McConnell v. Federal Election Commission

SENATOR, et al. STATES McCONNELL, UNITED v. COMMISSION ELECTION FEDERAL et al. 10, December 2003* 2003 Decided September Argued 02-1674.

No. v. Fed et al. National Association 02-1675, with No. *Together Rifle al., Election Commis 02-1676, Federal et Election Commission No. eral 02-1702, Mc et No. Senator, al., McConnell, United sion et al. v. States Senator, Senator, McConnell, States Cain, United States et al. v. United Elec al., et al. v. Federal National Committee 02-1727, Republican et No. Committee, al., 02-1733, Right National et tion Commission No. Life al., 02-1734, American Inc., Election Commission et No. et al. v. Federal al., 02-1740, v. Federal Election Commission et No. Civil Union Liberties Paul, al., 02-1747, Commission et v. Federal Election No. Adams et al. al., et Commission al. v. Election Congressman, et Federal United States Com Election et al. Federal v. Party Democratic 02-1753, No. California Congress al., Labor and American Federation 02-1755, mission et No. al., et Commission al. v. Federal Election et Organizations Industrial al. v. et the United States Commerce 02-1756, Chamber No. al., same court. et from the Federal Election Commission appeal also on with Court opinion JJ., O’Connor, delivered and Stevens 'Ginsburg, and Souter, II, in which I and Titles to BCRA respect the Court opinion of J., Rehnquist, delivered C. Breyer, joined. JJ., Scalia, O’Connor, IV, in which III and Titles to BCRA respect with Ginsburg, and Stevens, in JJ., which Souter, joined, Kennedy, and in which §305, and BCRA respect to with except JJ., Breyer, joined 319, 316, 307, and 305, 304, §§ to BCRA respect with J., Thomas, joined with the Court J., opinion Breyer, delivered p. 224. 403(b), post, Souter, O’Connor, and Stevens, V, in which Title to BCRA respect concurring J., Scalia, opinion an filed p. 233. JJ., post, Ginsburg, joined, to BCRA respect with IV, dissenting and III Titles to BCRA respect with in dissenting and part in judgment in concurring V, and I and Titles J., an filed 247. p. II, post, Title BCRA to respect THOMAS, with part IV, except and Titles III BCRA respect with concurring opinion to BCRA respect result with 318, in the concurring §§311 and BCRA re- with dissenting part in and in part judgment in the 318, concurring § V, I, Titles to BCRA respect II, dissenting with Title and BCRA spect II-B, II-A, I, and as to Parts Scaua, J., joined §311, opinion which in and judgment concurring J., Kennedy, opinion filed an 264. p. post, II, in which I and BCRA Titles respect with part dissenting and part extent J., except to Scaua, joined in which J., Rehnquist, joined, C. §202, in which 323(e) BCRA FECA new upholds opinion Rehnquist, post, p. 286. to BCRA J., respect with Thomas, joined V, in I and Titles respect BCRA with dissenting J., opinion an filed C. J., Stevens, filed 350. Kennedy, JJ., post, p. joined, which Scaua Ginsburg §305, in which BCRA respect dissenting opinion an JJ., p. 363. Breyer, post, joined, for Floyd Abrams argued cause W. Starr Kenneth and al., et appellants Mitch McConnell below, Senator plaintiffs and 02-1702. 02-1676 in Nos. cross-appellees No. 02-1674 Warren, Susan W. were Edward the briefs on With them Sullivan, Valle M. Markley, Kathleen Buckley, Brian E. Baran, Lee Hogue, Witold Lynn Jan Butcher, L. Simms Goodman, and Jeri- Bates, N. Jack Goodman, Hunter G. Timmerman. anne the for

Bobby cause R. Burchfield argued the briefs on him With below. plaintiffs party al., appellants et Committee National Republican al., et Democratic appel- Party California No. 02-1727, Commit- National the Libertarian 02-1753, and No. lants in Thomas 02-1733, were in No. Inc., appellants one of tee, H. Lance Smith, W. Kelner, Richard K. Barnett, Robert O. Hardin Sandler, Joseph John Caplan, E. B. Olson, Deborah Baran, E. Good- Lee Jr., Bell, Jan Witold Young, H. Charles Ginsberg, Eric A. Benjamin L. Jose man, flak, J. Thomas E. Bopp, Jr., Richard Garvin, James A. Kuwana, Michael Marzen. J. Coleson, and Thomas Deputy General Solicitor Olson

Solicitor General below, the defendants for federal Clement argued cause the briefs on them et al. With Commission Election Federal Attorney Keisler, Malcolm L. Stew- were Assistant General Gregory Douglas Martin, art, Garre, Letter, N. Dana G. J. Terry Henry, Norton, Bader, H. B. M. Lawrence Richard and David Kolker. argued P. the cause for the intervenor-

Seth Waxman John et With him on below, defendants Senator McCain al. Randolph Moss, DuMont, D.

the briefs were Edward C. Roger son, Witten, Neuborne, Paul R. M. Fred- Q. Burt Wolf Schwarz, Jr., Curtis, Jr., erick A. David 0. Charles G. J. Bradley Phillips, Harth, Rosenkranz, E. Alan B. S. Joshua Mogilnicki, Nelson, Morrison, L. Eric Michael D. Scott J. Wertheimer, Edsall, Fred Alexandra and Trevor Leffel, Potter. argued plaintiffs below,

Laurence E. Gold cause Congress American Federation of Labor and of Industrial Organizations appellants appellees al., et in No. 02-1755 and in Nos. 02-1676 02-1702. With him on the were briefs Larry Hiatt, Trister, P. P. Jonathan Michael B. Weinberg.

Jay argued plaintiffs below, Alan Sekulow cause for Emily Echols et al. With him the brief were M. James Colby May, Henderson, Sr., Roth, M. H. Stuart J. Joel Bopp, Weber, Jr., Thornton, Walter M. James Richard E. Coleson, and Thomas J. Marzen. appellants 02-1675 were filed for National

Briefs No. by Cooper, J. H. Rifle Association et al. Charles David Thompson, Hume, Koukoutchos, P. Brian Hamish M. S. and Cleta Mitchell. plaintiffs-appellants/ for

Briefs in 02-1733 were filed No. Right cross-appellees Committee, Inc., to Life et National al. by Bopp, Coleson, E. Jr., Richard and Thomas J. James Marzen. appellant filed for American

Briefs No. 02-1734 were Lopez, Shapiro, by R. Mark J. Steven Civil Liberties Union and M. Joel Gora. filed for Victoria 02-1740 were appellants in No.

Briefs Bonita P. John C. Bonifaz, et al. Adams by Gray Jackson Wright, David A. Danetz, Brenda Tenneriello, Lisa J. and Wilson. for filed Congress- in No. 02-1747 were appellants

Briefs Olson, Miles, John S. J. et al. William Paul by man Ron Kreep. Gary Titus, and G. W. Herbert filed for Chamber of were in No. 02-1756 appellants

Briefs Baran, Jan Witold et al. of the United States by Commerce † Stephen Bokat, Amundson Goodman, A. and Jan E. Lee was filed for the Common † A reversal urging brief of amici curiae of Attorney Virginia, General by Jerry Kilgore, et al. Virginia of wealth respective for their States Attorneys General by and and Craig Engle, Indiana, Idaho, Steve Carter of Phill Kline Lawrence Wasden of as follows: Dakota, Kansas, Nebraska, of North Bruning of Wayne Stenehjem of Jon Carolina, Ohio, Long of McMaster of South Petro of Larry Henry Jim Dakota, of Utah. South and Mark Shurtleff for were filed for the Center affirmance urging Briefs of amici curiae Hasen; Thomas D. Grant and for by Studies Richard L. Governmental J. Simeone. by Christopher et al. Wright Timothy J. of et al. by filed for the State Iowa Thomas of amici curiae were

Briefs Iowa, At- Andrews, Assistant of Miller, Thomas Attorney General J. Vermont, Sorrell, General, Attorney General of torney William H. Blumenthal, General, Attorney and Richard Assistant C. Bridget Asay, for their Connecticut, by Attorneys General of Attorney General Arizona, of Ken Salazar as follows: Terry jurisdictions Goddard respective of III of P. Richard of Colorado, Ieyoub Albert B. Chandler Kentucky, Massachusetts, Maine, Louisiana, of G. Steven Rowe of F. Reilly Thomas Minnesota, (Jay) Mike Moore of Mississippi, Mike Jeremiah Hatch York, Missouri, Montana, McGrath of New Nixon Eliot Spitzer Mike Rico, Oklahoma, Edmondson of Puerto Rodriguez W.A. Anabelle Drew Island, Gregoire Washington, of Rhode Christine O. Lynch Patrick Wisconsin, Virgin and Iver A Peggy Lautenschlager Stridiron Glick; Islands; by Temple Allen Church et al. Martin R. Baptist for the Ferrara; Union C. Armor and Peter Rights by Civil the American John of the United States Randy Bipartisan Congress Former Members Interest for the California Student Public L. and Michael J. Dryer Bailey; Inc., Tenneriello, al. Research et Bonifaz, John C. Group, Bonita Insti- Danetz, Wilson; and David A for the Cato Brenda Wright, Lisa J. 114 delivered and Justice O’Connor Stevens

Justice II.* I and Titles BCRA respect of the Court opinion (BCRA), 116 2002 Act of Reform Campaign The Bipartisan Federal to the of amendments series 81, contains Stat. 11, (FECA Act), Stat. 86 of 1971 Act Election Campaign seq. (2000 ed. II), et Supp. and §431 2 S. C. amended, as amended, 1088, as 1934, 48 Stat. ofAct the Communications II), portions and other (2000 and Supp. ed. C. 47 U. S. II), §607 S. Code, (Supp. 18 U. C. the United States in these are II), that challenged §§510-511 (Supp. U. S. C. of BCRA. I and II Titles discuss we In cases.1 this opinion Justice, by delivered ChieF The The Court opinion IV, the opinion and III and Titles discusses post, p. 233, dis- post, p. Breyer, by delivered the Court Justice cusses Title. V. by Politics Responsive for for Center Jaffa; S. by Erik tute et al. for Economic Committee Sanford; for the M. Noble and Paul Lawrence Rich, Reiss,- and Jonathan R. Alan Bruce by al. Steven Development et Simon, Kohr- B. Daniel by J. al. Donald Bloom; Cause et for Common Civil the American Schuster; Leaders

man, for Former Michael and Lieberman; In- for Eric M. by Dorsen Norman Union Liberties Davis; League of for A. et al. Evan Foundation Alliance terfaith Ortiz; Representative State Delaware for R. Daniel Voters Women Tiefer, and Jonathan Briffault; Charles by Richard Castle et al. Michael Randolph Evans by J. Hastert Cuneo; J. Dennis for the Honorable W Theriot; tor H. by Kevin Passantino; Moshman Dr. David C. Stefan A. Judith Roseborough and W. by Teresa et al. J. Ornstein Norman Bensen; the Honorable by Clark Rodney A. Smith O’Brien; for C. Frederick. by David Thompson Fred Breyer this join Ginsburg, Souter, Justice Justice * Justice entirety. in its opinion District findings in the are described litigation to the parties curiam). 2003) For the (DC (per 176, 221-226 2d F. Supp. Court. in the Dis law challenged who parties to the refer clarity, we sake by name plaintiffs specific referring “plaintiffs,” as the trict Court in defense who intervened parties to the We refer necessary. where “intervenor-defendants.” law the

I Root” Elihu “sober-minded ago century than More political contribu prohibit would legislation advocated “ great aggre 'the prevent in order by corporations tions directly funds, corporate using their wealth, from of gations “ ” their for ‘vote would legislators who indirectly,’ to elect against as their interests of advancement and protection ” Work v. Automobile States United public.’ of those on (1957) Root, Addresses (quoting E. 567, 571 U. S. ers, 352 (R. eds. Scott & J. Bacon Citizenship 143 and Government “‘strik[e] would legislation 1916)). opinion, such Root’s In to shake more has done which evil constantly growing aat this coun of means small people of plain the confidence practice which any other than institutions try in our ” of Government.’ our the foundation since obtained ever has has States United Congress of the 571. The S., at 352 U. judgment. endorsing Root’s legislation repeatedly enacted designed “to enactment federal recent most is the BCRA perni to be was conceived what polities of purge national Id., campaign money' contributions.” ‘big cious influence opinion explained in his Frankfurter As Justice 572. enactment such Workers, the first in Automobile Court legisla call Roosevelt’s Theodore to President responded “ any po ‘to corporations forbidding contributions all tion ” Ibid, (quot purpose/ any political or for litical committee (1905)). message to In his annual Cong. ing Rec. stated Roosevelt 1905, President Congress in December stockholders’ use permitted not be “‘directors should “ ” ‘a he recommended political purposes, money’ for “ ” be, ‘would political contributions corporate on prohibition’ evils stopping the method an effective went, far as it ” S., at 572. 352 U. corrupt practices acts.’ inat aimed corporate contribu completely banned resulting 1907statute election. any federal with” “money connection ... tions amended soon Congress 864. 420, 34 Stat. Act, ch. Tillman con- of certain public require the disclosure statute limits place “maximum expenditures and to tributions spend congressional could candidates the amounts Workers, Automobile seeking election.” nomination supra, at 575-576. prohibition “contribu Congress extended

