CITIZENS UNITED v. FEDERAL ELECTION COMMISSION
No. 08-205
Supreme Court of the United States
January 21, 2010
Argued March 24, 2009-Reargued September 9, 2009
558 U.S. 310
Theodore B. Olson argued and reargued the cause for appellant. With him on the briefs were Matthew D. McGill, Amir C. Tayrani, and Michael Boos.
Floyd Abrams argued the cause for Senator Mitch McConnell as amicus curiae. With him on the brief was Susan Buckley.
Solicitor General Kagan reargued the cause for appellee. Deputy Solicitor General Stewart argued the cause for ap
Seth P. Waxman argued the cause for Senator John McCain et al. as amici curiae urging affirmance. With him on the briefs were Randolph D. Moss, Roger M. Witten, Scott L. Nelson, Alan B. Morrison, Brian Wolfman, Trevor Potter, J. Gerald Hebert, Paul S. Ryan, Tara Malloy, Fred Wertheimer, and Donald J. Simon.*
Federal law prohibits corporations and unions from using their general treasury funds to make independent expendi
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
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 Web site 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.
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
We noted probable jurisdiction. 555 U. S. 1028 (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
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
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.”
One amici brief asks us, alternatively, to construe the condition that the communication “[c]an be received by 50,000 or more persons,”
In our view the statute cannot be saved by limiting the reach of
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
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.
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
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
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,
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,
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
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.
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
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
When the statute now at issue came before the Court in McConnell, both the majority and the dissenting opinions
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
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
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
Second, substantial time would be required to bring clarity to the application of the statutory provision on these points
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
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
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
The First Amendment provides that “Congress shall make no law...abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been 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
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
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/press2007/20071009pac/sumhistory.pdf (as visited Jan. 18, 2010, and available in Clerk of Court‘s case file)); IRS, Statistics of Income: 2006, Corporation In-
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
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,
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.
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 pro-
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
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
In United States v. Automobile Workers, 352 U. S. 567 (1957), the Court again encountered the independent expenditure ban, which had been recodified at
“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 communication 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).
2
In Buckley, 424 U. S. 1, the Court addressed various challenges to the
Before addressing the constitutionality of
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
Notwithstanding this precedent, Congress recodified
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 be-
cause 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.
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, 352 U. S., 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
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
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 en-
hance the relative voice of others is wholly foreign to the First Amendment“); Automobile Workers, supra, 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. 724, 742 (2008) (“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,
Either as support for its antidistortion rationale or as a further argument, the Austin majority undertook to distin
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
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
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, supra, 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
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, 540 U. S., 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
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
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. 19. When that phenomenon is coupled with
Even if
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.,
“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
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
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.
Caperton v. A. T. Massey Coal Co., 556 U. S. 868 (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 884. 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
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 352-354. 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
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.
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
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 (citing MCFL, 479 U. S., at 257-258; NCPAC, 470 U. S., at 500-501); MCFL, supra, at 257 (citing Automobile Workers, 352 U. S., at 585); NCPAC, supra, at 500 (citing NRWC, 459 U. S., at 210); id., at 208 (“The history of the movement to regulate the political contributions and expenditures of corporations
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 [
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,
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
Given our conclusion we are further required to overrule the part of McConnell that upheld BCRA § 203‘s extension of
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.”
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,” McConnell, 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” governmen
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
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
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
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.
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
C
For the same reasons we uphold the application of
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
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
The judgment of the District Court is reversed with respect to the constitutionality of
It is so ordered.
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO joins, concurring.
The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the
The Court properly rejects that theory, and I join its opinion in full. The
I
Judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 147-148 (1927) (Holmes, J., concurring). Because the stakes are so high, our standard practice is to refrain from addressing constitutional questions except when necessary to rule on particular claims before us. See Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). This policy underlies both our willingness to construe ambiguous statutes to avoid constitutional problems and our practice “never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” United States v. Raines, 362 U. S. 17, 21 (1960) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885)).
The majority and dissent are united in expressing allegiance to these principles. Ante, at 329; post, at 405-406 (STEVENS, J., concurring in part and dissenting in part).
