholars as Amici Curiae; Hayward, 45 Harv. J. Legis. 421; R. Mutch, Campaigns, Congress, and Courts 33–35, 153–157 (1988). See Austin, supra, at 659 (quoting MCFL, 479 U. S., at 257–258; NCPAC, 470 U. S., at 500–501); MCFL, supra, at 257 (quoting Automobile Workers, 352 U. S., at 585); NCPAC, supra, at 500 (quoting NRWC, 459 U. S., at 210); id., at 208 (“The history of the movement to regulate the political contributions and expenditures of corporations and labor unions is set forth in great detail in [Automobile Workers], supra, at 570–584, and we need only summarize the de-velopment here”).
Austin is undermined by experience since its an-nouncement. Political speech is so ingrained in our cul-ture that speakers find ways to circumvent campaign finance laws. See, e.g., McConnell, 540 U. S., at 176–177 (“Given BCRA’s tighter restrictions on the raising andspending of soft money, the incentives . . . to exploit [26
U. S. C. §527] organizations will only increase”). Our Nation’s speech dynamic is changing, and informativevoices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers havebecome adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations
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may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech ofall sorts, including the speech of candidates and elected officials.
Rapid changes in technology—and the creative dynamicinherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II–C, supra. Today, 30-second television ads may be the most effectiveway to convey a political message. See McConnell, supra, at 261 (opinion of SCALIA, J.). Soon, however, it may bethat Internet sources, such as blogs and social networkingWeb sites, will provide citizens with significant informa-tion about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were createdwith corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permitCongress to make these categorical distinctions based onthe corporate identity of the speaker and the content ofthe political speech.
No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee, 501 U. S. 808, 828 (1991),reliance interests are important considerations in property and contract cases, where parties may have acted in con-formance with existing legal rules in order to conducttransactions. Here, though, parties have been prevented from acting—corporations have been banned from making independent expenditures. Legislatures may have en-acted bans on corporate expenditures believing that thosebans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfer-ing with our duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
Due consideration leads to this conclusion: Austin, 494
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U. S. 652, should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on thebasis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the politicalspeech of nonprofit or for-profit corporations.
D Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expendi-tures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section203, but also 2 U. S. C. 441b’s prohibition on the use of corporate treasury funds for express advocacy.” Brief for Appellee 33, n. 12. Section 441b’s restrictions on corporateindependent expenditures are therefore invalid and can-not be applied to Hillary. Given our conclusion we are further required to overrulethe part of McConnell that upheld BCRA §203’s extensionof §441b’s restrictions on corporate independent expendi-tures. See 540 U. S., at 203–209. The McConnell Court relied on the antidistortion interest recognized in Austin to uphold a greater restriction on speech than the restric-tion upheld in Austin, see 540 U. S., at 205, and we have found this interest unconvincing and insufficient. This part of McConnell is now overruled.
IV
A
Citizens United next challenges BCRA’s disclaimer and disclosure provisions as applied to Hillary and the three advertisements for the movie. Under BCRA §311, tele-vised electioneering communications funded by anyone other than a candidate must include a disclaimer that “‘_______ is responsible for the content of this advertis-ing.’” 2 U. S. C. §441d(d)(2). The required statement
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must be made in a “clearly spoken manner,” and displayed on the screen in a “clearly readable manner” for at least four seconds. Ibid. It must state that the communication “is not authorized by any candidate or candidate’s commit-tee”; it must also display the name and address (or Web site address) of the person or group that funded the adver-tisement. §441d(a)(3). Under BCRA §201, any personwho spends more than $10,000 on electioneering commu-nications within a calendar year must file a disclosurestatement with the FEC. 2 U. S. C. §434(f)(1). That statement must identify the person making the expendi-ture, the amount of the expenditure, the election to whichthe communication was directed, and the names of certain contributors. §434(f)(2).
Disclaimer and disclosure requirements may burden theability to speak, but they “impose no ceiling on campaign-related activities,” Buckley, 424 U. S., at 64, and “do not prevent anyone from speaking,” McConnell, supra, at 201 (internal quotation marks and brackets omitted). The Court has subjected these requirements to “exacting scru-tiny,” which requires a “substantial relation” between the disclosure requirement and a “sufficiently important” governmental interest. Buckley, supra, at 64, 66 (internal quotation marks omitted); see McConnell, supra, at 231–
232.
In Buckley, the Court explained that disclosure could be justified based on a governmental interest in “provid[ing]the electorate with information” about the sources of election-related spending. 424 U. S., at 66. The McCon-nell Court applied this interest in rejecting facial chal-lenges to BCRA §§201 and 311. 540 U. S., at 196. There was evidence in the record that independent groups wererunning election-related advertisements “‘while hiding behind dubious and misleading names.’” Id., at 197 (quot-ing McConnell I, 251 F. Supp. 2d, at 237). The Court therefore upheld BCRA §§201 and 311 on the ground that
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they would help citizens “‘make informed choices in thepolitical marketplace.’” 540 U. S., at 197 (quoting McCon-nell I, supra, at 237); see 540 U. S., at 231.
Although both provisions were facially upheld, theCourt acknowledged that as-applied challenges would be available if a group could show a “‘reasonable probability’” that disclosure of its contributors’ names “‘will subject them to threats, harassment, or reprisals from eitherGovernment officials or private parties.’” Id., at 198 (quoting Buckley, supra, at 74).
For the reasons stated below, we find the statute valid as applied to the ads for the movie and to the movie itself.
B Citizens United sought to broadcast one 30-second and two 10-second ads to promote Hillary. Under FEC regula-tions, a communication that “[p]roposes a commercialtransaction” was not subject to 2 U. S. C. §441b’s restric-tions on corporate or union funding of electioneering com-munications. 11 CFR §114.15(b)(3)(ii). The regulations,however, do not exempt those communications from the disclaimer and disclosure requirements in BCRA §§201and 311. See 72 Fed. Reg. 72901 (2007). Citizens United argues that the disclaimer require-ments in §311 are unconstitutional as applied to its ads.It contends that the governmental interest in providinginformation to the electorate does not justify requiringdisclaimers for any commercial advertisements, includingthe ones at issue here. We disagree. The ads fall within BCRA’s definition of an “electioneering communication”:They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references toher candidacy. See 530 F. Supp. 2d, at 276, nn. 2–4. The disclaimers required by §311 “provid[e] the electorate with information,” McConnell, supra, at 196, and “insure that the voters are fully informed” about the person or group
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who is speaking, Buckley, supra, at 76; see also Bellotti, 435 U. S., at 792, n. 32 (“Identification of the source ofadvertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected”). At the very least, thedisclaimers avoid confusion by making clear that the ads are not funded by a candidate or political party.
Citizens United argues that §311 is underinclusivebecause it requires disclaimers for broadcast advertise-ments but not for print or Internet advertising. It asserts that §311 decreases both the quantity and effectiveness of the group’s speech by forcing it to devote four seconds of each advertisement to the spoken disclaimer. We rejected these arguments in McConnell, supra, at 230–231. And we now adhere to that decision as it pertains to the disclo-sure provisions.
As a final point, Citizens United claims that, in any event, the disclosure requirements in §201 must be con-fined to speech that is the functional equivalent of expressadvocacy. The principal opinion in WRTL limited 2
U. S. C. §441b’s restrictions on independent expendituresto express advocacy and its functional equivalent. 551
U. S., at 469–476 (opinion of ROBERTS, C. J.). Citizens United seeks to import a similar distinction into BCRA’sdisclosure requirements. We reject this contention.
The Court has explained that disclosure is a less restric-tive alternative to more comprehensive regulations ofspeech. See, e.g., MCFL, 479 U. S., at 262. In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. 424 U. S., at 75–
76. In McConnell, three Justices who would have found §441b to be unconstitutional nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements. 540
U. S., at 321 (opinion of KENNEDY, J., joined by Rehnquist,
C. J., and SCALIA, J.). And the Court has upheld registra-
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tion and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. United States v. Harriss, 347 U. S. 612, 625 (1954) (Con-gress “has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose”). For these reasons, we reject Citizens United’s contention that thedisclosure requirements must be limited to speech that is the functional equivalent of express advocacy.
Citizens United also disputes that an informationalinterest justifies the application of §201 to its ads, whichonly attempt to persuade viewers to see the film. Even if it disclosed the funding sources for the ads, CitizensUnited says, the information would not help viewers makeinformed choices in the political marketplace. This is similar to the argument rejected above with respect to disclaimers. Even if the ads only pertain to a commercialtransaction, the public has an interest in knowing who isspeaking about a candidate shortly before an election.Because the informational interest alone is sufficient to justify application of §201 to these ads, it is not necessary to consider the Government’s other asserted interests.
Last, Citizens United argues that disclosure require-ments can chill donations to an organization by exposing donors to retaliation. Some amici point to recent events in which donors to certain causes were blacklisted, threat-ened, or otherwise targeted for retaliation. See Brief for Institute for Justice as Amicus Curiae 13–16; Brief for Alliance Defense Fund as Amicus Curiae 16–22. In McConnell, the Court recognized that §201 would be un-constitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed. 540 U. S., at 198. The examples cited by amici are cause for concern. Citizens United, however, has offered no evidence that its members may face similar
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threats or reprisals. To the contrary, Citizens United hasbeen disclosing its donors for years and has identified noinstance of harassment or retaliation.
Shareholder objections raised through the procedures of corporate democracy, see Bellotti, supra, at 794, and n. 34, can be more effective today because modern technology makes disclosures rapid and informative. A campaignfinance system that pairs corporate independent expendi-tures with effective disclosure has not existed before to-day. It must be noted, furthermore, that many of Con-gress’ findings in passing BCRA were premised on a system without adequate disclosure. See McConnell, 540
U. S., at 128 (“[T]he public may not have been fully in-formed about the sponsorship of so-called issue ads”); id., at 196–197 (quoting McConnell I, 251 F. Supp. 2d, at 237).With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens withthe information needed to hold corporations and elected officials accountable for their positions and supporters.Shareholders can determine whether their corporation’spolitical speech advances the corporation’s interest inmaking profits, and citizens can see whether elected offi-cials are “‘in the pocket’ of so-called moneyed interests.” 540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra, at 261. The First Amendment protects political speech;and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
C For the same reasons we uphold the application of BCRA §§201 and 311 to the ads, we affirm their applica-tion to Hillary. We find no constitutional impediment to the application of BCRA’s disclaimer and disclosure re-
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quirements to a movie broadcast via video-on-demand.And there has been no showing that, as applied in this case, these requirements would impose a chill on speech orexpression.
V When word concerning the plot of the movie Mr. Smith Goes to Washington reached the circles of Government, some officials sought, by persuasion, to discourage itsdistribution. See Smoodin, “Compulsory” Viewing for Every Citizen: Mr. Smith and the Rhetoric of Reception,35 Cinema Journal 3, 19, and n. 52 (Winter 1996) (citing Mr. Smith Riles Washington, Time, Oct. 30, 1939, p. 49); Nugent, Capra’s Capitol Offense, N. Y. Times, Oct. 29,1939, p. X5. Under Austin, though, officials could havedone more than discourage its distribution—they could have banned the film. After all, it, like Hillary, was speech funded by a corporation that was critical of Mem-bers of Congress. Mr. Smith Goes to Washington may befiction and caricature; but fiction and caricature can be a powerful force.Modern day movies, television comedies, or skits onYoutube.com might portray public officials or public poli-cies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurssolely because a corporation, other than an exempt mediacorporation, has made the “purchase, payment, distribu-tion, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. 2 U. S. C. §431(9)(A)(i). Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seemsstranger than fiction for our Government to make thispolitical speech a crime. Yet this is the statute’s purpose
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and design.
Some members of the public might consider Hillary to be insightful and instructive; some might find it to beneither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judg-ment on these points but decide to think more about issuesand candidates. Those choices and assessments, however, are not for the Government to make. “The First Amend-ment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression ofideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” McConnell, supra, at 341 (opinion of KENNEDY, J.).
The judgment of the District Court is reversed withrespect to the constitutionality of 2 U. S. C. §441b’s re-strictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA’s disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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SUPREME COURT OF THE UNITED STATES
No. 08–205
CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[January 21, 2010]
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO joins, concurring.
The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censor-ship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful inexpressing their views on matters of public concern. Its theory, if accepted, would empower the Government toprohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as themajor ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.
The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more thanjust the individual on a soapbox and the lonely pamphle-teer. I write separately to address the important princi-ples of judicial restraint and stare decisis implicated in this case.
I Judging the constitutionality of an Act of Congress is
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“the gravest and most delicate duty that this Court iscalled upon to perform.” Blodgett v. Holden, 275 U. S. 142, 147–148 (1927) (Holmes, J., concurring). Because the stakes are so high, our standard practice is to refrain fromaddressing constitutional questions except when necessary to rule on particular claims before us. See Ashwander v. TVA, 297 U. S. 288, 346–348 (1936) (Brandeis, J., concur-ring). This policy underlies both our willingness to con-strue ambiguous statutes to avoid constitutional problemsand our practice “‘never to formulate a rule of constitu-tional law broader than is required by the precise facts towhich it is to be applied.’” United States v. Raines, 362
U. S. 17, 21 (1960) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113
U. S. 33, 39 (1885)).
The majority and dissent are united in expressing alle-giance to these principles. Ante, at 12; post, at 14 (STEVENS, J., concurring in part and dissenting in part).But I cannot agree with my dissenting colleagues on how these principles apply in this case.
The majority’s step-by-step analysis accords with ourstandard practice of avoiding broad constitutional ques-tions except when necessary to decide the case before us.The majority begins by addressing—and quite properly rejecting—Citizens United’s statutory claim that 2 U. S. C.§441b does not actually cover its production and distribu-tion of Hillary: The Movie (hereinafter Hillary). If there were a valid basis for deciding this statutory claim in Citizens United’s favor (and thereby avoiding constitu-tional adjudication), it would be proper to do so. Indeed, that is precisely the approach the Court took just last Term in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. ___ (2009), when eight Members of theCourt agreed to decide the case on statutory groundsinstead of reaching the appellant’s broader argument that the Voting Rights Act is unconstitutional.
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It is only because the majority rejects Citizens United’sstatutory claim that it proceeds to consider the group’s various constitutional arguments, beginning with its narrowest claim (that Hillary is not the functional equiva-lent of express advocacy) and proceeding to its broadest claim (that Austin v. Michigan Chamber of Commerce, 494
U. S. 652 (1990) should be overruled). This is the same order of operations followed by the controlling opinion in Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL). There the appellant was able to prevail on its narrowest constitutional argumentbecause its broadcast ads did not qualify as the functional equivalent of express advocacy; there was thus no need togo on to address the broader claim that McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), should be overruled. WRTL, 551 U. S., at 482; id., at 482–483 (ALITO, J., concurring). This case is different—not, as the dissent suggests, because the approach taken in WRTL has been deemed a “failure,” post, at 11, but because, in the absence of any valid narrower ground of decision,there is no way to avoid Citizens United’s broader consti-tutional argument.
The dissent advocates an approach to addressing Citi-zens United’s claims that I find quite perplexing. It pre-sumably agrees with the majority that Citizens United’snarrower statutory and constitutional arguments lack merit—otherwise its conclusion that the group should losethis case would make no sense. Despite agreeing thatthese narrower arguments fail, however, the dissent ar-gues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitu-tional question of whether Austin remains good law. It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majorityis not “serious about judicial restraint.” Post, at 16.
This approach is based on a false premise: that our
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practice of avoiding unnecessary (and unnecessarilybroad) constitutional holdings somehow trumps our obli-gation faithfully to interpret the law. It should go withoutsaying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also beright. Thus while it is true that “[i]f it is not necessary todecide more, it is necessary not to decide more,” post, at 14 (internal quotation marks omitted), sometimes it is neces-sary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving thecase at hand, “the court must meet and decide them.” Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11, 558) (CC Va.1833) (Marshall, C. J.).
Because it is necessary to reach Citizens United’s broader argument that Austin should be overruled, the debate over whether to consider this claim on an as-applied or facial basis strikes me as largely beside the point. Citizens United has standing—it is being injuredby the Government’s enforcement of the Act. Citizens United has a constitutional claim—the Act violates the First Amendment, because it prohibits political speech. The Government has a defense—the Act may be enforced, consistent with the First Amendment, against corpora-tions. Whether the claim or the defense prevails is thequestion before us.
Given the nature of that claim and defense, it makes no difference of any substance whether this case is resolved by invalidating the statute on its face or only as applied toCitizens United. Even if considered in as-applied terms, a holding in this case that the Act may not be applied toCitizens United—because corporations as well as indi-viduals enjoy the pertinent First Amendment rights—would mean that any other corporation raising the samechallenge would also win. Likewise, a conclusion that the Act may be applied to Citizens United—because it is
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constitutional to prohibit corporate political speech—would similarly govern future cases. Regardless whetherwe label Citizens United’s claim a “facial” or “as-applied”challenge, the consequences of the Court’s decision are the same.1
II The text and purpose of the First Amendment point inthe same direction: Congress may not prohibit politicalspeech, even if the speaker is a corporation or union. What makes this case difficult is the need to confront our prior decision in Austin. This is the first case in which we have been asked to overrule Austin, and thus it is also the first in which we have had reason to consider how much weight to give stare decisis in assessing its continued validity. The dissent erroneously declares that the Court “reaffirmed” Austin’s holding in subsequent cases—namely, Federal Election Comm’n v. Beaumont, 539 U. S. 146 (2003); McConnell; and WRTL. Post, at 48–50. Not so. Not a single party in any of those cases asked us to overrule Austin, and as the dissent points out, post, at 4–6, the Court generally does not consider constitutional arguments that have not prop-erly been raised. Austin’s validity was therefore not di-rectly at issue in the cases the dissent cites. The Court’s unwillingness to overturn Austin in those cases cannot be understood as a reaffirmation of that decision.
A Fidelity to precedent—the policy of stare decisis—is vital
—————— 1The dissent suggests that I am “much too quick” to reach this con-clusion because I “ignore” Citizens United’s narrower arguments. Post, at 13, n. 12. But in fact I do not ignore those arguments; on the con-trary, I (and my colleagues in the majority) appropriately consider and reject them on their merits, before addressing Citizens United’s broader claims. Supra, at 2–3; ante, at 5–12.
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to the proper exercise of the judicial function. “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). For these reasons, we have long recognized that departures from precedent are inappropriate in the ab-sence of a “special justification.” Arizona v. Rumsey, 467
U. S. 203, 212 (1984).
At the same time, stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U. S. 558, 577 (2003),nor “a mechanical formula of adherence to the latest deci-sion,” Helvering v. Hallock, 309 U. S. 106, 119 (1940),especially in constitutional cases, see United States v. Scott, 437 U. S. 82, 101 (1978). If it were, segregation would be legal, minimum wage laws would be unconstitu-tional, and the Government could wiretap ordinary crimi-nal suspects without first obtaining warrants. See Plessy
v.
Ferguson, 163 U. S. 537 (1896), overruled by Brown v. Board of Education, 347 U. S. 483 (1954); Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937); Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347 (1967). As the dissent properly notes, none of us has viewed stare decisis in such absolute terms. Post, at 17; see also, e.g., Randall
v.
Sorrell, 548 U. S. 230, 274–281 (2006) (STEVENS, J., dissenting) (urging the Court to overrule its invalidation of limits on independent expenditures on political speech in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)).
Stare decisis is instead a “principle of policy.” Helvering, supra, at 119. When considering whether to reexamine a prior erroneous holding, we must balance the importanceof having constitutional questions decided against the importance of having them decided right. As Justice
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Jackson explained, this requires a “sober appraisal of thedisadvantages of the innovation as well as those of thequestioned case, a weighing of practical effects of one against the other.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).
In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead “the means by which we ensure that the law will not merelychange erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Its greatest purpose is to serve a constitutionalideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedentdoes more to damage this constitutional ideal than toadvance it, we must be more willing to depart from thatprecedent.
Thus, for example, if the precedent under consideration itself departed from the Court’s jurisprudence, returningto the “ ‘intrinsically sounder’ doctrine established in priorcases” may “better serv[e] the values of stare decisis than would following [the] more recently decided case inconsis-tent with the decisions that came before it.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 231 (1995); see also Helvering, supra, at 119; Randall, supra, at 274 (STEVENS, J., dissenting). Abrogating the errant prece-dent, rather than reaffirming or extending it, might betterpreserve the law’s coherence and curtail the precedent’s disruptive effects.
Likewise, if adherence to a precedent actually impedesthe stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen ina number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably func-tion as a basis for decision in future cases, when its ra-tionale threatens to upend our settled jurisprudence inrelated areas of law, and when the precedent’s underlying
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reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new anddifferent justifications to shore up the original mistake.See, e.g., Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 10); Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (stare decisis does not control when adherence to the prior decision requires “fundamentallyrevising its theoretical basis”).
B These considerations weigh against retaining our deci-sion in Austin. First, as the majority explains, that deci-sion was an “aberration” insofar as it departed from the robust protections we had granted political speech in our earlier cases. Ante, at 39; see also Buckley, supra; First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). Austin undermined the careful line that Buckley drew to distinguish limits on contributions to candidates fromlimits on independent expenditures on speech. Buckleyrejected the asserted government interest in regulatingindependent expenditures, concluding that “restrict[ing]the speech of some elements of our society in order toenhance the relative voice of others is wholly foreign to theFirst Amendment.” 424 U. S., at 48–49; see also Bellotti, supra, at 790–791; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 295 (1981). Austin, however, allowed the Government to prohibit these same expenditures out of concern for “thecorrosive and distorting effects of immense aggregations ofwealth” in the marketplace of ideas. 494 U. S., at 660. Austin’s reasoning was—and remains—inconsistent with Buckley’s explicit repudiation of any government interest in “equalizing the relative ability of individuals and groups to influence the outcome of elections.” 424 U. S., at 48–49. Austin was also inconsistent with Bellotti’s clear rejec-
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tion of the idea that “speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation.” 435
U. S., at 784. The dissent correctly points out that Bellotti involved a referendum rather than a candidate election, and that Bellotti itself noted this factual distinction, id., at 788, n. 26; post, at 52. But this distinction does not ex-plain why corporations may be subject to prohibitions on speech in candidate elections when individuals may not.