In 1925 acceptance 'anything made “to include tions” value/ giving such a as the as well corporate contribution aof v. Na Comm’n a crime.” Federal Election contribution (1982)(citing Comm., 197, 209 Right 459 U. S. to Work tional 313, 43 Stat. 1925, §§301, Corrupt Act, Federal Practices amendment, 1070,1074). preceding that During the debates polit apparent hold leading “‘the Senator characterized organiza certain parties interests which business ical of liberal cam reason obtain and sometimes tions seek “ ” great evils as ‘one of paign contributions’ ” (quoting 65 supra, Workers, at 576 the time.’ Automobile (1924)). upheld stat We amended Cong. 9507-9508 Rec. “[t]he challenge, observing that against a constitutional ute protect of President power Congress the election being corruption clear, choice of Vice President primarily question addressed presents a to that end means Burroughs States, Congress.” v. United judgment (1934). 534, 547 290 U. S. potentiali- “political

Congress’ concern with historical consequences “untoward and their ties of wealth” supra, at 577- Workers, process,” Automobile democratic During corporate money. beyond long reached 578, has Congress to the “enor- II, reacted shortly after World War outlays” unions connection made some mous financial Congress first S., 352 at 579. elections. with national S. Act, 18 U. C. Hatch contributions union restricted in connec- prohibited “union contributions later 610,2 it 2 could political committees both the amount Act also limited The Hatch July ofAct receive in contributions. could they the amount expend and

117 Right altogether.” . National . . elections federal tion Act Disputes (citing War Labor supra, at 209 Work, 167). Act), §9, Stat. 144, ch. (Smith-Connally Anti-Strike prohibition to cover subsequently extended Congress contribu- expenditures well as election-related unions’ campaigns to coverage of federal broadened and it tions, Manage- Labor general elections. primary and include both Act), 136. (Taft-Hartley 61 Stat. Act, 1947 Relations ment During the supra, at Workers, 578-584. Automobile See repeatedly legislators measures, those consideration pernicious influence regarding the concerns their voiced Cong. 3428, Rec. See campaign large contributions. (1947); Cong., 1st Sess. (1947); Rep. No. 80th R.H. Rep. (1947); R. pt. H. Sess., Cong., 1st Rep. 1,No. 80th S. (1945). ain noted As we Cong., 2d Sess. 2093, 78th No. history, Congress’ "careful recalling this opinion unanimous ‘cau- laws, electoral adjustment of the federal legislative particu- step,’ to account step by advance, tious labor corporations and attributes legal and economic lar National deference.” considerable warrants organizations omitted). (citations supra, Work, Right to improvement steady Congress its continued early In 3. FECA, enacting 86 Stat. by laws election the national of contri- of all required disclosure enacted, that statute first As Bankhead, offering the amend 1940, 640, Senator 19, 54 Stat. 767. ch. floor, said: the Senate ment We all corruption. of money the chief source all know that ‘“We only politi- put campaigns political large contributions know contributors, pay who demand obligation large to the under party cal money are of large sums but also know legislation, we way of through campaigns expensive conducting of purpose for used literature, sorts radio; of all in the publication and over newspapers campaign- untrue; expenses paying purpose for the and true and un- and true both country spread propaganda, into the ers sent out 567, Workers, 577-578 S. 352 U. States Automobile v. true.’” United (1940)). (1957) Rec. 2720 Cong. (quoting expenditures by exceeding and of candidates $100 butions per spent $1,000 than political more and committees prohibited year. also contributions made Id., 11-19. It at person, 19, id., and Government in the name of another prohibi- The law ratified the earlier contractors, id., at 10. treasury general corporate funds and union tion on the use of expressly expenditures, political it but contributions permitted corporations to establish and adminis- and unions (commonly political separate segregated known as funds ter PACs) contribu- committees, or election-related action Pipefitters v. expenditures. Id., at 12-13.3 See tions and (1972). States, 385, 409-410 United 407 U. S. however, clear, made

As the elections 1972 Presidential fundraising unseemly passage did not deter FECA’s persuaded practices campaign practices. those Evidence of Campaign Act Congress to Federal Election enact Reviewing a constitu-. 1974, Amendments of 88 Stat. 1263. Appeals challenge amendments, the to the Court tional “by them as Circuit described for the District of Columbia [ever] legislation comprehensive . . reform far the most passed by Congress concerning . President, election of the Congress.” Buckley v. and members Vice-President curiam). (1975) (en banc) (per 2d Valeo, 519 F. loophole had allowed closed the The 1974amendments political commit- to use an unlimited number candidates thereby purposes fundraising to circumvent tees for receipts and disbursements. committees’ limits on individual They contributions limited individual also per an annual single election, overall $1,000 candidate ceilings imposed by any contributor; $25,000 limitation of political parties for national con- spending candidates rule, to solicit corporations and unions permits FECA general As a members, or but not PACs from their shareholders to their contributions Election (C); Federal §§441b(b)(4)(A), 2 S. C. see from outsiders. 198-199, Comm., 197, and Right to S. Work 459 U. Comm’n v. National (1982). n. 1

119 con- of disclosure public and reporting ventions; required limits; and certain exceeding expenditures and tributions (FEC) to Commission Election Federal the established Id., at 831-834. the legislation. enforce and administer 1974 the upheld of Appeals The Court compelling clear and the that It concluded entirety.4 their process electoral of the integrity the in preserving interest pro- substantive the sustaining basis sufficient a provided relied opinion court’s Id., at 841. The Act. visions access facilitated contributions large that on findings heavily con- evading methods described officials5 to public unconstitutionally 4 was provision disclosure one that held The court 1975) (CADC 821, 832 Valeo, 2dF. 519 v. Buckley overbroad. vague V)). (1970ed., Supp. §437a C. curiam) 2 U. S. (invalidating banc) (en (per 1, 10, Valeo, U. S. v. Buckley holding. from that taken was appeal No curiam). (1976)fper 7n. found: Appeals Court The elected do, access gain to, and are intended contributions “Large particular of the contributor’s for consideration campaign after official corollary, also but this describes only Mathias Senator concerns.. that produces treatment special gain contributors big feeling that role in significant no has American average that reaction omitted). (footnotes 2d, at 838 F. Buckley, 519 process.” also noted: court contributions such that confirmed Court District found “Congress inter- private or business furthering purpose for the made often were govern- influencing or officials government access facilitating ests by af- tended have officials conversely, elected that, decisions, and mental 93-689, 93d No. Rep. See S. contributors. large treatment special ford 838, 32. Id., n. at 118, 110, 170.” 108, I, ¶¶ 4-5; Findings 2d Sess. Cong., explained: the court corruption, evidence further Citing included contributions corporate illegal disclosures “The perception by the motivated they were testimony executives in the us get would card, something ‘calling necessary as this was Select the Senate heard,’ Hearings of view point before make our door Sess. 1st Activities, Cong., 93d Comm, Campaign Presidential pres- Chairman) response ‘in Atkins, (Ashland (1973) Co.—Orin Oil result,’ id. might disadvantage competitive aof for fear sure Findings chairman); see former Spater, George (American Airlines — examples specific replete was Congress before I, record ¶ 105. The of massive contributors had enabled limits that tribution at Id., 837-841.6 disclosure. sums avoid establishing provisions upheld the Appeals of The Court theory that expenditure on limitations contribution than regulations of conduct rather they be viewed should O’Brien, 391 (citing States v. speech. United Id., at 840-841 (1968)). however, Court, concluded This 367, 376-377 U. S. though differ- raised set limitations each serious— Buckley v. the First Amendment. under ent —concerns curiam). (1976) (per treated We Valeo, 1,S. 14-23 424 U. expenditures as and individual the limitations on candidate the contri- we observed that speech, on but restraints direct only marginal imposed “a contrast, limitations, in bution ability engage in free upon the contributor’s restriction “deeply Considering the Id., at 20-21. communication.” con- corruption candidate examples” related to disturbing Appeals’ opinion, we de- in the discussed Court tributions interest limiting served an contributions termined system representative de- integrity our protecting “the primary pur- Act’s end, In the Id., at 26-27. mocracy.” corruption appearance actuality and pose limit the —“to pro- large financial resulting from individual contributions” — large favor return attempts governmental to obtain of improper Id., 839, n. I, at 37. 159-64.” Findings ¶¶ See contributions. campaign Producers, the American Milk scheme of The court cited intricate avoid contributors went Inc., to which lengths example as an their to disclose: duty advice, limit per $2500 on a worked legal producers, milk on “Since the November committee, after procedure, consultation they evolved donation] million into raisers, $2 [their down to break with fund Nixon in various of committees to hundreds smaller contributions numerous cam- reelection President’s money then hold states which could re- reporting independent to meet producers permit so as to paign, Id., 839, n. 36. disclosure.” without quirements “in Nixon campaign to the sums large contributed producers milk price supports.” officials White House meeting gain order Ibid. $1,000 for the justification constitutionally sufficient “a

vided Id., at 26. limitation.” contribution on ex- $1,000 limitation analysis of our prefaced

We every encompassed broadly observing it penditures candidate.’” clearly identified ato “‘relative expenditure IV)). (1970 608(e)(1) Supp. ed., U. S. C. (quoting Id., 39at phrase to that we construed vagueness concerns avoid To express terms advo- in that only to “communications apply clearly candidate identified of a defeat election or the cate concluded, how- We 42-44. S., at 424 U. office.” for federal provide would not provision the narrowed, as so that ever, quo pro ar- quid dangers of the against protection effective ex- eschew groups could persons and rangements, because or defeat election the advocated expressly that penditures spend remaining “free while clearly candidate identified his and promote the candidate they want to much as as argument that the rejected the We also Id., at 45. views.” attempts to prevent necessary to were expenditure limits al- FECA limits, because contribution Act’s the circumvent with by or coordinated expenditures controlled ready treated persuaded contributions, we were and the candidate of real risk posed the same expenditures independent that Id., at expenditures. corruption as coordinated apparent or pre- Congress’ interest held therefore We 46-47. was or jus- inadequate real corruption apparent venting expression the freedoms heavy on tify burdens the imposed. expenditure limits association requirements reporting upheld disclosure of the We all after appeal Court challenged to this on were in the Act that pro- important interests: they three finding vindicated information about relevant viding electorate corruption deterring actual supporters; their candidates and purposes; money improper discouraging use Act. in the prohibitions facilitating enforcement problem, overbreadth an to avoid Id., In order at 66-68. narrowing construction placed the same however, we we had “expenditure” term in the disclosure context that expenditure adopted Thus, limitations. in the context of making requirement persons reporting we construed year only funds expenditures in a “to reach more than $100 expressly the election for communications that advocate used (foot- clearly at Id., of a identified candidate.” defeat omitted). note primarily Buckley opinion addressed issues that

Our expenditures individuals, related contributions and challenged prohibition on parties contri- since none of the noted, how- corporations unions. We butions and labor corporate and use ever, that the authorized the statute segregated administer funds union resources to form and political purposes. Id., 28-29, 31; n. that could be used for supra. see also n. years developments important deci-

Three after our Congress legislation Buckley persuaded further sion in necessary regulate corporations, unions, role was to the process. wealthy play in the As and contributors electoral provisions preface specific of a our to discussion briefly importance of BCRA, on the increased we comment money,” proliferation the dis- ads,” the of “issue and “soft campaign investigation turbing findings into of a Senate practices related to the 1996federal elections. Money