The majority‘s step-by-step analysis accords with our standard practice of avoiding broad constitutional questions except when necessary to decide the case before us. The majority begins by addressing—and quite properly rejecting—Citizens United‘s statutory claim that
It is only because the majority rejects Citizens United‘s statutory claim that it proceeds to consider the group‘s various constitutional arguments, beginning with its narrowest claim (that Hillary is not the functional equivalent of express advocacy) and proceeding to its broadest claim (that Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), should be overruled). This is the same order of operations followed by the controlling opinion in Federal Election Comm‘n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL). There the appellant was able to prevail on its narrowest constitutional argument because its broadcast ads did not qualify as the functional equivalent of express advocacy; there was thus no need to go on to address the broader claim that McConnell v. Federal Election Comm‘n, 540 U. S. 93 (2003), should be overruled. WRTL, 551 U. S., at 482; id., at 482-483 (ALITO, J., concurring). This case is different—not, as the dissent suggests, because the approach taken in WRTL has been deemed a “failure,” post, at 402,
The dissent advocates an approach to addressing Citizens United‘s claims that I find quite perplexing. It presumably agrees with the majority that Citizens United‘s narrower statutory and constitutional arguments lack merit—otherwise its conclusion that the group should lose this case would make no sense. Despite agreeing that these narrower arguments fail, however, the dissent argues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law. It even suggests that the Court‘s failure to adopt one of these concededly meritless arguments is a sign that the majority is not “serious about judicial restraint.” Post, at 408.
This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that “[i]f it is not necessary to decide more, it is necessary not to decide more,” post, at 405 (internal quotation marks omitted), sometimes it is necessary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving the case at hand, “the court must meet and decide them.” Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, C. J.).
Because it is necessary to reach Citizens United‘s broader argument that Austin should be overruled, the debate over whether to consider this claim on an as-applied or facial basis strikes me as largely beside the point. Citizens United has standing—it is being injured by the Government‘s enforcement of the
Given the nature of that claim and defense, it makes no difference of any substance whether this case is resolved by invalidating the statute on its face or only as applied to Citizens United. Even if considered in as-applied terms, a holding in this case that the
II
The text and purpose of the
This is the first case in which we have been asked to overrule Austin, and thus it is also the first in which we have had reason to consider how much weight to give stare decisis in assessing its continued validity. The dissent erroneously
A
Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function. ”Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). For these reasons, we have long recognized that departures from precedent are inappropriate in the absence of a “special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984).
At the same time, stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U. S. 558, 577 (2003), nor “a mechanical formula of adherence to the latest decision,” Helvering v. Hallock, 309 U.S. 106, 119 (1940), especially in constitutional cases, see United States v. Scott, 437 U. S. 82, 101 (1978). If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants. See Plessy v. Ferguson, 163 U. S. 537 (1896), overruled by Brown v. Board of Education, 347 U. S. 483 (1954); Adkins v. Children‘s Hospital of D. C., 261 U. S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937); Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347 (1967). As the dissent properly notes, none of us has viewed stare decisis in such absolute terms. Post, at 408; see also, e. g., Randall v. Sorrell, 548 U. S. 230, 274-281 (2006) (STEVENS, J., dissenting) (urging the Court to overrule its invalidation of limits on independent expenditures on political speech in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)).
Stare decisis is instead a “principle of policy.” Helvering, supra, at 119. When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).
In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.
Thus, for example, if the precedent under consideration itself departed from the Court‘s jurisprudence, returning to the “‘intrinsically sounder’ doctrine established in prior cases” may “better serv[e] the values of stare decisis than would following [the] more recently decided case inconsistent with the decisions that came before it.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 231 (1995); see also Helvering, supra, at 119; Randall, supra, at 274 (STEVENS, J., dissenting). Abrogating the errant precedent, rather than
Likewise, if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent‘s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent‘s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake. See, e. g., Pearson v. Callahan, 555 U. S. 223, 235 (2009); Montejo v. Louisiana, 556 U. S. 778, 792 (2009) (stare decisis does not control when adherence to the prior decision requires “fundamentally revising its theoretical basis“).