Second, the validity of Austin’s rationale—itself adopted over two “spirited dissents,” Payne, 501 U. S., at 829—has proved to be the consistent subject of dispute among Mem-bers of this Court ever since. See, e.g., WRTL, 551 U. S., at 483 (SCALIA, J., joined by KENNEDY and THOMAS, JJ., concurring in part and concurring in judgment); McConnell, 540 U. S., at 247, 264, 286 (opinions of SCALIA, THOMAS, and KENNEDY, JJ.); Beaumont, 539 U. S., at 163, 164 (opinions of KENNEDY and THOMAS, JJ.). The simple fact that one of our decisions remains controversial is, of course, insufficient to justify overruling it. But it does undermine the precedent’s ability to contribute to the stable and orderly development of the law. In such cir-cumstances, it is entirely appropriate for the Court—which in this case is squarely asked to reconsider Austin’s validity for the first time—to address the matter with a greater willingness to consider new approaches capable of restoring our doctrine to sounder footing.
Third, the Austin decision is uniquely destabilizing because it threatens to subvert our Court’s decisions even outside the particular context of corporate express advo-cacy. The First Amendment theory underlying Austin’s holding is extraordinarily broad. Austin’s logic wouldauthorize government prohibition of political speech by acategory of speakers in the name of equality—a point thatmost scholars acknowledge (and many celebrate), but thatthe dissent denies. Compare, e.g., Garrett, New Voices in
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Politics: Justice Marshall’s Jurisprudence on Law and Politics, 52 Howard L. J. 655, 669 (2009) (Austin “has been understood by most commentators to be an opinion drivenby equality considerations, albeit disguised in the lan-guage of ‘political corruption’ ”) with post, at 74 (Austin’s rationale “is manifestly not just an ‘equalizing’ ideal indisguise”).2
It should not be surprising, then, that Members of theCourt have relied on Austin’s expansive logic to justify greater incursions on the First Amendment, even outsidethe original context of corporate advocacy on behalf ofcandidates running for office. See, e.g., Davis v. Federal Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 7– 8) (STEVENS, J., concurring in part and dissenting in part) (relying on Austin and other cases to justify restrictions on campaign spending by individual candidates, explainingthat “there is no reason that their logic—specifically, their concerns about the corrosive and distorting effects of wealth on our political process—is not equally applicable in the context of individual wealth”); McConnell, supra, at 203–209 (extending Austin beyond its original context to cover not only the “functional equivalent” of express advo-cacy by corporations, but also electioneering speech con-ducted by labor unions). The dissent in this case suc-cumbs to the same temptation, suggesting that Austin justifies prohibiting corporate speech because such speech
—————— 2See also, e.g., R. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore 114 (2003) (“Austin represents the first and only case [before McConnell] in which amajority of the Court accepted, in deed if not in word, the equalityrationale as a permissible state interest”); Strauss, Corruption, Equal-ity, and Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1369, and
n. 1 (1994) (noting that Austin’s rationale was based on equalizing political speech); Ashdown, Controlling Campaign Spending and the“New Corruption”: Waiting for the Court, 44 Vand. L. Rev. 767, 781(1991); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 108–111.
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might unduly influence “the market for legislation.” Post, at 82. The dissent reads Austin to permit restrictions on corporate speech based on nothing more than the fact that the corporate form may help individuals coordinate andpresent their views more effectively. Post, at 82. A speaker’s ability to persuade, however, provides no basisfor government regulation of free and open public debateon what the laws should be.
If taken seriously, Austin’s logic would apply most di-rectly to newspapers and other media corporations. Theyhave a more profound impact on public discourse thanmost other speakers. These corporate entities are, for thetime being, not subject to §441b’s otherwise generally applicable prohibitions on corporate political speech. But this is simply a matter of legislative grace. The fact that the law currently grants a favored position to media cor-porations is no reason to overlook the danger inherent in accepting a theory that would allow government restric-tions on their political speech. See generally McConnell, supra, at 283–286 (THOMAS, J., concurring in part, concur-ring in judgment in part, and dissenting in part).
These readings of Austin do no more than carry thatdecision’s reasoning to its logical endpoint. In doing so,they highlight the threat Austin poses to First Amend-ment rights generally, even outside its specific factual context of corporate express advocacy. Because Austin is so difficult to confine to its facts—and because its logicthreatens to undermine our First Amendment jurispru-dence and the nature of public discourse more broadly—the costs of giving it stare decisis effect are unusually high.
Finally and most importantly, the Government’s owneffort to defend Austin—or, more accurately, to defendsomething that is not quite Austin—underscores its weak-ness as a precedent of the Court. The Government con-cedes that Austin “is not the most lucid opinion,” yet asks us to reaffirm its holding. Tr. of Oral Arg. 62 (Sept. 9,
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2009). But while invoking stare decisis to support thisposition, the Government never once even mentions the compelling interest that Austin relied upon in the first place: the need to diminish “the corrosive and distorting effects of immense aggregations of wealth that are accu-mulated with the help of the corporate form and that havelittle or no correlation to the public’s support for the corpo-ration’s political ideas.” 494 U. S., at 660.
Instead of endorsing Austin on its own terms, the Gov-ernment urges us to reaffirm Austin’s specific holding onthe basis of two new and potentially expansive interests—the need to prevent actual or apparent quid pro quo cor-ruption, and the need to protect corporate shareholders. See Supp. Brief for Appellee 8–10, 12–13. Those interests may or may not support the result in Austin, but they were plainly not part of the reasoning on which Austin relied.
To its credit, the Government forthrightly concedes that Austin did not embrace either of the new rationales it now urges upon us. See, e.g., Supp. Brief for Appellee 11 (“The Court did not decide in Austin . . . whether the compelling interest in preventing actual or apparent corruption pro-vides a constitutionally sufficient justification for prohibit-ing the use of corporate treasury funds for independent electioneering”); Tr. of Oral Arg. 45 (Sept. 9, 2009) (“Austin did not articulate what we believe to be the strongestcompelling interest”); id., at 61 (“[The Court:] I take it wehave never accepted your shareholder protection interest. This is a new argument. [The Government:] I think that that’s fair”); id., at 64 (“[The Court:] In other words, youare asking us to uphold Austin on the basis of two argu-ments, two principles, two compelling interests we have never accepted in [the context of limits on political expen-ditures]. [The Government:] [I]n this particular context,fair enough”).
To be clear: The Court in Austin nowhere relied uponthe only arguments the Government now raises to support
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that decision. In fact, the only opinion in Austin endorsingthe Government’s argument based on the threat of quid pro quo corruption was JUSTICE STEVENS’s concurrence. 494 U. S., at 678. The Court itself did not do so, despitethe fact that the concurrence highlighted the argument. Moreover, the Court’s only discussion of shareholder pro-tection in Austin appeared in a section of the opinion thatsought merely to distinguish Austin’s facts from those of Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986). Austin, supra, at 663. Nowhere did Austin suggest that the goal of protectingshareholders is itself a compelling interest authorizingrestrictions on First Amendment rights.
To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reason-ing, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it hasnever accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.
Doing so would undermine the rule-of-law values thatjustify stare decisis in the first place. It would effectivelylicense the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizingits past errors, without a proper analysis of whether those principles have merit on their own. This approach wouldallow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.
None of this is to say that the Government is barredfrom making new arguments to support the outcome in Austin. On the contrary, it is free to do so. And of course the Court is free to accept them. But the Government’s
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new arguments must stand or fall on their own; they are not entitled to receive the special deference we accord toprecedent. They are, as grounds to support Austin, liter-ally unprecedented. Moreover, to the extent the Govern-ment relies on new arguments—and declines to defend Austin on its own terms—we may reasonably infer that it lacks confidence in that decision’s original justification.
Because continued adherence to Austin threatens to subvert the “principled and intelligible” development of our First Amendment jurisprudence, Vasquez, 474 U. S., at 265, I support the Court’s determination to overrulethat decision.
* * * We have had two rounds of briefing in this case, two oralarguments, and 54 amicus briefs to help us carry out ourobligation to decide the necessary constitutional questions according to law. We have also had the benefit of a com-prehensive dissent that has helped ensure that the Courthas considered all the relevant issues. This careful con-sideration convinces me that Congress violates the FirstAmendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.
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SUPREME COURT OF THE UNITED STATES
No. 08–205
CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[January 21, 2010]
JUSTICE SCALIA, with whom JUSTICE ALITO joins, and
with whom JUSTICE THOMAS joins in part, concurring.
I join the opinion of the Court.1
I write separately to address JUSTICE STEVENS’ discus-sion of “Original Understandings,” post, at 34 (opinionconcurring in part and dissenting in part) (hereinafterreferred to as the dissent). This section of the dissent purports to show that today’s decision is not supported bythe original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right ofEnglishmen did not include the freedom to speak in asso-ciation with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters;but the dissent provides no evidence that their speech inthe pursuit of those objectives could be censored.
Instead of taking this straightforward approach todetermining the Amendment’s meaning, the dissent em-barks on a detailed exploration of the Framers’ views about the “role of corporations in society.” Post, at 35. The Framers didn’t like corporations, the dissent con-
—————— 1 JUSTICE THOMAS does not join Part IV of the Court’s opinion.
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cludes, and therefore it follows (as night the day) thatcorporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporationsis relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted—not, as the dissent suggests, as a freestanding substitute for that text. But the dissent’s distortion of proper analysis iseven worse than that. Though faced with a constitutionaltext that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolatedstatement from the founding era to the effect that corpora-tions are not covered, but places the burden on petitionersto bring forward statements showing that they are (“thereis not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on the corporate form,” post,at 34–35).
Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them? The dissent’s statement that there were few business corporations during the eight-eenth century—“only a few hundred during all of the 18thcentury”—is misleading. Post, at 35, n. 53. There were approximately 335 charters issued to business corpora-tions in the United States by the end of the 18th century.2 See 2 J. Davis, Essays in the Earlier History of American Corporations 24 (1917) (reprint 2006) (hereinafter Davis). This was a “considerable extension of corporate enterprise
—————— 2The dissent protests that 1791 rather than 1800 should be the rele-vant date, and that “[m]ore than half of the century’s total businesscharters were issued between 1796 and 1800.” Post, at 35, n. 53. I used 1800 only because the dissent did. But in any case, it is surely fancifulto think that a consensus of hostility towards corporations was trans-formed into general favor at some magical moment between 1791 and 1796.
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in the field of business,” Davis 8, and represented “un-precedented growth,” id., at 309. Moreover, what seems like a small number by today’s standards surely does not indicate the relative importance of corporations when theNation was considerably smaller. As I have previously noted, “[b]y the end of the eighteenth century the corpora-tion was a familiar figure in American economic life.” McConnell v. Federal Election Comm’n, 540 U. S. 93, 256 (2003) (SCALIA, J., concurring in part, concurring in judg-ment in part, and dissenting in part) (quoting C. Cooke, Corporation Trust and Company 92 (1951) (hereinafter Cooke)).
Even if we thought it proper to apply the dissent’s ap-proach of excluding from First Amendment coverage whatthe Founders disliked, and even if we agreed that the Founders disliked founding-era corporations; modern corporations might not qualify for exclusion. Most of the Founders’ resentment towards corporations was directed at the state-granted monopoly privileges that individually chartered corporations enjoyed.3 Modern corporations donot have such privileges, and would probably have been favored by most of our enterprising Founders—excluding,perhaps, Thomas Jefferson and others favoring perpetua-tion of an agrarian society. Moreover, if the Founders’ specific intent with respect to corporations is what mat-ters, why does the dissent ignore the Founders’ views about other legal entities that have more in common with modern business corporations than the founding-era cor-
—————— 3“[P]eople in 1800 identified corporations with franchised monopo-lies.” L. Friedman, A History of American Law 194 (2d ed. 1985) (hereinafter Friedman). “The chief cause for the changed popular attitude towards business corporations that marked the opening of thenineteenth century was the elimination of their inherent monopolistic character. This was accomplished primarily by an extension of theprinciple of free incorporation under general laws.” 1 W. Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006).
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porations? At the time of the founding, religious, educa-tional, and literary corporations were incorporated undergeneral incorporation statutes, much as business corpora-tions are today.4 See Davis 16–17; R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982); Cooke 94. There were also small unincorporatedbusiness associations, which some have argued were the “‘true progenitors’” of today’s business corporations.Friedman 200 (quoting S. Livermore, Early AmericanLand Companies: Their Influence on Corporate Develop-ment 216 (1939)); see also Davis 33. Were all of these silently excluded from the protections of the First Amendment?
The lack of a textual exception for speech by corpora-tions cannot be explained on the ground that such organi-zations did not exist or did not speak. To the contrary, colleges, towns and cities, religious institutions, and guilds had long been organized as corporations at common law and under the King’s charter, see 1 W. Blackstone, Com-mentaries on the Laws of England 455–473 (1765); 1 S. Kyd, A Treatise on the Law of Corporations 1–32, 63(1793) (reprinted 2006), and as I have discussed, the prac-tice of incorporation only expanded in the United States. Both corporations and voluntary associations activelypetitioned the Government and expressed their views innewspapers and pamphlets. For example: An antislaveryQuaker corporation petitioned the First Congress, distrib-uted pamphlets, and communicated through the press in1790. W. diGiacomantonio, “For the Gratification of a Volunteering Society”: Antislavery and Pressure Group
—————— 4At times (though not always) the dissent seems to exclude such non-“business corporations” from its denial of free speech rights. See post, at 37. Finding in a seemingly categorical text a distinction between the rights of business corporations and the rights of non-business corpora-tions is even more imaginative than finding a distinction between therights of all corporations and the rights of other associations.
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Politics in the First Federal Congress, 15 J. Early Repub-lic 169 (1995). The New York Sons of Liberty sent a circu-lar to colonies farther south in 1766. P. Maier, From Resistance to Revolution 79–80 (1972). And the Societyfor the Relief and Instruction of Poor Germans circulated a biweekly paper from 1755 to 1757. Adams, The Colonial German-language Press and the American Revolution, in The Press & the American Revolution 151, 161–162 (B. Bailyn & J. Hench eds. 1980). The dissent offers no evi-dence—none whatever—that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection.5
—————— 5The best the dissent can come up with is that “[p]ostratificationpractice” supports its reading of the First Amendment. Post, at 40,
n.
56. For this proposition, the dissent cites Justice White’s statement(in dissent) that “[t]he common law was generally interpreted asprohibiting corporate political participation,” First Nat. Bank of Boston
v.
Bellotti, 435 U. S. 765, 819 (1978). The sole authority Justice White cited for this proposition, id., at 819, n. 14, was a law-review note that made no such claim. To the contrary, it stated that the cases dealingwith the propriety of corporate political expenditures were “few.” Note, Corporate Political Affairs Programs, 70 Yale L. J. 821, 852 (1961). More specifically, the note cites only two holdings to that effect, one by a Federal District Court, and one by the Supreme Court of Montana. Id., at 852, n. 197. Of course even if the common law was “generallyinterpreted” to prohibit corporate political expenditures as ultra vires,that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed.
As additional “[p]ostratification practice,” the dissent notes that theCourt “did not recognize any First Amendment protections for corpora-tions until the middle part of the 20th century.” Post, at 40, n. 56. But it did that in Grosjean v. American Press Co., 297 U. S. 233 (1936), acase involving freedom of the press—which the dissent acknowledges did cover corporations from the outset. The relative recency of that first case is unsurprising. All of our First Amendment jurisprudence was slow to develop. We did not consider application of the First Amendment to speech restrictions other than prior restraints until 1919, see Schenck v. United States, 249 U. S. 47 (1919); we did notinvalidate a state law on First Amendment grounds until 1931, see
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Historical evidence relating to the textually similar clause “the freedom of . . . the press” also provides nosupport for the proposition that the First Amendmentexcludes conduct of artificial legal entities from the scopeof its protection. The freedom of “the press” was widelyunderstood to protect the publishing activities of individ-ual editors and printers. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360 (1995) (THOMAS, J., concur-ring in judgment); see also McConnell, 540 U. S., at 252– 253 (opinion of SCALIA, J.). But these individuals often acted through newspapers, which (much like corporations) had their own names, outlived the individuals who had founded them, could be bought and sold, were sometimesowned by more than one person, and were operated for profit. See generally F. Mott, American Journalism: A History of Newspapers in the United States Through 250 Years 3–164 (1941); J. Smith, Freedom’s Fetters (1956).Their activities were not stripped of First Amendment protection simply because they were carried out under thebanner of an artificial legal entity. And the notion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.6
—————— Stromberg v. California, 283 U. S. 359 (1931), and a federal law until 1965, see Lamont v. Postmaster General, 381 U. S. 301 (1965). 6The dissent seeks to avoid this conclusion (and to turn a liabilityinto an asset) by interpreting the Freedom of the Press Clause to refer to the institutional press (thus demonstrating, according to the dissent,that the Founders “did draw distinctions—explicit distinctions— between types of ‘speakers,’ or speech outlets or forms ”). Post, at 40 and n. 57. It is passing strange to interpret the phrase “the freedom ofspeech, or of the press” to mean, not everyone’s right to speak or pub-lish, but rather everyone’s right to speak or the institutional press’sright to publish. No one thought that is what it meant. Patriot Noah Webster’s 1828 dictionary contains, under the word “press,” the follow-ing entry: “Liberty of the press, in civil policy, is the free right of publishing
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In passing, the dissent also claims that the Court’sconception of corruption is unhistorical. The Framers “would have been appalled,” it says, by the evidence ofcorruption in the congressional findings supporting the Bipartisan Campaign Reform Act of 2002. Post, at 61. For this proposition, the dissent cites a law review article arguing that “corruption” was originally understood toinclude “moral decay” and even actions taken by citizensin pursuit of private rather than public ends. Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 373, 378 (2009). It is hard to see how this has anything todo with what sort of corruption can be combated by re-strictions on political speech. Moreover, if speech can beprohibited because, in the view of the Government, it leads to “moral decay” or does not serve “public ends,” then there is no limit to the Government’s censorship power.
The dissent says that when the Framers “constitutional-ized the right to free speech in the First Amendment, itwas the free speech of individual Americans that they had in mind.” Post, at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of indi-vidual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech
—————— books, pamphlets, or papers without previous restraint; or the unre-strained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state.” 2 American Dictionary of theEnglish Language (1828) (reprinted 1970). As the Court’s opinion describes, ante, at 36, our jurisprudenceagrees with Noah Webster and contradicts the dissent. “The liberty of the press is not confined to newspapers and periodi-cals. It necessarily embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U. S. 444, 452 (1938).
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by the Republican Party or the Democratic Party can becensored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leader-ship of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individualAmerican.”7
But to return to, and summarize, my principal point,which is the conformity of today’s opinion with the original meaning of the First Amendment. The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from
—————— 7The dissent says that “ ‘speech’ ” refers to oral communications of human beings, and since corporations are not human beings they cannot speak. Post, at 37, n. 55. This is sophistry. The authorized spokesman of a corporation is a human being, who speaks on behalf ofthe human beings who have formed that association—just as the spokesman of an unincorporated association speaks on behalf of itsmembers. The power to publish thoughts, no less than the power to speak thoughts, belongs only to human beings, but the dissent sees noproblem with a corporation’s enjoying the freedom of the press. The same footnote asserts that “it has been ‘claimed that the notion of institutional speech . . . did not exist in post-revolutionary America.’ ” This is quoted from a law-review article by a Bigelow Fellow at the University of Chicago (Fagundes, State Actors as First AmendmentSpeakers, 100 Nw. U. L. Rev. 1637, 1654 (2006)), which offers as thesole support for its statement a treatise dealing with governmentspeech, M. Yudof, When Government Speaks 42–50 (1983). The cited pages of that treatise provide no support whatever for the statement—unless, as seems overwhelmingly likely, the “institutional speech” referred to was speech by the subject of the law-review article, govern-mental institutions. The other authority cited in the footnote, a law-review article by a professor at Washington and Lee Law School, Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995), in fact contradicts the dissent, in that it would accord free-speech protection to associations.
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single individuals to partnerships of individuals, to unin-corporated associations of individuals, to incorporatedassociations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with thequestion whether the speech at issue in this case is “speech” covered by the First Amendment. No one saysotherwise. A documentary film critical of a potential Presidential candidate is core political speech, and itsnature as such does not change simply because it wasfunded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherentworth of the speech” and “its capacity for informing thepublic,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978). Indeed, to exclude or impede corporatespeech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.
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Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
No. 08–205
CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[January 21, 2010]
JUSTICE STEVENS, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part.
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 daysbefore the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether CitizensUnited had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court mustrewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.
The basic premise underlying the Court’s ruling is itsiteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based
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on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetoricalappeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United maybe required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the politicalsphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinctionbetween corporate and human speakers is significant.Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests mayconflict in fundamental respects with the interests ofeligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
The majority’s approach to corporate electioneeringmarks a dramatic break from our past. Congress hasplaced special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209–210. The
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Court today rejects a century of history when it treats thedistinction between corporate and individual campaignspending as an invidious novelty born of Austin v. Michi-gan Chamber of Commerce, 494 U. S. 652 (1990). Relyinglargely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540
U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981).
In his landmark concurrence in Ashwander v. TVA, 297
U. S. 288, 346 (1936), Justice Brandeis stressed the importance of adhering to rules the Court has “developed . . . for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court’sanalysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudencemore generally .1 I regret the length of what follows, but the importance and novelty of the Court’s opinion requirea full response. Although I concur in the Court’s decisionto sustain BCRA’s disclosure provisions and join Part IVof its opinion, I emphatically dissent from its principalholding.
—————— 1Specifically, Part I, infra, at 4–17, addresses the procedural historyof the case and the narrower grounds of decision the majority has bypassed. Part II, infra, at 17–23, addresses stare decisis. Part III, infra, at 23–56, addresses the Court’s assumptions that BCRA “bans”corporate speech, that identity-based distinctions may not be drawn in the political realm, and that Austin and McConnell were outliers in our First Amendment tradition. Part IV, infra, at 56–89, addresses the Court’s treatment of the anticorruption, antidistortion, and shareholder protection rationales for regulating corporate electioneering.
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I
The Court’s ruling threatens to undermine the integrityof elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is importantto explain why the Court should not be deciding that question.
Scope of the Case
The first reason is that the question was not properlybrought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only inresponse to the Court’s invitation. This procedure is unusual and inadvisable for a court.2 Our colleagues’suggestion that “we are asked to reconsider Austin and, in effect, McConnell,” ante, at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a. In its motion for summary judgment, however, Citi——————
2See Yee v. Escondido, 503 U. S. 519, 535 (1992) (“[U]nder thisCourt’s Rule 14.1(a), only questions set forth in the petition, or fairlyincluded therein, will be considered by the Court” (internal quotationmarks and alteration omitted)); Wood v. Allen, ante, at __ (slip op., at 13) (“[T]he fact that petitioner discussed [an] issue in the text of hispetition for certiorari does not bring it before us. Rule 14.1(a) requires that a subsidiary question be fairly included in the question presented for our review” (internal quotation marks and brackets omitted)); Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168–169 (2004) (“We ordinarily do not decide in the first instance issues notdecided below” (internal quotation marks omitted)).