Soft with funds must be made FECA, Under “contributions” requirements subject disclosure and are to the Act’s known as limitations. Such funds are source and amount money. the term “con- FECA defines “federal” or “hard” only gift the or advance of include tribution,” however, to any person purpose the of anything for of “made value 2 Federal office.” U. S. C. influencing election for added). §431(8)(A)(i) solely (emphasis Donations made influencing are there- purpose state or local elections prohibitions. requirements and fore unaffected FECA’s law federal BCRA, to the enactment result, prior aAs as individuals well as unions, and corporations permitted contri- permissible maximum made already had who “nonfederal to contribute candidátes, federal to butions parties money” as “soft known money” —to —also elections. local state to influence intended activities con- arose decided, questions was Buckley after Shortly influence intended of contributions treatment cerning reading literal a Although elections. state and federal both have required would of “contribution” definition FBCA’s ruled FEC money, hard with be funded activities such activities— mixed-purpose fund could parties that political advertis- party generic drives get-out-the-vote including concluded FEC In money.7 soft with part ing —in the costs defray money soft use also could the parties if the advertisements,” even media advocacy of “legislative candidate, so long a federal name mentioned ads their allocate parties allowing rule a promulgated FEC In 1977 con accounts between basis” “on reasonable expenses administrative containing and accounts FECA compliance raised taining funds CFR union donations. corporate funds, including nonfederal al the FEC 1978and issued 102.6(a)(2). advisory opinions In get- registration voter costs to allocate similarly parties lowed Advi FEC accounts. and nonfederal federal between drives out-the-vote 2d, at F. Supp. See 1979-17. Advisory Op. sory Op. 1978-10; FEC curiam). (per 195-197 by promul- basis” reasonable phrase “on clarified the FEC 1990the In re- (1991). regulations §106.5 11 CFR rates. allocation fixed gating Na- (RNC) Democratic National Committee Republican quired mixed-purpose 60% (DNC) least for at pay Committee tional federal their funds years) with (65% election Presidential in activities state required contrast, regulations 106.5(b)(2). By accounts. ratio based expenditures similar to allocate committees local 106.5(d)(1), in which ballot, § State’s on the offices federal nonfederal proportion substantially greater expend they could practice meant affect- activities mixed-purpose fund parties money national than of soft 2d, at 198-199 Supp. F. 251 See elections. and state ing federal both curiam). (per 124 candidate’s election

they expressly advocate the did not Advisory Op. 1995-25. defeat. FEC money expanded, the permissible of soft uses As- the by politi- money spent the national raised and amount of soft major par- exponentially. parties Of the two cal increased ($21.6 money mil- spending, for 5% accounted ties’ total lion) soft ($80 million) million) ($45 in 1988, in 16% 11% 1984, in million) million) ($498 ($272 in and 42% 1996, 30% 1992, large parties amounts transferred The national 2000.8 parties, money which were allowed their soft to the state money larger percentage soft to finance mixed- use year purpose 2000, In under rules.9 activities FEC parties example, million—more national diverted $280 money parties. soft state than half their —to dramatically larger Many money soft were contributions of money permitted FECA. of hard than the contributions soft-money corporate example, top do- five For in 1996 gave, funds total, nors more than million nonfederal $9 party In re- committees.10 the most to the two national cycle political parties raised almost $300 cent election fundraising soft-money of their total million—60% —from just a minimum of donors, each of which contributed 800 corporate largest often Moreover, donors $120,000.11 parties.12 prac- to both Such made substantial contributions corporate indicating many tices evidence corroborate to candi- motivated a desire for access contributions were Mann, & Sr. Exhs., 2 E. Chair 8 1 Tbl. of Thomas (report Defs. Tab (hereinafter Fellow, Report)); 251 Expert Mann Institution Brookings curiam). (per 2d, F. at 197-201 Supp. 9 J.). 2d, 26; (Kollar-Kotelly, F. at 441 Expert Report Supp. Mann 251 10 Id., J.). (Kollar-Kotelly, at 494 Report 24. Expert Mann soft-money gave donors largest 35 of the 50 cycle, In the 2000 election $100,000 parties. to both more than gave of the 50 parties; both (Kollar- 6; 2d, at F. Supp. see also 251 Mann Tbl. Expert Report J.); id., J.). (Leon, 785, n. Kotelly,

125 in the at a disadvantage fear of a being placed dates than rather contributors, to other relative process legislative parties.13 candidates ideological support by often de contributions soft-money were such Not only were candidates, but they federal access to to gain signed Candi themselves. candidates solicited cases by many committees to donors party often directed potential dates soft could accept legally and tax-exempt organizations for reelec running a federal legislator For example, money. him advising a from supporter soft money solicited tion “ max legal ‘contributed had he though already that even ” an still make could committee, he campaign imum’ fed supporting program contribution joint additional Such solicita of his candidates party.14 eral, state, local not uncommon.15 were tions explained: corporation large of a officer executive A former chief dis- believe, experience, on their based labor leaders “Business and disfavor them shun or may Members, colleagues, party their appointed if fear that leaders these Equally, contributed. they have not because who do contribute interests competing (enough), to contribute refuse they key and influencing access gaining advantage will have an generously or union.” company to the importance on matters leaders Congressional (herein- Greenwald, United Airlines (declaration of Gerald ¶ 9 App. Decl.)). Greenwald after busi and various Development for Economic Curiae Committee Amici “coerced are contributions soft-money corporate attest ness leaders “[b]tíSÍttéSS nature, léüdérs andthat bottom, and, wholly commercial" fear they system in which grip freed from the wish to be

increasingly par major fill the coffers refusing consequences the adverse et al. as Amici Development for Economic Brief for Committee ties.” Curiae 28. J.). J.); id,., (Leon, 2d, (Kollar-Kotelly, at 842 F. at 480 Supp. See J.). J.); id., (Leon, One See.id., at 842-843 (Kollar-Kotelly, at 479-480 District Court: to the official explained former party money to hard contributing federal candidate you’ve helped a ‘“Once to do for the candidate asked more sometimes campaign, you his or her are com- money party national and/or donations hard soft by making contri- (assuming accept corporate it can mittees, party the relevant state money thus en- solicitation, transfer, soft and use of limita- parties to circumvent FECA’s and candidates abled connection and amount of contributions in the tions on source federal elections. with Advertising

Issue reporting Buckley disclosure and In we construed FECA’s expenditure “to limitations, requirements, well its as expressly ad- only that reach funds used for communications clearly candi- or defeat a identified vocate the election of omitted). (footnote of a result at 80 As S., date.” 424 U. reading or omission statute, the use that strict Against “magic as “Elect or “Vote words” John Smith” such bright statutory separating “ex- a line Doe” marked Jane advocacy.” press advocacy” id., at n. 52. from “issue See subject Express advocacy limitations and was FECA’s to. only using money. political par- could be financed hard money sponsor soft ads ties, words, could not use to other any magic corporations words, and unions that used and general of their treasuries. So- could not fund such ads out only hand, not could be financed ads, called issue on the other disclosing money, but could be aired without soft identity sponsors. any about, their of, other information or express between “issue” and advo-

While the distinction theory, categories cacy two of advertise- seemed neat functionally important respects. proved identical ments clearly election or defeat of to advocate the Both were used though even the so-called candidates, issue identified federal magic words.16 Little difference ads eschewed use butions), independent an group planning doing or an outside the candidate’s expenditure help campaign.’” advertisement issue Id., J.). (Kollar-Kotelly, at 479 J.); id., Id., J.). (Leon, at As the (Kollar-Kotelly, 875-879 at 532-637 advocacy PAC it: “Tt is foolish major organization’s put former chair one practical advocacy difference between issue and believe there is separates advocacy po What issue and advocacy candidate. Id., day.’” windy drawn on a litical line in the sand advocacy is a J.) Metaksa, K. Remarks (quoting Tanya Opening (Kollar-Kotelly, 536-537 viewers an ad that urged between existed, for example, Doe’s Jane that condemned one Doe” and Jane “vote against “call viewers exhorting issue before a on particular record Indeed, campaign think.”17 tell her what you Doe Jane ads, campaign most effective testified professionals such as for products commercials effective most like magic use did, should, avoid Coca-Cola, were ads spe- such conclusion Moreover, words.18 was confirmed results election affect intended to cifically im- days in the 60 aired all of them fact almost Corporations federal election.19 mediately preceding their general of dollars of millions hundreds unions spent like those ads,20 expenditures, these funds pay Assn, Session on. General Fifth of Political Consultants the American at (Leon, 2d, at 2); 878-879 17, 1997, Supp. F. 251 p. Advocacy,” Jan. “Issue J.) (same). 17 dissent in part J., in (Henderson, judgment Id,., concurring at 304 J.). (Leon, id., J.); at id, 875-879 (Kollar-Kotelly, 534 at in ing part); 18 candidates, par run few very ads —whether It is undisputed Id., at 303 advocacy. express of ties, words groups or interest —used J.). (Leon, In the id, J.); 874 at id, (Kollar-Kotelly, J.); (Henderson, at 529 words; magic used advertisements of candidate just 4% cycle, 1998 election S. Jonathan (report 1334 App. 5%. 2000, number mere was in Minnesota, Sorauf, University of Frank J. Krasno, University, & Yale Exhs., 1 Defs. see (hereinafter Report); Expert & Sorauf 53-54 Krasno pp. 53-54). 2, Tab pp. 19 J.) report (Kollar-Kotelly, (citing 2d, n. 96 at 251 F. Supp. A, 16; Wisconsin-Madison, Tbl. App. Goldstein, University of M. Kenneth 202-203; Supp. 251 F. see also Exhs., 7); Arg. Tr. of Oral Tab see 3-R Defs. J.). 2d, (Henderson, at 305 20 dramatically climbed electioneering on communications The spending million $150 $135 cycle, election decade. In the 1996 during the last cycle In next 100 ads. of about multiple broadcasts spent was on $270 cost between at a total ads (1997-1998), 77 aired 423 organizations an esti over election, spent groups 130 By 2000 $340 million. every Two out 1,100 ads. different on $500 mated million more than to the attributable cycle were 2000 ads spent three dollars issue (Hender Id., at 303-304 major groups. major two interest parties six Advertising Center, J.) Issue son, Policy Public (citing Annenberg Report); see Annenberg (2001) (hereinafter 1-15 Cycle 1999-2000 Election 128 were unregu- parties, to the donations

soft-money or- were attractive Indeed, the ads FECA. under lated were be- they because precisely and candidates ganizations their parties candidates and reach, enabling FECA’s yond so- interest sponsor groups friendly closely work run- were themselves candidates when issue ads called out money.21 ning did not apply requirements FECA’s disclosure

Because mislead- used ads often of such ads, issue sponsors so-called for Better “Citizens identity. their to conceal names ing organization not instance, was grassroots Medicare,” a plat- instead but was might suggest, its name' citizens, as “Re- And manufacturers.22 of drug an association form the 2000 Repub- which ran ads Air,” for Clean publicans an organization actually was Presidential primary, lican who together individuals —brothers two of just consisting candidate.23 favored their on ads supporting million $25 spent about informed been fully have may While public indi- record ads, issue so-called the sponsorship J.) (same); (Kollar-Kotelly, 2d, at 527 22); Supp. F. Exhs., Tab 38 Defs. J.) (same). id., at 879 (Leon, J.) Memorandum AFL-CIO internal (citing Id., at 540 (Kollar-Kotelly, (Oct. Senator Klein, Buy for Illinois Electronic to Mike Brian Weeks J.) (same). (Leon, 2d, 005244); Supp. F. 9, 1996), AFL-CIO and Manu Research Pharmaceutical known as was The association curiam). Id., (per (PhRMA). 232 America of facturers 23 .“Vot included groups mysterious Id., examples Other at 232-233. Common Industries,” “Montanans Truth,” “Aretino Campaign ers Voices,” Family Seniors, Inc.,” “American Laws,” “American Mining Sense to “Coalition 71-77), Report (Krasno Expert & Sorauf 1355 App. J.). Some (Kollar-Kotelly, 2d, at 538 Heard,” Supp. 251F. our Voices Make ‘“in some acknowledged frankly groups these behind of the actors Our to Make by the “Coalition ad run an to effective it’s much more places women men “the for by say paid to it is than Voices-Heard” Ma B. J.) David report (Kollar-Kotelly, (quoting Ibid. AFL-CIO.’”” Re Expert (hereinafter Magleby 18-19 University Young Brigham gleby, 1484-1485). port), App.

