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Justice
Kennedy delivered the opinion of the Court.
Federal law prohibits
corporations and unions from using their general treasury funds to make
independent expenditures 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 McConnell 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 Commerce, 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 agree
with that conclusion and hold that stare decisis does not compel the
continued acceptance of Austin. The Government may regulate
corporate political speech through disclaimer 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 brought this 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 $12 million. Most of its funds are from donations
by individuals; but, in addition, it accepts a small portion of its
funds from for-profit corporations.
In January 2008, Citizens
United released a film entitled 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 with political
commentators and other persons, most of them quite 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 movies, television shows, sports, news, and music. The viewer
can watch the program at any time and can elect to rewind 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
selected program, but here the proposal was to make Hillary
available to viewers free of charge.
To implement the proposal,
Citizens United was prepared to pay for the video-on-demand; and to
promote the film, 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 by the name of the movie and
the movie’s Website address. Id. , at 26a–27a.
Citizens United desired to promote the video-on-demand offering by
running advertisements on broadcast 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 independent
expenditures that expressly advocate the election or defeat of a
candidate, through any form of media, in connection 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 broadcast, cable,
or satellite communication” that “refers to a clearly
identified candidate for Federal office” and is made within 30 days
of a primary or 60 days of a general election. §434(f)(3)(A). The
Federal Election Commission’s (FEC) regulations further define an
electioneering communication as a communication that is “publicly
distributed.” 11 CFR §100.29(a)(2) (2009). “In the case
of a candidate for nomination for President … publicly distributed
means” that the communication “[c]an be received by 50,000 or
more persons in a State where a primary election . . . is being held
within 30 days.” §100.29(b)(3)(ii). Corporations and unions
are barred from using their general treasury funds for express advocacy
or electioneering communications. They may establish, however, a “separate
segregated fund” (known as a political action committee, or PAC)
for these purposes. 2 U. S. C. §441b(b)(2). The moneys received by
the segregated 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 2008 primary 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 the corporation 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 facially constitutional under McConnell,
and that §441b was constitutional as applied to Hillary
because it was “susceptible of no other interpretation than to
inform the 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 vote against 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 provisions triggered by
political speech even though the speech itself was constitutionally
protected under the First Amendment.” Id., at 281.
We noted probable
jurisdiction. 555 U. S. ___ (2008). The case was reargued in this Court
after the Court asked the 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 on other, narrower grounds.
A
Citizens United contends
that §441b does not cover Hillary, as a matter of statutory
interpretation, because the film does not qualify as an “electioneering
communication.” §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 showing of Hillary on cable television would
have been a “cable . . . communication” that “refer[red]
to a clearly identified candidate for Federal office” and that was
made within 30 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 on how to determine whether a cable
transmission “[c]an be received 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 the number 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 the condition that the communication
“[c]an be received by 50,000 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
requiring only that the communication is “technologically capable”
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 statistics in a proposed viewing area
consisted of 50,000 registered voters—but not “infants,
pre-teens, or otherwise electorally ineligible recipients”—would
be a required determination, subject to judicial challenge and review,
in any case where the issue was in doubt. Id., at 6.
In our view the statute
cannot be saved by limiting the reach of 2 U. S. C. §441b through
this suggested interpretation. 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 an inaccurate
estimate potentially subjecting the speaker to criminal sanctions. The
First Amendment does not permit laws that force speakers to retain a
campaign finance attorney, conduct demographic marketing research, or
seek declaratory rulings before discussing the most 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.” Connally 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 through an amorphous
regulatory interpretation. We must reject the 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
unconstitutional 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 functional-equivalent test is
objective: “a court should find that [a communication] is the
functional equivalent of express advocacy only if [it] is susceptible of
no reasonable interpretation 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 advocacy. The movie, in essence, is a
feature-length negative advertisement that urges viewers to vote against
Senator Clinton for President. In light of historical footage,
interviews with persons critical of her, and voiceover narration, the
film would be understood by most viewers as an extended criticism of
Senator Clinton’s character and her fitness for the office of the
Presidency. The narrative may contain 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 alleged
wrongdoing during the Clinton administration, Senator Clinton’s
qualifications and fitness for office, and policies the commentators
predict she would pursue if elected President. It calls Senator Clinton
“Machiavellian,” App. 64a, and asks whether she is “the
most qualified 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 documentary 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 Senator Clinton’s candidacy for President. The narrator begins
by asking “could [Senator Clinton] become the first female
President in the history of the United States?” App. 35a. And the
narrator reiterates the movie’s message in his closing line: “Finally,
before America decides on our next president, 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.
C
Citizens United further
contends that §441b should be invalidated 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 television ads.
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 unrelated to the advertising. With
video-on-demand, by contrast, the viewer selects a program after taking
“a series of affirmative 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 effective 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 particular
type of message and speaker would raise questions as to the courts’
own lawful authority. Substantial questions 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 to
disseminate political speech from a particular speaker. It must be
noted, moreover, that this undertaking would require substantial
litigation over an extended time, all to interpret a law that beyond
doubt discloses serious First Amendment flaws. The interpretive process
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. First Amendment standards,
however, “must give the benefit of any 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 political speech funded overwhelmingly by
individuals. As an alternative to reconsidering Austin, the
Government also seems to prefer this approach. This line of analysis,
however, would be unavailing. In MCFL, the Court found
unconstitutional §441b’s restrictions on corporate
expenditures as applied to nonprofit corporations that were formed for
the sole purpose of promoting political ideas, did not engage in
business activities, 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 Amendment 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’s
expenditure 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 Amendment, §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 Amendment is invalidated. See McConnell, supra, at 339
( Kennedy, J., concurring in judgment in part and dissenting in part).
The Snowe-Jeffords Amendment would exempt 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 exemption,
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 argument, 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
corporate general treasury funds to be spent for independent
expenditures that support candidates. There is no principled basis for
doing this without rewriting Austin ’s holding that the
Government can restrict corporate independent expenditures for political
speech.
Though it is true that the
Court should construe statutes as necessary to avoid constitutional
questions, the series of steps suggested would be difficult to take in
view of the language of the statute. In addition to those difficulties
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 implied a de minimis exception, and “appellant
would appear to be covered by these decisions”). Presumably it
would find textual difficulties in this approach too. The Government,
like any party, can make arguments in the alternative; but it ought to
say if there is merit to an alternative proposal instead of merely
suggesting it. This is especially true in the context of the First
Amendment. As the Government stated, this case “would require a
remand” to apply 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 an interpretation that requires
intricate case-by-case determinations to verify whether political speech
is banned, especially if we are convinced that, in the end, this
corporation 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 can avoid another argument
with broader implications. Indeed, 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 consideration of the continuing
effect of the speech suppression upheld in Austin.
Citizens United stipulated
to dismissing count 5 of its complaint, which raised a facial challenge
to §441b, even though count 3 raised an as-applied challenge. See
App. 23a (count 3: “As applied to Hillary, [§441b] is
unconstitutional under the First Amendment guarantees of free expression
and association”). The Government argues that Citizens United
waived its challenge to Austin by dismissing count 5. We
disagree.
First, even if a party
could somehow waive a facial challenge 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 challenge. See 530 F. Supp. 2d,
at 278 (“Citizens wants us to enjoin the operation of BCRA §203
as a facially unconstitutional burden on the First Amendment right to
freedom of speech”). In rejecting the claim, it noted that it “would
have 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. Furthermore, the District Court’s later
opinion, which granted the FEC summary judgment, was “[b]ased on
the reasoning 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 validity 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
claim is properly before us. And “ ‘[o]nce a federal claim is
properly presented, a party can make any argument in support of that
claim; parties are not limited to the precise arguments 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 argument to support what has
been [a] consistent claim: that [the FEC] did not accord [Citizens
United] the rights it was 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 automatic effect or that it must always control the pleadings
and disposition in every case involving a constitutional challenge. The
distinction is both instructive and necessary, 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 narrower remedy”). The parties cannot enter into a
stipulation that prevents the Court from considering certain remedies if
those remedies are necessary to resolve a claim that 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
cannot easily address that issue without assuming a premise—the
permissibility of restricting corporate political speech—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, no general categorical line bars a court from making
broader pronouncements of invalidity in properly ‘as-applied’
cases”); id., at 1327–1328. As our request for
supplemental briefing implied, Citizens United’s claim implicates
the validity of Austin, which in turn implicates the facial
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’s
extension of §441b. See 540 U. S., at 205 (quoting Austin,
494 U. S., at 660). McConnell permitted federal felony
punishment 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 conclusion. See 540 U. S., at 256–262 (Scalia,
J., concurring in part, 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 in part, 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 “over 100,000 pages” long, made in the three-judge
District Court. 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 premature in
interpreting §441b “ ‘on the basis of [a] factually
barebones recor[d].’ ” Washington State Grange v.
Washington 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 statute was facially invalid. An
as-applied challenge was brought in 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
maintained. Then, in WRTL, the controlling opinion of the 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 holding 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 arguments are not sustainable under a fair
reading of the statute. In the exercise of its judicial responsibility,
it is necessary then for the Court to consider the facial validity of §441b.
Any other course of decision would prolong the substantial, nation-wide
chilling effect caused by §441b’s prohibitions on corporate
expenditures. Consideration of the facial validity of §441b is
further supported by the following reasons.
First is the uncertainty
caused by the litigating position of the Government. As discussed above,
see Part II–D, supra, the Government suggests, as an
alternative argument, 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 that some nonprofit corporations may be
exempted from the operation 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 as applied 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 to the uncertainty that §441b causes. When
the Government 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 elections 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 decision
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 could establish 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 Presidential primary—long
after the opportunity to persuade primary voters has passed.
Third is the primary
importance of speech itself to the integrity of the election process. As
additional rules are created for regulating political speech, any speech
arguably within their reach is chilled. See Part II–A, supra.
Campaign finance regulations now impose “unique and 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 different types of political
speech. Id., at 14–15, n. 10. The FEC has adopted 568 pages
of regulations, 1,278 pages of explanations 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 “appeal
to vote” test for determining whether a communication 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 Wyoming Liberty Group et al. as Amici Curiae 17–27
(filed Jan. 15, 2009).
This regulatory scheme may
not be a prior restraint on speech in the strict sense of that term, for
prospective speakers 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 complexity of the regulations and
the deference courts show to administrative determinations, a speaker
who wants to avoid threats of criminal liability and the heavy costs of
defending against FEC enforcement must ask a governmental 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 giving the FEC power analogous to licensing laws
implemented in 16th- and 17th-century England, laws and governmental
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 danger that [it] may well be less
responsive than a court—part of an independent branch of government—to
the constitutionally 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 society as a whole, which is deprived of an uninhibited marketplace
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 inevitable 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 litigation and the
possibility of civil and criminal penalties, they must 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 unprecedented
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 has been
demonstrated. See WRTL, supra, at 482–483 (Alito,
J., concurring); Thornhill v. Alabama, 310 U. S. 88, 97–98
(1940). For these reasons we find it necessary to reconsider Austin.