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zens United expressly abandoned its facial challenge,1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissalof that claim, id., Nos. 53 (May 22, 2008), 54 (May 23,2008), App. 6a. The District Court therefore resolved the case on alternative grounds,3 and in its jurisdictionalstatement to this Court, Citizens United properly advised us that it was raising only “an as-applied challenge to the constitutionality of . . . BCRA §203.” Juris. Statement 5. The jurisdictional statement never so much as cited Aus-tin, the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United’s corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens United injectedits request to overrule Austin, it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions; instead it argued only that the statutecould not be applied to it because it was “funded overwhelmingly by individuals.” Brief for Appellant 29; seealso id., at 10, 12, 16, 28 (affirming “as applied” character
—————— 3The majority states that, in denying Citizens United’s motion for a preliminary injunction, the District Court “addressed” the facial validity of BCRA §203. Ante, at 13. That is true, in the narrow sense that the court observed the issue was foreclosed by McConnell v. FEC, 540
U. S. 93 (2003). See 530 F. Supp. 2d 274, 278 (DC 2008) (per curiam). Yet as explained above, Citizens United subsequently dismissed itsfacial challenge, so that by the time the District Court granted the Federal Election Commission’s (FEC) motion for summary judgment, App. 261a–262a, any question about statutory validity had dropped out of the case. That latter ruling by the District Court was the “finaldecision” from which Citizens United appealed to this Court under BCRA §403(a)(3). As regards the lower court decision that has come before us, the claim that §203 is facially unconstitutional was neither pressed nor passed upon in any form.
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of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009)(counsel for Citizens United conceding that §203 could beapplied to General Motors); id., at 55 (counsel for Citizens United stating that “we accept the Court’s decision in Wisconsin Right to Life”).
“‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’” Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)), and it is “only in the mostexceptional cases” that we will consider issues outside the questions presented, Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976). The appellant in this case did not so much asassert an exceptional circumstance, and one searches themajority opinion in vain for the mention of any. That is unsurprising, for none exists.
Setting the case for reargument was a constructive step,but it did not cure this fundamental problem. Essentially,five Justices were unhappy with the limited nature of thecase before us, so they changed the case to give themselves an opportunity to change the law.
As-Applied and Facial Challenges
This Court has repeatedly emphasized in recent yearsthat “[f]acial challenges are disfavored.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 450 (2008); see also Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006) (“[T]he ‘normal rule’ is that ‘partial, rather than facial, invalidation is the required course,’ such that a ‘statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact’” (quoting Brockett v. Spokane Ar-cades, Inc., 472 U. S. 491, 504 (1985); alteration in original)). By declaring §203 facially unconstitutional, our colleagues have turned an as-applied challenge into afacial challenge, in defiance of this principle.
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This is not merely a technical defect in the Court’sdecision. The unnecessary resort to a facial inquiry“run[s] contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broaderthan is required by the precise facts to which it is to be applied.” Washington State Grange, 552 U. S., at 450 (internal quotation marks omitted). Scanting that principle “threaten[s] to short circuit the democratic process bypreventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id., at 451. These concerns are heightenedwhen judges overrule settled doctrine upon which the legislature has relied. The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.
The problem goes still deeper, for the Court does all of this on the basis of pure speculation. Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed,through the normal process of litigation, a record aboutthe actual effects of §203, its actual burdens and its actualbenefits, on all manner of corporations and unions.4
—————— 4Shortly before Citizens United mooted the issue by abandoning its facial challenge, the Government advised the District Court that it“require[d] time to develop a factual record regarding [the] facial challenge.” 1:07–cv–2240–RCL–RWR, Docket Entry No. 47, p. 4 (Mar. 26, 2008). By reinstating a claim that Citizens United abandoned, theCourt gives it a perverse litigating advantage over its adversary, whichwas deprived of the opportunity to gather and present information necessary to its rebuttal.
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“Claims of facial invalidity often rest on speculation,” andconsequently “raise the risk of premature interpretation ofstatutes on the basis of factually barebones records.” Id., at 450 (internal quotation marks omitted). In this case, the record is not simply incomplete or unsatisfactory; it isnonexistent. Congress crafted BCRA in response to avirtual mountain of research on the corruption that previous legislation had failed to avert. The Court now negates Congress’ efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting anyentity other than Citizens United.5
Faced with this gaping empirical hole, the majoritythrows up its hands. Were we to confine our inquiry to Citizens United’s as-applied challenge, it protests, wewould commence an “extended” process of “draw[ing], and then redraw[ing], constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” Ante, at 9. While tacitly acknowledging that some applications of §203might be found constitutional, the majority thus posits afuture in which novel First Amendment standards must
—————— 5In fact, we do not even have a good evidentiary record of how §203 has been affecting Citizens United, which never submitted to the District Court the details of Hillary’s funding or its own finances. We likewise have no evidence of how §203 and comparable state laws wereexpected to affect corporations and unions in the future. It is true, as the majority points out, that the McConnell Court evaluated the facial validity of §203 in light of an extensive record. See ante, at 15. But that record is not before us in this case. And in any event, the majority’s argument for striking down §203 depends on itscontention that the statute has proved too “chilling” in practice—and inparticular on the contention that the controlling opinion in WRTL, 551
U. S. 449 (2007), failed to bring sufficient clarity and “breathing space”to this area of law. See ante, at 12, 16–20. We have no record with which to assess that claim. The Court complains at length about the burdens of complying with §203, but we have no meaningful evidence toshow how regulated corporations and unions have experienced its restrictions.
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be devised on an ad hoc basis, and then leaps from thisunfounded prediction to the unfounded conclusion thatsuch complexity counsels the abandonment of all normal restraint. Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies,may raise some unanticipated difficulties at the margins. The fluid nature of electioneering communications doesnot make this case special. The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge.6
The majority proposes several other justifications for the sweep of its ruling. It suggests that a facial ruling isnecessary because, if the Court were to continue on itsnormal course of resolving as-applied challenges as they present themselves, that process would itself run afoul of the First Amendment. See, e.g., ante, at 9 (as-applied review process “would raise questions as to the courts’ ownlawful authority”); ibid. (“Courts, too, are bound by the First Amendment”). This suggestion is perplexing. Our colleagues elsewhere trumpet “our duty ‘to say what the law is,’” even when our predecessors on the bench and our counterparts in Congress have interpreted the law differ——————
6Our cases recognize a “type of facial challenge in the First Amendment context under which a law may be overturned as impermissibly overbroad because a substantial number of its applications are unconstitutional.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6 (2008) (internal quotation marks omitted). Citizens United has not made an overbreadth argument, and “[w]e generally do not apply the strong medicine of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law,” ibid. (internal quotation marks omitted). If our colleagues nonetheless concluded that §203’s fatal flaw is that it affects too much protected speech, they should have invalidated it for overbreadth and given guidance as to which applications are permissible, so that Congress could go about repairing the error.
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ently. Ante, at 49 (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). We do not typically say what the law is not as a hedge against future judicial error. The possibility that later courts will misapply a constitutional provision does not give us a basis for pretermitting litigation relating to that provision.7
The majority suggests that a facial ruling is necessarybecause anything less would chill too much protected speech. See ante, at 9–10, 12, 16–20. In addition to begging the question what types of corporate spending areconstitutionally protected and to what extent, this claimrests on the assertion that some significant number of corporations have been cowed into quiescence by FEC“‘censor[ship].’” Ante, at 18–19. That assertion is unsubstantiated, and it is hard to square with practical experience. It is particularly hard to square with the legal landscape following WRTL, which held that a corporatecommunication could be regulated under §203 only if it was “susceptible of no reasonable interpretation otherthan as an appeal to vote for or against a specific candidate.” 551 U. S., at 470 (opinion of ROBERTS, C. J.) (emphasis added). The whole point of this test was to make §203 as simple and speech-protective as possible. The Court does not explain how, in the span of a single electioncycle, it has determined THE CHIEF JUSTICE’s project to be
—————— 7Also perplexing is the majority’s attempt to pass blame to the Government for its litigating position. By “hold[ing] out the possibility ofruling for Citizens United on a narrow ground yet refrain[ing] from adopting that position,” the majority says, the Government has caused“added uncertainty [that] demonstrates the necessity to address thequestion of statutory validity.” Ante, at 17. Our colleagues haveapparently never heard of an alternative argument. Like every litigant, the Government would prefer to win its case outright; failing that,it would prefer to lose on a narrow ground. The fact that there are numerous different ways this case could be decided, and that theGovernment acknowledges as much, does not demonstrate anything about the propriety of a facial ruling.
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a failure. In this respect, too, the majority’s critique ofline-drawing collapses into a critique of the as-applied review method generally.8
The majority suggests that, even though it expressly dismissed its facial challenge, Citizens United nevertheless preserved it—not as a freestanding “claim,” but as a potential argument in support of “a claim that the FEChas violated its First Amendment right to free speech.” Ante, at 13; see also ante, at 4 (ROBERTS, C. J., concurring) (describing Citizens United’s claim as: “[T]he Act violatesthe First Amendment”). By this novel logic, virtually anysubmission could be reconceptualized as “a claim that the Government has violated my rights,” and it would then be available to the Court to entertain any conceivable issue that might be relevant to that claim’s disposition. Not only the as-applied/facial distinction, but the basic relationship between litigants and courts, would be upended if the latter had free rein to construe the former’s claims at such high levels of generality. There would be no need for plaintiffs to argue their case; they could just cite the constitutional provisions they think relevant, and leave the rest to us.9 ——————
8The majority’s “chilling” argument is particularly inapposite withrespect to 2 U. S. C. §441b’s longstanding restriction on the use ofcorporate general treasury funds for express advocacy. If there was ever any significant uncertainty about what counts as the functionalequivalent of express advocacy, there has been little doubt about what counts as express advocacy since the “magic words” test of Buckley v. Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam). Yet even though Citizens United’s briefs never once mention §441b’s restriction on express advocacy; even though this restriction does not generatechilling concerns; and even though no one has suggested that Hillarycounts as express advocacy; the majority nonetheless reaches out toopine that this statutory provision is “invalid” as well. Ante, at 50.
9The majority adds that the distinction between facial and as-appliedchallenges does not have “some automatic effect” that mechanicallycontrols the judicial task. Ante, at 14. I agree, but it does not follow that in any given case we should ignore the distinction, much less
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Finally, the majority suggests that though the scope ofCitizens United’s claim may be narrow, a facial ruling is necessary as a matter of remedy. Relying on a law reviewarticle, it asserts that Citizens United’s dismissal of the facial challenge does not prevent us “‘from makingbroader pronouncements of invalidity in properly “asapplied” cases.’” Ante, at 14 (quoting Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon)); accord, ante, at 5 (opinion of ROBERTS, C. J.) (“Regardless whether we label Citizens United’s claim a ‘facial’ or ‘asapplied’ challenge, the consequences of the Court’s decision are the same”). The majority is on firmer conceptual ground here. Yet even if one accepts this part of Professor Fallon’s thesis, one must proceed to ask which as-appliedchallenges, if successful, will “properly” invite or entail invalidation of the underlying statute.10 The paradigmaticcase is a judicial determination that the legislature actedwith an impermissible purpose in enacting a provision, asthis carries the necessary implication that all future asapplied challenges to the provision must prevail. See Fallon 1339–1340.
Citizens United’s as-applied challenge was not of this sort. Until this Court ordered reargument, its contentionwas that BCRA §203 could not lawfully be applied to a
—————— invert it. 10Professor Fallon proposes an intricate answer to this question that the majority ignores. Fallon 1327–1359. It bears mention that our colleagues have previously cited Professor Fallon’s article for the exactopposite point from the one they wish to make today. In Gonzales v. Carhart, 550 U. S. 124 (2007), the Court explained that “[i]t is neitherour obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situationthat might develop,” and “[f]or this reason, ‘[a]s-applied challenges are the basic building blocks of constitutional adjudication.’ ” Id., at 168 (opinion for the Court by KENNEDY, J.) (quoting Fallon 1328 (second alteration in original)).
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feature-length video-on-demand film (such as Hillary) orto a nonprofit corporation exempt from taxation under 26
U. S. C. §501(c)(4)11 and funded overwhelmingly by individuals (such as itself). See Brief for Appellant 16–41.Success on either of these claims would not necessarilycarry any implications for the validity of §203 as applied to other types of broadcasts, other types of corporations, orunions. It certainly would not invalidate the statute asapplied to a large for-profit corporation. See Tr. of Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens Unitedemphasizing that appellant is “a small, nonprofit organization, which is very much like [an MCFL corporation],”and affirming that its argument “definitely would not be the same” if Hillary were distributed by General Motors).12 There is no legitimate basis for resurrecting a facial chal——————
11Internal Revenue Code section 501(c)(4) applies, inter alia, to nonprofit organizations “operated exclusively for the promotion of socialwelfare, . . . the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.” 12 THE CHIEF JUSTICE is therefore much too quick when he suggeststhat, “[e]ven if considered in as-applied terms, a holding in this casethat the Act may not be applied to Citizens United—because corporations as well as individuals enjoy the pertinent First Amendment rights—would mean that any other corporation raising the same challenge would also win.” Ante, at 4 (concurring opinion). That conclusion would only follow if the Court were to ignore CitizensUnited’s plausible as-applied arguments and instead take the implausible position that all corporations and all types of expenditures enjoy the same First Amendment protections, which always trump the interests in regulation. At times, the majority appears to endorse this extreme view. At other times, however, it appears to suggest thatnonprofit corporations have a better claim to First Amendment protection than for-profit corporations, see ante, at 20, 39, “advocacy” organizations have a better claim than other nonprofits, ante, at 20, domestic corporations have a better claim than foreign corporations, ante, at 46– 47, small corporations have a better claim than large corporations, ante, at 38–40, and printed matter has a better claim than broadcastcommunications, ante, at 33. The majority never uses a multinationalbusiness corporation in its hypotheticals.
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lenge that dropped out of this case 20 months ago.
Narrower Grounds
It is all the more distressing that our colleagues havemanufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutesand precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “[I]f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug En-forcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).
Consider just three of the narrower grounds of decisionthat the majority has bypassed. First, the Court could have ruled, on statutory grounds, that a feature-lengthfilm distributed through video-on-demand does not qualifyas an “electioneering communication” under §203 ofBCRA, 2 U. S. C. §441b. BCRA defines that term to encompass certain communications transmitted by “broadcast, cable, or satellite.” §434(f)(3)(A). When Congresswas developing BCRA, the video-on-demand medium was still in its infancy, and legislators were focused on a verydifferent sort of programming: short advertisements run on television or radio. See McConnell, 540 U. S., at 207. The sponsors of BCRA acknowledge that the FEC’s implementing regulations do not clearly apply to video-ondemand transmissions. See Brief for Senator John McCain et al. as Amici Curiae 17–19. In light of this ambiguity, the distinctive characteristics of video-ondemand, and “[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657 (1895), the Court could have reasonably
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ruled that §203 does not apply to Hillary.13
Second, the Court could have expanded the MCFL exemption to cover §501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations.Citizens United professes to be such a group: Its brief saysit “is funded predominantly by donations from individualswho support [its] ideological message.” Brief for Appellant
5. Numerous Courts of Appeal have held that de minimis business support does not, in itself, remove an otherwise qualifying organization from the ambit of MCFL.14 This Court could have simply followed their lead.15
Finally, let us not forget Citizens United’s as-applied constitutional challenge. Precisely because Citizens ——————
13The Court entirely ignores this statutory argument. It concludes that §203 applies to Hillary on the basis of the film’s content, ante, at 7–8, without considering the possibility that §203 does not apply tovideo-on-demand transmissions generally.
14See Colorado Right to Life Comm., Inc. v. Coffman, 498 F. 3d 1137, 1148 (CA10 2007) (adopting this rule and noting that “every other circuit to have addressed this issue” has done likewise); Brief forIndependent Sector as Amicus Curiae 10–11 (collecting cases). The Court rejects this solution in part because the Government “merelysuggest[s] it” and “does not say that it agrees with the interpretation.” Ante, at 11. Our colleagues would thus punish a defendant for showinginsufficient excitement about a ground it has advanced, at the same time that they decide the case on a ground the plaintiff expressly abandoned. The Court also protests that a de minimis standard would “requir[e] intricate case-by-case determinations.” Ante, at 12. But de minimis tests need not be intricate at all. A test that granted MCFL status to §501(c)(4) organizations if they received less than a fixed dollar amount of business donations in the previous year, or if such donations represent less than a fixed percentage of their total assets, would be perfectly easy to understand and administer.
15Another bypassed ground, not briefed by the parties, would havebeen to revive the Snowe-Jeffords Amendment in BCRA §203(c), allowing certain nonprofit corporations to pay for electioneering communications with general treasury funds, to the extent they can tracethe payments to individual contributions. See Brief for National Rifle Association as Amicus Curiae 5–15 (arguing forcefully that Congress intended this result).
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United looks so much like the MCFL organizations wehave exempted from regulation, while a feature-length video-on-demand film looks so unlike the types of electoraladvocacy Congress has found deserving of regulation, this challenge is a substantial one. As the appellant’s ownarguments show, the Court could have easily limited thebreadth of its constitutional holding had it declined toadopt the novel notion that speakers and speech acts mustalways be treated identically—and always spared expenditures restrictions—in the political realm. Yet the Court nonetheless turns its back on the as-applied review process that has been a staple of campaign finance litigation since Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and that was affirmed and expanded just two Terms ago in WRTL, 551 U. S. 449.
This brief tour of alternative grounds on which the casecould have been decided is not meant to show that any of these grounds is ideal, though each is perfectly “valid,” ante, at 12 (majority opinion).16 It is meant to show that there were principled, narrower paths that a Court thatwas serious about judicial restraint could have taken.There was also the straightforward path: applying Austin and McConnell, just as the District Court did in holding
—————— 16 THE CHIEF JUSTICE finds our discussion of these narrower solutions “quite perplexing” because we suggest that the Court should “latch onto one of them in order to avoid reaching the broader constitutionalquestion,” without doing the same ourselves. Ante, at 3. There is nothing perplexing about the matter, because we are not similarlysituated to our colleagues in the majority. We do not share their view of the First Amendment. Our reading of the Constitution would notlead us to strike down any statutes or overturn any precedents in thiscase, and we therefore have no occasion to practice constitutional avoidance or to vindicate Citizens United’s as-applied challenge. Each of the arguments made above is surely at least as strong as the statutory argument the Court accepted in last year’s Voting Rights Act case, Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. __ (2009).
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that the funding of Citizens United’s film can be regulated under them. The only thing preventing the majority from affirming the District Court, or adopting a narrower ground that would retain Austin, is its disdain for Austin.
II The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any other. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturningsettled doctrine. “[A] decision to overrule should rest onsome special reason over and above the belief that a prior case was wrongly decided.” Planned Parenthood of South-eastern Pa. v. Casey, 505 U. S. 833, 864 (1992). No such justification exists in this case, and to the contrary thereare powerful prudential reasons to keep faith with our precedents.17 The Court’s central argument for why stare decisis ought to be trumped is that it does not like Austin. The opinion “was not well reasoned,” our colleagues assert, and it conflicts with First Amendment principles. Ante, at 47–
48. This, of course, is the Court’s merits argument, themany defects in which we will soon consider. I am perfectly willing to concede that if one of our precedents weredead wrong in its reasoning or irreconcilable with the restof our doctrine, there would be a compelling basis for revisiting it. But neither is true of Austin, as I explain at length in Parts III and IV, infra, at 23–89, and restating amerits argument with additional vigor does not give it
—————— 17I will have more to say shortly about the merits—about why Austin and McConnell are not doctrinal outliers, as the Court contends, and why their logic is not only defensible but also compelling. For present purposes, I limit the discussion to stare-decisis-specific considerations.
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extra weight in the stare decisis calculus.
Perhaps in recognition of this point, the Court supplements its merits case with a smattering of assertions. The Court proclaims that “Austin is undermined by experiencesince its announcement.” Ante, at 48. This is a curious claim to make in a case that lacks a developed record. The majority has no empirical evidence with which to substantiate the claim; we just have its ipse dixit that the real world has not been kind to Austin. Nor does the majoritybother to specify in what sense Austin has been “undermined.” Instead it treats the reader to a string of nonsequiturs: “Our Nation’s speech dynamic is changing,” ante, at 48; “[s]peakers have become adept at presentingcitizens with sound bites, talking points, and scriptedmessages,” ibid.; “[c]orporations . . . do not have monolithic views,” ibid. How any of these ruminations weakens the force of stare decisis, escapes my comprehension.18
The majority also contends that the Government’s hesitation to rely on Austin’s antidistortion rationale “diminishe[s]” “the principle of adhering to that precedent.” Ante, at 48; see also ante, at 11 (opinion of ROBERTS, C. J.) (Government’s litigating position is “most importan[t]”
—————— 18 THE CHIEF JUSTICE suggests that Austin has been undermined by subsequent dissenting opinions. Ante, at 9. Under this view, it appears that the more times the Court stands by a precedent in the face ofrequests to overrule it, the weaker that precedent becomes. THE CHIEF JUSTICE further suggests that Austin “is uniquely destabilizing because it threatens to subvert our Court’s decisions even outside” its particularfacts, as when we applied its reasoning in McConnell. Ante, at 9. Once again, the theory seems to be that the more we utilize a precedent, themore we call it into question. For those who believe Austin was correctly decided—as the Federal Government and the States have long believed, as the majority of Justices to have served on the Court since Austin have believed, and as we continue to believe—there is nothing“destabilizing” about the prospect of its continued application. It is gutting campaign finance laws across the country, as the Court doestoday, that will be destabilizing.