129 A were. for- officeholders often candidates and cates that officials knew candidates and confirmed that mer Senator “ suggested] cor- were and ‘sometimes who their friends groups interest donations to porations or individuals make ’”24 soft-money contributions, ads.” As with run “issue availability so- parties and used the political candidates asking limitations, do- FECA’s issue ads to circumvent called money quota permitted of hard contributed their nors who spend on money nonprofit corporations “issue” give advocacy.25 Investigation Committee

Senate Affairs Committee Governmental In 1998 the Senate summarizing report results ex- of an issued a six-volume campaign practices in the 1996 investigation into tensive gave particular report attention federal elections. system, money on the American the effect of soft special practice granting access including officials’ elected political contributions. in return for relating findings principal to Democratic

The committee’s majority’s report, fundraising in the Party were set forth Republican minority report primarily described while the however, on consensus, reports reached practices. The two They agreed “soft that the propositions. certain central campaign money a “meltdown” of loophole” had led keepcorporate,

system “to beenintended finance thathad influencing large union individual contributions hearings process.”26 stated that “the One Senator electoral loopholes provided overwhelming that the twin evidence virtually advertising money bogus have de- soft issue J.). 2d, (Kollar-Kotelly, 251 F. at 518-519 Supp. Id., J.) Hiek- declaration of Robert (Kollar-Kotelly, (citing at 478-479 (hereinafter Decl.); see mott, P., ¶ 8 Hickmott Group V. Smith-Free Senior 8). 19, Exhs., ¶ 6-R Defs. Tab (1998) (hereinafter Senate 105-167, S. vol. No. Rep. p. id., Report); 5 at 7515.

iao leaving with little us laws, campaign

stroyed finance our legal rubble.”27 pile of a than more raising methods parties’ of both was critical report

The concluded It funds. of those their use money, as well soft to special access provided promised and parties that both exchange for officials senior Government and candidates majority committee The soft-money contributions. large major do- coffees rewarded House the White described the courtesies Clinton,28and President with access nors Roger named businessman international to an extended acknowledged his donations candidly who Tamraz, moti- were parties state and to to the DNC $300,000 about the Federal Government’s gaining by his interest vated The minor- project in the Caucasus.29 support an oil-line RNC’s used promotional materials ity described “Republi- and the “Team 100” programs, principal two donor high-ranking “special access promised Eagles,” which can senators, governors, including officials, Republican elected fundraising recited letter One representatives.”30 and donor personally escorted had of the RNC the chairman 27 Collins). (additional views of Sen. id., at 4535 written memorandum included a id., 41-42,195-200. report 28 1 at coffees White House the use of suggesting chairman finance by the DNC President, with time” “quality donors major give “overnights” in contributions. $26.4 million guests accounted and noted Id., 194, 196. at back about Tamraz’s concerns id., Despite 2918-2914, 2921. 29 2 at interests, policy foreign States United conflict with possible ground Id., 2920-2921. at by the President. events attended six he was invited contri Kojima’s for Michael exchange noted that minority Similarly, Dinner, had been his wife he President’s $500,000 the 1992 bution of Moreover, Ko Bush. and Mrs. President table the head placed at President, admin other with the meetings additional several jima received id., embassy officials. States officials, United istration 5422, 5428. $25,000 for $100,000, and contribution an initial requires The former contributions requires annual the latter years; of the next three each id, $15,000. at 7968. “ very appointments significant 'turned out to be in the legislation affecting public utility holding companies’” and industry.’”31 the donor ‘"a his made hero parties began large In 1996 both to use amounts of soft money pay designed advertising for issue to influence fed- highly prob- eral elections. The committee found such ads they accomplished lematic for two reasons. Since the same (which purposes express advocacy lawfully as be could only money), hard corpo- funded with ads enabled unions, wealthy rations, protections and contributors to circumvent intended, provide. that FECA was though Moreover, os- tensibly independent of the the ads candidates, were often actually by, campaigns.32 with, coordinated and controlled provided The ads thus evading a means for FECA’s candi- date contribution limits. report emphasized

The also par- the role of state and local While, regime permitted ties. the FEC’s allocation national parties money pay up to use soft to 40% of the costs generic of both voter advertising, they activities and issue parties larger allowed state percentages and local to use money purposes.33 soft for those For that reason, national parties money often made substantial transfers of soft political parties ‘generic “state and local voter activities’ ultimately benefited] that in fact federal candidates because the funds for all under the con- practical remained] purposes report trol of the national committees.” The concluded that “[t]he money allow[ed] corporate, use of such soft thus more treasury, large wealthy union contributions from individ- system.”34 uals into the report potential including

The discussed reforms, a ban on money party soft at the national and state levels restric- 31Id., 7971. at id., id,., 49; 32 1 at 3997-4006.

33Id., at 4466.

34Ibid. groups.35 nonparty advocacy issue on sham tions raising of on the a ban view expressed the majority effectively would party committees by national money soft treasury general corporate union use address required that only if it process political federal in the funds candidate-specific mi- money.36 The hard funded be ads soft-money elimination similarly nority recommended corpora- individuals, parties from contributions addressing candidate “reforms as well unions, tions, ads.”37 issue masquerading as advertisements >—1 pro- s many the of committee Congress enacted BCRA, In designed to are provisions central BCRA’s posed reforms. of soft increasing use the about Congress’ concerns address elections. federal advertising influence money money issue and parties, by political soft of use the regulates I Title prohibits primarily II Title candidates. officeholders, and treasury using general unions labor and corporations the have to, or intended are for communications funds elections. federal of influencing outcome the of, effect actions rules special provides BCRA 403 of Section provi- any Act’s the of constitutionality challenging the II). ac- such (Supp. Eleven § note 437h C. 2 S. sions. effect into went statute the promptly after filed were tions were actions by those §403, required As 2002. March and Columbia District Court District in the filed Dis- directed 403 Section three-judge court. by a heard expe- and docket on cases advance trict Court extent.” possible greatest disposition “to their dite parties compiled record voluminous a received court two-judge a embodied decision ultimately delivered and opinions, lengthy separate,. three opinion per curiam 4480-4481, 4491-4494. 4468-4470, Id,., at 36 Id., at 4492. 37 id., 9394. at commentary facts on the extensive which contained

each of Supp. 2d analysis legal 251 F. issues. careful and a unanimity (2003). on certain judges reached The three judgment, on many. entered on Their but differed issues parts unconstitutional BCRA held some May 2003, Supp. 2d 948. 251 F. upheld others. losing parties filed direct 403, all of

As authorized days. 2 437h U. S. C. within appeals to this Court jurisdiction probable 5, 2003, we noted June note. On briefing expedited comply an parties ordered special arguments hear- present their oral schedule simplify the To 911. ing September 8, 539 U. S. 2003. on provisions challenging parties presentation, we directed they proceed issues, whether first on all BCRA Mindful Ibid. prevailed in the District Court. issue disposition expedite §403’s our that we instruction possible, greatest also con- we appeals extent to the these first, Accordingly, turn we in order. issues sider each of the to Title I of BCRA. our attention

I I I soft-money loophole. plug Congress’ effort to Title I is n § 323(a), which I new FECA of Title The cornerstone agents from party and their prohibits committees national money. spending soft receiving, directing, or soliciting, 323(a) II).38 § 441i(a) § na (Supp. takes short, In 2 U. S. C. soft-money parties business. out of the tional §323 largely re- remaining provisions of new FECA 323(b) § 323(a). § New FECA restrictions in inforce the soft-money from influence prevents shift of the wholesale are: major parties political of the two party The national committees Senatorial Committee RNC; DNC; Republican the National (NRCC); (NRSC); Committee Congressional Republican the National (DSCC); the Democratic and Committee Campaign Democratic Senatorial (DCCC). 2d, at Supp. 251 F. Congressional Committee Campaign J.). (Kollar-Kotelly, and by prohibiting state party committees state national activ- funds using such from party committees local 441i(b). § 2 U. S. C. elections. federal affect ities FECA in new activities],” defined election “Federal These mixed-purpose activ- 301(20)(A), § identical almost are pre- the FEC’s under regulated long been have ities §431(20)(A). New C. 2 U. S. regime. allocation BCRA soft-money restrictions 323(d) § these reinforces FECA donating soliciting and parties from prohibiting in elec- engage organizations tax-exempt funds §441i(d). FECA New C. 2 U. S. tioneering activities. from 323(e) and officeholders candidates federal restricts money connection soliciting soft receiving, spending, or con- ability so in to do their limits and elections federal with 441i(e). §C. 2 U. S. local elections. state nection 323(f) circumvention prevents Finally, FECA new party committees local state, and national, on restrictions raising and candidates local by prohibiting state public and other money fund advertisements spending soft candidates. federal promote or attack communications §441i(f). S. C. 2 U. challenge to First Amendment a facial mount

Plaintiffs the Elec- challenges based on as §323, well new FECA federalism, principles I, §4, Const., Art. Clause, U. S. tions Due Process component protection equal challenges in turn. these We address Clause.

A subjected re we have subsequent cases, Buckley In scrutiny than to closer expenditures campaign on strictions g., Elec Federal See, e. campaign contributions. limits (2003); see also 146, 161 Beaumont, U. S. v. tion Comm’n PAC, 528 S. Government Missouri v. Nixon Shrink we cases In these 19. S., at (2000);Buckley, 424 U. 387-388 ex limits limits, unlike recognized that contribution have upon the marginal restriction only “entai[l] a penditures, Id., engage in ability to free communication.” contributor’s 161; Mis- supra, at Shrink g., Beaumont, also, e. 20; see at Buckley we said: In supra, at 386-388. souri, sup- expression general as a serves contribution “A views, but does not com- his port candidate support. underlying basis for municate does the contributor quantity of communication contribution, the size of the perceptibly with increase solely undifferentiated, on the expression rests since the contributing. the size of the most, At symbolic act of intensity very rough provides of the a index contribution A limita- support for the candidate. contributor’s may give to a money person tion on amount thus involves little campaign organization candidate per- it communication, for political his direct restraint on support evidenced expression symbolic mits any way infringe the not in does a contribution but discuss issues. candidates contributor’s freedom expression if may political result While contributions present views spent by or an association a candidate into of contributions transformation voters, to the speech by someone other than political involves debate omitted). (footnote S., at 21 U. the contributor.” in- contributions value of large Because.the communicative ability speech mainly of their to facilitate the in their heres impose seri- recipients, limits we have said that contribution “pre- they speech only as to if so low on free are ous burdens amassing vent] committees candidates advocacy.” necessary Ibid. for effective resources may bear recognized that contribution limits We have right heavily than on freedom associational “more on the contributions speak,” supra, 388, since Missouri, Shrink “enabl[e] person with a candidate” serve “to affiliate Buckley, 424 resources,” pool persons their like-minded however, which limits, expenditure S., at 22. Unlike amplifying the effectively “preclud[ej most associations both “leave limits contribution adherents,” of their voice any political associa- of a member free become to contributor on efforts in personally the association’s to assist tion and aggregate “to associations candidates,” and allow of behalf advocacy.” Ibid. promote money effective large to of sums is on contributions dollar limits of effect” The “overall to political committees and require “merely to candidates 21- Id., persons.” at of greater number from a funds raise “‘significant involving even limit a Thus, contribution 22. ” valid rights is nevertheless associational interference’ with ” “ ‘closely being drawn’ demand” of the “lesser if it satisfies Beaumont, “‘sufficiently important interest.’” a match 387-388).39 supra, Missouri, at (quoting supra, Shrink at 162 more reflects restrictions of contribution treatment Our they impose First Amendment on limited burdens than the importance of the interests reflects the It also freedoms. preventing in limits —interests contribution that underlie large con- corruption financial threatened the actual “both public in the elec- eroding confidence of and the tributions corruption.” appearance Na- through of process toral also S., 208; at see Federal Work, Right U. tional Republican Cam- Federal Colorado Comm’n v. Election II). (Colorado (2001) 440-441 paign Comm., S. directly implicate “‘the these interests said that We have responsi- less, process, and, not of our electoral integrity functioning successful citizen bility the individual Kennedy in of hand sleight 39 Justice engaging us accuses parties speech political with the speech” “unseemly corporate conflating rationale “corporate speech to the candidates, adverting and then Post, concurring (opinion at 290-291 the case.” linchpin if it were prin This incorrect. dissenting part). in in part judgment same I Title are the assessing upon and relied forth here ciples set con regulations its Buckley progeny articulated principles subject are candidates, committees political parties, tributions “un speech including restraints direct scrutiny than less rigorous — seemly corporate speech.” Right supra, Work, at National process.’” 570). at Because Workers, S., 352 U. (quoting Automobile through free very “means which process is the electoral speech con democratically into society translates Missouri, S., 528 U. action,” Shrink governmental crete other concurring), limits, contribution like J., 401 (Breyer, integrity process, protecting the at measures aimed political For participation debate. public in tangibly benefit con Congress’ to enact reviewing decision when reason, strong presumption place for a limits, “there is no tribution thought accom to constitutionality, of the sort often against J., scrutiny.’” Id., at 400 ‘strict pany words (Breyer, we have rigorous of review concurring). The less standard “closely (Buckley’s drawn” applied limits to contribution ability Congress’ to proper to deference scrutiny) shows area in which in an weigh competing interests constitutional Congress provides expertise. enjoys particular It also it respond anticipate to concerns room to with sufficient protect designed regulations of about circumvention process. political integrity of the scrutiny degree has rigorous of application less of this