III
TThe 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 attempted 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 to criminal
penalties, Brandenburg v. Ohio, 395 U. S. 444, 445 (1969) (per
curiam).
The law before us is an
outright ban, backed by criminal sanctions. Section 441b makes it a
felony for all corporations—including nonprofit advocacy
corporations—either to expressly advocate the election or defeat of
candidates or to broadcast electioneering communications within 30 days
of a primary election and 60 days of a general election. Thus, the
following acts would all be felonies under §441b: The Sierra Club
runs an ad, within the crucial phase of 60 days before the general
election, that exhorts the public to disapprove of a Congressman who
favors logging in national forests; the National Rifle Association
publishes a book urging the public to vote for the challenger because
the incumbent U. S. Senator supports a handgun ban; and the American
Civil Liberties Union creates a Web site telling the public to vote for
a Presidential 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 notwithstanding 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 expenditure
ban, §441b(b)(2), does not allow corporations to speak. Even if a
PAC could somehow allow a corporation to speak—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 to
administer 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,
preserve receipts for three years, and file an organization statement
and 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 regarding the amount of cash on hand; the total
amount of receipts, detailed by 10 different categories; the
identification of each political committee and candidate’s
authorized or affiliated committee making contributions, and any persons
making loans, providing rebates, refunds, dividends, or interest or any
other offset to operating expenditures in an aggregate amount over $200;
the total amount of all disbursements, detailed by 12 different
categories; the names of all authorized or affiliated committees to whom
expenditures aggregating over $200 have been made; persons to whom loan
repayments or refunds have been made; the total sum of all
contributions, operating expenses, outstanding 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 to speak. This might explain why fewer than 2,000
of the millions 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 Activity 1990–2006, online at
http://www.fec.gov/press/press2007/ 20071009 pac/sumhistory.pdf); IRS,
Statistics of Income: 2006, Corporation Income Tax Returns 2 (2009)
(hereinafter Statistics of Income) (5.8 million for-profit corporations
filed 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 to make 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 on political communication during a campaign,” that
statute “necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached.” Buckley v.
Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court
to uphold these restrictions, the Government could repress 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 could repress speech by “attacking all
levels of the production and dissemination of ideas,” for “effective
public communication requires the speaker to make use of the services of
others”). If §441b applied to individuals, no one would
believe that it is merely a time, place, or manner restriction on
speech. Its purpose and effect are to silence entities 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 informed choices 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 to
enlightened self-government and a necessary means to protect it. The
First Amendment “ ‘has its fullest and most urgent application’
to speech uttered during a campaign for political office.” Eu
v. San Francisco County Democratic 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 inadvertence. Laws that burden political speech are
“subject to strict scrutiny,” which requires the Government to
prove that 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 a sufficient framework for protecting the relevant First
Amendment interests in this case. We shall employ it here.
Premised on mistrust of
governmental power, the First Amendment stands against attempts to
disfavor certain subjects 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 regulating content, moreover, the Government may
commit a constitutional wrong when by law it identifies certain
preferred speakers. By taking the right to speak from some and giving it
to others, the Government deprives the disadvantaged 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 restrictions 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 education”); Jones
v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119,
129 (1977) (furthering “the legitimate penological 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 quotation marks omitted)); Civil Service Comm’n v.
Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service
should depend upon meritorious performance rather than political service”).
The corporate independent expenditures at issue in this case, however,
would not interfere with governmental functions, so these cases are
inapposite. These precedents stand only for the proposition that there
are certain governmental functions that cannot operate without some
restrictions on particular kinds of speech. By contrast, it is inherent
in the nature of the political process 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 restrictions on certain disfavored speakers. Both history and
logic lead us to this conclusion.
A
1
The Court has recognized
that First Amendment protection 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) ; Southeastern 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, 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 Communications 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) ; Landmark 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 to the 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 determining whether speech is protected. Corporations and other
associations, like individuals, contribute to the ‘discussion,
debate, and the dissemination of information and ideas’ that the
First Amendment seeks to foster” (quoting Bellotti, 435 U.
S., at 783)). The Court has thus rejected the argument that political
speech of corporations or other associations should be treated
differently under the First Amendment 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, the laws 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 first prohibit independent
expenditures by corporations and 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 the veto of
President Truman, who warned that the expenditure 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 in the
background of United States v. CIO, 335 U. S. 106 (1948). There,
a labor union endorsed a congressional candidate 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 it were 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 the
constitutional question and invalidate the Labor Management 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 expenditures” was outweighed “by
the loss for democratic processes resulting from the restrictions upon
free and full public 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 only that a union television broadcast that endorsed candidates
was covered by the statute, the Court “[r]efus[ed] to anticipate
constitutional questions” and remanded for the trial to proceed.
352 U. S., at 591.Three Justices dissented, arguing that the Court
should have reached the constitutional question and that the ban on
independent expenditures was unconstitutional:
“Under our
Constitution it is We The People who are sovereign. The people have the
final say. The legislators 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
during every 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 of Douglas, 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 withholding First Amendment rights from any group—labor or
corporate.” Id., at 597. The Court did not get another
opportunity 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 expenditure 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 labor unions, Buckley,
424 U. S., at 23, 39, and n. 45.
Before addressing the
constitutionality of §608(e)’s independent expenditure ban,
Buckley first upheld §608(b), FECA’s limits on direct
contributions to candidates. The Buckley Court recognized a “sufficiently
important” governmental interest in “the prevention of
corruption 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 to candidates from independent
expenditures. The Court emphasized that “the independent
expenditure ceiling … fails to serve any substantial governmental
interest in stemming the reality or appearance of corruption in the
electoral process,” id., at 47–48, because “[t]he
absence of prearrangement and coordination . . . alleviates the danger
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 Federal Election
Comm’n v. National Conservative Political Action Comm., 470 U.
S. 480, n. 3 (1985) (NCPAC).
Buckley did not
consider §610’s separate ban on corporate 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.) (“ Buckley might well have been the last word on
limitations on independent expenditures”); Austin, 494 U.
S., at 683 (Scalia, J., dissenting). The expenditure ban invalidated in
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 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
expenditure ban 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 dissent, which argued
that §610 was unconstitutional. 424 U. S., at 43 (citing 352 U. S.,
at 595–596 (opinion of Douglas, 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 restriction challenged here.
Less than two years after
Buckley, Bellotti, 435 U. S. 765, reaffirmed the First
Amendment principle that the Government cannot restrict political speech
based on the speaker’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 . . . Amendment, or in the decisions of this Court,
for the proposition that speech that otherwise would be within the
protection of the First Amendment loses that protection 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
proposition] amounts to an impermissible legislative prohibition of
speech based on the identity of the interests that spokesmen may
represent in public debate over controversial issues and a requirement
that the speaker have a sufficiently great interest in the subject to
justify communication.
....
“In the realm of
protected speech, the legislature is constitutionally disqualified from
dictating the subjects about which persons may speak and the speakers
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 the Government lacks the power to ban corporations from
speaking.
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 political
speech restrictions based on a speaker’s corporate identity. See
ibid.
3
Thus the law stood until
Austin. Austin “uph[eld] a direct restriction on
the independent expenditure of funds for political speech for the first
time in [this Court’s] history.” 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 specific
candidate. Michigan law, however, prohibited corporate 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 identified a new
governmental interest in limiting political speech: an antidistortion
interest. Austin found a compelling governmental interest in preventing
“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’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 the same
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 large aggregations of
capital’ ” (quoting Automobile Workers, supra,
at 585)); California Medical Assn. v. Federal Election 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 rationale on which Austin and its progeny rest in
part, yet it all but abandons reliance upon it. It argues instead that
two other compelling interests support Austin ’s holding
that corporate expenditure restrictions are constitutional: an
anticorruption 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 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 Congress from fining or jailing citizens, or
associations of citizens, for simply engaging in political speech. If
the antidistortion rationale were to be accepted, however, it would
permit Government to ban political speech simply because the speaker is
an association that has taken on the 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 from expressing
political views in media beyond those presented here, such as by
printing books. The Government responds “that the FEC has never
applied this statute to a book,” 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 in civic discourse that
the First Amendment must secure.
Political speech is “indispensable
to decisionmaking in a democracy, 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. (the worth of
speech “does not depend upon the identity of its source, whether
corporation, association, union, or individual”); Buckley,
424 U. S., at 48–49 (“[T]he concept that government may
restrict the speech of some elements of our society in order to enhance
the relative voice of others is wholly foreign to the First Amendment ”);
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
antidistortion rationale. Austin sought to defend the
antidistortion rationale as a means 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 (quoting MCFL, supra,
at 257). But Buckley rejected the premise that the Government
has an interest “in equalizing the relative ability of individuals
and groups to influence the outcome of elections.” 424 U. S., at
48; see Bellotti, supra, at 791, n. 30. Buckley
was specific in stating that “the skyrocketing 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 invalidated the BCRA provision that increased the
cap on contributions to one candidate if the opponent made certain
expenditures 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 be permitted 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 Representatives, 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 a further argument, the Austin
majority undertook to distinguish wealthy individuals from corporations
on the ground that “[s]tate law grants corporations special
advantages—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 rudimentary that the State cannot exact
as the price of those special 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, including individuals 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 their funds to corporations, if not in the
form of donations, then in the form of dividends, interest, or salary”).
Austin ’s
antidistortion rationale would produce the dangerous, 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 to foresee: outright regulation of the press”).
Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast
accumulations of unreviewable power in the modern media empires”).
Media corporations are now exempt from §441b’s ban on
corporate expenditures. See 2 U. S. C. §§431(9)(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 corporations often “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 could have their voices diminished
to put them on par with other media entities. There is no precedent for
permitting 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
between corporations which are deemed to be exempt as media corporations
and those which are not. “We have consistently rejected the
proposition that the institutional press has any constitutional
privilege beyond that of other speakers.” Id., at 691
(Scalia, J., dissenting) (citing Bellotti, 435 U. S., at 782);
see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U. S. 749, 784 (1985) (Brennan, 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 antidistortion rationale. And the exemption results in
a further, separate reason for finding this law invalid: Again by its
own terms, the law exempts some corporations but covers others, even
though both have the need or the motive to communicate their views. The
exemption applies to media corporations owned or controlled by
corporations that have diverse and substantial investments and
participate in endeavors other than news. So even assuming the most
doubtful 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 an unrelated 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, would be forbidden to speak or
inform the public about the same issue. This differential treatment
cannot be squared with the First Amendment.