B
These considerations weigh against retaining our decision in Austin. First, as the majority explains, that decision was an “aberration” insofar as it departed from the robust protections we had granted political speech in our earlier cases. Ante, at 355; see also Buckley, supra; First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). Austin undermined the careful line that Buckley drew to distinguish limits on contributions to candidates from limits on independent expenditures on speech. Buckley rejected the asserted government interest in regulating independent expenditures, concluding that “restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the
Austin was also inconsistent with Bellotti‘s clear rejection of the idea that “speech that otherwise would be within the protection of the
Second, the validity of Austin‘s rationale—itself adopted over two “spirited dissents,” Payne, 501 U. S., at 829—has proved to be the consistent subject of dispute among Members of this Court ever since. See, e. g., WRTL, 551 U. S., at 483 (SCALIA, J., joined by KENNEDY and THOMAS, JJ., concurring in part and concurring in judgment); McConnell, 540 U. S., at 247, 264, 286 (opinions of SCALIA, THOMAS, and KENNEDY, JJ.); Beaumont, 539 U. S., at 163, 164 (opinions of KENNEDY and THOMAS, JJ.). The simple fact that one of our decisions remains controversial is, of course, insufficient to justify overruling it. But it does undermine the precedent‘s ability to contribute to the stable and orderly development of the law. In such circumstances, it is entirely appropriate for the Court—which in this case is squarely asked to reconsider Austin‘s validity for the first time—to address the matter with a greater willingness to consider new approaches capable of restoring our doctrine to sounder footing.
Third, the Austin decision is uniquely destabilizing because it threatens to subvert our Court‘s decisions even out-
It should not be surprising, then, that Members of the Court have relied on Austin‘s expansive logic to justify greater incursions on the
If taken seriously, Austin‘s logic would apply most directly to newspapers and other media corporations. They have a more profound impact on public discourse than most other speakers. These corporate entities are, for the time being, not subject to
These readings of Austin do no more than carry that decision‘s reasoning to its logical endpoint. In doing so, they highlight the threat Austin poses to
Finally and most importantly, the Government‘s own effort to defend Austin—or, more accurately, to defend something that is not quite Austin—underscores its weakness as
Instead of endorsing Austin on its own terms, the Government urges us to reaffirm Austin‘s specific holding on the basis of two new and potentially expansive interests—the need to prevent actual or apparent quid pro quo corruption, and the need to protect corporate shareholders. See Supp. Brief for Appellee 8-10, 12-13. Those interests may or may not support the result in Austin, but they were plainly not part of the reasoning on which Austin relied.
To its credit, the Government forthrightly concedes that Austin did not embrace either of the new rationales it now urges upon us. See, e. g., Supp. Brief for Appellee 11 (“The Court did not decide in Austin . . . whether the compelling interest in preventing actual or apparent corruption provides a constitutionally sufficient justification for prohibiting the use of corporate treasury funds for independent electioneering“); Tr. of Oral Arg. 45 (Sept. 9, 2009) (”Austin did not articulate what we believe to be the strongest compelling interest“); id., at 61 (“[The Court:] I take it we have never accepted your shareholder protection interest. This is a new argument. [The Government:] I think that that‘s fair“); id., at 64 (“[The Court:] In other words, you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted, in [the context of limits on political expenditures]. [The Government:] [I]n this particular context, fair enough“).
To the extent that the Government‘s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.
Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court‘s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.
None of this is to say that the Government is barred from making new arguments to support the outcome in Austin.
Because continued adherence to Austin threatens to subvert the “principled and intelligible” development of our
*
We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law. We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues. This careful consideration convinces me that Congress violates the
JUSTICE SCALIA, with whom JUSTICE ALITO joins, and with whom JUSTICE THOMAS joins in part, concurring.
I join the opinion of the Court.1
I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings,” post, at 425 (opinion concurring in part and dissenting in part) (hereinafter referred to as the dissent). This section of the dissent purports to show that today‘s decision is not supported by the original understanding of the
Instead of taking this straightforward approach to determining the
Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised. If so, how came there to be so many of them? The dissent‘s statement that there were few business corporations during the 18th century—“only a few hundred during all of the 18th century“—is mis-
Even if we thought it proper to apply the dissent‘s approach of excluding from
The lack of a textual exception for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak. To the contrary, colleges, towns and cities, religious institutions, and guilds had long been organized as corporations at common law and under the King‘s charter, see 1 W. Blackstone, Commentaries on the Laws of England 455-473 (1765); 1 S. Kyd, A Treatise on the Law of Corporations 1-32, 63 (1793) (reprinted 2006), and as
tions until the middle part of the 20th century.” Post, at 431, n. 56. But it did that in Grosjean v. American Press Co., 297 U. S. 233 (1936), a case involving freedom of the press--which the dissent acknowledges did cover corporations from the outset. The relative recency of that first case is unsurprising. All of our
In passing, the dissent also claims that the Court‘s conception of corruption is unhistorical. The Framers “would have been appalled,” it says, by the evidence of corruption in the congressional findings supporting the
The dissent says that when the Framers “constitutionalized the right to free speech in the
But to return to, and summarize, my principal point, which is the conformity of today‘s opinion with the original meaning of the
JUSTICE STEVENS, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part.