Our past dis- from our significant in the given criticism rise to at Missouri, S., g., 528 U. senting colleagues. See, e. Shrink dissenting); id., 410-420 J., 405-410 (Thomas, (Kennedy, Federal Colorado Campaign Republican dissenting); J.; Comm’n, U. S. 635-644 518 v. Federal Election Comm. (1996) (Colorado I) re- dissenting). We have J., (Thomas, identi- previous the reasons cases for jected criticism in such its in fact that mindful of the We are fied above. also BCRA, leading enactment to the lengthy deliberations authority recognition of its properly on Congress relied progeny. Buckley Considerations and its in contained Legislative respect that the decisis, stare buttressed provide another, additional Branches owe to one and Judicial analysis of adhering contribution powerful to the reasons Buckley consistently since followed limits the Court has Rail- South Carolina Public Hilton v. was decided. See ways (1991).40 Comm’n, 197, U. S. Buckley, we 323’s limits

Like the contribution upheld on the ability have restrictions only marginal impact officeholders, and contributors, candidates, parties engage Beaumont, S.,U. at 161. effective speech. §323, main, does be, may as its provisions Complex individuals, the ability wealthy more than little regulate sums of to contribute money and unions large corporations, candidates, and elections, federal fed- influence federal officeholders. eral strict we must scrutiny

Plaintiffs contend that apply restrict not contri- of its only 323 because many provisions and solicitation of funds raised butions but also the spending But for limits. of FECA’s contribution purposes outside that Con- it irrelevant level scrutiny, determining demand §in contributions chose regulate gress Right to e.g., National See, side. rather than the supply supra, Work, restrict- a at 206-211 provision (upholding funds). relevant inquiry solicit PACs’ to ability ing to the contribu- the mechanism adopted whether implement 40 rigor less Buckley, consistently applied we have decision in Since our corrup of prevention aimed the restrictions at scrutiny ous to contribution S., See, at 23-36 e. 424 U. corruption. g., of the appearance tion and con $1,000 on individual FECA’s limit scrutiny to rigorous (applying less to $5,000 on PAC contributions and FECA’s limit to tributions a candidate $25,000 id., scrutiny to FECA’s candidate); less (applying rigorous at 38 a candidates, party com to political limit on contributions aggregate yearly v. Federal committees); Assn. Medical mittees, and political California (1981) 182,195-196 (apply Comm’n, opinion) (plurality S. 453 U. Election to multi- $5,000 on contributions limit scrutiny to FECA’s less ing rigorous S., Work, at 459 U. committees); Right to National candidate provision to antisolicitation scrutiny less rigorous (applying 208-211 II, limit); U. S. 533 Colorado otherwise valid contribution buttressing an coordi (2001) expenditures rigorous scrutiny to less (applying Beaumont, U. S. candidate); v. Election Comm’n Federal with a nated (2003) intended scrutiny provisions rigorous less 146,161-162 (applying limits). valid contribution of otherwise circumvention to prevent limit, burdens prevent circumvention limit, or tion contribution on way direct restriction a a speech in here. case not the That is not. would itself 323(a) parties § from prohibits national example, while For 323(b) § prohib- money, and spending nonfederal receiving or money spending nonfederal from party committees its state way any provision activities, neither election federal on spend. can money parties total amount limits II). simply they limit (b) §§441i(a), Rather, (Supp. C.S.U. they That of donations. amount and individual the source money not does spending of soft by prohibiting so do limitations.41 expenditure them render 323(a) 323(e), §§ provisions of Similarly, solicitation committees, fed- party ability national restrict which nonfederal to solicit officeholders federal candidates, and eral soliciting federal ample opportunities open funds, leave entities, source subject FECA’s behalf on funds 323(d), § enacts face its which on Even restrictions. amount tax- to certain funds party solicitations on ban blanket parties to solicit allows organizations, nevertheless exempt C. S.U. PACs. federal organizations’ to the funds do or §441i(d). organizations cannot As for those funds federal donate free parties remain PACs, administer ex- may funds solicit organizations, and directly such (construing 180-181 infra, purpose. See pressly onlyto apply §323(d)’s bypartiesto ondonations restriction soft-money or party nonfederal committee’s donations account). 323(d) 323(a), places no limits And as organizations tax-exempt endorsing other means acting their by party officers on solicitations restrictions (d). §§441i(a), capacities. 2 C. U. S. individual reality regard for the “due shows 323 thus Section informative characteristically with intertwined is solicitation 41 individ 323(b) way free as to in such Indeed, Congress structured for committees to state ual, donations corporate, union and nonfederal restrictions. and amount from federal source elections

140 for particu- seeking support speech and persuasive perhaps Schaumburg v. Citizens views.” or for causes particular, lar (1980). The Environment, 444 U. 620, a Better S. of- candidates and federal committees fact party dollar amounts for limited ask only now ficeholders must money unión contribute or corporation or request the political alters impairs in no its way PAC through Riley v. Cf. solicitation. “intertwined” message C., Inc., N. 781, S. Federation Blind National (1988) required restriction solicitation (treating aas content- information to disclose particular fundraisers it “neces- because to strict based subject scrutiny regulation than And rather the content speech”). alter[ed] sarily Schaumburg, the case solicitations, as was such chill infor- increase the dissemination here tends restriction candidates, officeholders forcing parties, mation by di- As with donors. wider of potential from a array solicit therefore, §323’s contributions, spending limits on rect on impact polit- have a marginal restrictions only solicitation ical speech.42 Kennedy’s scrutiny applies that less rigorous contention 42 Justice association, political rather than burdening political

only regulations that contribution Buckley, recognized In we Buckley. misreads speech, association, gener speech though they protected both limits burden S., 20-22. We latter. 424 U. impacts on ally more significant have limits scrutiny to contribution FECA’s rigorous less applied nevertheless Congress’ to overcome weighty sufficiently was burden neither because process. integrity in protecting interest countervailing (2000) PAC, U. S. Government v. Missouri See Nixon Shrink be distinctions (“While parse Buckley] attempt [the] [in we did not scrutiny contribution standards and association speech tween on heavily bore more restrictions that those limits, it clear we did make consequently speak. freedom to We [the] on than right associational surviving a limitation a contribution understanding that on the proceeded challenge survive a speech would abridgment claim associational under limits satisfied contribution standard well, and we held the fi omitted)). campaign (citation simply untrue It thus review” re scrutiny strict speech necessitate “burdens that all context nance Post, at 312. view.” type of associational that the

Finally, contend plaintiffs fundamentally imposes § different are that 323 burdens Buckley’s limits, contribution accompanied burdens scrutiny applied at- we have strict type of merit parties. processes of internal regulate the tempts to Party Jones, 530 S. v. U. g., Democratic E. California (2000). plaintiffs greatly argument, making this In 573-574 precludes contending §323, that it of exaggerate effect state, and local commit- among national, any collaboration electioneering fundraising ac- party in of the same tees way. provisions See in that not read doWe tivities. greater per- merely subjects a Section at 161. infra, parties to FECA’s and candidates centage contributions already Buckley ac- has limitations. and amount source free contributor “leave the knowledged limitations that such any political- to assist association become a member of candi- on behalf of efforts personally association’s in the § impact 323 has modest at 22. The S., dates.” with party to associate ability within a of committees on the scrutiny. independently strict occasion not does each other bur- alleged suggest associational that the is to None of this §323 place in the First parties by no have imposed on dens them only we account for analysis; it is Amendment appropriate choice, of the application, rather than the scrutiny.43 level of apply rigorous principies mind, we the less

With these applicable scrutiny limits to evaluate contribution § constitutionality five 323. of new Because FECA the. Kennedy is no Justice correct that the associational burdens doubt may at times particular piece campaign-finance regulation imposed by Post, In of our scrutiny. light as to warrant strict at 311. be so severe 323(a), 161, §323 infra, however, see at does present interpretation Kennedy “signifi Justice As himself even acknowledges, such case. are subject cant interference” association” “protected rights Beaumont, S., 162; 311. post, scrutiny. see at 539 U. rigorous less decision to account nothing partic There is thus inconsistent in our 323(a) appro when imposed applying ular burdens associational scrutiny. priate level First implicate §323 different

challenged provisions We are separately. we discuss them concerns, Amendment §323 in- an Congress as enacted however, that mindful, important the Government’s to vindicate tegrated whole of appearance corruption and the preventing in interest corruption. §323(a)’s National Restrictions

New FECA

Party Committees 323(a), § provides which FECA I is new Title of The core may not party . political . . committee[s] aof that “national contribution, person a to another or receive, direct solicit, thing value, of any other of funds or or transfer donation, limitations, subject to any funds, that are spend or Act.” requirements of this reporting prohibitions, II). 441i(a)(l) to prohibition extends (Supp. § The U. C.S. national of such a acting agent on behalf “any officer or indirectly directly estab- entity is committee, and national such a or controlled financed, maintained, lished, §441i(a)(2). committee.” 323(a) part, large it sim- § In modest. goal of is

The main approved in that was scheme ply to the a return effects FEC’s creation Buckley subverted was and that parties political to permitted the regime, which allocation combination a electioneering with efforts federal fund n. 7. 123-125, supra, money. See soft hard and to able parties were regime, national that allocation Under elect fed- to money efforts in soft their amounts use vast they long directed as Consequently, as eral candidates. large contribute could parties, money donors to the designed influ- money activities in for use of soft amounts 323(a) put designed § New elections.44 ence federal practice. stop to that on fed soft-money spending explosion post-1990 fact that The Congress efforts by a series accompanied electioneering was eral A) course, BCR (culminating, money of soft on such uses down

clamp Underlying New Interests

1. Governmental 323(a) FECA 323(a)’s parties’ 6n national ban defends Government necessary prevent money with soft

involvement corruption candidates and of- apparent of federal actual prevention clear that the made Our cases have ficeholders. sufficiently im- corruption appearance constitutes or its justify political contribution limits. We portant interest elimination of cash-for- to the that interest not limited have expressly rejected ar- Buckley, exchanges. we In votes al- provided antibribery a less restrictive gument laws noting that such limits, contribution ternative to FECA’s specific attempts only “deal[t] blatant and laws the most governmental money action.” of those with to influence ‘improper speaking “[i]n and influence’ Thus, at 28. S.,U. pro quo arrange- ‘quid ‘opportunities abuse’ in addition to for recognized [have] confined to brib- a concern not ments,’ we extending threat ery public to the broader officials, but large compliant politicians con- wishes of too 389; see Col- Missouri, S., at also Shrink tributors.” corruption (acknowledging that II, at 441 S., 533 U. orado agreements beyond explicit to “undue cash-for-votes extends judgment”). on an influence officeholder’s importance equal” the Government’s has been “almost Of perception combating appearance or interest corruption engendered large campaign contributions. FEC more than regulations permitted underscores the fact that Con- Cantor, FECA, Congres- See J. gress, enacting had ever intended. Finance Report Campaign Legisla- sional for Congress: Research Service (1990) (9 limit tion in the the influence of Congress seeking 101st bills introduced); Cantor, Congress: money Campaign soft Report J. CRS (1991) (10 such bills intro- Legislation Congress Finance in the 102d duced); Cantor, Campaign Legisla- Finance Report Congress: J. CRS (1993) (16 Cantor, bills); Report tion in CRS for Con- Congress the 103d J. (1996) (18 gress: Congress in the 104th Campaign Legislation Finance curiam) bills); 2d, (discussing legisla- Supp. (per F. at see also 251 201-206 subsequent Congresses). money tive efforts to curb soft 105th and supra, Missouri, at see Shrink Buckley, 27; also supra, Po- National Conservative v. Comm’n Election Federal 390; (1985). Take 496-497 480, Comm., S. 470 U. Action litical appearance of regulate authority Congress’ away large do- assumption that cynical “the and influence undue voters willingness of jeopardize the could the tune nors call Missouri, Shrink governance.” part in democratic to take concurring). J., id., at 401 see also 390; S., at (Breyer, 528 U. require Con- does not Amendment the First because And par- donors, and “candidates, fact that ignore the gress to II, 533 law,” current Colorado limits ties test the justify sufficient have been interests these atS.,U. preventing laws themselves, but only limits contribution (“[A]llMembers id., at 456 limits, such the circumvention theory of valid is a agree that circumvention of the Court corruption”). satisfy empirical evidence needed quantum of