There is simply no support
for the view that the First Amendment, 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 have become the most
important means of mass communication in modern times. The First
Amendment was certainly not understood 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 that had existed
in England and the heavy taxes on the press that 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 great debates between the Federalists
and the Anti-Federalists over our founding document were published and
expressed in the most important means of mass communication of that era—newspapers
owned by individuals. See McIntyre, 514 U. S., at 341–343;
id., at 367 (Thomas, J., concurring 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
knowledge. See B. Bailyn, Ideological Origins of the American Revolution
5 (1967) (“Any number of people could join in such proliferating
polemics, and rebuttals could come from all sides”); G. Wood,
Creation of the American Republic 1776–1787, p. 6 (1969) (“[I]t
is not surprising that the intellectual sources of [the Americans’]
Revolutionary thought were profuse and various”). The Framers may
have been unaware of certain types of speakers or forms of
communication, but that does not mean that those speakers and media are
entitled to less First Amendment protection than those types of speakers
and media that provided 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 ban the political speech of millions of associations of citizens. See
Statistics of Income 2 (5.8 million for-profit corporations 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
businesses that belong to the U. S. Chamber of Commerce have fewer than
100 employees); M. Keightley, Congressional Research Service Report for
Congress, Business Organizational Choices: Taxation and Responses to
Legislative Changes 10 (2009) (more than 75% of corporations whose
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 “distorting effects 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.”
McConnell, 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 the speech of
manifold corporations, both for-profit and nonprofit, the Government
prevents their voices and viewpoints from reaching the public and
advising voters on which 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 entrusting the people to judge what is
true and what is false.
The purpose and effect of
this law is to prevent corporations, 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 of
corporations 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 issues, 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 elected
officials occur on a regular basis. Brief for State of Montana 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 cooperating with the Government. That cooperation may
sometimes be voluntary, or it may be at the demand of a Government
official who uses his or her authority, influence, and power to threaten
corporations to support the Government’s policies. Those kinds of
interactions are often unknown and unseen. The speech that §441b
forbids, though, is public, and all can judge its content and 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
resources to do so. And wealthy individuals and unincorporated
associations 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 $142 million 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, including the criminal law, to command where a
person may get his or 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 speech can be banned
in order to prevent corruption or its appearance. In Buckley,
the Court found this interest “sufficiently 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, it found “that the governmental interest in
preventing corruption and the appearance of corruption [was] inadequate
to justify [the ban] on independent expenditures.” Id., at
45.
With regard to large
direct contributions, Buckley reasoned 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 bribery laws, see, e.g., 18 U. S. C. §201,
if a quid pro quo arrangement 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 contributions 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; Federal 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
corruption. That case did not extend this rationale to independent
expenditures, and the Court does not do so here.
“The absence of
prearrangement and coordination of an expenditure with the candidate or
his agent not only undermines 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.
(independent expenditures have a “substantially diminished
potential for abuse”). Limits on independent expenditures, such as §441b,
have a chilling effect extending well beyond the Government’s
interest in preventing quid pro quo corruption. The
anticorruption interest is not sufficient 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 America as Amicus Curiae 8–9, n. 5.
A single footnote in Bellotti
purported to leave open the possibility 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 independent
expenditures, including those made by corporations, do not give rise to
corruption or the appearance of corruption. Dicta in Bellotti ’s
footnote suggested that “a corporation’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 demonstrate the
existence of a danger of real or apparent corruption in independent
expenditures by corporations to influence candidate elections.” 435
U. S., at 788, n. 26. Buckley, however, struck down a ban on
independent expenditures to support candidates that covered
corporations, 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 student comment, which
misinterpreted Buckley. See Comment, The Regulation of Union
Political Activity: Majority and Minority 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 standards
than an individual or other associations under a regulatory scheme for
campaign financing”).
Seizing on this aside in
Bellotti ’s footnote, the Court in NRWC did say there is a “sufficient”
governmental interest in “ensur[ing] that substantial aggregations
of wealth amassed” by corporations would not “be used to incur
political debts from legislators who are aided by the contributions.”
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 governmental 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 to solicit funds for its segregated PAC,
which made direct contributions 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 an accepted means to
prevent quid pro quo corruption, see McConnell, 540 U.
S., at 136–138, and n. 40; MCFL, supra, 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 governmental interest in preventing
corruption or the appearance 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 political favors”); id., at 498. The fact that speakers
may have influence 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 contributors who support
those policies. It is well understood that a substantial and legitimate
reason, if not the only reason, to cast a vote for, or to make a
contribution to, one candidate over another is that the candidate will
respond by producing those political outcomes the supporter favors.
Democracy is premised on responsiveness.” McConnell, 540 U.
S., at 297 (opinion of Kennedy, J.).
Reliance on a “generic
favoritism or influence theory . . . is at odds with standard First
Amendment analyses because it is unbounded and susceptible to no
limiting principle.” Id., at 296.
The appearance of
influence or access, furthermore, will not cause the electorate to lose
faith in our democracy. By definition, an independent expenditure is
political speech presented to the electorate that is not coordinated
with a candidate. 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 electorate will refuse “ ‘to take part in
democratic governance’ ” because of additional political
speech made by a corporation or any other speaker. McConnell,
supra, at 144 (quoting 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 was required to recuse himself “when a person
with a personal stake in a particular case had a significant and
disproportionate influence in placing the judge on the case by raising
funds or directing the judge’s election campaign when the case was
pending or imminent.” Id., at ___ (slip op., at 14). The
remedy of recusal was based on a litigant’s due process 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 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 . . . expenditures,” id., at 560
(opinion of Kollar-Kotelly, J.). This confirms Buckley ’s reasoning
that independent expenditures do not lead to, or create the appearance
of, quid pro quo corruption. In fact, there is only scant
evidence that independent 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 gain access 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 an unconstitutional remedy. If elected officials
succumb to improper influences from independent expenditures; if they
surrender their best judgment; and if they put expediency 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 these influences. The remedies enacted by law, however, must
comply with the First Amendment ; and, it is our law and our tradition
that more speech, not less, is the governing rule. An outright ban on
corporate political speech during the 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.
3
The Government contends
further that corporate independent expenditures can be limited because
of its interest in protecting dissenting shareholders from being
compelled 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 expresses. See Austin, 494 U. S., at 687 (Scalia,
J., dissenting). Under the Government’s view, that potential
disagreement could give the Government the authority to restrict the
media corporation’s political speech. The First Amendment does not
allow that power. There is, furthermore, little evidence of abuse that
cannot be corrected by shareholders “through the procedures of
corporate democracy.” 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 Congress had been seeking to protect dissenting
shareholders, it would not have banned corporate speech in only certain
media within 30 or 60 days before an election. A dissenting shareholder’s
interests would be implicated by speech in 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 with only single shareholders. As to other corporations,
the remedy is not to restrict speech but to consider and explore other
regulatory mechanisms. The regulatory mechanism here, based on speech,
contravenes the First Amendment.
4
We need not reach the
question whether the Government has a compelling interest in preventing
foreign individuals or associations from influencing our Nation’s
political 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 predominately by foreign shareholders.
Section 441b therefore would be overbroad even if we assumed, arguendo,
that the Government has a compelling interest in limiting foreign
influence over our political process. See Broadrick, 413 U. S.,
at 615.
C
Our precedent is to be
respected unless the most convincing of reasons demonstrates that
adherence to it puts us on a course that is sure error. “Beyond
workability, the relevant factors in deciding whether to adhere to the
principle of stare decisis include the antiquity of the precedent, 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) (overruling 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 Austin, which itself contravened this
Court’s earlier precedents in Buckley and Bellotti.
“This Court has not hesitated 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 mechanical 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, 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 diminished. Austin abandoned First Amendment principles,
furthermore, by relying on language in some of our precedents that
traces back to the Automobile Workers Court’s flawed
historical account of campaign finance laws, see Brief 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 development here”).
Austin is
undermined by experience since its announcement. Political speech is so
ingrained in our culture 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 and
spending of soft money, the incentives . . . to exploit [ 26 U. S. C. §527]
organizations will only increase”). Our Nation’s speech
dynamic is changing, and informative voices should not have to
circumvent onerous restrictions to exercise their First Amendment
rights. Speakers have become adept at presenting citizens with sound
bites, talking points, and scripted messages that dominate the 24-hour
news cycle. Corporations, like individuals, do not have monolithic
views. On certain topics corporations may possess valuable expertise,
leaving them the best equipped to point out errors or fallacies in
speech of all sorts, including the speech of candidates and elected
officials.
Rapid changes in
technology—and the creative dynamic inherent 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 effective way to convey
a political message. See McConnell, supra, at 261
(opinion of Scalia, J.). Soon, however, it may be that Internet sources,
such as blogs and social networking Web sites, will provide citizens
with significant information 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 created with
corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at
249. The First Amendment does not permit Congress to make these
categorical distinctions based on the corporate identity of the speaker
and the content of the 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 conformance with existing legal rules in order to conduct
transactions. Here, though, parties have been prevented from acting—corporations
have been banned from making independent expenditures. Legislatures may
have enacted bans on corporate expenditures believing that those bans
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 interfering 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 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 the basis of the speaker’s corporate identity. No sufficient
governmental interest justifies limits on the political speech of
nonprofit or for-profit corporations.
D
Austin is
overruled, so it provides no basis for allowing the Government to limit
corporate independent expenditures. As the Government appears to
concede, overruling Austin “effectively invalidate[s] not
only BCRA Section 203, 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 corporate
independent expenditures are therefore invalid and cannot be applied to
Hillary.
Given our conclusion we
are further required to overrule the part of McConnell that
upheld BCRA §203’s extension of §441b’s restrictions
on corporate independent expenditures. 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 restriction 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, televised electioneering communications funded by anyone
other than a candidate must include a disclaimer that “ ‘_______
is responsible for the content of this advertising.’ ” 2 U. S.
C. §441d(d)(2). The required statement 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 committee”; it must also display the name and
address (or Web site address) of the person or group that funded the
advertisement. §441d(a)(3). Under BCRA §201, any person who
spends more than $10,000 on electioneering communications within a
calendar year must file a disclosure statement with the FEC. 2 U. S. C.
§434(f)(1). That statement must identify the person making the
expenditure, the amount of the expenditure, the election to which the
communication was directed, and the names of certain contributors. §434(f)(2).
Disclaimer and disclosure
requirements may burden the ability to speak, but they “impose no
ceiling on campaign-related activities,” Buckley, 424 U.
S., at 64, and “do not prevent anyone from speaking,” McConnel,
supra, at 201 (internal quotation marks and brackets omitted).