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the
The basic premise underlying the Court‘s ruling is its iteration, and constant reiteration, of the proposition that the
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
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
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
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of
“‘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
This is not merely a technical defect in the Court‘s decision. The unnecessary resort to a facial inquiry “run[s] con-
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
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 326. While tacitly acknowledging that some applications of
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
The majority suggests that a facial ruling is necessary because anything less would chill too much protected speech. See ante, at 326-327, 329, 333-336. 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 335. 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
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 331 (quoting Fallon, As-Applied and Facial Challenges and
Citizens United‘s as-applied challenge was not of this sort. Until this Court ordered reargument, its contention was that
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
Second, the Court could have expanded the MCFL exemption to cover
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
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 329 (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
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
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 364. 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 364; “[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
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 363; see also ante, at 382 (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
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) (plurality opinion) (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 de
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.
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
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
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
The So-Called “Ban”
Pervading the Court‘s analysis is the ominous image of a “categorical ba[n]” on corporate speech. Ante, at 361. Indeed, the majority invokes the specter of a “ban” on nearly every page of its opinion. Ante, at 319, 321, 324, 327, 328, 329, 330, 333, 337, 339, 340, 343, 344, 345, 346, 347, 349, 351, 354, 355, 358, 360, 361, 362, 364, 369. 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
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.
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 366-367, 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 337-339. 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,
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 319, that corporations have been “exclu[ded] ... from the general public dialogue,” ante, at 341, or that a work of fiction such as Mr. Smith Goes to Washington might be covered, ante, at 371-372, 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.
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 346; accord, ante, at 319, 340-341, 342-343, 346-347, 347, 348, 349, 350, 364, 365.
“Our jurisprudence over the past 216 years has rejected an absolutist interpretation” of the
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 soci
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
The election context is distinctive in many ways, and the Court, of course, is right that the
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’
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 349-350 (quoting Buckley, 424 U.S., at 49).51 Under the
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
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
1. Original Understandings
Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 319 (internal quotation marks omitted), and original understandings, ante, at 353-354, to defend today‘s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or
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
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 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 353. 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
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
JUSTICE SCALIA also emphasizes the unqualified nature of the
The truth is we cannot be certain how a law such as
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
2. Legislative and Judicial Interpretation
A century of more recent history puts to rest any notion that today’s ruling is faithful to our
“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
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 343-344. 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 signifi-
This principle was carried forward when Congress enacted comprehensive campaign finance reform in the
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 FECA 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.
The two dissenters in Pipefitters would not have read the statutory provision in question, a successor to § 304 of the
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.
It is worth remembering for present purposes that the four MCFL dissenters, led by Chief Justice Rehnquist, thought the Court was carrying the
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 ideas espoused by corporations,” ibid. Notwithstanding our colleagues’ insinuations that Austin deprived the public of general “ideas,” “facts,” and “knowledge,” ante, at 354, 355, the decision addressed only candidate-focused expenditures and gave the State no license to regulate corporate spending on other matters.
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, 456, 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,
3. Buckley and Bellotti
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
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
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
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 346. 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
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 347, 357-360. 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, 371, n. 9 (1984); NRWC, 459 U. S., at 210, n. 7. The Court’s critique of Bellotti’s footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a critical piece of its analysis as unsupported and irreconcilable with Buckley. Bellotti, apparently, is both the font of all wisdom and internally incoherent.
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
The majority grasps a quotational straw from Bellotti, that speech does not fall entirely outside the protection of the
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
* * *
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
Having explained why this is not an appropriate case in which to revisit Austin and McConnell and why these decisions sit perfectly well with ”
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 359. 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 sell-
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 lob-
byist 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
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 319, 363, 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
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
In theory, our colleagues accept this much. As applied to
Although the Court suggests that Buckley compels its conclusion, ante, at 356-360, 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 [
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
The majority appears to think it decisive that the BCRA record does not contain “direct examples of votes being exchanged for . . . expenditures.” Ante, at 360 (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.
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 recog-
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 357, 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
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
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 dis-
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
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
We have no record evidence from which to conclude that
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
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.