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factor undermining Austin). Why it diminishes the valueof stare decisis is left unexplained. We have never thought fit to overrule a precedent because a litigant has taken any particular tack. Nor should we. Our decisions can often be defended on multiple grounds, and a litigant may have strategic or case-specific reasons for emphasizingonly a subset of them. Members of the public, moreover,often rely on our bottom-line holdings far more than ourprecise legal arguments; surely this is true for the legislatures that have been regulating corporate electioneering since Austin. The task of evaluating the continued viability of precedents falls to this Court, not to the parties.19
Although the majority opinion spends several pagesmaking these surprising arguments, it says almost nothing about the standard considerations we have used todetermine stare decisis value, such as the antiquity of theprecedent, the workability of its legal rule, and the reliance interests at stake. It is also conspicuously silent about McConnell, even though the McConnell Court’s decision to uphold BCRA §203 relied not only on the antidistortion logic of Austin but also on the statute’s historical pedigree, see, e.g., 540 U. S., at 115–132, 223–224, and the need to preserve the integrity of federal campaigns, see id., at 126–129, 205–208, and n. 88.
We have recognized that “[s]tare decisis has special forcewhen legislators or citizens ‘have acted in reliance on a previous decision, for in this instance overruling the deci——————
19Additionally, the majority cites some recent scholarship challenging the historical account of campaign finance law given in United States v. Automobile Workers, 352 U. S. 567 (1957). Ante, at 48. Austin did not so much as allude to this historical account, much less rely on it. Even if the scholarship cited by the majority is correct that certain campaignfinance reforms were less deliberate or less benignly motivated than Automobile Workers suggested, the point remains that this body of lawhas played a significant and broadly accepted role in American politicallife for decades upon decades.
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sion would dislodge settled rights and expectations orrequire an extensive legislative response.’” Hubbard v. United States, 514 U. S. 695, 714 (1995) (quoting Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991)). Stare decisis protects not only personal rights involving property or contract but also the ability of the elected branches to shape their laws in an effective andcoherent fashion. Today’s decision takes away a powerthat we have long permitted these branches to exercise.State legislatures have relied on their authority to regulate corporate electioneering, confirmed in Austin, for more than a century.20 The Federal Congress has reliedon this authority for a comparable stretch of time, and itspecifically relied on Austin throughout the years it spentdeveloping and debating BCRA. The total record it compiled was 100,000 pages long.21 Pulling out the rug beneath Congress after affirming the constitutionality of §203 six years ago shows great disrespect for a coequal branch.
By removing one of its central components, today’sruling makes a hash out of BCRA’s “delicate and interconnected regulatory scheme.” McConnell, 540 U. S., at 172. Consider just one example of the distortions that willfollow: Political parties are barred under BCRA from soliciting or spending “soft money,” funds that are notsubject to the statute’s disclosure requirements or itssource and amount limitations. 2 U. S. C. §441i; McCon-nell, 540 U. S., at 122–126. Going forward, corporationsand unions will be free to spend as much general treasurymoney as they wish on ads that support or attack specific
—————— 20See Brief for State of Montana et al. as Amici Curiae 5–13; see also Supp. Brief for Senator John McCain et al. as Amici Curiae 1a–8a (listing 24 States that presently limit or prohibit independent electioneering expenditures from corporate general treasuries). 21Magleby, The Importance of the Record in McConnell v. FEC, 3 Election L. J. 285 (2004).
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candidates, whereas national parties will not be able tospend a dime of soft money on ads of any kind. The Court’s ruling thus dramatically enhances the role of corporations and unions—and the narrow interests they represent—vis-à-vis the role of political parties—and the broad coalitions they represent—in determining who will hold public office.22
Beyond the reliance interests at stake, the other stare decisis factors also cut against the Court. Considerations of antiquity are significant for similar reasons. McConnell is only six years old, but Austin has been on the books for two decades, and many of the statutes called into questionby today’s opinion have been on the books for a halfcentury or more. The Court points to no interveningchange in circumstances that warrants revisiting Austin. Certainly nothing relevant has changed since we decided WRTL two Terms ago. And the Court gives no reason to think that Austin and McConnell are unworkable.
In fact, no one has argued to us that Austin’s rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the businesscommunity,23 organized labor,24 and the nonprofit sector,25 together with more than half of the States,26 urge that we
—————— 22To be sure, the majority may respond that Congress can correct theimbalance by removing BCRA’s soft-money limits. Cf. Tr. of Oral Arg. 24 (Sept. 9, 2009) (query of KENNEDY, J.). But this is no response to any legislature that takes campaign finance regulation seriously. It merely illustrates the breadth of the majority’s deregulatory vision. 23See Brief for Committee for Economic Development as Amicus Cu-riae; Brief for American Independent Business Alliance as Amicus Curiae. But see Supp. Brief for Chamber of Commerce of the UnitedStates of America as Amicus Curiae. 24See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 3, 9. 25See Brief for Independent Sector as Amicus Curiae 16–20. 26See Brief for State of Montana et al. as Amici Curiae.
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preserve Austin. As for McConnell, the portions of BCRAit upheld may be prolix, but all three branches of Government have worked to make §203 as user-friendly as possible. For instance, Congress established a special mechanism for expedited review of constitutional challenges, see note following 2 U. S. C. §437h; the FEC has established astandardized process, with clearly defined safe harbors, for corporations to claim that a particular electioneeringcommunication is permissible under WRTL, see 11 CFR §114.15 (2009);27 and, as noted above, THE CHIEF JUSTICE crafted his controlling opinion in WRTL with the expressgoal of maximizing clarity and administrability, 551 U. S.,at 469–470, 473–474. The case for stare decisis may bebolstered, we have said, when subsequent rulings “havereduced the impact” of a precedent “while reaffirming thedecision’s core ruling.” Dickerson v. United States, 530
U. S. 428, 443 (2000).28 In the end, the Court’s rejection of Austin and McCon-—————— 27The FEC established this process following the Court’s June 2007decision in that case, 551 U. S. 449. In the brief interval between the establishment of this process and the 2008 election, corporations and unions used it to make $108.5 million in electioneering communications.Supp. Brief for Appellee 22–23; FEC, Electioneering CommunicationSummary, online at http://fec.gov/finance/disclosure/ECSummary.shtml (all Internet materials as visited Jan. 18, 2010, and available in Clerkof Court’s case file).28Concedely, Austin and McConnell were constitutional decisions, and we have often said that “claims of stare decisis are at the weakest in that field, where our mistakes cannot be corrected by Congress.” Vieth v. Jubelirer, 541 U. S. 267, 305 (2004) (plurality opinion). As a general matter, this principle is a sound one. But the principle onlytakes on real force when an earlier ruling has obstructed the normaldemocratic process; it is the fear of making “mistakes [that] cannot becorrected by Congress,” ibid., that motivates us to review constitutional precedents with a more critical eye. Austin and McConnell did not obstruct state or congressional legislative power in any way. Althoughit is unclear how high a bar today’s decision will pose to future attempts
to regulate corporate electioneering, it will clearly restrainmuch legislative action.
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nell comes down to nothing more than its disagreementwith their results. Virtually every one of its argumentswas made and rejected in those cases, and the majorityopinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court.Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather thanin the proclivities of individuals.” Vasquez v. Hillery, 474
U. S. 254, 265 (1986).
III The novelty of the Court’s procedural dereliction and itsapproach to stare decisis is matched by the novelty of itsruling on the merits. The ruling rests on several premises.First, the Court claims that Austin and McConnell have “banned” corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker’s identity as a corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment tradition and our campaign finance jurisprudence. Each of these claims is wrong.
The So-Called “Ban”
Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate speech. Ante, at 45. Indeed, the majority invokes the specter of a “ban” onnearly every page of its opinion. Ante, at 1, 4, 7, 10, 11, 12, 13, 16, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 33, 35, 38, 40, 42, 45, 46, 47, 49, 54, 56. This characterization is highly misleading, and needs to be corrected.
In fact it already has been. Our cases have repeatedly
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pointed out that, “[c]ontrary to the [majority’s] criticalassumptions,” the statutes upheld in Austin and McCon-nell do “not impose an absolute ban on all forms of corporate political spending.” Austin, 494 U. S., at 660; see also McConnell, 540 U. S., at 203–204; Beaumont, 539 U. S., at 162–163. For starters, both statutes provide exemptionsfor PACs, separate segregated funds established by acorporation for political purposes. See 2 U. S. C. §441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West 2005). “The ability to form and administer separate segregated funds,” we observed in McConnell, “has providedcorporations and unions with a constitutionally sufficientopportunity to engage in express advocacy. That has been this Court’s unanimous view.” 540 U. S., at 203.
Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of corporations availthemselves of this option;29 during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.30 Administering a PAC entails some administrative burden, but so does complying with the disclaimer,disclosure, and reporting requirements that the Court today upholds, see ante, at 51, and no one has suggested that the burden is severe for a sophisticated for-profit corporation. To the extent the majority is worried about
—————— 29See FEC, Number of Federal PAC’s Increases, http://fec.gov/press/press2008/20080812paccount.shtml. 30See Supp. Brief for Appellee 16 (citing FEC statistics placing this figure at $840 million). The majority finds the PAC option inadequatein part because “[a] PAC is a separate association from the corporation.” Ante, at 21. The formal “separateness” of PACs from their host corporations—which administer and control the PACs but which cannotfunnel general treasury funds into them or force members to support them—is, of course, the whole point of the PAC mechanism.
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this issue, it is important to keep in mind that we have norecord to show how substantial the burden really is, just the majority’s own unsupported factfinding, see ante, at 21–22. Like all other natural persons, every shareholderof every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form. The owners of a “mom & pop” store can simply place ads in their own names, rather than the store’s. If ideologically aligned individuals wish to make unlimited expenditures throughthe corporate form, they may utilize an MCFL organization that has policies in place to avoid becoming a conduit for business or union interests. See MCFL, 479 U. S., at 263–264.
The laws upheld in Austin and McConnell leave openmany additional avenues for corporations’ political speech.Consider the statutory provision we are ostensibly evaluating in this case, BCRA §203. It has no application togenuine issue advertising—a category of corporate speech Congress found to be far more substantial than electionrelated advertising, see McConnell, 540 U. S., at 207—or to Internet, telephone, and print advocacy.31 Like numer——————
31Roaming far afield from the case at hand, the majority worries that the Government will use §203 to ban books, pamphlets, and blogs. Ante, at 20, 33, 49. Yet by its plain terms, §203 does not apply to printed material. See 2 U. S. C. §434(f)(3)(A)(i); see also 11 CFR§100.29(c)(1) (“[E]lectioneering communication does not include communications appearing in print media”). And in light of the ordinary understanding of the terms “broadcast, cable, [and] satellite,” §434(f)(3)(A)(i), coupled with Congress’ clear aim of targeting “a virtual torrent of televised election-related ads,” McConnell, 540 U. S., at 207, we highly doubt that §203 could be interpreted to apply to a Web site orbook that happens to be transmitted at some stage over airwaves orcable lines, or that the FEC would ever try to do so. See 11 CFR §100.26 (exempting most Internet communications from regulation asadvertising); §100.155 (exempting uncompensated Internet activityfrom regulation as an expenditure); Supp. Brief for Center for Independent Media et al. as Amici Curiae 14 (explaining that “the FEC has
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ous statutes, it exempts media companies’ news stories, commentaries, and editorials from its electioneering restrictions, in recognition of the unique role played by theinstitutional press in sustaining public debate.32 See 2
U. S. C. §434(f)(3)(B)(i); McConnell, 540 U. S., at 208–209; see also Austin, 494 U. S., at 666–668. It also allows corporations to spend unlimited sums on political communications with their executives and shareholders, §441b(b)(2)(A); 11 CFR §114.3(a)(1), to fund additional PAC activity through trade associations, 2 U. S. C. §441b(b)(4)(D), to distribute voting guides and votingrecords, 11 CFR §§114.4(c)(4)–(5), to underwrite voter registration and voter turnout activities, §114.3(c)(4);§114.4(c)(2), to host fundraising events for candidates within certain limits, §114.4(c); §114.2(f)(2), and to publicly endorse candidates through a press release and press conference, §114.4(c)(6).
At the time Citizens United brought this lawsuit, theonly types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications;33
(2) capable of reaching at least 50,000 persons in the relevant electorate;34 (3) made within 30 days of a primaryor 60 days of a general federal election;35 (4) by a labor union or a non-MCFL, nonmedia corporation;36 (5) paid for
—————— consistently construed [BCRA’s] media exemption to apply to a varietyof non-traditional media”). If it should, the Government acknowledges“there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). 32As the Government points out, with a media corporation there isalso a lesser risk that investors will not understand, learn about, or support the advocacy messages that the corporation disseminates.Supp. Reply Brief for Appellee 10. Everyone knows and expects that media outlets may seek to influence elections in this way. 332 U. S. C. §434(f)(3)(A)(i). 34§434(f)(3)(C). 35§434(f)(3)(A)(i)(II). 36§441b(b); McConnell, 540 U. S., at 211.
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with general treasury funds;37 and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”38 The category ofcommunications meeting all of these criteria is not trivial,but the notion that corporate political speech has been “suppress[ed] . . . altogether,” ante, at 2, that corporationshave been “exclu[ded] . . . from the general public dialogue,” ante, at 25, or that a work of fiction such as Mr. Smith Goes to Washington might be covered, ante, at 56– 57, is nonsense.39 Even the plaintiffs in McConnell, who had every incentive to depict BCRA as negatively as possible, declined to argue that §203’s prohibition on certain uses of general treasury funds amounts to a complete ban. See 540 U. S., at 204.
In many ways, then, §203 functions as a source restriction or a time, place, and manner restriction. It applies ina viewpoint-neutral fashion to a narrow subset of advocacy messages about clearly identified candidates for federal office, made during discrete time periods through discrete channels. In the case at hand, all Citizens United needed to do to broadcast Hillary right before the primary was toabjure business contributions or use the funds in its PAC,which by its own account is “one of the most active conservative PACs in America,” Citizens United Political Victory
—————— 37§441b(b)(2)(C). 38 WRTL, 551 U. S. 449, 470 (2007) (opinion of ROBERTS, C. J.). 39It is likewise nonsense to suggest that the FEC’s “‘business is to censor.’ ” Ante, at 18 (quoting Freedman v. Maryland, 380 U. S. 51, 57 (1965)). The FEC’s business is to administer and enforce the campaignfinance laws. The regulatory body at issue in Freedman was a state Board of Censors that had virtually unfettered discretion to bar distribution of motion picture films it deemed not to be “moral and proper.” See id., at 52–53, and n. 2. No movie could be shown in the State of Maryland that was not first approved and licensed by the Board ofCensors. Id., at 52, n. 1. It is an understatement to say that Freedman is not on point, and the majority’s characterization of the FEC is deeply disconcerting.
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Fund, http://www.cupvf.org/.40
So let us be clear: Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue. Laws such as §203 target a class ofcommunications that is especially likely to corrupt thepolitical process, that is at least one degree removed fromthe views of individual citizens, and that may not evenreflect the views of those who pay for it. Such laws burden political speech, and that is always a serious matter, demanding careful scrutiny. But the majority’s incessanttalk of a “ban” aims at a straw man.
Identity-Based Distinctions
The second pillar of the Court’s opinion is its assertion that “the Government cannot restrict political speechbased on the speaker’s . . . identity.” Ante, at 30; accord, ante, at 1, 24, 26, 30, 31, 32, 33, 34, 49, 50. The case on which it relies for this proposition is First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). As I shall explain, infra, at 52–55, the holding in that case was far narrower than the Court implies. Like its paeans to unfettereddiscourse, the Court’s denunciation of identity-baseddistinctions may have rhetorical appeal but it obscuresreality.
“Our jurisprudence over the past 216 years has rejectedan absolutist interpretation” of the First Amendment. WRTL, 551 U. S., at 482 (opinion of ROBERTS, C. J.). The
—————— 40Citizens United has administered this PAC for over a decade. See Defendant FEC’s Memorandum in Opposition to Plaintiff’s Second Motion for Preliminary Injunction in No. 07–2240 (ARR, RCL, RWR)(DC), p. 20. Citizens United also operates multiple “527” organizationsthat engage in partisan political activity. See Defendant FEC’s Statement of Material Facts as to Which There Is No Genuine Dispute in No.07–2240 (DC), ¶¶ 22–24.
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First Amendment provides that “Congress shall make nolaw . . . abridging the freedom of speech, or of the press.” Apart perhaps from measures designed to protect thepress, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinelyplaces special restrictions on the speech rights of students,41 prisoners,42 members of the Armed Forces,43 foreigners,44 and its own employees.45 When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.46 In ——————
41See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986) (“[T]he constitutional rights of students in public school are notautomatically coextensive with the rights of adults in other settings”).
42See, e.g., Jones v. North Carolina Prisoners’ Labor Union, Inc., 433
U. S. 119, 129 (1977) (“In a prison context, an inmate does not retainthose First Amendment rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system” (internal quotation marks omitted)).
43See, e.g., Parker v. Levy, 417 U. S. 733, 758 (1974) (“While the members of the military are not excluded from the protection grantedby the First Amendment, the different character of the military community and of the military mission requires a different application ofthose protections”).
44See, e.g., 2 U. S. C. §441e(a)(1) (foreign nationals may not directlyor indirectly make contributions or independent expenditures in connection with a U. S. election).
45See, e.g., Civil Service Comm’n v. Letter Carriers, 413 U. S. 548 (1973) (upholding statute prohibiting Executive Branch employees from taking “any active part in political management or in political campaigns” (internal quotation marks omitted)); Public Workers v. Mitchell, 330 U. S. 75 (1947) (same); United States v. Wurzbach, 280 U. S. 396 (1930) (upholding statute prohibiting federal employees from making contributions to Members of Congress for “any political purpose whatever” (internal quotation marks omitted)); Ex parte Curtis, 106 U. S. 371 (1882) (upholding statute prohibiting certain federal employeesfrom giving money to other employees for political purposes).
46The majority states that the cases just cited are “inapposite” be30
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contrast to the blanket rule that the majority espouses, our cases recognize that the Government’s interests maybe more or less compelling with respect to different classes of speakers,47 cf. Minneapolis Star & Tribune Co. v. Min-nesota Comm’r of Revenue, 460 U. S. 575, 585 (1983) (“[D]ifferential treatment” is constitutionally suspect“unless justified by some special characteristic” of the regulated class of speakers (emphasis added)), and that the constitutional rights of certain categories of speakers, in certain contexts, “‘are not automatically coextensivewith the rights’” that are normally accorded to members of our society, Morse v. Frederick, 551 U. S. 393, 396–397, 404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)).
The free speech guarantee thus does not render every other public interest an illegitimate basis for qualifying aspeaker’s autonomy; society could scarcely function if itdid. It is fair to say that our First Amendment doctrinehas “frowned on” certain identity-based distinctions, Los Angeles Police Dept. v. United Reporting Publishing Corp.,
—————— cause they “stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech.” Ante, at 25. The majority’s creative suggestion that these cases stand only for that one proposition is quite implausible. In any event, the proposition lies at the heart of this case, as Congress and half the state legislatures have concluded, over many decades, that their core functions of administering elections and passing legislation cannot operate effectively without some narrow restrictions on corporate electioneering paid for by general treasury funds.47Outside of the law, of course, it is a commonplace that the identityand incentives of the speaker might be relevant to an assessment of hisspeech. See Aristotle, Poetics 43–44 (M. Heath transl. 1996) (“Inevaluating any utterance or action, one must take into account not justthe moral qualities of what is actually done or said, but also the identity of the agent or speaker, the addressee, the occasion, the means, and the motive”). The insight that the identity of speakers is a propersubject of regulatory concern, it bears noting, motivates the disclaimerand disclosure provisions that the Court today upholds.
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528 U. S. 32, 47, n. 4 (1999) (STEVENS, J., dissenting),particularly those that may reflect invidious discrimination or preferential treatment of a politically powerful group. But it is simply incorrect to suggest that we haveprohibited all legislative distinctions based on identity or content. Not even close.
The election context is distinctive in many ways, and theCourt, of course, is right that the First Amendment closelyguards political speech. But in this context, too, the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled. We have, for example, allowed state-run broadcasters to exclude independent candidates from televised debates. Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 (1998).48 We have upheld statutes that prohibit the distribution or display of campaign materials near a polling place. Burson v. Freeman, 504 U. S. 191 (1992).49 Although we have not reviewed them directly, we have nevercast doubt on laws that place special restrictions on campaign spending by foreign nationals. See, e.g., 2 U. S. C. §441e(a)(1). And we have consistently approved laws that bar Government employees, but not others, from contrib——————
48I dissented in Forbes because the broadcaster’s decision to exclude the respondent from its debate was done “on the basis of entirelysubjective, ad hoc judgments,” 523 U. S., at 690, that suggested anticompetitive viewpoint discrimination, id., at 693–694, and lacked a compelling justification. Needless to say, my concerns do not apply to the instant case.
49The law at issue in Burson was far from unusual. “[A]ll 50 States,” the Court observed, “limit access to the areas in or around pollingplaces.” 504 U. S., at 206; see also Note, 91 Ky. L. J. 715, 729, n. 89,747–769 (2003) (collecting statutes). I dissented in Burson because the evidence adduced to justify Tennessee’s law was “exceptionally thin,”504 U. S., at 219, and “the reason for [the] restriction [had] disappear[ed]” over time, id., at 223. “In short,” I concluded, “Tennessee ha[d] failed to point to any legitimate interest that would justify itsselective regulation of campaign-related expression.” Id., at 225. These criticisms are inapplicable to the case before us.
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uting to or participating in political activities. See n. 45, supra. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress’ reasoned judgment that certain regulationswhich leave “untouched full participation . . . in politicaldecisions at the ballot box,” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 556 (1973) (internal quotation marks omitted), help ensure that public officials are “sufficiently free from improper influences,” id., at 564, and that “confidence in the system of representative Government is not . . . eroded to a disastrous extent,” id., at 565.
The same logic applies to this case with additional force because it is the identity of corporations, rather than individuals, that the Legislature has taken into account.As we have unanimously observed, legislatures are entitled to decide “that the special characteristics of the corporate structure require particularly careful regulation” in an electoral context. NRWC, 459 U. S., at 209–210.50 Not only has the distinctive potential of corporations to corruptthe electoral process long been recognized, but within thearea of campaign finance, corporate spending is also “furthest from the core of political expression, since corporations’ First Amendment speech and association interestsare derived largely from those of their members and of the public in receiving information,” Beaumont, 539 U. S., at 161, n. 8 (citation omitted). Campaign finance distinctionsbased on corporate identity tend to be less worrisome, inother words, because the “speakers” are not natural persons, much less members of our political community, and
—————— 50They are likewise entitled to regulate media corporations differently from other corporations “to ensure that the law ‘does not hinder orprevent the institutional press from reporting on, and publishingeditorials about, newsworthy events.’ ” McConnell, 540 U. S., at 208 (quoting Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 668 (1990)).