The Court has subjected these requirements to “exacting scrutiny,”
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 McConnell Court applied this interest in
rejecting facial challenges to BCRA §§201 and 311. 540 U. S.,
at 196. There was evidence in the record that independent groups were
running election-related advertisements “ ‘while hiding behind
dubious and misleading names.’ ” Id., at 197 (quoting
McConnell I, 251 F. Supp. 2d, at 237). The Court therefore
upheld BCRA §§201 and 311 on the ground that they would help
citizens “ ‘make informed choices in the political
marketplace.’ ” 540 U. S., at 197 (quoting McConnell I,
supra, at 237); see 540 U. S., at 231.
Although both provisions
were facially upheld, the Court 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
either Government 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 regulations, a communication that “[p]roposes a
commercial transaction” was not subject to 2 U. S. C. §441b’s
restrictions on corporate or union funding of electioneering
communications. 11 CFR §114.15(b)(3)(ii). The regulations, however,
do not exempt those communications from the disclaimer and disclosure
requirements in BCRA §§201 and 311. See 72 Fed. Reg. 72901
(2007).
Citizens United argues
that the disclaimer requirements in §311 are unconstitutional as
applied to its ads. It contends that the governmental interest in
providing information to the electorate does not justify requiring
disclaimers for any commercial advertisements, including the 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 to her 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 who is speaking, Buckley, supra, at 76;
see also Bellotti, 435 U. S., at 792, n. 32 (“Identification
of the source of advertising 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, the disclaimers avoid
confusion by making clear that the ads are not funded by a candidate or
political party.
Citizens United argues
that §311 is underinclusive because it requires disclaimers for
broadcast advertisements 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 disclosure provisions.
As a final point, Citizens
United claims that, in any event, the disclosure requirements in §201
must be confined to speech that is the functional equivalent of express
advocacy. The principal opinion in WRTL limited 2 U. S. C. §441b’s
restrictions on independent expenditures to 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’s
disclosure requirements. We reject this contention.
The Court has explained
that disclosure is a less restrictive alternative to more comprehensive
regulations of speech. 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
registration 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) (Congress “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 the
disclosure requirements must be limited to speech that is the functional
equivalent of express advocacy.
Citizens United also
disputes that an informational interest justifies the application of §201
to its ads, which only attempt to persuade viewers to see the film. Even
if it disclosed the funding sources for the ads, Citizens United says,
the information would not help viewers make informed 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
commercial transaction, the public has an interest in knowing who is
speaking 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 requirements 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,
threatened, 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 unconstitutional 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 threats or reprisals. To the contrary,
Citizens United has been disclosing its donors for years and has
identified no instance 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 campaign
finance system that pairs corporate independent expenditures with
effective disclosure has not existed before today. It must be noted,
furthermore, that many of Congress’ 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 informed
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 with the information needed to hold
corporations and elected officials accountable for their positions and
supporters. Shareholders can determine whether their corporation’s
political speech advances the corporation’s interest in making
profits, and citizens can see whether elected officials 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 application to Hillary. We find no constitutional
impediment to the application of BCRA’s disclaimer and disclosure
requirements 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 or expression.
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 its distribution. 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 have done 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 Members of Congress.
Mr. Smith Goes to Washington may be fiction and caricature; but
fiction and caricature can be a powerful force.
Modern day movies,
television comedies, or skits on Youtube.com might portray public
officials or public policies in unflattering ways. Yet if a covered
transmission during the blackout period creates the background for
candidate endorsement or opposition, a felony occurs solely because a
corporation, other than an exempt media corporation, has made the “purchase,
payment, distribution, 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 seems stranger than fiction for our Government to make
this political speech a crime. Yet this is the statute’s purpose
and design.
Some members of the public
might consider Hillary to be insightful and instructive; some
might find it to be neither high art nor a fair discussion on how to set
the Nation’s course; still others simply might suspend judgment on
these points but decide to think more about issues and candidates. Those
choices and assessments, however, are not for the Government to make. “The
First Amendment 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 of ideas. 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 with respect to the constitutionality of 2 U.
S. C. §441b’s restrictions 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. |
|
|
JUSTICE
STEVENS, with whom JUSTICE GINSBURG, JUSTIC 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 days before 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 Citizens
United 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
must rewrite 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 its iteration,
and constant reiteration, of the proposition that the First Amendment
bars regulatory distinctions based on a speaker’s identity,
including its “identity” as a corporation. While that
glittering generality has rhetorical appeal, 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 may be 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
political sphere 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 distinction between
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 may conflict in fundamental
respects with the interests of eligible 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 electioneering marks a
dramatic break from our past. Congress has placed 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 Court today rejects a century of history when it
treats the distinction between corporate and individual campaign
spending as an invidious novelty born of Austin v. Michigan Chamber
of Commerce, 494 U. S. 652 (1990). Relying largely 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’s analysis
rests on a faulty understanding of Austin and McConnell
and of our campaign finance jurisprudence more generally. 1 I regret the
length of what follows, but the importance and novelty of the Court’s
opinion require a full response. Although I concur in the Court’s
decision to sustain BCRA’s disclosure provisions and join Part IV
of its opinion, I emphatically dissent from its principal holding.
I
The Court’s ruling
threatens to undermine the integrity of 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 important
to explain why the Court should not be deciding that question.
Scope of the Case
The first reason is that the question was not properly brought 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 in
response 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, Citizens 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 dismissal of 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 jurisdictional statement
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 Austin, 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 injected its 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
statute could not be applied to it because it was “funded
overwhelmingly by individuals.” Brief for Appellant 29; see also
id., at 10, 12, 16, 28 (affirming “as applied”
character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar.
24, 2009) (counsel for Citizens United conceding that §203 could be
applied 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 most exceptional
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 as assert an exceptional
circumstance, and one searches the majority 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 the case 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 years that “[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 Arcades, Inc., 472 U. S. 491, 504 (1985) ; alteration in
original)). By declaring §203 facially unconstitutional, our
colleagues have turned an as-applied challenge into a facial challenge,
in defiance of this principle.
This is not merely a technical defect in the Court’s decision. 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 broader than
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 by preventing laws embodying the will of
the people from being implemented in a manner consistent with the
Constitution.” Id., at 451. These concerns are heightened
when judges overrule settled doctrine upon which the legislature has
relied. The Court operates with a sledge hammer 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 about
the actual effects of §203, its actual burdens and its actual
benefits, on all manner of corporations and unions. 4 “Claims of
facial invalidity often rest on speculation,” and consequently “raise
the risk of premature interpretation of statutes 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 is nonexistent. Congress crafted BCRA
in response to a virtual 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 any entity other than Citizens United.
5
Faced with this gaping empirical hole, the majority throws up its
hands. Were we to confine our inquiry to Citizens United’s
as-applied challenge, it protests, we would 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 §203 might be
found constitutional, the majority thus posits a future in which novel
First Amendment standards must be devised on an ad hoc basis,
and then leaps from this unfounded prediction to the unfounded
conclusion that such 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 does not 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 is necessary because, if the
Court were to continue on its normal 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’ own
lawful 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 differently. 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 necessary because
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 are constitutionally protected and to what
extent, this claim rests 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 corporate communication could be regulated under §203
only if it was “susceptible of no reasonable interpretation other
than 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
election cycle, it has determined The Chief Justice ’s project to
be a failure. In this respect, too, the majority’s critique of
line-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 FEC has 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 violates the First Amendment ”). By this novel
logic, virtually any submission 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
Finally, the majority suggests that though the scope of Citizens United’s
claim may be narrow, a facial ruling is necessary as a matter of remedy.
Relying on a law review article, it asserts that Citizens United’s
dismissal of the facial challenge does not prevent us “ ‘from
making broader pronouncements of invalidity in properly “as-applied”
cases.’ ” Ante, at 14 (quoting Fallon, As-Applied and
Facial Challenges and Third-Party Standing, 113 Harv. 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 ‘as-applied’ 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-applied challenges, if successful, will “properly”
invite or entail invalidation of the underlying statute. 10 The
paradigmatic case is a judicial determination that the legislature acted
with an impermissible purpose in enacting a provision, as this carries
the necessary implication that all future as-applied 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 contention was that BCRA §203
could not lawfully be applied to a feature-length video-on-demand film
(such as Hillary) or to 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 necessarily carry any
implications for the validity of §203 as applied to other types of
broadcasts, other types of corporations, or unions. It certainly would
not invalidate the statute as applied to a large for-profit corporation.
See Tr. of Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens United
emphasizing 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 challenge that dropped out of
this case 20 months ago.
Narrower Grounds
It is all the more distressing that our colleagues have manufactured 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 statutes
and 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 Enforcement 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 decision that the
majority has bypassed. First, the Court could have ruled, on statutory
grounds, that a feature-length film distributed through video-on-demand
does not qualify as an “electioneering communication” under §203
of BCRA, 2 U. S. C. §441b. BCRA defines that term to encompass
certain communications transmitted by “broadcast, cable, or
satellite.” §434(f)(3)(A). When Congress was developing BCRA,
the video-on-demand medium was still in its infancy, and legislators
were focused on a very different 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-on-demand
transmissions. See Brief for Senator John McCain et al. as Amici
Curiae 17–19. In light of this ambiguity, the distinctive
characteristics of video-on-demand, 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 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 says it “is funded predominantly by
donations from individuals who 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 United looks so
much like the MCFL organizations we have exempted from
regulation, while a feature-length video-on-demand film looks so unlike
the types of electoral advocacy Congress has found deserving of
regulation, this challenge is a substantial one. As the appellant’s
own arguments show, the Court could have easily limited the breadth of
its constitutional holding had it declined to adopt the novel notion
that speakers and speech acts must always 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 case could 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 that was 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 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 overturning settled doctrine. “[A]
decision to overrule should rest on some special reason over and above
the belief that a prior case was wrongly decided.” Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 864 (1992).
No such justification exists in this case, and to the contrary there are
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, the many defects in which
we will soon consider. I am perfectly willing to concede that if one of
our precedents were dead wrong in its reasoning or irreconcilable with
the rest of 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
a merits argument with additional vigor does not give it 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 experience since 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
majority bother to specify in what sense Austin has been “undermined.”
Instead it treats the reader to a string of non sequiturs: “Our
Nation’s speech dynamic is changing,” ante, at 48; “[s]peakers
have become adept at presenting citizens with sound bites, talking
points, and scripted messages,” 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]”
factor undermining Austin). Why it diminishes the value of 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 emphasizing
only a subset of them. Members of the public, moreover, often rely on
our bottom-line holdings far more than our precise 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 pages making these
surprising arguments, it says almost nothing about the standard
considerations we have used to determine stare decisis value,
such as the antiquity of the precedent, 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
force when legislators or citizens ‘have acted in reliance on a
previous decision, for in this instance overruling the decision would
dislodge settled rights and expectations or require 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 and coherent fashion. Today’s decision takes away a power
that 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 relied on this authority for a comparable
stretch of time, and it specifically relied on Austin throughout
the years it spent developing 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’s ruling 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 will follow: Political parties are
barred under BCRA from soliciting or spending “soft money,”
funds that are not subject to the statute’s disclosure requirements
or its source and amount limitations. 2 U. S. C. §441i; McConnell,
540 U. S., at 122–126. Going forward, corporations and unions will
be free to spend as much general treasury money as they wish on ads that
support or attack specific candidates, whereas national parties will not
be able to spend 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 question by today’s opinion have been
on the books for a half-century or more. The Court points to no
intervening change 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 business community, 23 organized labor, 24 and the
nonprofit sector, 25 together with more than half of the States, 26 urge
that we preserve Austin. As for McConnell, the portions
of BCRA it 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 a standardized process, with clearly defined
safe harbors, for corporations to claim that a particular electioneering
communication 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 express goal of maximizing
clarity and administrability, 551 U. S., at 469–470, 473–474.