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 350 (quoting Buckley, 424 U. S., at 48).69
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
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 “pro-tec[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, 534, n. 2 (1980); see also Bellotti, 435 U. S., at 777, n. 12. Freedom of speech helps “make men free to develop their faculties,” Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring), it respects their “dig-nity 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
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
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 341, but also because they leave untouched
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
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,
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 (internal quotation marks omitted), 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.
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 382 (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.
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 351-354, 361-362; ante, at 372-373, 382 (opinion of ROBERTS, C. J.); ante, at 390 (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 collec-
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 339. 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 eco-
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 ensure 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 share-
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 362 (internal quotation marks omitted), and, it seems, through Internet-based disclosures, ante, at 370-371.76 I fail to understand
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 particu-
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
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.
I join all but Part IV of the Court‘s opinion.
Political speech is entitled to robust protection under the First Amendment. Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) has never been reconcilable with that protection. By striking down § 203, the Court takes an important first step toward restoring full constitutional protection to speech that is “indispensable to the effective and intelligent use of the processes of popular government.” McConnell v. Federal Election Comm‘n, 540 U. S. 93, 265 (2003) (THOMAS, J., concurring in part, concurring in judgment in part, and dissenting in part) (internal quotation marks omitted). I dissent from Part IV of the Court‘s opinion, however, because the Court‘s constitutional analysis does not go far enough. The disclosure, disclaimer, and reporting requirements in BCRA §§ 201 and 311 are also unconstitutional. See id., at 275-277, and n. 10.
Congress may not abridge the “right to anonymous speech” based on the “simple interest in providing voters with additional relevant information,” id., at 276 (quoting McIntyre v. Ohio Elections Comm‘n, 514 U. S. 334, 348 (1995)). In continuing to hold otherwise, the Court misapprehends the import of “recent events” that some amici describe “in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.” Ante, at 370. The Court properly recognizes these events as “cause for concern,” ibid., but fails to acknowledge their constitutional significance. In my view, amici‘s submissions show why the Court‘s insistence on upholding §§ 201 and 311 will ultimately prove as misguided (and ill fated) as was its prior approval of § 203.
Amici‘s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended
Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California‘s mandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, ““we have plans for you and your friends.“” Complaint in ProtectMarriage.com—Yes on 8 v. Bowen, Case No. 2:09-cv-00058-MCE-DAD (ED Cal.), ¶ 31. Proposition 8 opponents also allegedly harassed the measure‘s supporters by defacing or damaging their property. Id., ¶ 32. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopes containing a white powdery substance. Id., ¶ 33.
The success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights. Before the 2008 Presidential election, a “newly formed nonprofit group . . . plann[ed] to confront donors to conservative groups, hoping to create a chilling effect that will dry up contributions.” Luo, Group Plans Campaign Against G.O.P. Donors, N. Y. Times, Aug. 8, 2008, p. A15. Its leader, “who described his effort as ‘going for the jugular,‘” detailed the group‘s plan to send a “warning letter . . . alerting donors who might be considering giving to right-wing groups to a variety of potential dangers, including
These instances of retaliation sufficiently demonstrate why this Court should invalidate mandatory disclosure and reporting requirements. But amici present evidence of yet another reason to do so—the threat of retaliation from elected officials. As amici‘s submissions make clear, this threat extends far beyond a single ballot proposition in California. For example, a candidate challenging an incumbent state attorney general reported that some members of the State‘s business community feared donating to his campaign because they did not want to cross the incumbent; in his words, ““I go to so many people and hear the same thing: ‘I sure hope you beat [the incumbent], but I can‘t afford to have my name on your records. He might come after me next.‘“” Strassel, Challenging Spitzerism at the Polls, Wall Street Journal, Aug. 1, 2008, p. A11. The incumbent won reelection in 2008.
My point is not to express any view on the merits of the political controversies I describe. Rather, it is to demonstrate—using real-world, recent examples—the fallacy in the Court‘s conclusion that “[d]isclaimer and disclosure requirements . . . impose no ceiling on campaign-related activities, and do not prevent anyone from speaking.” Ante, at 366 (internal quotation marks and citation omitted). Of course they do. Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.
The Court nevertheless insists that as-applied challenges to disclosure requirements will suffice to vindicate those speech rights, as long as potential plaintiffs can “show a reasonable probability that disclosure . . . will subject them to threats, harassment, or reprisals from either Government of-
Irony aside, the Court‘s promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, §§ 201 and 311 will chill protected speech because—as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes. Ante, at 370. Thus, “disclosure permits citizens to react to the speech of [their political opponents] in a proper“—or undeniably improper—“way” long before a plaintiff could prevail on an as-applied challenge.2 Ante, at 371.