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the governmental interests are of the highest order. Furthermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimination or political favoritism.
If taken seriously, our colleagues’ assumption that theidentity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to someremarkable conclusions. Such an assumption would haveaccorded the propaganda broadcasts to our troops by“Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it wouldappear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Ante, at 33 (quoting Buckley, 424 U. S., at 49).51 Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a
—————— 51The Court all but confesses that a categorical approach to speakeridentity is untenable when it acknowledges that Congress might be allowed to take measures aimed at “preventing foreign individuals orassociations from influencing our Nation’s political process.” Ante, at 46–47. Such measures have been a part of U. S. campaign finance lawfor many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers, whose “obsession with foreign influence derived from a fear that foreign powers and individuals had no basic investment in the well-being of the country.”Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 393,
n. 245 (2009) (hereinafter Teachout); see also U. S. Const., Art. I, §9, cl. 8 (“[N]o Person holding any Office of Profit or Trust . . . shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”).Professor Teachout observes that a corporation might be analogized to a foreign power in this respect, “inasmuch as its legal loyalties necessarily exclude patriotism.” Teachout 393, n. 245.
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form of speech.52
In short, the Court dramatically overstates its critiqueof identity-based distinctions, without ever explaining whycorporate identity demands the same treatment as individual identity. Only the most wooden approach to theFirst Amendment could justify the unprecedented line itseeks to draw.
Our First Amendment Tradition
A third fulcrum of the Court’s opinion is the idea that Austin and McConnell are radical outliers, “aberration[s],”in our First Amendment tradition. Ante, at 39; see also ante, at 45, 56 (professing fidelity to “our law and our tradition”). The Court has it exactly backwards. It is today’s holding that is the radical departure from what had been settled First Amendment law. To see why, it is useful to take a long view.
1. Original Understandings Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 1 (internalquotation marks omitted), and original understandings, ante, at 37–38, to defend today’s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified
the Amendment. Perhaps this is because there is not ascintilla of evidence to support the notion that anyone
—————— 52See A. Bickel, The Supreme Court and the Idea of Progress 59–60 (1978); A. Meiklejohn, Political Freedom: The Constitutional Powers ofthe People 39–40 (1965); Tokaji, First Amendment Equal Protection:On Discretion, Inequality, and Participation, 101 Mich. L. Rev. 2409, 2508–2509 (2003). Of course, voting is not speech in a pure or formalsense, but then again neither is a campaign expenditure; both arenevertheless communicative acts aimed at influencing electoral outcomes. Cf. Strauss, Corruption, Equality, and Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1383–1384 (1994) (hereinafter Strauss).
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believed it would preclude regulatory distinctions based on the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case,they would appear to cut strongly against the majority’sposition.
This is not only because the Framers and their contemporaries conceived of speech more narrowly than we now think of it, see Bork, Neutral Principles and Some FirstAmendment Problems, 47 Ind. L. J. 1, 22 (1971), but also because they held very different views about the nature of the First Amendment right and the role of corporations insociety. Those few corporations that existed at the founding were authorized by grant of a special legislative charter.53 Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charterthat specified the corporation’s powers and purposes and “authoritatively fixed the scope and content of corporate organization,” including “the internal structure of the ——————
53Scholars have found that only a handful of business corporations were issued charters during the colonial period, and only a few hundred during all of the 18th century. See E. Dodd, American Business Corporations Until 1860, p. 197 (1954); L. Friedman, A History of AmericanLaw 188–189 (2d ed. 1985); Baldwin, American Business CorporationsBefore 1789, 8 Am. Hist. Rev. 449, 450–459 (1903). JUSTICE SCALIA quibbles with these figures; whereas we say that “a few hundred”charters were issued to business corporations during the 18th century,he says that the number is “approximately 335.” Ante, at 2 (concurring opinion). JUSTICE SCALIA also raises the more serious point that it is improper to assess these figures by today’s standards, ante, at 3, though I believe he fails to substantiate his claim that “the corporation was a familiar figure in American economic life” by the century’s end, ibid. (internal quotation marks omitted). His formulation of that claim is also misleading, because the relevant reference point is not 1800 but the date of the First Amendment’s ratification, in 1791. And at that time, the number of business charters must have been significantlysmaller than 335, because the pace of chartering only began to pick up steam in the last decade of the 18th century. More than half of the century’s total business charters were issued between 1796 and 1800. Friedman, History of American Law, at 189.
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corporation.” J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970,pp. 15–16 (1970) (reprint 2004). Corporations were created, supervised, and conceptualized as quasi-public entities, “designed to serve a social function for the state.”Handlin & Handlin, Origin of the American BusinessCorporation, 5 J. Econ. Hist. 1, 22 (1945). It was “assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.” R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982).
The individualized charter mode of incorporation reflected the “cloud of disfavor under which corporations labored” in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006); see also Louis K. Liggett Co. v. Lee, 288 U. S. 517, 548–549 (1933) (Brandeis, J., dissenting) (discussing fearsof the “evils” of business corporations); L. Friedman, AHistory of American Law 194 (2d ed. 1985) (“The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentratethe worst urges of whole groups of men”). Thomas Jefferson famously fretted that corporations would subvert the Republic.54 General incorporation statutes, and widespread acceptance of business corporations as socially useful actors, did not emerge until the 1800’s. See Hansmann & Kraakman, The End of History for Corporate Law, 89 Geo. L. J. 439, 440 (2001) (hereinafter Hansmann& Kraakman) (“[A]ll general business corporation statutesappear to date from well after 1800”). ——————
54See Letter from Thomas Jefferson to Tom Logan (Nov. 12, 1816), in 12 The Works of Thomas Jefferson 42, 44 (P. Ford ed. 1905) (“I hope weshall . . . crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strengthand bid defiance to the laws of our country”).
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The Framers thus took it as a given that corporationscould be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had littletrouble distinguishing corporations from human beings,and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporateactivity was thought to rest entirely in a concession of thesovereign.” Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trus-tees of Dartmouth College v. Woodward, 4 Wheat. 518, 636
—————— 55In normal usage then, as now, the term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853–1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of “speech”: “The power of articulateutterance; the power of expressing thoughts by vocal words”); 2 N.Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of “speech”: “The faculty ofuttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes”). Indeed, it has been “claimed that the notion of institutional speech . . . did not exist in postrevolutionary America.” Fagundes, State Actors as First AmendmentSpeakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) (“In the intellectual heritage of the eighteenth century, the idea that free speech was individual and personal was deeply rooted and clearly manifest in the writings of Locke, Milton, and others on whom the framers of theConstitution and the Bill of Rights drew”). Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers andratifiers understood “the freedom of speech” to encompass corporatespeech is, I believe, far heavier than the majority acknowledges.
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(1819) (Marshall, C. J.) (“A corporation is an artificialbeing, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129(“The framers of the First Amendment could scarcely haveanticipated its application to the corporation form. That, of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to bethe beneficiary of the free speech guaranty—the individual”). In light of these background practices and understandings, it seems to me implausible that the Framersbelieved “the freedom of speech” would extend equally toall corporate speakers, much less that it would precludelegislatures from taking limited measures to guard against corporate capture of elections.
The Court observes that the Framers drew on diverse intellectual sources, communicated through newspapers, and aimed to provide greater freedom of speech than had existed in England. Ante, at 37. From these (accurate)observations, the Court concludes that “[t]he First Amendment was certainly not understood to condone the suppression of political speech in society’s most salientmedia.” Ibid. This conclusion is far from certain, giventhat many historians believe the Framers were focused onprior restraints on publication and did not understand theFirst Amendment to “prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare.” Near v. Minnesota ex rel. Olson, 283 U. S. 697, 714 (1931). Yet, even if the majority’s conclusionwere correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent.
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As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of asponsor of electoral advocacy. As a matter of originalmeaning, it likewise seems baseless—unless one evaluatesthe First Amendment’s “principles,” ante, at 1, 48, or its “purpose,” ante, at 5 (opinion of ROBERTS, C. J.), at such a high level of generality that the historical understandingsof the Amendment cease to be a meaningful constraint onthe judicial task. This case sheds a revelatory light on theassumption of some that an impartial judge’s application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in thedecisional process, than his or her views about sound policy.
JUSTICE SCALIA criticizes the foregoing discussion for failing to adduce statements from the founding era showing that corporations were understood to be excluded from the First Amendment’s free speech guarantee. Ante, at 1– 2, 9. Of course, JUSTICE SCALIA adduces no statements to suggest the contrary proposition, or even to suggest thatthe contrary proposition better reflects the kind of right that the drafters and ratifiers of the Free Speech Clausethought they were enshrining. Although JUSTICE SCALIA makes a perfectly sensible argument that an individual’s right to speak entails a right to speak with others for a common cause, cf. MCFL, 479 U. S. 238, he does not explain why those two rights must be precisely identical, or why that principle applies to electioneering by corporations that serve no “common cause.” Ante, at 8. Nothingin his account dislodges my basic point that members of the founding generation held a cautious view of corporatepower and a narrow view of corporate rights (not that they“despised” corporations, ante, at 2), and that they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would
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have lesser status than individual speech, that may wellbe because the contrary proposition—if not also the very notion of “corporate speech”—was inconceivable.56
JUSTICE SCALIA also emphasizes the unqualified natureof the First Amendment text. Ante, at 2, 8. Yet he would seemingly read out the Free Press Clause: How else could he claim that my purported views on newspapers must track my views on corporations generally? Ante, at 6.57 Like virtually all modern lawyers, JUSTICE SCALIA presumably believes that the First Amendment restricts theExecutive, even though its language refers to Congressalone. In any event, the text only leads us back to thequestions who or what is guaranteed “the freedom of speech,” and, just as critically, what that freedom consists of and under what circumstances it may be limited. JUSTICE SCALIA appears to believe that because corporations are created and utilized by individuals, it follows (as
—————— 56Postratification practice bolsters the conclusion that the First Amendment, “as originally understood,” ante, at 37, did not give corporations political speech rights on a par with the rights of individuals.Well into the modern era of general incorporation statutes, “[t]hecommon law was generally interpreted as prohibiting corporate political participation,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 819 (1978) (White, J., dissenting), and this Court did not recognize anyFirst Amendment protections for corporations until the middle part ofthe 20th century, see ante, at 25–26 (listing cases). 57In fact, the Free Press Clause might be turned against JUSTICE SCALIA, for two reasons. First, we learn from it that the drafters of the First Amendment did draw distinctions—explicit distinctions—betweentypes of “speakers,” or speech outlets or forms. Second, the Court’s strongest historical evidence all relates to the Framers’ views on the press, see ante, at 37–38; ante, at 4–6 (SCALIA, J., concurring), yet while the Court tries to sweep this evidence into the Free Speech Clause, the Free Press Clause provides a more natural textual home. The text and history highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim specialFirst Amendment status, and therefore why some kinds of “identity”based distinctions might be permissible after all. Once one accepts thatmuch, the intellectual edifice of the majority opinion crumbles.
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night the day) that their electioneering must be equallyprotected by the First Amendment and equally immunizedfrom expenditure limits. See ante, at 7–8. That conclusion certainly does not follow as a logical matter, and JUSTICE SCALIA fails to explain why the original public meaning leads it to follow as a matter of interpretation.
The truth is we cannot be certain how a law such as BCRA §203 meshes with the original meaning of the First Amendment.58 I have given several reasons why I believethe Constitution would have been understood then, and ought to be understood now, to permit reasonable restrictions on corporate electioneering, and I will give manymore reasons in the pages to come. The Court enlists the Framers in its defense without seriously grappling with their understandings of corporations or the free speech right, or with the republican principles that underlay those understandings.
In fairness, our campaign finance jurisprudence has never attended very closely to the views of the Framers, see Randall v. Sorrell, 548 U. S. 230, 280 (2006) (STEVENS, J., dissenting), whose political universe differed profoundly from that of today. We have long since held that corporations are covered by the First Amendment, andmany legal scholars have long since rejected the concession theory of the corporation. But “historical context is usually relevant,” ibid. (internal quotation marks omitted), and in light of the Court’s effort to cast itself asguardian of ancient values, it pays to remember that nothing in our constitutional history dictates today’s outcome. To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.
—————— 58Cf. L. Levy, Legacy of Suppression: Freedom of Speech and Press inEarly American History 4 (1960) (“The meaning of no other clause ofthe Bill of Rights at the time of its framing and ratification has been so obscure to us” as the Free Speech and Press Clause).
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2. Legislative and Judicial Interpretation A century of more recent history puts to rest any notionthat today’s ruling is faithful to our First Amendmenttradition. At the federal level, the express distinctionbetween corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act, ch. 420, 34 Stat. 864, banning all corporate contributions to candidates. The Senate Report onthe legislation observed that “[t]he evils of the use of [corporate] money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure. It is in the interest of good government and calculated to promote purity in the selection of public officials.” S. Rep. No. 3056, 59th Cong., 1st Sess., 2 (1906). President Roosevelt, in his 1905 annual messageto Congress, declared: “‘All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimedat in corrupt practices acts.’” United States v. Auto-
mobile Workers, 352 U. S. 567, 572 (1957) (quoting 40 Cong. Rec. 96).
The Court has surveyed the history leading up to theTillman Act several times, see WRTL, 551 U. S., at 508– 510 (Souter, J., dissenting); McConnell, 540 U. S., at 115; Automobile Workers, 352 U. S., at 570–575, and I will refrain from doing so again. It is enough to say that the Act was primarily driven by two pressing concerns: first,the enormous power corporations had come to wield infederal elections, with the accompanying threat of bothactual corruption and a public perception of corruption;
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and second, a respect for the interest of shareholders andmembers in preventing the use of their money to support candidates they opposed. See ibid.; United States v. CIO, 335 U. S. 106, 113 (1948); Winkler, “Other People’sMoney”: Corporations, Agency Costs, and Campaign Finance Law, 92 Geo. L. J. 871 (2004).
Over the years, the limitations on corporate politicalspending have been modified in a number of ways, asCongress responded to changes in the American economyand political practices that threatened to displace the commonweal. Justice Souter recently traced these developments at length.59 WRTL, 551 U. S., at 507–519 (dissenting opinion); see also McConnell, 540 U. S., at 115– 133; McConnell, 251 F. Supp. 2d, at 188–205. The Taft-Hartley Act of 1947 is of special significance for this case. In that Act passed more than 60 years ago, Congressextended the prohibition on corporate support of candidates to cover not only direct contributions, but independent expenditures as well. Labor Management Relations Act, 1947, §304, 61 Stat. 159. The bar on contributions “was being so narrowly construed” that corporations were easily able to defeat the purposes of the Act by supporting candidates through other means. WRTL, 551 U. S., at 511 (Souter, J., dissenting) (citing S. Rep. No. 1, 80th Cong., 1st Sess., 38–39 (1947)).
Our colleagues emphasize that in two cases from themiddle of the 20th century, several Justices wrote sepa——————
59As the majority notes, there is some academic debate about the precise origins of these developments. Ante, at 48; see also n. 19, supra. There is always some academic debate about such developments; themotives of legislatures are never entirely clear or unitary. Yet the basic shape and trajectory of 20th-century campaign finance reform are clear,and one need not take a naïve or triumphalist view of this history to find it highly relevant. The Court’s skepticism does nothing to mitigatethe absurdity of its claim that Austin and McConnell were outliers. Nor does it alter the fact that five Justices today destroy a longstandingAmerican practice.
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rately to criticize the expenditure restriction as applied tounions, even though the Court declined to pass on its constitutionality. Ante, at 27–28. Two features of these cases are of far greater relevance. First, those Justices were writing separately; which is to say, their positionfailed to command a majority. Prior to today, this was afact we found significant in evaluating precedents. Second, each case in this line expressed support for the principle that corporate and union political speech financedwith PAC funds, collected voluntarily from the organization’s stockholders or members, receives greater protection than speech financed with general treasury funds.60
—————— 60See Pipefitters v. United States, 407 U. S. 385, 409, 414–415 (1972)(reading the statutory bar on corporate and union campaign spendingnot to apply to “the voluntary donations of employees,” when maintained in a separate account, because “[t]he dominant [legislative] concern in requiring that contributions be voluntary was, after all, toprotect the dissenting stockholder or union member”); Automobile Workers, 352 U. S., at 592 (advising the District Court to consider onremand whether the broadcast in question was “paid for out of thegeneral dues of the union membership or [whether] the funds [could] befairly said to have obtained on a voluntary basis”); United States v. CIO, 335 U. S. 106, 123 (1948) (observing that “funds voluntarilycontributed [by union members or corporate stockholders] for election purposes” might not be covered by the expenditure bar). Both the Pipefitters and the Automobile Workers Court approvingly referenced Congress’ goal of reducing “the effect of aggregated wealth on federalelections,” understood as wealth drawn from a corporate or uniongeneral treasury without the stockholders’ or members’ “free and knowing choice.” Pipefitters, 407 U. S., at 416; see Automobile Workers, 352 U. S., at 582. The two dissenters in Pipefitters would not have read the statutoryprovision in question, a successor to §304 of the Taft-Hartley Act, toallow such robust use of corporate and union funds to finance otherwise prohibited electioneering. “This opening of the door to extensivecorporate and union influence on the elective and legislative processes,” Justice Powell wrote, “must be viewed with genuine concern. This seems to me to be a regressive step as contrasted with the numerous legislative and judicial actions in recent years designed to assure thatelections are indeed free and representative.” 407 U. S., at 450 (opinion
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This principle was carried forward when Congressenacted comprehensive campaign finance reform in the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3,which retained the restriction on using general treasuryfunds for contributions and expenditures, 2 U. S. C.§441b(a). FECA codified the option for corporations and unions to create PACs to finance contributions and expenditures forbidden to the corporation or union itself. §441b(b).
By the time Congress passed FECA in 1971, the bar on corporate contributions and expenditures had become such an accepted part of federal campaign finance regulationthat when a large number of plaintiffs, including severalnonprofit corporations, challenged virtually every aspect ofthe Act in Buckley, 424 U. S. 1, no one even bothered to argue that the bar as such was unconstitutional. Buckleyfamously (or infamously) distinguished direct contributions from independent expenditures, id., at 58–59, but its silence on corporations only reinforced the understandingthat corporate expenditures could be treated differentlyfrom individual expenditures. “Since our decision in Buck-ley, Congress’ power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law.” McConnell, 540 U. S., at 203.
Thus, it was unremarkable, in a 1982 case holding thatCongress could bar nonprofit corporations from soliciting nonmembers for PAC funds, that then-Justice Rehnquist wrote for a unanimous Court that Congress’ “careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, to account for the particularlegal and economic attributes of corporations . . . warrantsconsiderable deference,” and “reflects a permissible as——————
of Powell, J., joined by Burger, C. J.).
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sessment of the dangers posed by those entities to the electoral process.” NRWC, 459 U. S., at 209 (internalquotation marks and citation omitted). “The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized,” the unanimous Court observed,“and there is no reason why it may not . . . be accomplished by treating . . . corporations . . . differently fromindividuals.” Id., at 210–211.
The corporate/individual distinction was not questionedby the Court’s disposition, in 1986, of a challenge to the expenditure restriction as applied to a distinctive type ofnonprofit corporation. In MCFL, 479 U. S. 238, we stated again “that ‘the special characteristics of the corporatestructure require particularly careful regulation,’” id., at 256 (quoting NRWC, 459 U. S., at 209–210), and again weacknowledged that the Government has a legitimateinterest in “regulat[ing] the substantial aggregations of wealth amassed by the special advantages which go withthe corporate form,” 479 U. S., at 257 (internal quotation marks omitted). Those aggregations can distort the “free trade in ideas” crucial to candidate elections, ibid., at the expense of members or shareholders who may disagree with the object of the expenditures, id., at 260 (internal quotation marks omitted). What the Court held by a 5-to4 vote was that a limited class of corporations must beallowed to use their general treasury funds for independent expenditures, because Congress’ interests in protecting shareholders and “restrict[ing] ‘the influence of political war chests funneled through the corporate form,’” id., at 257 (quoting FEC v. National Conservative Political Action Comm., 470 U. S. 480, 501 (1985) (NCPAC)), did not apply to corporations that were structurally insulatedfrom those concerns.61
—————— 61Specifically, these corporations had to meet three conditions. First,
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It is worth remembering for present purposes that thefour MCFL dissenters, led by Chief Justice Rehnquist,thought the Court was carrying the First Amendment too far. They would have recognized congressional authority to bar general treasury electioneering expenditures even by this class of nonprofits; they acknowledged that “thethreat from corporate political activity will vary depending on the particular characteristics of a given corporation,” but believed these “distinctions among corporations” were“distinctions in degree,” not “in kind,” and thus “more properly drawn by the Legislature than by the Judiciary.” 479 U. S., at 268 (opinion of Rehnquist, C. J.) (internal quotation marks omitted). Not a single Justice suggested that regulation of corporate political speech could be no more stringent than of speech by an individual.
Four years later, in Austin, 494 U. S. 652, we considered whether corporations falling outside the MCFL exception could be barred from using general treasury funds to make independent expenditures in support of, or in oppositionto, candidates. We held they could be. Once again recognizing the importance of “the integrity of the marketplaceof political ideas” in candidate elections, MCFL, 479 U. S., at 257, we noted that corporations have “special advantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets,” 494 U. S., at 658–659—that allow them to spend prodigious general treasury sums on campaign messages
—————— they had to be formed “for the express purpose of promoting politicalideas,” so that their resources reflected political support rather thancommercial success. MCFL, 479 U. S., at 264. Next, they had to haveno shareholders, so that “persons connected with the organization willhave no economic disincentive for disassociating with it if they disagree with its political activity.” Ibid. Finally, they could not be “established by a business corporation or a labor union,” nor “accept contributionsfrom such entities,” lest they “serv[e] as conduits for the type of directspending that creates a threat to the political marketplace.” Ibid.
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that have “little or no correlation” with the beliefs held byactual persons, id., at 660. In light of the corrupting effects such spending might have on the political process, ibid., we permitted the State of Michigan to limit corporate expenditures on candidate elections to corporations’ PACs, which rely on voluntary contributions and thus “reflect actual public support for the political ideals espoused by corporations,” ibid. Notwithstanding our colleagues’ insinuations that Austin deprived the public ofgeneral “ideas,” “facts,” and “knowledge,” ante, at 38–39, the decision addressed only candidate-focused expenditures and gave the State no license to regulate corporatespending on other matters.