The case for stare decisis may be bolstered, we have said, when
subsequent rulings “have reduced the impact” of a precedent “while
reaffirming the decision’s core ruling.” Dickerson v.
United States, 530 U. S. 428, 443 (2000). 28
In the end, the Court’s rejection of Austin and McConnell
comes down to nothing more than its disagreement with their results.
Virtually every one of its arguments was made and rejected in those
cases, and the majority opinion 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 than in the proclivities of individuals.”
Vasquez v. Hillery, 474 U. S. 254, 265 (1986).
III
The novelty of the Court’s
procedural dereliction and its approach to stare decisis is
matched by the novelty of its ruling 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” on nearly 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 pointed out
that, “[c]ontrary to the [majority’s] critical assumptions,”
the statutes upheld in Austin and McConnell 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 exemptions for PACs, separate segregated
funds established by a corporation 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 provided corporations and
unions with a constitutionally sufficient opportunity 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 avail themselves 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 this issue, it is important to keep in mind that we
have no record 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 shareholder of 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 through the 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 open many
additional avenues for corporations’ political speech. Consider the
statutory provision we are ostensibly evaluating in this case, BCRA §203.
It has no application to genuine issue advertising—a category of
corporate speech Congress found to be far more substantial than
election-related advertising, see McConnell, 540 U. S., at 207—or
to Internet, telephone, and print advocacy. 31 Like numerous statutes,
it exempts media companies’ news stories, commentaries, and
editorials from its electioneering restrictions, in recognition of the
unique role played by the institutional 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 voting records, 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, the only 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 primary or 60 days of a general federal election; 35 (4) by a labor
union or a non-MCFL, nonmedia corporation; 36 (5) paid for 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 of communications meeting all of these
criteria is not trivial, but the notion that corporate political speech
has been “suppress[ed] … altogether,” ante, at 2,
that corporations have 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 in a 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 to abjure
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 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 of communications that is especially likely to corrupt
the political process, that is at least one degree removed from the
views of individual citizens, and that may not even reflect 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
incessant talk 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 speech based 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 unfettered discourse, the Court’s denunciation of
identity-based distinctions may have rhetorical appeal but it obscures
reality.
“Our jurisprudence over the past 216 years has rejected an
absolutist interpretation” of the First Amendment. WRTL,
551 U. S., at 482 (opinion of Roberts, C. J.). The First Amendment
provides that “Congress shall make no law … abridging the
freedom of speech, or of the press.” Apart perhaps from measures
designed to protect the press, 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 routinely places 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 contrast to the blanket rule that
the majority espouses, our cases recognize that the Government’s
interests may be more or less compelling with respect to different
classes of speakers, 47 cf. Minneapolis Star & Tribune Co. v.
Minnesota 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 coextensive with 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 a speaker’s autonomy;
society could scarcely function if it did. It is fair to say that our
First Amendment doctrine has “frowned on” certain
identity-based distinctions, Los Angeles Police Dept. v. United
Reporting Publishing Corp., 528 U. S. 32, 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 have prohibited all
legislative distinctions based on identity or content. Not even close.
The election context is distinctive in many ways, and the Court, of
course, is right that the First Amendment closely guards 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 never
cast 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 contributing 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 regulations which leave “untouched
full participation … in political decisions 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 corrupt the electoral process long been recognized, but within the
area of campaign finance, corporate spending is also “furthest from
the core of political expression, since corporations’ First
Amendment speech and association interests are 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 distinctions based on corporate identity tend to be less
worrisome, in other words, because the “speakers” are not
natural persons, much less members of our political community, and 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 the identity
of a speaker has no relevance to the Government’s ability to
regulate political speech would lead to some remarkable conclusions.
Such an assumption would have accorded the propaganda broadcasts to our
troops by “Tokyo Rose” during World War II the same protection
as speech by Allied commanders. More pertinently, it would appear 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 form of speech. 52
In short, the Court dramatically overstates its critique of
identity-based distinctions, without ever explaining why corporate
identity demands the same treatment as individual identity. Only the
most wooden approach to the First Amendment could justify the
unprecedented line it seeks 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 (internal quotation 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 a scintilla of
evidence to support the notion that anyone 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’s
position.
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 First Amendment 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 in society.
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 charter that specified the corporation’s powers and purposes and “authoritatively
fixed the scope and content of corporate organization,” including “the
internal structure of the 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 Business Corporation, 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
fears of the “evils” of business corporations); L. Friedman, A
History of American Law 194 (2d ed. 1985) (“The word ‘soulless’
constantly recurs in debates over corporations…. Corporations, it
was feared, could concentrate the 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 statutes appear to
date from well after 1800”).
The Framers thus took it as a given that corporations could be
comprehensively regulated in the service of the public welfare. Unlike
our colleagues, they had little trouble 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 corporate activity was thought to rest
entirely in a concession of the sovereign.” Shelledy, Autonomy,
Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991);
cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636
(1819) (Marshall, C. J.) (“A corporation is an artificial being,
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 have anticipated 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 be the beneficiary of the free speech guaranty—the
individual”). In light of these background practices and
understandings, it seems to me implausible that the Framers believed “the
freedom of speech” would extend equally to all corporate speakers,
much less that it would preclude legislatures 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 salient media.” Ibid.
This conclusion is far from certain, given that many historians believe
the Framers were focused on prior restraints on publication and did not
understand the First 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 conclusion were
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. 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 a sponsor of electoral advocacy.
As a matter of original meaning, it likewise seems baseless—unless
one evaluates the 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
understandings of the Amendment cease to be a meaningful constraint on
the judicial task. This case sheds a revelatory light on the assumption
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 the decisional 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 that the contrary proposition better reflects the kind of right
that the drafters and ratifiers of the Free Speech Clause thought 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. Nothing in his account
dislodges my basic point that members of the founding generation held a
cautious view of corporate power 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 have
lesser status than individual speech, that may well be because the
contrary proposition—if not also the very notion of “corporate
speech”—was inconceivable. 56
Justice Scalia also emphasizes the unqualified nature of 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 the Executive, even though
its language refers to Congress alone. In any event, the text only leads
us back to the questions 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 night the day) that their electioneering
must be equally protected by the First Amendment and equally immunized
from 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 believe the Constitution would have been
understood then, and ought to be understood now, to permit reasonable
restrictions on corporate electioneering, and I will give many more
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, and many 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 as guardian 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.
2. Legislative and Judicial
Interpretation
A century of more recent
history puts to rest any notion that today’s ruling is faithful to
our First Amendment tradition. At the federal level, the express
distinction between 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 on the 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 message to 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 aimed at in
corrupt practices acts.’ ” United States v. Automobile
Workers, 352 U. S. 567, 572 (1957) (quoting 40 Cong. Rec. 96).
The Court has surveyed the history leading up to the Tillman 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 in federal elections, with the accompanying threat of both actual
corruption and a public perception of corruption; and second, a respect
for the interest of shareholders and members 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’s Money”: Corporations, Agency Costs, and Campaign
Finance Law, 92 Geo. L. J. 871 (2004).
Over the years, the limitations on corporate political spending have
been modified in a number of ways, as Congress responded to changes in
the American economy and 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, Congress extended 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 the middle of the 20th
century, several Justices wrote separately to criticize the expenditure
restriction as applied to unions, 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 position failed to command a
majority. Prior to today, this was a fact we found significant in
evaluating precedents. Second, each case in this line expressed support
for the principle that corporate and union political speech financed
with PAC funds, collected voluntarily from the organization’s
stockholders or members, receives greater protection than speech
financed with general treasury funds. 60
This principle was carried forward when Congress enacted comprehensive
campaign finance reform in the Federal Election Campaign Act of 1971
(FECA), 86 Stat. 3, which retained the restriction on using general
treasury funds 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 regulation that when a large number of
plaintiffs, including several nonprofit corporations, challenged
virtually every aspect of the Act in Buckley, 424 U. S. 1, no
one even bothered to argue that the bar as such was unconstitutional.
Buckley famously (or infamously) distinguished direct
contributions from independent expenditures, id., at 58–59,
but its silence on corporations only reinforced the understanding that
corporate expenditures could be treated differently from individual
expenditures. “Since our decision in Buckley, 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 that Congress 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 particular legal and
economic attributes of corporations … warrants considerable
deference,” and “reflects a permissible assessment of the
dangers posed by those entities to the electoral process.” NRWC,
459 U. S., at 209 (internal quotation 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 from individuals.” Id., at
210–211.
The corporate/individual distinction was not questioned by the Court’s
disposition, in 1986, of a challenge to the expenditure restriction as
applied to a distinctive type of nonprofit corporation. In MCFL,
479 U. S. 238, we stated again “that ‘the special
characteristics of the corporate structure require particularly careful
regulation,’ ” id., at 256 (quoting NRWC, 459
U. S., at 209–210), and again we acknowledged that the Government
has a legitimate interest in “regulat[ing] the substantial
aggregations of wealth amassed by the special advantages which go with
the 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-to-4 vote was that a limited class of corporations must be
allowed 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 insulated from those concerns. 61
It is worth remembering for present purposes that the four 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 “the
threat 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 opposition to, candidates. We held
they could be. Once again recognizing the importance of “the
integrity of the marketplace of 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 that have “little
or no correlation” with the beliefs held by actual 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 of general “ideas,” “facts,”
and “knowledge,” ante, at 38–39, the decision
addressed only candidate-focused expenditures and gave the State no
license to regulate corporate spending on other matters.
In the 20 years since Austin, we have reaffirmed its holding
and rationale a number of times, see, e.g., Beaumont,
539 U. S., at 153–156, most importantly in McConnell, 540
U. S. 93, where we upheld the provision challenged here, §203 of
BCRA. 62 Congress crafted §203 in response to a problem created by
Buckley. The Buckley 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 a clearly 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 using sham “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 these ads.”
Id., at 127. Congress passed §203 to address this
circumvention, prohibiting corporations and unions from using 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 compelling
governmental interest justifie[d]” §203, we found the question
“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’s political 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 certain restrictions on corporate
electoral involvement permissibly hedge against ‘ “circumvention
of [valid] contribution limits.” ’ ” Ibid.