Notes
Specifically, Part I, infra, at 396-408, addresses the procedural history of the case and the narrower grounds of decision the majority has bypassed. Part II, infra, at 408-414, addresses stare decisis. Part III, infra, at 414-446, 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 447-478, addresses the Court‘s treatment of the anticorruption, antidistortion, and shareholder protection rationales for regulating corporate electioneering.
BCRA imposes similar disclosure requirements. See, e. g.,See Yee v. Escondido, 503 U. S. 519, 535 (1992) (“[U]nder this Court‘s Rule 14.1(a), only the 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 304 (“[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)).
But cf. Hill v. Colorado, 530 U. S. 703, 707-710 (2000) (approving a statute restricting speech “within 100 feet” of abortion clinics because it protected women seeking an abortion from “sidewalk counseling,” which “consists of efforts ‘to educate, counsel, persuade, or inform passersby about abortion and abortion alternatives by means of verbal or written speech,‘” and which “sometimes” involved “strong and abusive language in face-to-face encounters“).The majority states that, in denying Citizens United‘s motion for a preliminary injunction, the District Court “addressed” the facial validity of
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.
In fact, we do not even have a good evidentiary record of how
It is true, as the majority points out, that the McConnell Court evaluated the facial validity of
The dissent seeks to avoid this conclusion (and to turn a liability into an asset) by interpreting the Freedom of the Press Clause to refer to the institutional press (thus demonstrating, according to the dissent, that the Founders “did draw distinctions-explicit distinctions-between types of ‘speakers,’ or speech outlets or forms“). Post, at 431, and n. 57. It is passing strange to interpret the phrase “the freedom of speech, or of the press” to mean, not everyone‘s right to speak or publish, but rather everyone‘s right to speak or the institutional press‘s right to publish. No one thought that is what it meant. Patriot Noah Webster‘s 1828 dictionary contains, under the word “press,” the following entry:
“Liberty of the press, in civil policy, is the free right of publishing books, pamphlets or papers without previous restraint; or the unrestrained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state.” 2 American Dictionary of the English Language (1828) (reprinted 1970).
As the Court‘s opinion describes, ante, at 352, our jurisprudence agrees with Noah Webster and contradicts the dissent.
“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. City of Griffin, 303 U. S. 444, 452 (1938).
Our cases recognize a “type of facial challenge in the
The dissent says that “‘speech” refers to oral communications of human beings, and since corporations are not human beings they cannot speak. Post, at 428, n. 55. This is sophistry. The authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association-just as the spokesman of an unincorporated association speaks on behalf of its members. The power to publish thoughts, no less than the power to speak thoughts, belongs only to human beings, but the dissent sees no problem with a corporation‘s enjoying the freedom of the press.
The same footnote asserts that “it has been ‘claimed that the notion of institutional speech . . . did not exist in post-revolutionary America.‘” This is quoted from a law-review article by a Bigelow Fellow at the University of Chicago (Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006)), which offers as the sole support for its statement a treatise dealing with government speech, M. Yudof, When Government Speaks 42-50 (1983). The cited pages of that treatise provide no support whatever for the statement-unless, as seems overwhelmingly likely, the “institutional speech” referred to was speech by the subject of the law-review article, governmental institutions.
The other authority cited in the footnote, a law-review article by a professor at Washington and Lee Law School, Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995), in fact contradicts the dissent, in that it would accord free-speech protection to associations.
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 333. 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.
The majority‘s “chilling” argument is particularly inapposite with respect to
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 331. I agree, but it does not follow that in any given case we should ignore the distinction, much less invert it.
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, 168 (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)).
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 376 (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 337, 355, “advocacy” organizations have a better claim than other nonprofits, ante, at 337, domestic corporations have a better claim than foreign corporations, ante, at 362, small corporations have a better claim than large corporations, ante, at 354-356, and printed matter has a better claim than broadcast communications, ante, at 349. The majority never uses a multinational business corporation in its hypotheticals.
The Court entirely ignores this statutory argument. It concludes that
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 328, 329. 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 329. But de minimis tests need not be intricate at all. A test that granted MCFL status to
Another bypassed ground, not briefed by the parties, would have been to revive the Snowe-Jeffords Amendment in
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 375. 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. 193 (2009).
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.