“The will judgments legislative scrutiny of heightened judicial jus- novelty plausibility of with the vary up or down supra, at 391. Missouri, raised.” Shrink tification corrupt party can ato national large contributions idea corruption appearance of very least, create at the or, im- nor novel neither officeholders candidates federal dol- strict placed has years, nearly FECA plausible. For indi- contributions restrictions source lar limits state, national, give to entities can other viduals influencing fed- purpose local, for the party committees has restrictions these behind premise The eral election. can- to a federal that contributions be, to been, and continues campaign threaten candidate’s of that party in aid didate’s to the contribution a direct than would less to create —no supra, at 38 Buckley, obligation. See sense of candidate —a yearly contri- aggregate on limit $25,000 (upholding FECA’s political committee, political candidate, to a butions prevent to restraint... “quite modest as a party committee among by, limitation” $1,000 contribution evasion political the candidate’s “huge to contributions things, other to na- of contributions particularly true This party”). and officehold- candidates which federal parties, with tional unity relationship This of interest. special enjoy a ers posi- unique parties in a placed national has affiliation close “agents for to serve they not,” like it “whether tion, produce obligated seek who of those on behalf spending supra, 452; see also Shrink II, at Colorado officeholders.” (“[Re- dissenting) J., supra, Missouri, (Kennedy, context speech in the claim his us evaluate asks spondent] whose and officeholders which favors candidates system aof usually money, supported campaigns are funneled soft added)). discussed (emphasis As parties” through parties have role, the national that than resist below, rather actively it. embraced large purposes is present whether question for soft- have a party cor- committees to national

money contributions corruption. appearance of give to the rise rupting influence or con- ample cases in these record and the common sense Both above, they forth do. As set Congress’ that belief firm regime allocation 7, n. FEC’s 123-125, and supra, at limits of FECA’s widespread circumvention has invited influencing federal purpose of parties contributions wealthy corporate, union, and system, this Under elections. substantial free contribute have been donors individual parties parties, which money national to the of soft sums influencing particular purpose specific spend for the can plausible, only but election. It is not federal candidate’s grateful such donations likely, would feel candidates gratitude.45 exploit seek and that donors would Kennedy Colo observation plurality’s contends Justice threat pose little political party to a rado I soft-money donations large corrupting. are not contributions that” such “establish[es] of corruption (1996)). The 616, I, Post, U. S. 617-618 Colorado (citing at 301 I addressed cases. Colorado present cited on the bearing has no dictum permissi- could whether Congress an entirely question namely, different —

146 do- the record shows candidates and evidence in soft-money loophole,the exploited nors have in fact alike prospects their of election the latter former to increase part of the national officeholders, to create debt on willing despite serving parties Thus, intermediaries. hard-money candi- direct FECA’s limits contributions commonly have asked donors dates, federal officeholders soft-money donations to national and state committees make “ ” including ‘solely campaigns,’ federal in order to assist (Kollar-Kotelly, Supp. 2d, at 472 officeholder’s own. F. J.) (quoting Randlett, CEO, of Wade declaration Dashboard (hereinafter Deck), App. ¶¶6-9 Technology 713- Randlett (Kollar- 714); Supp. 2d, 471-473, F. at 478-479 see also 251 J.). J.); (Leon, Kotelly, kept id., tallies of at 842-843 Parties money officeholder, and the amounts of soft raised each raise[d] money Congress “the a Member of amount of affect[ed] party often the national committees g[a]ve to assist the Member’s cam- amount the committees J.). (Kollar-Kotelly, paign.” Id., at Donors often 474-475 particular candi- asked that their contributions be credited obliged, irrespective parties of whether the dates, and the J.); (Kollar-Kotelly, Id., at 477-478 funds were hard soft. J.). (Leon, party often id., National committees campaign committees to individual candidates’ teamed with joint fundraising committees, which enabled the candi- create higher party’s advantage of contribution dates take give preferred allowing to their donors to limits while still J.); (Kollar-Kotelly, id., at 847-848 Id., at 478 candidate. (Krasno (Leon, J.); Expert App. Re- see & Sorauf also fundraising port (characterizing joint committee as one entirely did so on an bly independent expenditures limit a party's —and evidentiary before it an record frozen facts. It also had different set of the 1990’s. See Federal soft-money explosion 1990—well before Comm., Campaign Fed. Republican Election Comm’n Colorado v. 1993). (Colo. 1448, 1451 F. Supp. money rais[e] in soft candidates effect “in which Senate races”)). participating di- Even when in their own use were well rectly fundraising, officeholders federal party National commit- identities of the donors: aware potential donors, or actual lists of would distribute tees generosity report to office- would their donors themselves J.) (Kollar-Kotelly, Supp. 2d, at 487-488 251 F. holders. (“[F]or donors, to know the identities of these a Member not knowledge pro- actively it is avoid such he or she must political parties and the donors them- vided the national J.). selves”); (Leon, id., at 853-855 wealthy lobbyists, part, CEOs, and individuals

For their candidly donating sums admitted substantial alike all have ideological money national committees not soft securing express purpose influence grounds, but for lobbyist example, For a former over federal officials. lobbying Washington, partner C.,D. stated firm in at a his declaration:

“ large somebody making a doing ‘Youare a favor for money] they appreciate [soft it. Ordi- donation and narily, reciprocate people favors. Do feel inclined larger bigger is, write a favor for someone—that recipro- they compelled feel even more check—and rarely my experience, ex- overt words are cate. In changed people have contributions, about but do under- J.) standings.’” (quoting Id., (Kollar-Kotelly, at 493 Young partner, Rozen, of Robert declaration Ernst & S3).46 ¶ 14; Exhs., Defs. see 8-R Tab 46Other business For agreed. leaders the chairman example, board major toy company and CEO of a explained: view “‘Many money world soft as a cost corporate large donations of doing business .... I remain in some of the more convinced that cases, publicized actually federal officeholders to have sold them- appear They selves and could even more party cheaply. gotten money, have because of of their decisions to the affected busi- potential importance 2000, more in 1996 that, fact is the

Particularly telling substantial donors gave soft-money of the top half than for no room leaving to both national parties, major sums influ- seeking were donors these but other conclusion any par- than promoting retaliation, rather ence, or avoiding g., 251 F. Supp. 2d, at 508-510 See, e. ideology. ticular 5-6); Tbls. Report J.) Mann Expert (citing (Kollar-Kotelly, to both parties, soft money (‘“Giving 2d, F. Supp. at all sense no makes Democrats, the Republicans ” access’ (quot- is she buying he or that feels donor unless 15, App. ¶ Bumpers Dale Sen. of former declaration ing 175)).47 J.) declaration (quoting (Kollar-Kotelly, 2d, at 491 Supp. 251 F.

ness.’” 17). Exhs., Tab 16; Defs. Inc., see 6-R Hasbro, CEO, ¶ Hassenfeld, Alan G. opined: airline major emeritus a Similarly, “ chairman labor party, political to a out made be might cheek money a ‘Though soft offices to the doors open checks those know that leaders business and Administra- and the Congress Members important and of individual and experience on believe—based leaders business and . Labor tion shape to opportunity them an gives access such reason—that good with derives to do so ability their that and decisions governmental affect ” parties.’ to the money sums of large they have given fact that from J.) ¶Deck Greenwald (Kollar-Kotelly, (quoting 2d, at 498 Supp. 251 F. J.) (same). (Leon, 2d, 283-284); Supp. at 858-859 F. 251 App. 47 that national showing record in the is troubling evidence more Even in purchase that contributions the belief exploited actively have parties As contributions. making into donors pressure to protection fluence or explained: one CEO “ side knows. side, the other money to one soft lot of giving you’re ‘[I]f only to giving donors, risk is a there economically-oriented many

For have reports FEC through read may side the other side, because one interests that someone and indicate call lobbyist friendly or a staff side the other to their contributions had has committee a certain before you you sure asks: “Are basically message They’ll get noticed. friends to have want you Don’t side? to one only be giving want to anger subject are If interests your aisle?” of the both sides if a penalty may suffer you fear aisle, need you side other acceptable 1990’s, more it became more [Djuring give.... you don’t also he should so to this person, he gave someone, you saw saying call perspective federal officeholders’ from the The evidence described example, Senator one former For similar. is follows: donations purchased nonfederal influence “ right thought is not what first often, Members’ ‘Too fundraising. affect it will they believe, but how or what $100,000do- that a seriously contend all, can after Who, way about—and thinks one not alter does nation you don’t . When . . issue? on—an votes possibly quite you will your campaigns, finances piper that pay the piper. Since money from get more never you want politics, never ofmilk money mother’s is the Supp. 2d, at 251 F. situation.’” be J.) of former Sen. (quoting declaration (Kollar-Kotelly, Deck), (hereinafter App. Simpson ¶ Simpson Alan J.) (same). (Leon, 811); Supp. 2d, at 251 F. (“‘The J.) majority of (Kollar-Kotelly, id., at also See for business parties do so contribute to who those Congress Members influential gain access reasons, to ” Decl., (quoting Hickmott Members’ new get to know and to soft-money federal 46)). donors By bringing ¶A, Exh. nec- “[p]arties are thus together, and officeholders candidates object whose contributors some essarily instruments party candi- message or to elect party’s support the not is to specific candi- support a to rather board, but dates across or even issue, one position on narrow aof sake date for the obliged to the contribu- be who will support to candidate 451-452. S., at II, 533 tors.” Colorado in- of an evidence without concrete argue that Plaintiffs actually switched has officeholder federal a in which stance specific instance where (or, presumably, evidence a vote switched), has Congress was public believes vote corruption. But apparent exists real shown there J.) Id., (Kollar-Kotelly, 510 at opponent.’.” person’s to or the give you (Leon, 2d, 868 715); at Supp. F. 12, App. ¶ Decl. Randlett (quoting J.) (same). contrary. soft The evidence connects to the the record is leading manipulations legislative calendar, money of the to generic among things, Congress’ enact, to other failure legislation. See, drug legislation, reform, tort and tobacco J.); (Kollar-Kotelly, Supp. id., at 852 g., 2d, at 482 e. 251 F. (declaration (Leon, J.); App. 390-894 Sen. John McCain (hereinafter Decl.)); App. (Simpson McCain ¶¶5, 8—11 10) (“Donations industry Republi- ¶ from the tobacco Decl. just legislation, as contributions cans scuttled tobacco reform”); stopped App. lawyers tort to Democrats the trial 13-14). (declaration ¶¶ Paul Simon To of former Sen. change legislative claim do not outcomes that such actions process. surely legislative misunderstands plaintiffs corruption importantly, conceive of too nar- More rowly. firmly Congress’ le- have established Our cases beyond preventing gitimate simple cash- interest extends corruption curbing “undue influence on an for-votes appearance judgment, influ- and the such officeholder’s Many “deeply supra, II, at ence.” 441. Colorado disturbing examples” corruption cited this Court Buckley, justify lim- contribution S.,U. at FECA’s buying, that vari- episodes of but evidence its were not vote given corporate donations to ous interests had substantial Buckley, gain high-level government officials. See access to supra. if that 5-6, Even 2d, 839-840, 36; 519 F. nn. at n. certainly gave the influence, it access did not secure actual supra, 441; at II, “appearance of influence.” Colorado such 2d, 838. see also 519 F. at replete similar present