(quoting Beaumont, 539 U. S., at 155, in turn quoting FEC v.
Colorado Republican Federal Campaign Comm., 533 U. S. 431, and n. 18
(2001) (Colorado 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 have been
otherwise was the option to form PACs, which give corporations, at the
least, “a constitutionally sufficient opportunity to engage in”
independent expenditures. 540 U. S., at 203.
3. Buckley and Belotti
Against this extensive
background of congressional regulation of corporate campaign spending,
and our repeated affirmation of this regulation as constitutionally
sound, the majority dismisses Austin as “a significant
departure 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
in which the Court has reviewed campaign finance legislation in the
decades since, the majority failed to grasp this truth. The Federal
Congress and dozens of state legislatures, we now know, have been
similarly deluded.
The majority emphasizes Buckley ’s statement that “ ‘[t]he
concept that government may restrict the speech of some elements of our
society in order to enhance the relative voice of others is wholly
foreign to the First Amendment.’ ” Ante, at 33
(quoting 424 U. S., at 48–49); ante, at 8 (opinion of
Roberts, C. J.). But this elegant phrase cannot bear the weight that our
colleagues have placed on it. For one thing, the Constitution does, in
fact, permit numerous “restrictions on the speech of some in order
to prevent 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 is relevant 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 spend their 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
interest supporting 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 distinctive corrupting
potential of corporate electoral advocacy financed by general treasury
dollars, id., at 659–660.
For that matter, it should go without saying that when we 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. 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 union campaign
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 a corporation’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 preserving public
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 the election of specific candidates for office—as
inconsistent with 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 of
corporate participation in candidate elections, the “importance”
of which “has never been doubted,” 435 U. S., at 788, 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 a corporation, or fear the corporation’s
retaliation. Cf. Austin, 494 U. S., at 678 (Stevens, J.,
concurring); Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley, 454 U. S. 290, 299 (1981). The majority
likewise overlooks 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, 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 critical piece
of its analysis as unsupported and irreconcilable with Buckley.
Bellotti, apparently, is both the font of all wisdom and
internally incoherent.
The Bellotti Court confronted a dramatically different factual
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
“from making 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 went so 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 this
statute in order to limit corporate speech on a proposed state
constitutional amendment to authorize a graduated income tax. The
statute was a transparent attempt to prevent corporations from spending
money to defeat this amendment, 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 to give one
side of a debatable public question an advantage in expressing its views
to the people, the First Amendment is 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 “a very 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 distinguishable 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, the restrictions on those expenditures were justified by a
compelling 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 been different if there had been “record or legislative
findings that corporate advocacy threatened imminently to undermine
democratic processes, thereby denigrating rather than serving First
Amendment interests.” Ibid.
Austin and McConnell, then, sit perfectly well with Bellotti.
Indeed, all six Members of the Austin majority had 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 Amendment protection 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 State has a greater interest in
regulating independent corporate expenditures on candidate elections
than on referenda, because in a functioning democracy the public must
have faith 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 has demonstrated a recurrent need to regulate
corporate participation in candidate elections to “ ‘[p]reserv[e]
the integrity of the electoral process, preven[t] corruption, …
sustai[n] the active, alert responsibility of the individual citizen,’
” protect the expressive interests of shareholders, and “ ‘[p]reserv[e]
… the individual citizen’s confidence in 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 union treasuries.” WRTL, 551 U. S., at 522
(Souter, J., dissenting). Time and again, we have recognized these
realities in 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 of interests recognized in the name of
democratic integrity since 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
Undergirding the majority’s approach to the merits is the claim
that the only “sufficiently important governmental interest in
preventing corruption or the appearance of corruption” 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 always spoken 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
improper influences 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 as a remarkable
testament to the energy and ingenuity with which corporations, unions,
lobbyists, and politicians may go about scratching each other’s
backs—and which amply supported Congress’ determination to
target a limited set of 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 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 that corporations
and labor unions routinely notify Members of Congress as soon as they
air electioneering communications 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 that these
organizations use issue advocacy as a means to influence various Members
of Congress.
“The Findings also demonstrate that Members of Congress seek to
have corporations and unions run these advertisements on their behalf.
The Findings show that Members suggest that corporations or individuals
make donations to interest groups with the understanding that the money
contributed to these groups will assist the Member in a campaign. After
the election, these organizations often seek credit for their 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, receive
special consideration from those officials when matters arise that
affect these corporations and organizations.” Id., at 623–624
(citations and footnote omitted).
Many of the relationships of dependency found by Judge Kollar-Kotelly
seemed to have a quid pro quo basis, but other arrangements were
more subtle. Her analysis shows the great difficulty in delimiting the
precise scope of the 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 a democratic
society than the odd bribe. Yet the majority’s understanding 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 of those who have made large financial contributions”—or
expenditures—“valued by the officeholder.” McConnell,
540 U. S., at 153. 63 When private interests are seen to exert 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 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
to govern themselves,” WRTL, 551 U. S., at 507 (Souter, J.,
dissenting). “Take away Congress’ authority to regulate the
appearance of undue influence and ‘the cynical assumption that
large donors call the tune could jeopardize the 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 Unlike the majority’s myopic focus on quid
pro quo scenarios 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]o say that Congress is without power to pass
appropriate legislation to safeguard … an election from the
improper use 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 have the same rights as natural persons in the electoral
context, we have ample evidence to suggest that they would have been
appalled by the evidence of corruption that Congress unearthed in
developing BCRA and that the Court today discounts to irrelevance. It is
fair to say that “[t]he Framers were obsessed with corruption,”
Teachout 348, 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 constitutional order into being, the Framers had
their minds trained 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 the scope 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 anticorruption interest most narrowly, we
have never suggested that such quid pro quo debts must take the
form of outright vote buying or bribes, which have long been distinct
crimes. 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 to the 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 to influence 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 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 applied to BCRA §203,
however, they conclude “[t]he anticorruption interest is not
sufficient to displace the speech here in question.” Ante,
at 41.
Although the Court suggests that Buckley compels its
conclusion, 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 Buckley Court found
the governmental interest in preventing corruption “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., magic
words) 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 apparent corruption comparable to those
identified with large campaign contributions,” id., at 46
(emphasis added). Buckley expressly 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 same
dangers of actual or apparent quid pro quo arrangements as 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 with corporate general
treasury funds, an issue the Court had no occasion to consider.
The Austin Court did not rest its holding on quid pro quo
corruption, as it found the broader corruption implicated by the
antidistortion and shareholder protection rationales a sufficient basis
for Michigan’s restriction on corporate 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 a class, tend to
be more attuned to the complexities of the legislative process and more
directly affected by tax and appropriations measures that receive little
public scrutiny; they also have vastly more money with which to try to
buy access and votes. See Supp. Brief for Appellee 17 (stating that the
Fortune 100 companies earned revenues of $13.1 trillion during the last
election cycle). Business corporations must engage the political process
in instrumental terms if they are to maximize shareholder value. The
unparalleled resources, professional lobbyists, and single-minded 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 legislative and judicial proceedings
relating to BCRA generated a substantial body of evidence suggesting
that, as corporations grew more and more adept at crafting “issue
ads” to help 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 essentially 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 BCRA record does not
contain “direct examples of votes being exchanged for …
expenditures.” Ante, at 45 (internal quotation marks
omitted). It would have been quite remarkable if Congress had created a
record detailing such behavior by its own Members. Proving that a
specific vote was exchanged for a specific expenditure has always been
next 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 to it; 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. Starting today,
corporations with large war chests to deploy on electioneering may find
democratically elected bodies becoming much more attuned to their
interests. The majority both misreads the facts and draws the wrong
conclusions 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 and explained 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 candidates used corporate independent expenditures
to circumvent FECA’s “hard-money” limitations. See, e.g.,
id., at 478–479. One former Senator candidly admitted to
the 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 with the general treasury funds of labor unions
and corporations endears those entities to elected officials in a way
that 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 concept was 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 the District
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,
205, 206, n. 88. Had we felt constrained by the view of today’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 that issue. And as the analysis
by Judge Kollar-Kotelly reflects, it is a very real possibility that we
would have found one or both of those interests satisfied and §203
appropriately tailored to them.
The majority’s rejection of the Buckley anticorruption
rationale on the ground that independent corporate expenditures “do
not give rise to [ quid pro quo ] corruption or the appearance
of corruption,” ante, at 42, is thus unfair as well as
unreasonable. Congress and outside experts have generated significant
evidence corroborating this rationale, and the only reason we do not
have any of the relevant 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 and then 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, they would remand to the District Court with instructions to
commence evidentiary proceedings. 66
The insight that even technically independent expenditures can be
corrupting in much the same way as direct contributions 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 The
Sake 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 common sense, this Court
accepted petitioners’ argument that Blankenship’s “pivotal
role in getting Justice Benjamin elected 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 criminal influence” was involved, we recognized that “Justice
Benjamin would nevertheless feel a debt of gratitude to Blankenship 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 its actual existence.
In Caperton, then, we accepted the premise that, at least in
some circumstances, independent expenditures on candidate elections will
raise an intolerable specter of quid pro quo corruption. Indeed,
this premise struck the Court as so intuitive that it repeatedly
referred to Blankenship’s spending on behalf of Benjamin—spending
that consisted 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 disproportionate
influence on the electoral outcome”). The reason the Court so
thoroughly conflated expenditures and contributions, one assumes, is
that it realized that some expenditures may 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 thereafter takes.
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 in purpose or effect, [may be]
nonetheless required to guard against 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 brackets omitted); 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 communications will often prefer to use nonprofit
conduits with “misleading names,” such as And For The Sake Of
The Kids, “to 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’s holding will
not be limited to the legislative or executive context. The majority of
the States select their judges through 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 they believe 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 branch of Government,
the majority thus rejects the anticorruption rationale without serious
analysis. 67 Today’s opinion provides no clear rationale for being
so dismissive of Congress, but the prior individual opinions on which it
relies have 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 disreputable attempt at legislative self-dealing
rather than an earnest effort to facilitate First Amendment values and
safeguard the legitimacy of our political system. This possibility, the
Court apparently believes, licenses it to run roughshod over Congress’
handiwork.
In my view, we should instead start by acknowledging that “Congress
surely has both wisdom and experience in these 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, as here, we deal with a congressional
judgment that has remained 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 of scrutiny that
effectively bars them from regulating electioneering whenever there is
the faintest whiff of self-interest, is to deprive them of the ability
to regulate electioneering.