In the 20 years since Austin, we have reaffirmed its holding and rationale a number of times, see, e.g., Beau-mont, 539 U. S., at 153–156, most importantly in McCon-nell, 540 U. S. 93, where we upheld the provision challenged here, §203 of BCRA.62 Congress crafted §203 inresponse to a problem created by Buckley. The Buckley
—————— 62According to THE CHIEF JUSTICE, we are “erroneou[s]” in claiming that McConnell and Beaumont “ ‘reaffirmed’ ” Austin. Ante, at 5. In both cases, the Court explicitly relied on Austin and quoted from it atlength. See 540 U. S., at 204–205; 539 U. S., at 153–155, 158, 160, 163; see also ante, at 15 (“The holding and validity of Austin were essential to the reasoning of the McConnell majority opinion”); Brief for Appellants National Rifle Association et al., O. T. 2003, No. 02–1675, p. 21(“Beaumont reaffirmed . . . the Austin rationale for restricting expenditures”). The McConnell Court did so in the teeth of vigorous protests by Justices in today’s majority that Austin should be overruled. See ante, at 15 (citing relevant passages); see also Beaumont, 539 U. S., at 163– 164 (KENNEDY, J., concurring in judgment). Both Courts also heard criticisms of Austin from parties or amici. See Brief for AppellantsChamber of Commerce of the United States et al., O. T. 2003, No. 02– 1756, p. 35, n. 22; Reply Brief for Appellants/Cross-Appellees SenatorMitch McConnell et al., O. T. 2003, No. 02–1674, pp. 13–14; Brief forPacific Legal Foundation as Amicus Curiae in FEC v. Beaumont, O. T. 2002, No. 02–403, passim. If this does not qualify as reaffirmation of aprecedent, then I do not know what would.
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Court had construed FECA’s definition of prohibited “expenditures” narrowly to avoid any problems of constitutional vagueness, holding it applicable only to “communications that expressly advocate the election or defeat of aclearly identified candidate,” 424 U. S., at 80, i.e., statements containing so-called “magic words” like “‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [or] ‘reject,’” id., at 43–44, and n.
52. After Buckley, corporations and unions figured out how to circumvent the limits on express advocacy by usingsham “issue ads” that “eschewed the use of magic words” but nonetheless “advocate[d] the election or defeat of clearly identified federal candidates.” McConnell, 540
U. S., at 126. “Corporations and unions spent hundreds of millions of dollars of their general funds to pay for theseads.” Id., at 127. Congress passed §203 to address thiscircumvention, prohibiting corporations and unions fromusing general treasury funds for electioneering communications that “refe[r] to a clearly identified candidate,” whether or not those communications use the magic words. 2 U. S. C. §434(f)(3)(A)(i)(I).
When we asked in McConnell “whether a compellinggovernmental interest justifie[d]” §203, we found thequestion “easily answered”: “We have repeatedly sustained legislation aimed at ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’spolitical ideas.’” 540 U. S., at 205 (quoting Austin, 494
U. S., at 660). These precedents “represent respect for the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” 540 U. S., at 205 (internal quotation marks omitted). “Moreover, recent cases have recognized that certainrestrictions on corporate electoral involvement permissiblyhedge against ‘“circumvention of [valid] contribution
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limits.”’” Ibid. (quoting Beaumont, 539 U. S., at 155, in turn quoting FEC v. Colorado Republican Federal Cam-paign Comm., 533 U. S. 431, 456, and n. 18 (2001) (Colo-rado II); alteration in original). BCRA, we found, is faithful to the compelling governmental interests in “‘preserving the integrity of the electoral process, preventing corruption, . . . sustaining the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government,’” and maintaining “‘the individual citizen’s confidence in government.’” 540 U. S., at 206–207, n. 88 (quoting Bellotti, 435 U. S., at 788–789; some internal quotation marks and brackets omitted). What made the answer even easier than it might havebeen otherwise was the option to form PACs, which givecorporations, at the least, “a constitutionally sufficientopportunity to engage in” independent expenditures. 540
U. S., at 203.
3. Buckley and Bellotti Against this extensive background of congressionalregulation of corporate campaign spending, and our repeated affirmation of this regulation as constitutionallysound, the majority dismisses Austin as “a significantdeparture from ancient First Amendment principles,” ante, at 1 (internal quotation marks omitted). How does the majority attempt to justify this claim? Selected passages from two cases, Buckley, 424 U. S. 1, and Bellotti, 435 U. S. 765, do all of the work. In the Court’s view, Buckley and Bellotti decisively rejected the possibility of distinguishing corporations from natural persons in the 1970’s; it just so happens that in every single case inwhich the Court has reviewed campaign finance legislation in the decades since, the majority failed to grasp thistruth. The Federal Congress and dozens of state legislatures,
we now know, have been similarly deluded. The majority emphasizes Buckley’s statement that
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“‘[t]he concept that government may restrict the speech ofsome elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.’” Ante, at 33 (quoting 424 U. S., at 48–49); ante, at 8 (opinion of ROBERTS, C. J.). But this elegant phrasecannot bear the weight that our colleagues have placed onit. For one thing, the Constitution does, in fact, permit numerous “restrictions on the speech of some in order toprevent a few from drowning out the many”: for example,restrictions on ballot access and on legislators’ floor time. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). For another, the Buckley Court used this line in evaluating “the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections.” 424 U. S., at 48. It is not apparent why this isrelevant to the case before us. The majority suggests that Austin rests on the foreign concept of speech equalization, ante, at 34; ante, at 8–10 (opinion of ROBERTS, C. J.), but we made it clear in Austin (as in several cases before and since) that a restriction on the way corporations spendtheir money is no mere exercise in disfavoring the voice of some elements of our society in preference to others. Indeed, we expressly ruled that the compelling interestsupporting Michigan’s statute was not one of “‘equaliz[ing] the relative influence of speakers on elections,’” Austin, 494 U. S., at 660 (quoting id., at 705 (KENNEDY, J., dissenting)), but rather the need to confront the distinctivecorrupting potential of corporate electoral advocacy financed by general treasury dollars, id., at 659–660.
For that matter, it should go without saying that whenwe made this statement in Buckley, we could not have been casting doubt on the restriction on corporate expenditures in candidate elections, which had not been challenged as “foreign to the First Amendment,” ante, at 33 (quoting Buckley, 424 U. S., at 49), or for any other reason.
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Buckley’s independent expenditure analysis was focused on a very different statutory provision, 18 U. S. C. §608(e)(1) (1970 ed., Supp. V). It is implausible to think,as the majority suggests, ante, at 29–30, that Buckley covertly invalidated FECA’s separate corporate and unioncampaign expenditure restriction, §610 (now codified at 2
U. S. C. §441b), even though that restriction had been on the books for decades before Buckley and would remain on the books, undisturbed, for decades after.
The case on which the majority places even greater weight than Buckley, however, is Bellotti, 435 U. S. 765, claiming it “could not have been clearer” that Bellotti’s holding forbade distinctions between corporate and individual expenditures like the one at issue here, ante, at 30. The Court’s reliance is odd. The only thing about Bellotti that could not be clearer is that it declined to adopt the majority’s position. Bellotti ruled, in an explicit limitation on the scope of its holding, that “our consideration of acorporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” 435 U. S., at 788, n. 26; see also id., at 787–788 (acknowledging that the interests in preservingpublic confidence in Government and protecting dissenting shareholders may be “weighty . . . in the context of partisan candidate elections”). Bellotti, in other words, did not touch the question presented in Austin and McConnell, and the opinion squarely disavowed the proposition for which the majority cites it.
The majority attempts to explain away the distinction Bellotti drew—between general corporate speech and campaign speech intended to promote or prevent theelection of specific candidates for office—as inconsistentwith the rest of the opinion and with Buckley. Ante, at 31, 42–44. Yet the basis for this distinction is perfectly coherent: The anticorruption interests that animate regulations
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of corporate participation in candidate elections, the “importance” of which “has never been doubted,” 435 U. S., at788, n. 26, do not apply equally to regulations of corporate participation in referenda. A referendum cannot owe a political debt to a corporation, seek to curry favor with acorporation, or fear the corporation’s retaliation. Cf. Aus-tin, 494 U. S., at 678 (STEVENS, J., concurring); Citizens Against Rent Control/Coalition for Fair Housing v. Berke-ley, 454 U. S. 290, 299 (1981). The majority likewiseoverlooks the fact that, over the past 30 years, our cases have repeatedly recognized the candidate/issue distinction. See, e.g., Austin, 494 U. S., at 659; NCPAC, 470
U. S., at 495–496; FCC v. League of Women Voters of Cal., 468 U. S. 364, 371, n. 9 (1984); NRWC, 459 U. S., at 210,
n. 7. The Court’s critique of Bellotti’s footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a criticalpiece of its analysis as unsupported and irreconcilablewith Buckley. Bellotti, apparently, is both the font of all wisdom and internally incoherent.
The Bellotti Court confronted a dramatically differentfactual situation from the one that confronts us in this case: a state statute that barred business corporations’ expenditures on some referenda but not others. Specifically, the statute barred a business corporation “frommaking contributions or expenditures ‘for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation,’” 435 U. S., at 768 (quoting Mass. Gen. Laws Ann., ch. 55, §8 (West Supp. 1977); alteration in original), and it wentso far as to provide that referenda related to income taxation would not “‘be deemed materially to affect the property, business or assets of the corporation,’” 435 U. S., at
768. As might be guessed, the legislature had enacted thisstatute in order to limit corporate speech on a proposed
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state constitutional amendment to authorize a graduatedincome tax. The statute was a transparent attempt toprevent corporations from spending money to defeat thisamendment, which was favored by a majority of legislators but had been repeatedly rejected by the voters. See id., at 769–770, and n. 3. We said that “where, as here, the legislature’s suppression of speech suggests an attempt togive one side of a debatable public question an advantagein expressing its views to the people, the First Amendmentis plainly offended.” Id., at 785–786 (footnote omitted).
Bellotti thus involved a viewpoint-discriminatory statute, created to effect a particular policy outcome. Even Justice Rehnquist, in dissent, had to acknowledge that “avery persuasive argument could be made that the [Massachusetts Legislature], desiring to impose a personal income tax but more than once defeated in that desire by the combination of the Commonwealth’s referendum provision and corporate expenditures in opposition to such a tax,simply decided to muzzle corporations on this sort of issue so that it could succeed in its desire.” Id., at 827, n. 6. To make matters worse, the law at issue did not make any allowance for corporations to spend money through PACs. Id., at 768, n. 2 (opinion of the Court). This really was a complete ban on a specific, preidentified subject. See MCFL, 479 U. S., at 259, n. 12 (stating that 2 U. S. C. §441b’s expenditure restriction “is of course distinguish-able from the complete foreclosure of any opportunity for political speech that we invalidated in the state referendum context in . . . Bellotti” (emphasis added)).
The majority grasps a quotational straw from Bellotti, that speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation. Ante, at 30–31. Of course not, but no one suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the expenditures at issue were subject to First Amendment scrutiny,
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the restrictions on those expenditures were justified by acompelling state interest. See McConnell, 540 U. S., at 205; Austin, 494 U. S., at 658, 660. We acknowledged in Bellotti that numerous “interests of the highest importance” can justify campaign finance regulation. 435 U. S., at 788–789. But we found no evidence that these interests were served by the Massachusetts law. Id., at 789. We left open the possibility that our decision might have beendifferent if there had been “record or legislative findingsthat corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating ratherthan serving First Amendment interests.” Ibid.
Austin and McConnell, then, sit perfectly well with Bellotti. Indeed, all six Members of the Austin majorityhad been on the Court at the time of Bellotti, and none so much as hinted in Austin that they saw any tension between the decisions. The difference between the cases is not that Austin and McConnell rejected First Amendmentprotection for corporations whereas Bellotti accepted it.The difference is that the statute at issue in Bellotti smacked of viewpoint discrimination, targeted one class of corporations, and provided no PAC option; and the Statehas a greater interest in regulating independent corporateexpenditures on candidate elections than on referenda,because in a functioning democracy the public must havefaith that its representatives owe their positions to the people, not to the corporations with the deepest pockets.
* * * In sum, over the course of the past century Congress hasdemonstrated a recurrent need to regulate corporateparticipation in candidate elections to “‘[p]reserv[e] theintegrity of the electoral process, preven[t] corruption, . . . sustai[n] the active, alert responsibility of the individualcitizen,’” protect the expressive interests of shareholders, and “‘[p]reserv[e] . . . the individual citizen’s confidence in
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government.’” McConnell, 540 U. S., at 206–207, n. 88 (quoting Bellotti, 435 U. S., at 788–789; first alteration in original). These understandings provided the combined impetus behind the Tillman Act in 1907, see Automobile Workers, 352 U. S., at 570–575, the Taft-Hartley Act in 1947, see WRTL, 551 U. S., at 511 (Souter, J., dissenting), FECA in 1971, see NRWC, 459 U. S., at 209–210, and BCRA in 2002, see McConnell, 540 U. S., at 126–132. Continuously for over 100 years, this line of “[c]ampaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or uniontreasuries.” WRTL, 551 U. S., at 522 (Souter, J., dissenting). Time and again, we have recognized these realitiesin approving measures that Congress and the States have taken. None of the cases the majority cites is to the contrary. The only thing new about Austin was the dissent, with its stunning failure to appreciate the legitimacy ofinterests recognized in the name of democratic integritysince the days of the Progressives.
IV Having explained why this is not an appropriate case in which to revisit Austin and McConnell and why these decisions sit perfectly well with “First Amendment principles,” ante, at 1, 48, I come at last to the interests that are at stake. The majority recognizes that Austin and McConnell may be defended on anticorruption, antidistortion, and shareholder protection rationales. Ante, at 32–
46. It badly errs both in explaining the nature of these rationales, which overlap and complement each other, and in applying them to the case at hand.
The Anticorruption Interest
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tal interest in preventing corruption or the appearance ofcorruption” is one that is “limited to quid pro quo corruption.” Ante, at 43. This is the same “crabbed view of corruption” that was espoused by JUSTICE KENNEDY in McConnell and squarely rejected by the Court in that case.540 U. S., at 152. While it is true that we have not alwaysspoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment. It disregards our constitutional history and the fundamental demands of a democratic society.
On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an “‘undue influence on an officeholder’s judgment’” and from creating “‘the appearance of such influence,’” beyond the sphere of quid pro quo relationships. Id., at 150; see also, e.g., id., at 143–144, 152–154; Colorado II, 533 U. S., at 441; Shrink Missouri, 528 U. S., at 389. Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improperinfluences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that stands asa remarkable testament to the energy and ingenuity withwhich corporations, unions, lobbyists, and politicians maygo about scratching each other’s backs—and which amply supported Congress’ determination to target a limited setof especially destructive practices.
The District Court that adjudicated the initial challenge to BCRA pored over this record. In a careful analysis,Judge Kollar-Kotelly made numerous findings about the
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corrupting consequences of corporate and union independent expenditures in the years preceding BCRA’s passage. See McConnell, 251 F. Supp. 2d, at 555–560, 622–625; see also id., at 804–805, 813, n. 143 (Leon, J.) (indicating agreement). As summarized in her own words:
“The factual findings of the Court illustrate thatcorporations and labor unions routinely notify Members of Congress as soon as they air electioneeringcommunications relevant to the Members’ elections. The record also indicates that Members express appreciation to organizations for the airing of these election-related advertisements. Indeed, Members of Congress are particularly grateful when negative issue advertisements are run by these organizations,leaving the candidates free to run positive advertisements and be seen as ‘above the fray.’ Political consultants testify that campaigns are quite aware of who is running advertisements on the candidate’s behalf, when they are being run, and where they are being run. Likewise, a prominent lobbyist testifies thatthese organizations use issue advocacy as a means to influence various Members of Congress.
“The Findings also demonstrate that Members ofCongress seek to have corporations and unions runthese advertisements on their behalf. The Findings show that Members suggest that corporations or individuals make donations to interest groups with theunderstanding that the money contributed to thesegroups will assist the Member in a campaign. After the election, these organizations often seek credit fortheir support. . . . Finally, a large majority of Americans (80%) are of the view that corporations and other organizations that engage in electioneering communications, which benefit specific elected officials, receivespecial consideration from those officials when matters
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arise that affect these corporations and organizations.” Id., at 623–624 (citations and footnote omitted).
Many of the relationships of dependency found by JudgeKollar-Kotelly seemed to have a quid pro quo basis, but other arrangements were more subtle. Her analysisshows the great difficulty in delimiting the precise scope ofthe quid pro quo category, as well as the adverse consequences that all such arrangements may have. There are threats of corruption that are far more destructive to ademocratic society than the odd bribe. Yet the majority’sunderstanding of corruption would leave lawmakers impotent to address all but the most discrete abuses.
Our “undue influence” cases have allowed the American people to cast a wider net through legislative experiments designed to ensure, to some minimal extent, “that officeholders will decide issues . . . on the merits or the desires of their constituencies,” and not “according to the wishes ofthose who have made large financial contributions”—or expenditures—“valued by the officeholder.” McConnell, 540 U. S., at 153.63 When private interests are seen toexert outsized control over officeholders solely on account of the money spent on (or withheld from) their campaigns, the result can depart so thoroughly “from what is pure or
—————— 63Cf. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 389 (2000) (recognizing “the broader threat from politicians too compliantwith the wishes of large contributors”). Though discrete in scope, theseexperiments must impose some meaningful limits if they are to have achance at functioning effectively and preserving the public’s trust.“Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize.” McConnell, 540 U. S., at 153. There should be nothing controversialabout the proposition that the influence being targeted is “undue.” In a democracy, officeholders should not make public decisions with the aimof placating a financial benefactor, except to the extent that the benefactor is seen as representative of a larger constituency or its arguments are seen as especially persuasive.
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correct” in the conduct of Government, Webster’s Third New International Dictionary 512 (1966) (defining “corruption”), that it amounts to a “subversion . . . of the electoral process,” Automobile Workers, 352 U. S., at 575. At stake in the legislative efforts to address this threat is therefore not only the legitimacy and quality of Government but also the public’s faith therein, not only “the capacity of this democracy to represent its constituents[but also] the confidence of its citizens in their capacity togovern themselves,” WRTL, 551 U. S., at 507 (Souter, J., dissenting). “Take away Congress’ authority to regulatethe appearance of undue influence and ‘the cynical assumption that large donors call the tune could jeopardizethe willingness of voters to take part in democratic governance.’” McConnell, 540 U. S., at 144 (quoting Shrink Missouri, 528 U. S., at 390).64
The cluster of interrelated interests threatened by such undue influence and its appearance has been well captured under the rubric of “democratic integrity.” WRTL, 551 U. S., at 522 (Souter, J., dissenting). This value has underlined a century of state and federal efforts to regulate the role of corporations in the electoral process.65 ——————
64The majority declares by fiat that the appearance of undue influence by high-spending corporations “will not cause the electorate to losefaith in our democracy.” Ante, at 44. The electorate itself has consistently indicated otherwise, both in opinion polls, see McConnell v. FEC, 251 F. Supp. 2d 176, 557–558, 623–624 (DC 2003) (opinion of Kollar-Kotelly, J.), and in the laws its representatives have passed, and our colleagues have no basis for elevating their own optimism into a tenetof constitutional law.
65Quite distinct from the interest in preventing improper influenceson the electoral process, I have long believed that “a number of [other] purposes, both legitimate and substantial, may justify the imposition of reasonable limitations on the expenditures permitted during the courseof any single campaign.” Davis v. FEC, 554 U. S. ___, ___ (2008) (slip op., at 3) (opinion concurring in part and dissenting in part). In myjudgment, such limitations may be justified to the extent they are tailored to “improving the quality of the exposition of ideas” that voters
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Unlike the majority’s myopic focus on quid pro quoscenarios and the free-floating “First Amendment principles” on which it rests so much weight, ante, at 1, 48, this broader understanding of corruption has deep roots in the Nation’s history. “During debates on the earliest [campaign finance] reform acts, the terms ‘corruption’ and‘undue influence’ were used nearly interchangeably.” Pasquale, Reclaiming Egalitarianism in the Political Theory of Campaign Finance Reform, 2008 U. Ill. L. Rev. 599, 601. Long before Buckley, we appreciated that “[t]osay that Congress is without power to pass appropriatelegislation to safeguard . . . an election from the improperuse of money to influence the result is to deny to the nation in a vital particular the power of self protection.” Burroughs v. United States, 290 U. S. 534, 545 (1934).And whereas we have no evidence to support the notion that the Framers would have wanted corporations to havethe same rights as natural persons in the electoral context, we have ample evidence to suggest that they wouldhave been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that theCourt today discounts to irrelevance. It is fair to say that“[t]he Framers were obsessed with corruption,” Teachout348, which they understood to encompass the dependency of public officeholders on private interests, see id., at 373– 374; see also Randall, 548 U. S., at 280 (STEVENS, J., dissenting). They discussed corruption “more often in the Constitutional Convention than factions, violence, or instability.” Teachout 352. When they brought our consti——————
receive, ibid., “free[ing] candidates and their staffs from the interminable
burden of fundraising,” ibid. (internal quotation marks omitted),
and “protect[ing] equal access to the political arena,” Randall v. Sorrell,
548 U. S. 230, 278 (2006) (STEVENS, J., dissenting) (internal quotation
marks omitted). I continue to adhere to these beliefs, but they have not
been briefed by the parties or amici in this case, and their soundness is
immaterial to its proper disposition.
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tutional order into being, the Framers had their mindstrained on a threat to republican self-government that this Court has lost sight of.
Quid Pro Quo Corruption
There is no need to take my side in the debate over thescope of the anticorruption interest to see that the Court’s merits holding is wrong. Even under the majority’s “crabbed view of corruption,” McConnell, 540 U. S., at 152, the Government should not lose this case.
“The importance of the governmental interest in preventing [corruption through the creation of political debts] has never been doubted.” Bellotti, 435 U. S., at 788, n. 26. Even in the cases that have construed the anticorruptioninterest most narrowly, we have never suggested thatsuch quid pro quo debts must take the form of outrightvote buying or bribes, which have long been distinctcrimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of,some outlay of money the parties have made or will make on behalf of the officeholder. See McConnell, 540 U. S., at 143 (“We have not limited [the anticorruption] interest tothe elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws ‘deal[t] with only the most blatant and specific attempts of those with money toinfluence governmental action’” (quoting 424 U. S., at 28; alteration in original)). It has likewise never been doubted that “[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption.” Id., at 27. Congress may “legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative Government is not to be eroded
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to a disastrous extent.” Ibid. (internal quotation marks omitted; alteration in original). A democracy cannot function effectively when its constituent members believe laws are being bought and sold.