The record in the cases peddling examples party committees access of national large exchange federal candidates and officeholders Supp. 2d, 492-506 soft-money 251 F. See donations. J.).' put (Kollar-Kotelly, it: former Senator As one large of soft give amounts “‘Special interests who objec- money their political parties do in fact achieve to Sitting special Senators They get tives. do access. time, but limited amounts have Members House and with meet to in their schedules time available they make wealthy indi- and and unions business representatives These parties. large to sums their gave who viduals of democ- philosophy the about chit-chats not idle are to benefactors pressed their are racy. . . Senators . legis- legislation, block to to amend legislation, introduce way.’” Id., in a legislation certain vote lation, and J.) former (quoting declaration (Kollar-Kotelly, at Deck), (hereinafter Rudman ¶ 7 Rudman Warren Sen. J.) (same). (Leon, 742); Supp. 2d, at F. App. party com- six national practice that this pervasive is So for opportunities menus own their actually furnish mittees prices increased soft-money donors, with to would-be access example, the For level access. reflecting increased an starting with options, range of donor offers DCCC up going and program, Forum $10,000-per-year Business program. Board Finance National $100,000-per-year to the calls bimonthly conference donor entitles The latter leadership chair House Democratic with the fundraising all DCCC invitations complimentary DCCC, lead- House Democratic with the private dinners events, two with retreats two Members, and ranking ership and Telluride, Col- chair and DCCC leader House Democratic 504-505 at Id., Massachusetts. orado, Hyannisport, (describing records J.); id., at (Kollar-Kotelly, also see re- meetings President with indicating offered that DNC (describing donations); RNC’s id., at 502-503 large for turn NRSC); (same for id., at 503-504 programs); donor various NRCC). (same (same DSCC); id., at 504 id., at 500-503 greater access offer programs donor Similarly, “the RNC’s larger, grow donations office holders to federal offered personal access most highest level fur- (finding, Id., 500-503 money largest donors.” soft of- of access prospect holds out ther, the RNC encourages soft-money donations to attract ficeholders 152 accord, donors); soft-money with large to meet

officeholders J.). (Leon, id., 860-861 at candidates ties that close and evidence this Despite Kennedy have with their parties, Justice officeholders

and to the interest only pre- limit regulatory Congress’ would corruption pro quo or quid actual apparent vention of the to, contributions made directly in” contributions “inherent in made of, and behest expenditures at express made Post, or candidate. officeholder with, a federal coordination or donation of expendi- other 298. Regulation to the relationship size, its recipient’s of regardless ture — candidate on a candidate’s officeholder, its impact potential ex- and its unabashed candidate, or to the election, its value would, to according Jus- intent to purchase plicit influence — view This crabbed of bounds. be out simply Kennedy, tice of corrup- of the appearance and of particularly corruption, the realities sense, and common tion, ignores precedent, this record in litigation.48 fundraising exposed political cases, see, Colo g., e. recent our finding support no In addition to pro broadly quid than more II, corruption S., (defining at 441 533 U. rado (same), JUSTICE Missouri, S., at 528 U. Shrink arrangements); quo contri Kennedy’s regulating to Buckley Congress limits contention There, upheld FECA’s we Buckley itself. ignores ato candidate butions candidates, political contributions $25,000 yearly aggregate limit on $1,000 that FECA’s recognition committees, out of committees party could if individuals meaningless would be contributions on candidate limit party.” political to the candidate’s contributions “huge make instead Election Federal v. Assn. Likewise, Medical S.,U. at 38. California $5,000 on contribu limit (1981), FECA’s Comm’n, upheld we 453 U. S. say answer It is no committees. political to multicandidate tions using from individuals preventing as a means justified limits were such FECA’s to circumvent pass-throughs as committees parties FECA’s Given to candidates. contributions $1,000 individual limit on $5,000 $25,000 restricted “contribution,” limits definition com and political to parties funds available and amount of only the source contributions, the source amount but also candidate make mittees non- numerous other advocacy and express engage available funds prohibited First Amendment If indeed expenditures. coordinated latter, the otherwise- fund the contributions regulating Congress (e. limit ag., strict parties pass-throughs exploitation easy-to-remedy Amend- First interpretation of the Kennedy’s Justice sub- more powerless to address Congress render would ment as trou- corruption. Just dispiriting forms equally tle but quo pro quid democracy as classic functioning bling to issues decide will danger officeholders is the corruption constituencies, but of their or the desires merits not on according large finan- made who have those the of to wishes if it oc- Even officeholder. valued cial contributions influence undue potential for such occasionally, the only curs transac- straight cash-for-votes unlike And is manifest. practical easily nor detected corruption is neither tions, such identify is to prevention of means best The to criminalize. forth set evidence temptation. remove to disquieting reams sampling of the is but above, which convincingly demonstrates record, in the contained evidence carry with parties soft-money to contributions that temptation. just such them viewa narrow too takes likewise Kennedy Justice only those that He corruption. asserts appearance he which potential,” corruption “inherent

transactions justify candidates, directly to to contributions again limits ap- will stem conduct regulating the “that the inference In our 297-298.49 Post, at corruption.” real pearance ignore historical required to Congress is not however, view, conduct view practice or to particular regarding evidence politic! ¡be mere sure, To context. from its in isolation is insufficient influence alone opportunity favoritism it is demonstrates, record As the Ibid. justify regulation. federal access have sold parties which manner in contributions) would candidate to fund be used that could on donations legislation. for such overbroad justification have insufficient provided Ken Justice reasoning,” “flawed our describing point, At another nedy appear- regulating interest Congress’ suggest seems to actually contributions those “create. only extends corruption ánce of Post, 299-300. officeholders.” ... among . .. favoritism donor corrupt stemming interest Congress’ render would This formulation latter preventing its interest indistinguishable corruption appearance actual corruption. ap- given to the that has rise officeholders

candidates (and, Implicit as the record undue influence. pearance of sugges- explicit) is the in the sale of access shows, sometimes surprise money buys It no then influence. is tion that they unabashedly are admit that access purchasers of such just It was not unwar- purchase such influence. seeking to selling Congress of access to conclude that ranted corruption. appearance gives to the rise Congress’ support is evidence sum, In there substantial to na- large soft-money contributions determination that give corruption political parties appear- rise tional corruption. ance of §323(a)’s Spending Restriction

2. FECA New Receiving Money Soft 323(a) contend Plaintiffs and The Chief Justice subjects it all funds raised impermissibly because overbroad hard-money parties source spent by to FECA’s national and spent example, on including, for funds limits, amount and office no federal is which purely state and local elections dissenting). Post, C. at 353-354 stake.50 at J., (Rehnquist, pose or asserts, “little activities, Such Chief Justice The corrupt... and officehold potential candidates federal no opinion). (dissenting observation This Post, ers.” at 323(a), 323, of like the remainder point. beside the Section dem As the record regulates contributions, not activities. relationship office federal close between onstrates, it is the means parties, as the as well the holders and national relationship, that have parties traded on have which that, claim, assert party plaintiffs political this support In of (30% of the nonfed- of funds 2001, $15.6 million nonfederal the RNC spent activity, local election on state and year) purely amount raised that eral to state candidates, transfers local to state and contributions including (statement of 102-103 Tr. Oral Arg. See of spending. and direct parties, J.); (Henderson, 2d, Burchfield); Supp. 251 F. at 336-337 R. Bobby counsel J.). J.); id., (Leon, id., at 830 (Kollar-Kotelly, at 464-465 parties national soft-money contributions large all made suspect. “ separation meaningful ‘[t]here is no noted, expert oneAs of- public and party committees national between 468-469 Supp. 2d, at F. them.’” who control ficials 29). The J.) Expert Report (quoting Mann (Kollar-Kotelly, by, run are both major parties two committees national and candidates. officeholders of, composed federal largely and major par- two of the committees national six Indeed, entirely federal officeholders. composed are ties, four of- and federal parties national between nexus Ibid. to conclude: I’s framers of Title prompted one ficeholders the national operate parties the national “Because of- with federal inextricably intertwined level, are money for the raise the who candidates, ficeholders close connection ais committees, there party national cor- parties and national fimding of the between money federal on dangers soft rupting [soft- way this to address only effective process. The entirely rais- all ban corruption is to money] problem parties.” money national soft ing spending of (statement 2002) Rep. (Feb. Cong. H409 Rec. Shays). of interests, large connection alignment

Given this close likely parties are national soft-money contributions part of fed- apparent indebtedness create actual ulti- are funds how those regardless officeholders, eral mately used. parties in placed national also has affiliation close

This exchange for in officeholders federal to position sell access to its for party then use can that the soft-money contributions most is the officeholders federal purposes. to Access own give to able are party committees the national valuable favor that officeholders fact The large exchange donations. for that either indicates time valuable donating comply by their soft-money con- value place substantial officeholders or that use, end regard to their themselves, without tribution control considerable to exert able are committees national (Ex- g., App. 1196-1198 See, e. officeholders. federal over (herein- University) Green, Yale R Report of Donald pert (“Once of- legislative to elected Expert Report) after Green political in which environment an public enter officials fice, subse- to crucial resources control parties-in-government par- power. Political legislative quent success electoral committee make that legislative caucuses organize the ties (Krasno Report) Expert Sorauf App. & assignments”); sig- prospects are reelection (indicating officeholders’ that leadership). party nificantly attitudes influenced party soft-money national large to way, donations Either to access buy preferential likely donors are to committees con- which their to matter the ends no officeholders federal above, put. discussed, Con- eventually As are tributions regulate appearance grounds to gress had sufficient practice. The with this Govern- associated influence undue par- corruption, and preventing strong interests ment’s corruption, sufficient are thus appearance ticular parties to the national subjecting all donations to justify of FECA.51 limitations amount, and disclosure source, to their candidates of federal officeholders relationship close The 323(a), about Chief Justice’s concerns The only not parties answers bespeaks remaining provisions §of 323’s analysis fear our but his also forth As set Post, opinion). (dissenting 355-356 limiting principle. no ties close record demonstrates provisions, of those discussion in our committees of their and local state federal officeholders between parties local effective makes state and relationship That close parties. and officehold federal candidates desiring corrupt conduits donors (f), only fact (d), not on the 323(b), rely we §§ Thus, in upholding ers. federal influencing activities used fund contributions they regulate of, to, or at behest they regulate contributions elections, but also agree We corruption. as conduits serve uniquely positioned entities con financial regulate could Chief Justice Congress with on the sole editors newspaper hosts or talk show tributions

157 §S23(a)'s Soliciting on Restriction FECA New 3. Money Directing Soft §323(a)’s na- on prohibition that also contend

Plaintiffs soft-money contri- directing soliciting or parties’ tional so- The reach substantially overbroad. is butions only bars It limited. however, is prohibition, licitation and party committees money national of soft solicitations The committees capacities. their official officers in by party well behalf, as money own their on to solicit hard free remain and committees of state money behalf on hard to solicit hard contribute They can also candidates.52 local and state money accord- In to candidates. state to committees of national furthermore, officers regulations,, FEC with ance ca- individual money in their free solicit soft parties are parties, in state officials they are also or, if pacities, (2002). 49083 Reg. Fed. capacity. See sensibly follows solicitation limited restriction This receiving soft committees’ prohibition on national from approve the led us money. observations The same regarding same conclusion compel us to reach the latter favorably respond likely to is committee A national former. whether regardless request at its made a donation Post, at candidate. on the conferred activities their basis benefit opinion). (dissenting money soliciting forstate hard option Plaintiffsclaimthat state one, prohibit States since several illusory is an local candidates accounts, which campaign multiple establishing local from candidates federal accounts establishing separate them preclude would (Dec. Op. A-91-448 Advisory Praets. Comm’n Cal. Fair Pol. funds. See §2(3); Code XXVIII, Iowa Const., 772902; 16, 1991), Art. WL Colo. (Anderson §3517.10(J) Supp. (2003); §56.5A Ann. Ohio Rev. Code 323(a) laws state 2002). these combines maintain that Plaintiffs hard-money receive local candidates it for state and make impossible one, and on a facial considering is are we challenge But donations. States 323(a) that a handful The fact permits its face solicitations. solicita for such has chosen Congress with the mechanism might interfere challenge. as-applied in an be addressed may tions argument is an entity. This another itself or committee recipient appears elsewhere sense and with common accords principle 201(b)(2) § (prohibition on g., C. U. S. E. laws. federal anything of seeking] . . “demanding] [or] . officials public (em- entity person ...” any or or other personally value (restriction (2003) 2635.203(f)(2) § on added)); 5 CFR phasis any gifts “[g]iven to encompasses employees gifts federal organization, on the including charitable person, other specification or other recommendation, designation, of basis employee”). over- itself demonstrates argue that BCRA Plaintiffs par- They 323(a)’s point § ban. solicitation of breadth of- 323(e), and candidates federal which allows ticular money from of soft limited amounts to solicit ficeholders Compare 2 certain circumstances. under donors individual II). §441i(a) §441i(e) differences (Supp. S. C. U. 323(a) 323(e), constitu- §§ are without however, and between ‘differing recognized that “the significance. We have tional require ‘may entities purposes’ different of and structures integrity protect the regulation in order to forms different ” S., Right Work, 459 U. process,’ National the electoral proceed in incre- Congress’ respect decision we 210, and regulation, see campaign finance steps area in the mental Citizens Massachusetts v. Comm’n Election Federal (MCFL); (1986) Buckley, 258, n. Inc., 479 U. S. Life, provi- two between The differences at 105. S.,U. the func- judgments about Congress’ reasonable reflect sions be- the interactions and played committees national tion subjects which about officeholders, and committees tween knowledge. vastly superior Congress have Members §323(a)’s Parties Application to Minor 4. New FECA contend political party plaintiffs The McConnell 323(a) stricken substantially must be overbroad speech infringes impermissibly it face its because parties rights associational of minor such as the Libertarian owing which, prospects Committee, National to their slim they large for electoral success and the fact that receive few soft-money corporate pose contributions sources, no comparable corruption posed by threat to that the RNC Buckley, rejected argument and DNC. In we a similar con- cerning minor-party limits candidates, on contributions to noting attempt “any parties to exclude minor inde- pendents en from the masse Act’s contribution limitations minor-party may overlooks the fact that candidates win elec- impact office or tive have a substantial outcome an on the recognized S., election.” at 34-35. haveWe thus avoiding that the appar- relevance of the interest actual corruption legislators ent is not a function of the number of given party manages applies to elect. It as much to a party manages only minor to elect one itsof members major party to federal office as it does to a whose members up majority Congress. make of It is therefore reasonable require parties to that all and all candidates follow the same designed set of protect integrity rules of the elec- process. toral 323(a) § nothing prevents