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 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 a class, a court should generally
be hesitant to invalidate legislation 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 the Court today calls into
question, reflects or fosters such invidious 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
be turned on its head. The electioneering prohibited by §203 might
well tend to favor incumbents, because incumbents have pre-existing
relationships with corporations and unions, and groups that wish to
procure legislative benefits may tend to support the candidate who, as a
sitting officeholder, 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 corporation 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 on corporate 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. Congress devoted
years of careful study to the issues underlying BCRA; “[f]ew
legislative proposals in recent years have received as much sustained
public commentary or news coverage”; “[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: The Constitutionalization
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 aptly
remarked at the time, “the evidence supports overwhelmingly that
incumbents were able to get re-elected under the 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 that th[e]
important interests favoring expenditure limits are fronts 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 a constitutional provision that, at
best, has an indirect relationship to activity that affects the quantity
… of repetitive speech in the marketplace of ideas.” Id.,
at 279–280. The majority cavalierly ignores Congress’ factual
findings and its constitutional judgment: It acknowledges the validity
of the interest in preventing corruption, but it effectively 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 the special concerns raised by corporations. Understood
properly, “antidistortion” is simply a variant on the classic
governmental 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
1. Antidistortion
The fact that corporations
are different from human beings might seem to need no elaboration,
except that the majority 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 that maximize 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 of popular support for the corporation’s political
ideas.’ ” Id., at 659 (quoting MCFL, 479 U.
S., at 258). “ ‘They reflect instead the economically
motivated decisions of investors and customers. The availability of
these resources may make a corporation a formidable political presence,
even though the power of the corporation may be no reflection of 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” often serves as a useful legal fiction. But
they are not themselves members of “We the People” by whom and
for whom our 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 that electioneering are less likely to encroach upon
First Amendment freedoms. One fundamental concern of the First Amendment
is to “protec[t] the individual’s interest in self-expression.”
Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N.
Y., 447 U. S. 530, 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, 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 the way in which
individuals disseminate certain messages through the corporate form, but
it does not prevent anyone from 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 speaking when 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 be the 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 officers or 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 corporation must
make the decision to place the ad, but the idea that these individuals
are thereby fostering their self-expression 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 on individuals’ electioneering expenditures
in the service of 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 they need 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]orporate participation” in elections,
any business executive will tell you, “is more transactional than
ideological.” Supp. Brief for 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 that officeholders 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 to use 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
In short, regulations such as §203 and the statute upheld in Austin
impose only a limited burden on First Amendment freedoms not only
because they target a narrow subset of expenditures and leave untouched
the broader “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 the corporation’s right to
electioneer, but rather on the listener’s interest in hearing what
every possible speaker may 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, “interferes
with the ‘open marketplace’ of ideas protected by the First
Amendment,” 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 Roosevelt’s remarks). The
distinctive threat to democratic integrity posed by corporate domination
of politics was recognized 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 general treasury
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 than advance the interests of listeners. The
legal structure of corporations allows them to amass and deploy
financial resources 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 the political preferences
of the individuals associated with the corporation; the corporation must
engage the electoral process with the aim “to enhance the
profitability of the company, no matter how persuasive the arguments for
a broader or conflicting set of priorities,” Brief for American
Independent Business Alliance as Amicus Curiae 11; see also ALI,
Principles of Corporate Governance: Analysis and 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
profit and 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 of local 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 no correlation” to the ideas of natural
persons or to any broader notion of the public good, 494 U. S., at 660.
The opinions of real people may be marginalized. “The expenditure
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 that corporations 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
increased perception that large spenders “ ‘call the tune’
” and a reduced “ ‘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 those races 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 officials accountable 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 legislature is 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 “advantages” in the
legal realm, Austin, 494 U. S., at 659, may translate into
special advantages in the market for legislation. 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 on behalf 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 Corporate Charters, 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 of money but because of their legal and organizational
structure. Remove all restrictions on their electioneering, and the door
may be opened to a type of rent seeking that is “far more
destructive” than what noncorporations are capable 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 to protect 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 colleagues ridicule 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 debaters and viewpoint-neutral laws such as §203 were
created to suppress their best arguments. In their haste to knock down
yet another straw man, our colleagues simply ignore the fundamental
concerns of the Austin Court and the 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
undeniable surface 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 no special 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 be sound. 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 or should be denied an
opportunity to participate in election campaigns or in any other public
forum (much less that a work of art such as Mr. Smith Goes to
Washington may be banned), 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 interests outside of the First
Amendment. It also reflects a concern to facilitate First Amendment
values by preserving some breathing room around the electoral “marketplace”
of ideas, ante, at 19, 34, 38, 52, 54, the marketplace in which
the actual people of this Nation determine how they will 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, but also pit competing First Amendment values
against each other. There are, to be sure, serious concerns with any
effort to balance the First Amendment rights of speakers against 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 colleagues place
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 in the text, history, and structure
of the First Amendment but also in facilitating public discourse; as the
Austin Court explained, “media corporations differ
significantly from 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, and about 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 is not a media corporation. There would be absolutely no reason
to consider the issue of media corporations if the majority did not,
first, transform Citizens United’s as-applied challenge into a
facial challenge and, second, invent the theory that legislatures must
eschew all “identity”-based distinctions and treat a local
nonprofit news 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 §203 may be counterproductive
or self-interested, and therefore attended 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 simply stipulates
that “enlightened self-government” can arise only in the
absence of regulation. Ante, at 23. In light of the distinctive
features of corporations identified in Austin, 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 the market
ordering is intrinsically good at all,” Strauss 1386.
The Court’s blinkered and aphoristic approach to the First
Amendment may well promote corporate power at the cost of the individual
and collective self-expression the Amendment was meant to serve. It will
undoubtedly cripple 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 the cause of self-government today.
2. Shareholder Protection
There is yet another way
in which laws such as §203 can serve 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 of coerced 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 a
particular 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 investments being used to undermine their political
convictions.
The PAC mechanism, by contrast, helps assure that those who pay for an
electioneering communication actually support its content and that
managers do not use general treasuries to advance personal agendas. Ibid.
It “ ‘allows corporate political participation without the
temptation to use corporate funds for political influence, quite
possibly 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—“to avoid being taken
advantage of, without sacrificing their economic 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 reform. It provided a central
motivation for the Tillman Act in 1907 and subsequent legislation, see
Pipefitters v. United States, 407 U. S. 385, 414–415 (1972)
; Winkler, 92 Geo. 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 a corporation 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 that abuses of
shareholder money can be corrected “through the procedures of
corporate democracy,” ante, at 46 (internal quotation marks
omitted), and, it seems, through Internet-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 I fail 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 nonexistent,” 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 to track corporate activity,
including electoral advocacy, but it 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 they reliably learn as much, however, this solution
is only partial. The injury to the shareholders’ expressive rights
has already occurred; they might have preferred to keep that 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, changing their pension plan, or the like. The shareholder
protection rationale 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 “the interests 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
protection provides a basis for regulating expenditures in the weeks
before an election, not whether additional types of 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 statute in question. Rather, the Court applied
it to reinforce the antidistortion rationale, in two main ways. First,
the problem of dissenting shareholders shows that even if electioneering
expenditures can advance the political views of some members of a
corporation, they will often compromise 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 “expenditures reflect
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, individual
dissenting opinions over precedential holdings, assertion over
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 rationale of those authorities, and
after bypassing or ignoring rules of judicial restraint used to cabin
the Court’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 should outweigh 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
self-government since the founding, and who have fought against 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
majority of this Court would have thought its flaws included a dearth of
corporate money in politics.
I would affirm the judgment of the District Court.
Notes
1 Specifically, Part I, infra, at 4–17, addresses the
procedural history of 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.
2 See Yee v. Escondido, 503 U. S. 519, 535 (1992) (“[U]nder
this Court’s Rule 14.1(a), only questions set forth in the
petition, or fairly included therein, will be considered by the Court”
(internal quotation marks and alteration omitted)); Wood v. Allen,
ante, at __ (slip op., at 13) (“[T]he fact that petitioner
discussed [an] issue in the text of his petition 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 not decided below”
(internal quotation marks omitted)).
3 The 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 its facial 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 “final decision”
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.
4 Shortly 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,
the Court gives it a perverse litigating advantage over its adversary,
which was deprived of the opportunity to gather and present information
necessary to its rebuttal.
5 In 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 were expected 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 its contention that the statute has
proved too “chilling” in practice—and in particular 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 to show how regulated corporations and unions have experienced
its restrictions.
6 Our 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, 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.
7 Also perplexing is the majority’s attempt to pass blame to the
Government for its litigating position. By “hold[ing] out the
possibility of ruling 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 the question of statutory validity.” Ante,
at 17. Our colleagues have apparently 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 the Government acknowledges as much, does not
demonstrate anything about the propriety of a facial ruling.
8 The majority’s “chilling” argument is particularly
inapposite with respect to 2 U. S. C. §441b’s longstanding
restriction on the use of corporate general treasury funds for express
advocacy. If there was ever any significant uncertainty about what
counts as the functional equivalent 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, 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 generate chilling concerns; and
even though no one has suggested that Hillary counts as express
advocacy; the majority nonetheless reaches out to opine that this
statutory provision is “invalid” as well. Ante, at 50.
9 The majority adds that the distinction between facial and as-applied
challenges does not have “some automatic effect” that
mechanically controls 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 invert it.
10 Professor 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
exact opposite 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 neither our obligation nor within our traditional institutional role
to resolve questions of constitutionality with respect to each potential
situation that 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)).
11 Internal Revenue Code section 501(c)(4) applies, inter alia,
to nonprofit organizations “operated exclusively for the promotion
of social welfare, … 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 suggests that,
“[e]ven if considered in as-applied terms, a holding in this case
that 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 Citizens
United’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 that
nonprofit 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 broadcast communications, ante,
at 33. The majority never uses a multinational business corporation in
its hypotheticals.
13 The 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 to video-on-demand transmissions
generally.
14 See 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 for Independent Sector as Amicus Curiae 10–11
(collecting cases). The Court rejects this solution in part because the
Government “merely suggest[s] it” and “does not say that
it agrees with the interpretation.” Ante, at 11. Our
colleagues would thus punish a defendant for showing insufficient
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.
15 Another bypassed ground, not briefed by the parties, would have been
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 trace the payments
to individual contributions. See Brief for National Rifle Association as
Amicus Curiae 5–15 (arguing forcefully that Congress
intended this result).
16 The Chief Justice finds our discussion of these narrower solutions “quite
perplexing” because we suggest that the Court should “latch on
to one of them in order to avoid reaching the broader constitutional
question,” without doing the same ourselves. Ante, at 3.
There is nothing perplexing about the matter, because we are not
similarly situated to our colleagues in the majority. We do not share
their view of the First Amendment. Our reading of the Constitution would
not lead us to strike down any statutes or overturn any precedents in
this case, 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).
17 I 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.
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 of requests 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 particular facts, 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, the more 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 does today, that will be destabilizing.