In theory, our colleagues accept this much. As appliedto BCRA §203, however, they conclude “[t]he anticorruption interest is not sufficient to displace the speech here inquestion.” Ante, at 41.
Although the Court suggests that Buckley compels itsconclusion, ante, at 40–44, Buckley cannot sustain this reading. It is true that, in evaluating FECA’s ceiling on independent expenditures by all persons, the BuckleyCourt found the governmental interest in preventingcorruption “inadequate.” 424 U. S., at 45. But Buckley did not evaluate corporate expenditures specifically, nor did it rule out the possibility that a future Court might find otherwise. The opinion reasoned that an expenditure limitation covering only express advocacy (i.e., magicwords) would likely be ineffectual, ibid., a problem that Congress tackled in BCRA, and it concluded that “the independent advocacy restricted by [FECA §608(e)(1)] does not presently appear to pose dangers of real or apparentcorruption comparable to those identified with large campaign contributions,” id., at 46 (emphasis added). Buckleyexpressly contemplated that an anticorruption rationale might justify restrictions on independent expenditures at a later date, “because it may be that, in some circumstances, ‘large independent expenditures pose the samedangers of actual or apparent quid pro quo arrangementsas do large contributions.’” WRTL, 551 U. S., at 478 (opinion of ROBERTS, C. J.) (quoting Buckley, 424 U. S., at 45). Certainly Buckley did not foreclose this possibility with respect to electioneering communications made withcorporate general treasury funds, an issue the Court had no occasion to consider.
The Austin Court did not rest its holding on quid pro
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quo corruption, as it found the broader corruption implicated by the antidistortion and shareholder protectionrationales a sufficient basis for Michigan’s restriction oncorporate electioneering. 494 U. S., at 658–660. Concurring in that opinion, I took the position that “the danger of either the fact, or the appearance, of quid pro quo relationships [also] provides an adequate justification for state regulation” of these independent expenditures. Id., at 678. I did not see this position as inconsistent with Buckley’s analysis of individual expenditures. Corporations, as aclass, tend to be more attuned to the complexities of the legislative process and more directly affected by tax andappropriations measures that receive little public scrutiny;they also have vastly more money with which to try to buyaccess and votes. See Supp. Brief for Appellee 17 (statingthat the Fortune 100 companies earned revenues of $13.1trillion during the last election cycle). Business corporations must engage the political process in instrumentalterms if they are to maximize shareholder value. The unparalleled resources, professional lobbyists, and singleminded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.
It is with regret rather than satisfaction that I can now say that time has borne out my concerns. The legislativeand judicial proceedings relating to BCRA generated a substantial body of evidence suggesting that, as corporations grew more and more adept at crafting “issue ads” tohelp or harm a particular candidate, these nominally independent expenditures began to corrupt the political process in a very direct sense. The sponsors of these ads were routinely granted special access after the campaign was over; “candidates and officials knew who their friends were,” McConnell, 540 U. S., at 129. Many corporate independent expenditures, it seemed, had become essenCite
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tially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements. In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.
The majority appears to think it decisive that the BCRArecord does not contain “direct examples of votes being exchanged for . . . expenditures.” Ante, at 45 (internalquotation marks omitted). It would have been quite remarkable if Congress had created a record detailing suchbehavior by its own Members. Proving that a specific votewas exchanged for a specific expenditure has always beennext to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. Yet, even if “[i]ngratiation and access . . . are not corruption” themselves, ibid., they are necessary prerequisites toit; they can create both the opportunity for, and the appearance of, quid pro quo arrangements. The influx of unlimited corporate money into the electoral realm also creates new opportunities for the mirror image of quid pro quo deals: threats, both explicit and implicit. Startingtoday, corporations with large war chests to deploy onelectioneering may find democratically elected bodies becoming much more attuned to their interests. The majority both misreads the facts and draws the wrongconclusions when it suggests that the BCRA record provides “only scant evidence that independent expenditures. . . ingratiate,” and that, “in any event,” none of it matters. Ibid.
In her analysis of the record, Judge Kollar-Kotelly documented the pervasiveness of this ingratiation andexplained its significance under the majority’s own touchstone for defining the scope of the anticorruption rationale, Buckley. See McConnell, 251 F. Supp. 2d, at 555–560, 622–625. Witnesses explained how political parties and
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candidates used corporate independent expenditures tocircumvent FECA’s “hard-money” limitations. See, e.g., id., at 478–479. One former Senator candidly admitted tothe District Court that “‘[c]andidates whose campaigns benefit from [phony “issue ads”] greatly appreciate the help of these groups. In fact, Members will also be favorably disposed to those who finance these groups when they later seek access to discuss pending legislation.’” Id., at 556 (quoting declaration of Sen. Dale Bumpers). One prominent lobbyist went so far as to state, in uncontroverted testimony, that “‘unregulated expenditures—whether soft money donations to the parties or issue ad campaigns—can sometimes generate far more influence than direct campaign contributions.’” Ibid. (quoting declaration of Wright Andrews; emphasis added). In sum, Judge Kollar-Kotelly found, “[t]he record powerfully demonstrates that electioneering communications paid for withthe general treasury funds of labor unions and corporations endears those entities to elected officials in a waythat could be perceived by the public as corrupting.” Id., at 622–623. She concluded that the Government’s interest in preventing the appearance of corruption, as that conceptwas defined in Buckley, was itself sufficient to uphold BCRA §203. 251 F. Supp. 2d, at 622–625. Judge Leon agreed. See id., at 804–805 (dissenting only with re- spect to the Wellstone Amendment’s coverage of MCFL corporations).
When the McConnell Court affirmed the judgment of theDistrict Court regarding §203, we did not rest our holding on a narrow notion of quid pro quo corruption. Instead we relied on the governmental interest in combating the unique forms of corruption threatened by corporations, as recognized in Austin’s antidistortion and shareholder protection rationales, 540 U. S., at 205 (citing Austin, 494
U. S., at 660), as well as the interest in preventing circumvention of contribution limits, 540 U. S., at 128–129,
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205, 206, n. 88. Had we felt constrained by the view oftoday’s Court that quid pro quo corruption and its appearance are the only interests that count in this field, ante, at 32–46, we of course would have looked closely at thatissue. And as the analysis by Judge Kollar-Kotelly reflects, it is a very real possibility that we would have foundone or both of those interests satisfied and §203 appropriately tailored to them.
The majority’s rejection of the Buckley anticorruptionrationale on the ground that independent corporate expenditures “do not give rise to [quid pro quo] corruption orthe appearance of corruption,” ante, at 42, is thus unfair as well as unreasonable. Congress and outside expertshave generated significant evidence corroborating thisrationale, and the only reason we do not have any of therelevant materials before us is that the Government had no reason to develop a record at trial for a facial challenge the plaintiff had abandoned. The Court cannot both sua sponte choose to relitigate McConnell on appeal andthen complain that the Government has failed to substantiate its case. If our colleagues were really serious about the interest in preventing quid pro quo corruption, theywould remand to the District Court with instructions to commence evidentiary proceedings.66
The insight that even technically independent expendi—————— 66In fact, the notion that the “electioneering communications” coveredby §203 can breed quid pro quo corruption or the appearance of suchcorruption has only become more plausible since we decided McConnell. Recall that THE CHIEF JUSTICE’s controlling opinion in WRTL subsequently limited BCRA’s definition of “electioneering communications”to those that are “susceptible of no reasonable interpretation other thanas an appeal to vote for or against a specific candidate.” 551 U. S., at
470. The upshot was that after WRTL, a corporate or union expenditure could be regulated under §203 only if everyone would understand it as an endorsement of or attack on a particular candidate for office. It does not take much imagination to perceive why this type of advocacymight be especially apt to look like or amount to a deal or a threat.
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tures can be corrupting in much the same way as directcontributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Virginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For TheSake Of The Kids,’” a §527 corporation that ran ads targeting Benjamin’s opponent. Id., at ___ (slip op., at 2).“This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures . . . ‘“to support . . . Brent Benjamin.”’” Id., at ___ (slip op., at 2–3) (second alteration in original). Applying its commonsense, this Court accepted petitioners’ argument thatBlankenship’s “pivotal role in getting Justice Benjaminelected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse himself from the appeal by Blankenship’s corporation. Id., at ___ (slip op., at 11). “Though n[o] . . . bribe or criminalinfluence” was involved, we recognized that “Justice Benjamin would nevertheless feel a debt of gratitude toBlankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce turn on the appearance of bias rather than itsactual existence.
In Caperton, then, we accepted the premise that, atleast in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Courtas so intuitive that it repeatedly referred to Blankenship’sspending on behalf of Benjamin—spending that consisted
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of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis for the [recusal] motion was that the justice had received campaign contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s $3 million in contributions”); id., at ___ (slip op., at 14) (“Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin”); id., at ___ (slip op., at 15) (“Blankenship’s campaign contributions . . . had a significant and disproportionateinfluence on the electoral outcome”). The reason the Court so thoroughly conflated expenditures and contributions,one assumes, is that it realized that some expendituresmay be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereaftertakes.
Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the extreme difficulty of proving corruption, “prophylactic measures, reaching some [campaign spending] not corrupt inpurpose or effect, [may be] nonetheless required to guardagainst corruption.” Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5. It underscores that “certain restrictions on corporate electoral involvement” may likewise be needed to “hedge against circumvention of valid contribution limits.” McConnell, 540
U. S., at 205 (internal quotation marks and bracketsomitted); see also Colorado II, 533 U. S., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). It underscores that for-profit corporations associated with electioneering communicationswill often prefer to use nonprofit conduits with “misleading names,” such as And For The Sake Of The Kids, “to
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conceal their identity” as the sponsor of those communications, thereby frustrating the utility of disclosure laws. McConnell, 540 U. S., at 128; see also id., at 196–197.
And it underscores that the consequences of today’sholding will not be limited to the legislative or executive context. The majority of the States select their judgesthrough popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if theybelieve such limits to be critical to maintaining the integrity of their judicial systems.
Deference and Incumbent Self-Protection
Rather than show any deference to a coordinate branchof Government, the majority thus rejects the anticorruption rationale without serious analysis.67 Today’s opinionprovides no clear rationale for being so dismissive of Congress, but the prior individual opinions on which it relieshave offered one: the incentives of the legislators who passed BCRA. Section 203, our colleagues have suggested,may be little more than “an incumbency protection plan,” McConnell, 540 U. S., at 306 (KENNEDY, J., concurring in judgment in part and dissenting in part); see also id., at 249–250, 260–263 (SCALIA, J., concurring in part, concurring in judgment in part, and dissenting in part), a dis——————
67“We must give weight” and “due deference” to Congress’ efforts to dispel corruption, the Court states at one point. Ante, at 45. It is unclear to me what these maxims mean, but as applied by the Courtthey clearly do not entail “deference” in any normal sense of that term.
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reputable attempt at legislative self-dealing rather thanan earnest effort to facilitate First Amendment values and safeguard the legitimacy of our political system. This possibility, the Court apparently believes, licenses it torun roughshod over Congress’ handiwork.
In my view, we should instead start by acknowledging that “Congress surely has both wisdom and experience inthese matters that is far superior to ours.” Colorado Republican Federal Campaign Comm. v. FEC, 518 U. S. 604, 650 (1996) (STEVENS, J., dissenting). Many of our campaign finance precedents explicitly and forcefully affirm the propriety of such presumptive deference. See, e.g., McConnell, 540 U. S., at 158; Beaumont, 539 U. S., at 155–156; NRWC, 459 U. S., at 209–210. Moreover, “[j]udicial deference is particularly warranted where, ashere, we deal with a congressional judgment that hasremained essentially unchanged throughout a century of careful legislative adjustment.” Beaumont, 539 U. S., at 162, n. 9 (internal quotation marks omitted); cf. Shrink Missouri, 528 U. S., at 391 (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”). In America, incumbent legislators pass the laws that govern campaign finance, just like all other laws. To apply a level ofscrutiny that effectively bars them from regulating electioneering whenever there is the faintest whiff of selfinterest, is to deprive them of the ability to regulateelectioneering.
This is not to say that deference would be appropriate if there were a solid basis for believing that a legislative action was motivated by the desire to protect incumbents or that it will degrade the competitiveness of the electoral process.68 See League of United Latin American Citizens
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v.
Perry, 548 U. S. 399, 447 (2006) (STEVENS, J., concurring in part and dissenting in part); Vieth v. Jubelirer, 541
U.
S. 267, 317 (2004) (STEVENS, J., dissenting). Along with our duty to balance competing constitutional concerns, we have a vital role to play in ensuring that elections remain at least minimally open, fair, and competitive. But it is the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment on this basis, without first confirming that the statute in question was intended to be, or will function as, a restraint on electoral competition. “Absent record evidence of invidious discrimination against challengers as aclass, a court should generally be hesitant to invalidatelegislation which on its face imposes evenhanded restrictions.” Buckley, 424 U. S., at 31.
We have no record evidence from which to conclude that BCRA §203, or any of the dozens of state laws that theCourt today calls into question, reflects or fosters suchinvidious discrimination. Our colleagues have opined that “‘any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.’” McConnell, 540 U. S., at 249 (opinion of SCALIA, J.). This kind of airy speculation could easily beturned on its head. The electioneering prohibited by §203 might well tend to favor incumbents, because incumbentshave pre-existing relationships with corporations andunions, and groups that wish to procure legislative benefits may tend to support the candidate who, as a sittingofficeholder, is already in a position to dispense benefits and is statistically likely to retain office. If a corporation’s goal is to induce officeholders to do its bidding, the corpo—————— lows: “We should defer to [the legislature’s] political judgment that
unlimited spending threatens the integrity of the electoral process. But we should not defer in respect to whether its solution . . . insulates legislators from effective electoral challenge.” Shrink Missouri, 528
U. S., at 403–404 (concurring opinion).
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ration would do well to cultivate stable, long-term relationships of dependency.
So we do not have a solid theoretical basis for condemning §203 as a front for incumbent self-protection, and it seems equally if not more plausible that restrictions oncorporate electioneering will be self-denying. Nor do we have a good empirical case for skepticism, as the Court’s failure to cite any empirical research attests. Nor does the legislative history give reason for concern. Congressdevoted years of careful study to the issues underlyingBCRA; “[f]ew legislative proposals in recent years have received as much sustained public commentary or newscoverage”; “[p]olitical scientists and academic experts . . . with no self-interest in incumbent protectio[n] were central figures in pressing the case for BCRA”; and the legislation commanded bipartisan support from the outset. Pildes, The Supreme Court 2003 Term Foreword: TheConstitutionalization of Democratic Politics, 118 Harv.
L. Rev. 28, 137 (2004). Finally, it is important to remember just how incumbent-friendly congressional races were prior to BCRA’s passage. As the Solicitor General aptlyremarked at the time, “the evidence supports overwhelmingly that incumbents were able to get re-elected underthe old system just fine.” Tr. of Oral Arg. in McConnell v. FEC, O. T. 2003, No. 02–1674, p. 61. “It would be hard to develop a scheme that could be better for incumbents.” Id., at 63.
In this case, then, “there is no convincing evidence thatth[e] important interests favoring expenditure limits arefronts for incumbency protection.” Randall, 548 U. S., at 279 (STEVENS, J., dissenting). “In the meantime, a legislative judgment that ‘enough is enough’ should command the greatest possible deference from judges interpreting aconstitutional provision that, at best, has an indirect relationship to activity that affects the quantity . . . of repetitive speech in the marketplace of ideas.” Id., at 279–
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280. The majority cavalierly ignores Congress’ factualfindings and its constitutional judgment: It acknowledgesthe validity of the interest in preventing corruption, but iteffectively discounts the value of that interest to zero. This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. It is the denial of Congress’ authority to regulate corporate spending on elections.
Austin and Corporate Expenditures
Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation,it also overlooks the distinctive considerations raised by the regulation of corporate expenditures. The majority fails to appreciate that Austin’s antidistortion rationale is itself an anticorruption rationale, see 494 U. S., at 660(describing “a different type of corruption”), tied to thespecial concerns raised by corporations. Understood properly, “antidistortion” is simply a variant on the classicgovernmental interest in protecting against improper influences on officeholders that debilitate the democratic process. It is manifestly not just an “‘equalizing’” ideal in disguise. Ante, at 34 (quoting Buckley, 424 U. S., at 48).69 ——————
69 THE CHIEF JUSTICE denies this, ante, at 9–10, citing scholarship that has interpreted Austin to endorse an equality rationale, along with an article by Justice Thurgood Marshall’s former law clerk that statesthat Marshall, the author of Austin, accepted “equality of opportunity” and “equalizing access to the political process” as bases for campaign finance regulation, Garrett, New Voices in Politics: Justice Marshall’sJurisprudence on Law and Politics, 52 Howard L. J. 655, 667–668 (2009) (internal quotation marks omitted). It is fair to say that Austin can bear an egalitarian reading, and I have no reason to doubt thischaracterization of Justice Marshall’s beliefs. But the fact that Austin can be read a certain way hardly proves THE CHIEF JUSTICE’s charge that there is nothing more to it. Many of our precedents can bear multiple readings, and many of our doctrines have some “equalizing”implications but do not rest on an equalizing theory: for example, our
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1. Antidistortion
The fact that corporations are different from humanbeings might seem to need no elaboration, except that themajority opinion almost completely elides it. Austin set forth some of the basic differences. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways thatmaximize the return on their shareholders’ investments.” 494 U. S., at 658–659. Unlike voters in U. S. elections, corporations may be foreign controlled.70 Unlike other interest groups, business corporations have been “effectively delegated responsibility for ensuring society’s economic welfare”;71 they inescapably structure the life of every citizen. “‘[T]he resources in the treasury of a business corporation,’” furthermore, “‘are not an indication ofpopular support for the corporation’s political ideas.’” Id., at 659 (quoting MCFL, 479 U. S., at 258). “‘They reflectinstead the economically motivated decisions of investors and customers. The availability of these resources may
—————— takings jurisprudence and numerous rules of criminal procedure. More important, the Austin Court expressly declined to rely on a speechequalization rationale, see 494 U. S., at 660, and we have never understood Austin to stand for such a rationale. Whatever his personalviews, Justice Marshall simply did not write the opinion that THE CHIEF JUSTICE suggests he did; indeed, he “would have viewed it as irresponsible to write an opinion that boldly staked out a rationale based on equality that no one other than perhaps Justice White wouldhave even considered joining,” Garrett, 52 Howard L. J., at 674. 70In state elections, even domestic corporations may be “foreign”controlled in the sense that they are incorporated in another jurisdiction and primarily owned and operated by out-of-state residents. 71Regan, Corporate Speech and Civic Virtue, in Debating Democracy’s Discontent 289, 302 (A. Allen & M. Regan eds. 1998) (hereinafterRegan).
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make a corporation a formidable political presence, eventhough the power of the corporation may be no reflectionof the power of its ideas.’” 494 U. S., at 659 (quoting MCFL, 479 U. S., at 258).72
It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” oftenserves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whomour Constitution was established.
These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on thatelectioneering are less likely to encroach upon First Amendment freedoms. One fundamental concern of the First Amendment is to “protec[t] the individual’s interestin self-expression.” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 534, n. 2 (1980); see also Bellotti, 435 U. S., at 777, n. 12. Freedom of speech helps “make men free to develop their faculties,” Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, ——————
72Nothing in this analysis turns on whether the corporation is conceptualized as a grantee of a state concession, see, e.g., Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall,
C. J.), a nexus of explicit and implicit contracts, see, e.g., F. Easterbrook & D. Fischel, The Economic Structure of Corporate Law 12 (1991), a mediated hierarchy of stakeholders, see, e.g., Blair & Stout, A Team Production Theory of Corporate Law, 85 Va. L. Rev. 247 (1999) (hereinafter Blair & Stout), or any other recognized model. Austin referred to the structure and the advantages of corporations as “state-conferred” in several places, 494 U. S., at 660, 665, 667, but its antidistortion argument relied only on the basic descriptive features of corporations, as sketched above. It is not necessary to agree on a precise theory of thecorporation to agree that corporations differ from natural persons in fundamental ways, and that a legislature might therefore need toregulate them differently if it is human welfare that is the object of its concern. Cf. Hansmann & Kraakman 441, n. 5.
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J., concurring), it respects their “dignity and choice,” Cohen v. California, 403 U. S. 15, 24 (1971), and it facilitates the value of “individual self-realization,” Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 594 (1982). Corporate speech, however, is derivative speech, speech by proxy. A regulation such as BCRA §203 may affect theway in which individuals disseminate certain messages through the corporate form, but it does not prevent anyonefrom speaking in his or her own voice. “Within the realm of [campaign spending] generally,” corporate spending is“furthest from the core of political expression.” Beaumont, 539 U. S., at 161, n. 8.
It is an interesting question “who” is even speakingwhen a business corporation places an advertisement that endorses or attacks a particular candidate. Presumably it is not the customers or employees, who typically have no say in such matters. It cannot realistically be said to bethe shareholders, who tend to be far removed from the day-to-day decisions of the firm and whose political preferences may be opaque to management. Perhaps the officersor directors of the corporation have the best claim to be the ones speaking, except their fiduciary duties generally prohibit them from using corporate funds for personal ends. Some individuals associated with the corporationmust make the decision to place the ad, but the idea that these individuals are thereby fostering their selfexpression or cultivating their critical faculties is fanciful.It is entirely possible that the corporation’s electoral message will conflict with their personal convictions. Take away the ability to use general treasury funds for some of those ads, and no one’s autonomy, dignity, or political equality has been impinged upon in the least.
Corporate expenditures are distinguishable from individual expenditures in this respect. I have taken the view that a legislature may place reasonable restrictions onindividuals’ electioneering expenditures in the service of
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the governmental interests explained above, and in recognition of the fact that such restrictions are not direct restraints on speech but rather on its financing. See, e.g., Randall, 548 U. S., at 273 (dissenting opinion). But those restrictions concededly present a tougher case, because the primary conduct of actual, flesh-and-blood persons is involved. Some of those individuals might feel that theyneed to spend large sums of money on behalf of a particular candidate to vindicate the intensity of their electoral preferences. This is obviously not the situation with business corporations, as their routine practice of giving “substantial sums to both major national parties” makes pellucidly clear. McConnell, 540 U. S., at 148. “[C]orporateparticipation” in elections, any business executive will tellyou, “is more transactional than ideological.” Supp. Brieffor Committee for Economic Development as Amicus Curiae 10.