19 Additionally, 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 campaign finance reforms were less deliberate or
less benignly motivated than Automobile Workers suggested, the
point remains that this body of law has played a significant and broadly
accepted role in American political life for decades upon decades.
20 See 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).
21 Magleby, The Importance of the Record in McConnell v. FEC, 3
Election L. J. 285 (2004).
22 To be sure, the majority may respond that Congress can correct the
imbalance 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.
23 See Brief for Committee for Economic Development as Amicus
Curiae; Brief for American Independent Business Alliance as Amicus
Curiae. But see Supp. Brief for Chamber of Commerce of the United
States of America as Amicus Curiae.
24 See Brief for American Federation of Labor and Congress of
Industrial Organizations as Amicus Curiae 3, 9.
25 See Brief for Independent Sector as Amicus Curiae 16–20.
26 See Brief for State of Montana et al. as Amici Curiae.
27 The FEC established this process following the Court’s June
2007 decision 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
Communication Summary, online at
http://fec.gov/finance/disclosure/ECSummary.shtml (all Internet
materials as visited Jan. 18, 2010, and available in Clerk of Court’s
case file).
28 Concedely, 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 only takes on real force when an earlier ruling has
obstructed the normal democratic process; it is the fear of making “mistakes
[that] cannot be corrected 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. Although it is unclear how
high a bar today’s decision will pose to future attempts to
regulate corporate electioneering, it will clearly restrain much
legislative action.
29 See FEC, Number of Federal PAC’s Increases,
http://fec.gov/press/press2008/20080812paccount.shtml.
30 See Supp. Brief for Appellee 16 (citing FEC statistics placing this
figure at $840 million). The majority finds the PAC option inadequate in
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 cannot funnel general treasury funds into them or
force members to support them—is, of course, the whole point of the
PAC mechanism.
31 Roaming 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
or book that happens to be transmitted at some stage over airwaves or
cable lines, or that the FEC would ever try to do so. See 11 CFR §100.26
(exempting most Internet communications from regulation as advertising);
§100.155 (exempting uncompensated Internet activity from regulation
as an expenditure); Supp. Brief for Center for Independent Media et
al. as Amici Curiae 14 (explaining that “the FEC has
consistently construed [BCRA’s] media exemption to apply to a
variety of 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).
32 As the Government points out, with a media corporation there is also
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.
33 2 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.
37 §441b(b)(2)(C).
38 WRTL, 551 U. S. 449, 470 (2007) (opinion of Roberts, C. J.).
39 It 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 campaign finance 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 of
Censors. 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.
40 Citizens 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”
organizations that 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.
41 See, 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 not automatically coextensive with the rights of
adults in other settings”).
42 See, e.g., Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U. S. 119, 129 (1977) (“In a prison context,
an inmate does not retain those 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)).
43 See, e.g., Parker v. Levy, 417 U. S. 733, 758 (1974)
(“While the members of the military are not excluded from the
protection granted by the First Amendment, the different character of
the military community and of the military mission requires a different
application of those protections”).
44 See, e.g., 2 U. S. C. §441e(a)(1) (foreign nationals
may not directly or indirectly make contributions or independent
expenditures in connection with a U. S. election).
45 See, 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 employees from giving money to other
employees for political purposes).
46 The majority states that the cases just cited are “inapposite”
because 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.
47 Outside of the law, of course, it is a commonplace that the identity
and incentives of the speaker might be relevant to an assessment of his
speech. See Aristotle, Poetics 43–44 (M. Heath transl. 1996) (“In
evaluating any utterance or action, one must take into account not just
the 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 proper subject of regulatory concern, it bears noting, motivates
the disclaimer and disclosure provisions that the Court today upholds.
48 I dissented in Forbes because the broadcaster’s
decision to exclude the respondent from its debate was done “on the
basis of entirely subjective, 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.
49 The law at issue in Burson was far from unusual. “[A]ll
50 States,” the Court observed, “limit access to the areas in
or around polling places.” 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 its
selective regulation of campaign-related expression.” Id.,
at 225. These criticisms are inapplicable to the case before us.
50 They are likewise entitled to regulate media corporations
differently from other corporations “to ensure that the law ‘does
not hinder or prevent the institutional press from reporting on, and
publishing editorials about, newsworthy events.’ ” McConnell,
540 U. S., at 208 (quoting Austin v. Michigan Chamber of Commerce,
494 U. S. 652, 668 (1990)).
51 The Court all but confesses that a categorical approach to speaker
identity is untenable when it acknowledges that Congress might be
allowed to take measures aimed at “preventing foreign individuals
or associations from influencing our Nation’s political process.”
Ante, at 46–47. Such measures have been a part of U. S.
campaign finance law for 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.
52 See A. Bickel, The Supreme Court and the Idea of Progress 59–60
(1978); A. Meiklejohn, Political Freedom: The Constitutional Powers of
the 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
formal sense, but then again neither is a campaign expenditure; both are
nevertheless 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).
53 Scholars 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
American Law 188–189 (2d ed. 1985); Baldwin, American Business
Corporations Before 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 significantly
smaller 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.
54 See 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 we
shall … crush in [its] birth the aristocracy of our monied
corporations which dare already to challenge our government to a trial
of strength and bid defiance to the laws of our country”).
55 In 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 articulate utterance; 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 of uttering 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 post-revolutionary America.”
Fagundes, State Actors as First Amendment Speakers, 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 the Constitution 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 and ratifiers understood “the
freedom of speech” to encompass corporate speech is, I believe, far
heavier than the majority acknowledges.
56 Postratification 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]he common 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 any First Amendment
protections for corporations until the middle part of the 20th century,
see ante, at 25–26 (listing cases).
57 In 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—between
types 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 special First Amendment status, and
therefore why some kinds of “identity”-based distinctions
might be permissible after all. Once one accepts that much, the
intellectual edifice of the majority opinion crumbles.
58 Cf. L. Levy, Legacy of Suppression: Freedom of Speech and Press in
Early American History 4 (1960) (“The meaning of no other clause of
the Bill of Rights at the time of its framing and ratification has been
so obscure to us” as the Free Speech and Press Clause).
59 As 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; the motives 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 naive or triumphalist
view of this history to find it highly relevant. The Court’s
skepticism does nothing to mitigate the absurdity of its claim that Austin
and McConnell were outliers. Nor does it alter the fact that
five Justices today destroy a longstanding American practice.
60 See Pipefitters v. United States, 407 U. S. 385, 409, 414–415
(1972) (reading the statutory bar on corporate and union campaign
spending not 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, to protect the dissenting stockholder or union member”);
Automobile Workers, 352 U. S., at 592 (advising the District
Court to consider on remand whether the broadcast in question was “paid
for out of the general dues of the union membership or [whether] the
funds [could] be fairly said to have obtained on a voluntary basis”);
United States v. CIO, 335 U. S. 106, 123 (1948) (observing that “funds
voluntarily contributed [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 federal elections,” understood as wealth
drawn from a corporate or union general 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 statutory provision in question, a successor to §304
of the Taft-Hartley Act, to allow such robust use of corporate and union
funds to finance otherwise prohibited electioneering. “This opening
of the door to extensive corporate 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 that elections are indeed free and
representative.” 407 U. S., at 450 (opinion of Powell, J., joined
by Burger, C. J.).
61 Specifically, these corporations had to meet three conditions.
First, they had to be formed “for the express purpose of promoting
political ideas,” so that their resources reflected political
support rather than commercial success. MCFL, 479 U. S., at 264.
Next, they had to have no shareholders, so that “persons connected
with the organization will have 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 contributions from
such entities,” lest they “serv[e] as conduits for the type of
direct spending that creates a threat to the political marketplace.”
Ibid.
62 According 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 at length. 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 Appellants Chamber of
Commerce of the United States et al., O. T. 2003, No. 02–1756,
p. 35, n. 22; Reply Brief for Appellants/Cross-Appellees Senator Mitch
McConnell et al., O. T. 2003, No. 02–1674, pp. 13–14;
Brief for Pacific Legal Foundation as Amicus Curiae in FEC
v. Beaumont, O. T. 2002, No. 02–403, passim. If this
does not qualify as reaffirmation of a precedent, then I do not know
what would.
63 Cf. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377,
389 (2000) (recognizing “the broader threat from politicians too
compliant with the wishes of large contributors”). Though discrete
in scope, these experiments must impose some meaningful limits if they
are to have a chance 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 controversial about the proposition that
the influence being targeted is “undue.” In a democracy,
officeholders should not make public decisions with the aim of 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.
64 The majority declares by fiat that the appearance of undue influence
by high-spending corporations “will not cause the electorate to
lose faith 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 tenet of constitutional law.
65 Quite distinct from the interest in preventing improper influences
on 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 course of any single campaign.” Davis v. FEC,
554 U. S. ___, ___ (2008) (slip op., at 3) (opinion concurring in part
and dissenting in part). In my judgment, such limitations may be
justified to the extent they are tailored to “improving the quality
of the exposition of ideas” that voters 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.
66 In fact, the notion that the “electioneering communications”
covered by §203 can breed quid pro quo corruption or the
appearance of such corruption 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 than as 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 advocacy might be especially apt to look like or amount to a deal or
a threat.
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 Court they clearly do not entail “deference”
in any normal sense of that term.
68 Justice Breyer has suggested that we strike the balance as follows: “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).
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 states that 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’s Jurisprudence
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 this
characterization 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
takings jurisprudence and numerous rules of criminal procedure. More
important, the Austin Court expressly declined to rely on a
speech-equalization rationale, see 494 U. S., at 660, and we have never
understood Austin to stand for such a rationale. Whatever his
personal views, 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 would
have even considered joining,” Garrett, 52 Howard L. J., at 674.
70 In 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.
71 Regan, Corporate Speech and Civic Virtue, in Debating Democracy’s
Discontent 289, 302 (A. Allen & M. Regan eds. 1998) (hereinafter
Regan).
72 Nothing 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
the corporation to agree that corporations differ from natural persons
in fundamental ways, and that a legislature might therefore need to
regulate them differently if it is human welfare that is the object of
its concern. Cf. Hansmann & Kraakman 441, n. 5.
73 Not 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 particular
owner 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 owners may speak in their own names, rather than the
business’, if they wish to evade §203 altogether. Nonprofit
corporations that want to make unrestricted electioneering expenditures
may do so if they refuse donations from businesses and unions and permit
members to disassociate 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.
74 Of course, no presiding person in a courtroom, legislature,
classroom, polling place, or family dinner would take this hyperbole
literally.
75 Under the majority’s view, the legislature is thus damned if it
does and damned if it doesn’t. If the legislature gives media
corporations an exemption 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.
76 I note that, among the many other regulatory possibilities it has
left open, ranging from new versions of §203 supported by
additional evidence of quid pro quo corruption or its appearance
to any number of tax 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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