In this transactional spirit, some corporations have affirmatively urged Congress to place limits on their electioneering communications. These corporations fear thatofficeholders will shake them down for supportive ads, that they will have to spend increasing sums on elections in an ever-escalating arms race with their competitors, and that public trust in business will be eroded. See id., at 10–19. A system that effectively forces corporations touse their shareholders’ money both to maintain access to, and to avoid retribution from, elected officials may ultimately prove more harmful than beneficial to many corporations. It can impose a kind of implicit tax.73
—————— 73Not all corporations support BCRA §203, of course, and not all corporations are large business entities or their tax-exempt adjuncts.Some nonprofit corporations are created for an ideological purpose. Some closely held corporations are strongly identified with a particularowner or founder. The fact that §203, like the statute at issue in Austin, regulates some of these corporations’ expenditures does not disturb the analysis above. See 494 U. S., at 661–665. Small-business
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In short, regulations such as §203 and the statute upheld in Austin impose only a limited burden on FirstAmendment freedoms not only because they target a narrow subset of expenditures and leave untouched thebroader “public dialogue,” ante, at 25, but also because they leave untouched the speech of natural persons.Recognizing the weakness of a speaker-based critique of Austin, the Court places primary emphasis not on thecorporation’s right to electioneer, but rather on the listener’s interest in hearing what every possible speakermay have to say. The Court’s central argument is that laws such as §203 have “‘deprived [the electorate] of information, knowledge and opinion vital to its function,’” ante, at 38 (quoting CIO, 335 U. S., at 144 (Rutledge, J., concurring in judgment)), and this, in turn, “interfereswith the ‘open marketplace’ of ideas protected by the FirstAmendment,” ante, at 38 (quoting New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008)).
There are many flaws in this argument. If the overriding concern depends on the interests of the audience, surely the public’s perception of the value of corporate speech should be given important weight. That perception today is the same as it was a century ago when Theodore Roosevelt delivered the speeches to Congress that, in time,led to the limited prohibition on corporate campaign expenditures that is overruled today. See WRTL, 551 U. S., at 509–510 (Souter, J., dissenting) (summarizing President —————— owners may speak in their own names, rather than the business’, ifthey wish to evade §203 altogether. Nonprofit corporations that wantto make unrestricted electioneering expenditures may do so if they refuse donations from businesses and unions and permit members todisassociate without economic penalty. See MCFL, 479 U. S. 238, 264 (1986). Making it plain that their decision is not motivated by a concern about BCRA’s coverage of nonprofits that have ideological missions but lack MCFL status, our colleagues refuse to apply the Snowe-Jeffords Amendment or the lower courts’ de minimis exception to MCFL. See ante, at 10–12.
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Roosevelt’s remarks). The distinctive threat to democraticintegrity posed by corporate domination of politics wasrecognized at “the inception of the republic” and “has been a persistent theme in American political life” ever since. Regan 302. It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.
Austin recognized that there are substantial reasons why a legislature might conclude that unregulated generaltreasury expenditures will give corporations “unfai[r]influence” in the electoral process, 494 U. S., at 660, and distort public debate in ways that undermine rather thanadvance the interests of listeners. The legal structure of corporations allows them to amass and deploy financialresources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and thepolitical preferences of the individuals associated with thecorporation; the corporation must engage the electoral process with the aim “to enhance the profitability of thecompany, no matter how persuasive the arguments for abroader or conflicting set of priorities,” Brief for AmericanIndependent Business Alliance as Amicus Curiae 11; see also ALI, Principles of Corporate Governance: Analysisand Recommendations §2.01(a), p. 55 (1992) (“[A] corporation . . . should have as its objective the conduct of business activities with a view to enhancing corporate profitand shareholder gain”). In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests oflocal voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or nocorrelation” to the ideas of natural persons or to anybroader notion of the public good, 494 U. S., at 660. The opinions of real people may be marginalized. “The expenCite
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diture restrictions of [2 U. S. C.] §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.” MCFL, 479
U. S., at 259.
In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering, Austin, 494 U. S., at 659, can generate the impression thatcorporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increasedperception that large spenders “‘call the tune’” and areduced “‘willingness of voters to take part in democratic governance.’” McConnell, 540 U. S., at 144 (quoting Shrink Missouri, 528 U. S., at 390). To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of thoseraces may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation.On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to “hold officialsaccountable to the people,” ante, at 23, and disserve the goal of a public debate that is “uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). At the least, I stress again, a legislatureis entitled to credit these concerns and to take tailored measures in response.
The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special
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“advantages” in the legal realm, Austin, 494 U. S., at 659, may translate into special advantages in the market forlegislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources onbehalf of their position. The corporate form, by contrast,“provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation.” Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for CorporateCharters, 69 U. Chi. L. Rev. 1103, 1113 (2002). Corporations, that is, are uniquely equipped to seek laws that favor their owners, not simply because they have a lot ofmoney but because of their legal and organizational structure. Remove all restrictions on their electioneering, andthe door may be opened to a type of rent seeking that is “far more destructive” than what noncorporations arecapable of. Ibid. It is for reasons such as these that our campaign finance jurisprudence has long appreciated that “the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order toprotect the integrity of the electoral process.’” NRWC, 459
U. S., at 210 (quoting California Medical Assn., 453 U. S., at 201).
The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleaguesridicule the idea of regulating expenditures based on“nothing more” than a fear that corporations have a special “ability to persuade,” ante, at 11 (opinion of ROBERTS,
C. J.), as if corporations were our society’s ablest debatersand viewpoint-neutral laws such as §203 were created tosuppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignorethe fundamental concerns of the Austin Court and the
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legislatures that have passed laws like §203: to safeguard the integrity, competitiveness, and democratic responsiveness of the electoral process. All of the majority’s theoretical arguments turn on a proposition with undeniablesurface appeal but little grounding in evidence or experience, “that there is no such thing as too much speech,” Austin, 494 U. S., at 695 (SCALIA, J., dissenting)).74 If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had nospecial ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would besound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.
None of this is to suggest that corporations can orshould be denied an opportunity to participate in electioncampaigns or in any other public forum (much less that a work of art such as Mr. Smith Goes to Washington may bebanned), or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s “concern about corporate domination of the political process,” 494 U. S., at 659, reflects more than a concern to protect governmental interestsoutside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral “marketplace” ofideas, ante, at 19, 34, 38, 52, 54, the marketplace in whichthe actual people of this Nation determine how they will
—————— 74Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally.
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govern themselves. The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, butalso pit competing First Amendment values against eachother. There are, to be sure, serious concerns with anyeffort to balance the First Amendment rights of speakersagainst the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to “First Amendment principles” depends almost entirely on the listeners’ perspective, ante, at 1, 48, it becomes necessary to consider how listeners will actually be affected.
In critiquing Austin’s antidistortion rationale and campaign finance regulation more generally, our colleaguesplace tremendous weight on the example of media corporations. See ante, at 35–38, 46; ante, at 1, 11 (opinion of ROBERTS, C. J.); ante, at 6 (opinion of SCALIA, J.). Yet it is not at all clear that Austin would permit §203 to be applied to them. The press plays a unique role not only inthe text, history, and structure of the First Amendmentbut also in facilitating public discourse; as the Austin Court explained, “media corporations differ significantlyfrom other corporations in that their resources are devoted to the collection of information and its dissemination to the public,” 494 U. S., at 667. Our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, andabout how to define what constitutes the press. But that is not the case before us. Section 203 does not apply to media corporations, and even if it did, Citizens United isnot a media corporation. There would be absolutely noreason to consider the issue of media corporations if the majority did not, first, transform Citizens United’s asapplied challenge into a facial challenge and, second,invent the theory that legislatures must eschew all “identity”-based distinctions and treat a local nonprofit news
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outlet exactly the same as General Motors.75 This calls to mind George Berkeley’s description of philosophers: “[W]e have first raised a dust and then complain we cannot see.” Principles of Human Knowledge/Three Dialogues 38, ¶3
(R. Woolhouse ed. 1988).
It would be perfectly understandable if our colleagues feared that a campaign finance regulation such as §203may be counterproductive or self-interested, and thereforeattended carefully to the choices the Legislature has made. But the majority does not bother to consider such practical matters, or even to consult a record; it simplystipulates that “enlightened self-government” can ariseonly in the absence of regulation. Ante, at 23. In light of the distinctive features of corporations identified in Aus-tin, there is no valid basis for this assumption. The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold, and when we move from the realm of economics to the realm of corporate electioneering, there may be no “reason to think themarket ordering is intrinsically good at all,” Strauss 1386.
The Court’s blinkered and aphoristic approach to theFirst Amendment may well promote corporate power atthe cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedlycripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced
—————— 75Under the majority’s view, the legislature is thus damned if it doesand damned if it doesn’t. If the legislature gives media corporations anexemption from electioneering regulations that apply to other corporations, it violates the newly minted First Amendment rule against identity-based distinctions. If the legislature does not give media corporations an exemption, it violates the First Amendment rights of the press. The only way out of this invented bind: no regulations whatsoever.
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the cause of self-government today.
2. Shareholder Protection There is yet another way in which laws such as §203 canserve First Amendment values. Interwoven with Austin’s concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind ofcoerced speech: electioneering expenditures that do not “reflec[t] [their] support.” 494 U. S., at 660–661. When corporations use general treasury funds to praise or attack aparticular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill.Those shareholders who disagree with the corporation’s electoral message may find their financial investmentsbeing used to undermine their political convictions. The PAC mechanism, by contrast, helps assure thatthose who pay for an electioneering communication actually support its content and that managers do not usegeneral treasuries to advance personal agendas. Ibid. It “‘allows corporate political participation without the temptation to use corporate funds for political influence, quitepossibly at odds with the sentiments of some shareholders or members.’” McConnell, 540 U. S., at 204 (quoting Beaumont, 539 U. S., at 163). A rule that privileges the use of PACs thus does more than facilitate the political speech of like-minded shareholders; it also curbs the rent seeking behavior of executives and respects the views of dissenters. Austin’s acceptance of restrictions on general treasury spending “simply allows people who have invested in the business corporation for purely economic reasons”—the vast majority of investors, one assumes—“toavoid being taken advantage of, without sacrificing theireconomic objectives.” Winkler, Beyond Bellotti, 32 Loyola(LA) L. Rev. 133, 201 (1998).
The concern to protect dissenting shareholders and union members has a long history in campaign finance
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reform. It provided a central motivation for the TillmanAct in 1907 and subsequent legislation, see Pipefitters v. United States, 407 U. S. 385, 414–415 (1972); Winkler, 92Geo. L. J., at 887–900, and it has been endorsed in a long line of our cases, see, e.g., McConnell, 540 U. S., at 204– 205; Beaumont, 539 U. S., at 152–154; MCFL, 479 U. S., at 258; NRWC, 459 U. S., at 207–208; Pipefitters, 407 U. S., at 414–416; see also n. 60, supra. Indeed, we have unanimously recognized the governmental interest in “protect[ing] the individuals who have paid money into acorporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed.” NRWC, 459 U. S., at 207–208.
The Court dismisses this interest on the ground thatabuses of shareholder money can be corrected “throughthe procedures of corporate democracy,” ante, at 46 (internal quotation marks omitted), and, it seems, throughInternet-based disclosures, ante, at 55.76 I fail to understand how this addresses the concerns of dissenting union members, who will also be affected by today’s ruling, and Ifail to understand why the Court is so confident in these mechanisms. By “corporate democracy,” presumably the Court means the rights of shareholders to vote and to bring derivative suits for breach of fiduciary duty. In practice, however, many corporate lawyers will tell you that “these rights are so limited as to be almost nonexis——————
76I note that, among the many other regulatory possibilities it hasleft open, ranging from new versions of §203 supported by additionalevidence of quid pro quo corruption or its appearance to any number oftax incentive or public financing schemes, today’s decision does not require that a legislature rely solely on these mechanisms to protect shareholders. Legislatures remain free in their incorporation and tax laws to condition the types of activity in which corporations may engage, including electioneering activity, on specific disclosure requirements or on prior express approval by shareholders or members.
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tent,” given the internal authority wielded by boards and managers and the expansive protections afforded by the business judgment rule. Blair & Stout 320; see also id., at 298–315; Winkler, 32 Loyola (LA) L. Rev., at 165–166, 199–200. Modern technology may help make it easier totrack corporate activity, including electoral advocacy, butit is utopian to believe that it solves the problem. Most American households that own stock do so through intermediaries such as mutual funds and pension plans, see Evans, A Requiem for the Retail Investor? 95 Va. L. Rev.1105 (2009), which makes it more difficult both to monitor and to alter particular holdings. Studies show that a majority of individual investors make no trades at all during a given year. Id., at 1117. Moreover, if the corporation in question operates a PAC, an investor who sees the company’s ads may not know whether they are being funded through the PAC or through the general treasury.
If and when shareholders learn that a corporation has been spending general treasury money on objectionable electioneering, they can divest. Even assuming that theyreliably learn as much, however, this solution is only partial. The injury to the shareholders’ expressive rightshas already occurred; they might have preferred to keepthat corporation’s stock in their portfolio for any number of economic reasons; and they may incur a capital gains tax or other penalty from selling their shares, changingtheir pension plan, or the like. The shareholder protectionrationale has been criticized as underinclusive, in that corporations also spend money on lobbying and charitable contributions in ways that any particular shareholder might disapprove. But those expenditures do not implicate the selection of public officials, an area in which “theinterests of unwilling . . . corporate shareholders [in not being] forced to subsidize that speech” “are at their zenith.” Austin, 494 U. S., at 677 (Brennan, J., concurring).And in any event, the question is whether shareholder
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protection provides a basis for regulating expenditures in the weeks before an election, not whether additional typesof corporate communications might similarly be conditioned on voluntariness.
Recognizing the limits of the shareholder protection rationale, the Austin Court did not hold it out as an adequate and independent ground for sustaining the statutein question. Rather, the Court applied it to reinforce theantidistortion rationale, in two main ways. First, the problem of dissenting shareholders shows that even if electioneering expenditures can advance the politicalviews of some members of a corporation, they will oftencompromise the views of others. See, e.g., id., at 663 (discussing risk that corporation’s “members may be . . . reluctant to withdraw as members even if they disagree with [its] political expression”). Second, it provides an additional reason, beyond the distinctive legal attributes of the corporate form, for doubting that these “expendituresreflect actual public support for the political ideas espoused,” id., at 660. The shareholder protection rationale, in other words, bolsters the conclusion that restrictions on corporate electioneering can serve both speakers’ and listeners’ interests, as well as the anticorruption interest.And it supplies yet another reason why corporate expenditures merit less protection than individual expenditures.
V Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individualdissenting opinions over precedential holdings, assertionover tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and
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rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin theCourt’s lawmaking power. Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest,along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.
In a democratic society, the longstanding consensus on the need to limit corporate campaign spending shouldoutweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining selfgovernment since the founding, and who have foughtagainst the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majorityof this Court would have thought its flaws included a dearth of corporate money in politics.
I would affirm the judgment of the District Court.
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SUPREME COURT OF THE UNITED STATES
No. 08–205
CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[January 21, 2010]
JUSTICE THOMAS, concurring in part and dissenting in
part.
I join all but Part IV of the Court’s opinion.
Political speech is entitled to robust protection under the First Amendment. Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) has never beenreconcilable with that protection. By striking down §203,the Court takes an important first step toward restoringfull constitutional protection to speech that is “indispensable to the effective and intelligent use of the processes of popular government.” McConnell v. Federal Election Comm’n, 540 U. S. 93, 265 (2003) (THOMAS, J., concurringin part, concurring in judgment in part, and dissenting in part) (internal quotation marks omitted). I dissent from Part IV of the Court’s opinion, however, because theCourt’s constitutional analysis does not go far enough.The disclosure, disclaimer, and reporting requirements inBCRA §§201 and 311 are also unconstitutional. See id., at 275–277, and n. 10.
Congress may not abridge the “right to anonymousspeech” based on the “‘simple interest in providing voterswith additional relevant information,’” id., at 276 (quoting McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 348 (1995)). In continuing to hold otherwise, the Court misapprehends the import of “recent events” that some amici
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describe “in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.” Ante, at 54. The Court properly recognizes these events as “cause for concern,” ibid., but fails to acknowledge their constitutional significance. In my view, amici’s submissions show why the Court’s insistence on upholding §§201and 311 will ultimately prove as misguided (and ill fated) as was its prior approval of §203.
Amici’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowlypassed in the 2008 general election. Proposition 8amended California’s constitution to provide that “[o]nlymarriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5. Any donorwho gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount ofhis contributions.1 See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of State was thenrequired to post this information on the Internet. See §§84600–84601; §§84602–84602.1 (West Supp. 2010);§§84602.5–84604 (West 2005); §85605 (West Supp. 2010); §§84606–84609 (West 2005).
Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered propertydamage, or threats of physical violence or death, as a
—————— 1BCRA imposes similar disclosure requirements. See, e.g., 2 U. S. C. §434(f)(2)(F) (“Every person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year” must disclose “the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making thedisbursement”).
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result. They cited these incidents in a complaint they filedafter the 2008 election, seeking to invalidate California’smandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.” Complaint in ProtectMarriage.com—Yes on 8 v. Bowen, Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents also allegedly harassed the measure’s supporters by defacing or damaging their property. Id., ¶32. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopescontaining a white powdery substance. Id., ¶33.
Those accounts are consistent with media reports describing Proposition 8-related retaliation. The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer. Lott & Smith, Donor Disclosure Has Its Downsides, Wall Street Journal, Dec. 26, 2008, p. A13. The director of the Los Angeles Film Festival was forced to resign after giving $1,500 because opponents threatened to boycott and picket the next festival. Ibid. And a woman who had managed her popular, family-owned restaurant for 26 years was forced to resignafter she gave $100, because “throngs of [angry] protesters” repeatedly arrived at the restaurant and “shout[ed] ‘shame on you’ at customers.” Lopez, Prop. 8 Stance Upends Her Life, Los Angeles Times, Dec. 14, 2008, p. B1.The police even had to “arriv[e] in riot gear one night toquell the angry mob” at the restaurant. Ibid. Some supporters of Proposition 8 engaged in similar tactics; one real estate businessman in San Diego who had donated to a group opposing Proposition 8 “received a letter from the Prop. 8 Executive Committee threatening to publish his company’s name if he didn’t also donate to the ‘Yes on 8’ campaign.” Donor Disclosure, supra, at A13.
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The success of such intimidation tactics has apparentlyspawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights. Before the 2008 Presidential election, a “newly formed nonprofit group . . . plann[ed] to confront donors to conservative groups, hoping to create achilling effect that will dry up contributions.” Luo, GroupPlans Campaign Against G.O.P. Donors, N. Y. Times, Aug.8, 2008, p. A15. Its leader, “who described his effort as ‘going for the jugular,’” detailed the group’s plan to send a “warning letter . . . alerting donors who might be considering giving to right-wing groups to a variety of potentialdangers, including legal trouble, public exposure and watchdog groups digging through their lives.” Ibid.
These instances of retaliation sufficiently demonstratewhy this Court should invalidate mandatory disclosureand reporting requirements. But amici present evidence of yet another reason to do so—the threat of retaliationfrom elected officials. As amici’s submissions make clear, this threat extends far beyond a single ballot propositionin California. For example, a candidate challenging anincumbent state attorney general reported that some members of the State’s business community feared donating to his campaign because they did not want to cross the incumbent; in his words, “‘I go to so many people and hear the same thing: “I sure hope you beat [the incumbent], but I can’t afford to have my name on your records. He might come after me next.”’” Strassel, Challenging Spitzerism at the Polls, Wall Street Journal, Aug. 1, 2008, p. A11.The incumbent won reelection in 2008.
My point is not to express any view on the merits of thepolitical controversies I describe. Rather, it is to demonstrate—using real-world, recent examples—the fallacy in the Court’s conclusion that “[d]isclaimer and disclosure requirements . . . impose no ceiling on campaign-relatedactivities, and do not prevent anyone from speaking.”
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Ante, at 51 (internal quotation marks and citations omitted). Of course they do. Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.
The Court nevertheless insists that as-applied challenges to disclosure requirements will suffice to vindicate those speech rights, as long as potential plaintiffs can “show a reasonable probability that disclosure . . . willsubject them to threats, harassment, or reprisals fromeither Government officials or private parties.” Ante, at 52 (internal quotation marks omitted). But the Court’s opinion itself proves the irony in this compromise. In correctlyexplaining why it must address the facial constitutionality of §203, see ante, at 5–20, the Court recognizes that “[t]heFirst Amendment does not permit laws that force speakersto . . . seek declaratory rulings before discussing the mostsalient political issues of our day,” ante, at 7; that asapplied challenges to §203 “would require substantial litigation over an extended time” and result in an “interpretive process [that] itself would create an inevitable,pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable,” ante, at 9–10; that “a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessityof making a broader ruling,” ante, at 12; and that avoiding a facial challenge to §203 “would prolong the substantial, nation-wide chilling effect” that §203 causes, ante, at 16. This logic, of course, applies equally to as-applied challenges to §§201 and 311.
Irony aside, the Court’s promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, §§201 and 311 will chill protected speech because—as California voters can attest—
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“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes. Ante, at 55. Thus, “disclosure permits citizens . . . to react to the speech of [their political opponents] in a proper”—or undeniably improper—“way” longbefore a plaintiff could prevail on an as-applied challenge.2
Ibid.
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruinedcareers, damaged or defaced property, or pre-emptive andthreatening warning letters as the price for engaging in“core political speech, the ‘primary object of First Amendment protection.’” McConnell, 540 U. S., at 264 (THOMAS, J., concurring in part, concurring in judgment in part, anddissenting in part) (quoting Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410–411 (2000) (THOMAS, J., dissenting)). Accordingly, I respectfully dissent fromthe Court’s judgment upholding BCRA §§201 and 311.
—————— 2But cf. Hill v. Colorado, 530 U. S. 703, 707–710 (2000) (approving a statute restricting speech “within 100 feet” of abortion clinics because itprotected women seeking an abortion from “‘sidewalk counseling,’” which “consists of efforts ‘to educate, counsel, persuade, or inform passersby about abortion and abortion alternatives by means of verbalor written speech,’ ” and which “sometimes” involved “strong and abusive language in face-to-face encounters”).