We add in individuals from pooling party. Post, resources to start a new national at 289 concurring judgment part dissenting J., in and (Kennedy, part). Only organization gained when an has sta- official significant tus, whichcarrieswithit members, benefitsforits 323(a) § proscriptions will the apply. then, Even a nascent struggling or party bring minor as-applied challenge can an 323(a) § prevents if “amassing it from the resources neces- sary advocacy.” effective Buckley, supra, at 21. §323(a)’s

5. New FECA Associational Burdens 323(a) Finally, § plaintiffs assert is unconstitutional impermissibly because it ability with interferes na- tional committees associate with state and local commit- By way tees. example, plaintiffs point Republican to the whereby concert acts in RNC Victory Plans, imple- plan and given of a State local committees and state pro- electioneering fundraising and joint, full-ticket ment (declaration Pesch- of John 693, 694-697 App. grams. See (describing the Reg. Dir. Political ong, Western RNC Plans)). parties assert Victory Republican Victory RNC Plans 323(a) any participation in § outlaws engag- and merely sitting at a table down including officers, money will decisionmaking how soft about ing in collective bur- associational spent. Such and received, solicited, be Amendment great for the First argue, too they are dens, to bear. hinges it argument because persuaded this not

areWe “spend,” reading terms unnaturally broad on an §441i(a) (Supp. C. U. S. “solicit.” “direct,” and “receive,” 323(a) national prohibits II). Nothing face individual or acting official in their party officers, whether party com- local sitting with state down capacities, from raise how advise plan and candidates mittees or does party officer long the national money. As spend soft money, soft direct, solicit spend, receive, personally election- joint planning 323(a) range permits a wide principal draft- Intervenor-defendants, activity. eering as much. legislation, concede proponents of ers et al. McCain John Sen. Intervenor-Defendants Brief for (“BCRA and candi- parties leaves p. 22 al., et 02-1674 No. politi- activities, plans campaign and to coordinate dates free another”). one goals fundraising with messages, and cal 323(a)’s § are consist- terms definitions current The FEC’s (de- (2002) §300.2(m) e.g., 11 CFR See, with that view. ent (emphasis person” another . . . fining “to ask as “solicit” person who 300.2(n) ask (defining “to added)); § “direct” to make ... a contribution to make expressed intent an has interme- through a including conduit .. . that contribution 300.2(c) (laying § the factors added)); out diary” (emphasis entity will to be an be considered whether that determine committee). by a national controlled meaning straightforward provision, of this

Given Jus- “[a] party’s is incorrect that national mere Kennedy tice strategic planning fundraising for a in the involvement developing or its assistance state ballot initiative” state Levin-money fundraising finding efforts risks a party’s ” “ party control’ the state the officers are ‘indirect subject penalties. Post, Moreover, to criminal 289. 323(a) § entirely party free leaves national committee officers capacities, participate, and local in their official state soliciting spending parties hard and candidates may money money; party solicit soft in their officials also capacities. unofficial reject plaintiffs’

Accordingly, First Amendment we 323(a). challenge to new FECA §323(b)’s

New FECA Restrictions on State Party Local Committees campaign constructing finance In a coherent scheme of regulation, Congress given recognized the close ties that, party committees, and state between federal candidates activity would on national committee BCRA’s restrictions rapidly re if and local committees become ineffective state donations,53 mained available as a conduit soft-money 323(b) designed to foreclose wholesale evasion Section §323(a)’s curbing anticorruption sharply state measures soft-money large ability committees’ to use contributions 323(b) straight influence The is a federal elections. core of regulation: prevents donors from forward contribution It Even finance reform acknowledged opponents campaign “a alone to national committees prohibition money party of soft donations Campaign would Reform: wholly be ineffective.” Constitution Committee on Rules and Administra Hearings on S. 522 before the Senate (2000) (statement Burchfield, tion, R. Sess., Bobby 106th 2d Cong., Partner, & Covington Burling).

162 party com local contributing funds to state nonfederal activity.” 2 help “Federal election finance to mittees II). §441i(b)(l) elec (Supp. “Federal The term C. U. S. categories of elec encompasses activity” four distinct tion days (1) during activity 120 registration tioneering: voter (2) voter election; regularly scheduled federal preceding a campaign (GOTV), generic get-out-the-vote identification, with an in connection vity54 that is “conducted acti election appears on office for Federal a candidate in which (3) to that “refers “public any communication”55 ballot”; “pro Federal clearly for office” candidate identified a “opposes” a candidate “supports,”, “attacks,” or motes,” (4) commit provided a state the services office; and her of his 25% or more than employee who dedicates tee election.” with Federal to “activities connection time §§431(20)(A)(i)-(iv). explicitly several excludes The Act public communica activity categories this definition: contribu candidates;56 solely nonfederal that refer tions political local candidates;57 state tions nonfederal campaign grassroots materials conventions; and the cost only state candidates. bumper refer stickers that like statutory §431(20)(B). fall within All activities §441i(b)(l). money. hard must be funded definition 323(b)(2), Amendment, carves Levin so-called Section general A rule. refinement exception to this an out pay for certain permitted parties regime pre-BCRA funds, the and nonfederal federal mix with a activities than a rather political party activity promotes campaign Generic II). 431(21) (Supp. § 2 U. S. C. candidate. specific any broad by means communication is “a communication public A ad outdoor communication, magazine, newspaper, cast, cable, satellite or or public, general telephone bank or facility, mailing, vertising mass 431(22). advertising.” _§ public general other form of registration, voter constitute does not So the communication long as 431(20)(B)(i). activity. campaign identification, GOTV, generic voter activity. federal election earmarked contribution is Unless the 431(20)(B)(ii). party committees and local Amendment allows state Levin activity with an types pay certain of federal for election to money is, funds”—that and “Levin ratio of hard allocated person. per $10,000 raised within an annual limit of funds 441i(b)(2). cap § Except and $10,000 cer- for the S. C. prevent of that to circumvention related restrictions tain 323(b)(2) § regulation to contributions of such limit, leaves States.58 ways. scope limited in two Amendment is the Levin money parties to fund can use Levin state local First, and (1) (2) only categories within activities that fall activity namely, voter definition of federal election statute’s — activity, drives, GOTV registration voter identification campaign generic 2 U. activities. S. C. drives, §441i(b)(2)(A). qualify: Levin And not all of these activities pay that refer activities funds cannot be used they office”; like- clearly for Federal “a identified candidate unless communications cannot be to fund broadcast wise used they “solely clearly candidate for State identified refer to a 441i(b)(2)(B)(i) (ii). §§ or local office.” — portion of the allocated

Second, funds and both Levin money must be raised pay for such activities hard used spends them. entirely or local committee the state §441i(b)(2)(B)(iv). party a state committee This means that party other commit- funds transferred from cannot use Levin portion tees to cover the Levin ftmds of a Levin Amendment party expenditure. It also means that a state committee . money party cannot hard transferred from other commit- use hard-money portion tees to cover the of Levin Amendment expenditure. Furthermore, committees, federal national may generally not so- candidates, and federal officeholders state committees, licit Levin behalf of ftmds on state up may not Levin funds. committees team raise allocation setting FEC gives responsibility The statute 300.33(b) (2003) § 441i(b)(2)(A); (defining ratio. alloca 11 CFR see also ratios). tion hard raise however, can, jointly 441i(b)(2)(C). They expenditures. Levin to make used

money Underlying New Interests 1. Governmental 323(b) FECA the problem addressing that, noting We begin both committees, Congress state contributions soft-money conclusion, Its a prediction. made drew conclusion corrupting was it, before evidence on the based into itself insinuate does money soft influence committees. party national through solely process avenue alternative as an function Rather, state committees can- both Indeed, forces.59 corrupting same the for precisely the reached who have donors ask already and parties didates commit- state to donate contributions direct limit on their there was as evidence much as at least There tees.60 59 noted: Senator former One “ to elect helps do parties and local state of what much is that ‘The fact it; know it; candidates know the parties national candidates. federal use soft can parties and local it. If state know parties and local state the will not elections, problem the then federal that affect for activities money money will the to raise incentives enormous The same all. at be solved wealthy unions, and by corporations, contributions large exist; same the state benefit who candidates made; federal the bewill individuals are; benefactors their whom exactly know will funds use of these party distor- arise; the same will obligation of beholdenness degree same cynicism public occur; the same will process legislative tions worse will all be it democracy except of our foundations will erode — again once undercut was reform perceived because mind public’s in the 2d, Supp. F. 251 system.’” into money big allows by loophole 746). 19, App. ¶Deck J.) Rudman (Kollar-Kotelly, (quoting at (“ uncom J.) . not is .. ‘It (Kollar-Kotelly, 2d, at 479 Supp. F. E.g., 251 state various touch donors interested put RNC mon for the federal or her his has reached donor when a occurs This often parties. contributions additional to make RNC, wishes but to the limits dollar Josefiak, Chief RNC Thomas declaration (quoting party’” the state (quoting S., II, at 308)); also Colorado see 68, App. ¶ Counsel informing fundraising letter 1996, 27, Aug. Allard’s Wayne Congressman “ contribute directly can you of what limit are at ‘you recipient in- made with the have been such donations Buckley that gaining influ- effect—of some cases in at least tent —and 323(b) pro- Section thus officeholders.61 over federal ence confronting by interest important governmental an motes soft-money politi- donations to corrupting influence already parties have. cal Having taught prediction. been

Congress amade also history of cam- the entire of circumvention lesson hard soft-money Congress do- regulation, knew that paign finance 323(a) by scrambling to find another react to . would nors novel nor im- purchase was “neither way influence. It Congress Missouri, S., 528 U. plausible,” Shrink 323(a) political parties would react to conclude committees, soft-money to the state directing contributors just as indebted to would be that federal candidates they had for- been to those who had these contributors parties. accord merly We “must to the national contributed judgments predictive of Con- to the substantial deference Broadcasting System, FCC, Inc. 512 U. S. gress,” v. Turner (1994) particularly here, (plurality opinion), when, as 622,665 history firmly in relevant predictions are so rooted those corrupting activity Preventing from shift- common sense. ” “ assisting my campaign by further “you help but can my campaign,’ 2d, ”); (Kollar-Kotelly, 454 251 at Party’ Supp. Republican the Colorado .F. accom- (“ soft its J.) have found ‘Both spending money political parties smoothly, their state to work money through parties hard match panying simply readily acknowledge they state officials are part, for the most and direct the broadcast ads or “pass throughs” providing to the vendors 1510-1511)). Expert Report App. mail’” (quoting Magleby 61 that, do in for a substantial exchange Senate found Report The 1998 candidates, state arranged nation committees DNC Democratic 1 President federal officials. with the and other meetings for the donor id., id., 43-44; 2907-2931; That same 1998 Senate at at 7519. Report casinos operated American that Report also how Native tribes detailed to state committees soft-money made sizable contributions Democratic id., id., 44-46; influence. at 3167- apparent for access exchange Men, Deck, 3194; Busy I Back-Door (Weisskopf, see Exh. also McCain 40). Time, 31,1997, Mar. p. thereby eviscerat- committees to state ing wholesale governmental important an clearly qualifies as ing FECA interest. §32S(b)’s Tailoring FECA 2. New might legitimate interest argue if some even that

Plaintiffs un- are § restrictions 323(b), provision’s served be considered be cannot and therefore burdensome justifiably objectives. the Government’s to match “closely drawn” prop- of this support contentions three main They advance substantially provision argue they that First, osition. con- no pose that activities it federalizes because overbroad corrupt federal appearing to corrupting or risk ceivable Amend- Levin argue that the they Second, officeholders. on the associational burden unconstitutional imposes an ment pro- argue that they Finally, parties. rights they need amassing the resources prevents them vision points these advocacy. address We engage in effective in turn. Activity §323(b)’s Election to Federal Application

a. 323(b) brand § a new represents assert Plaintiffs electioneering regulation of state-focused pervasive federal corrupt appear to corrupt possibly that cannot activities Congress’ beyond goes well thus federal officeholders proc- electoral federal corruption of the about concerns disagree. We ess. affect 323(b) activities captures some

It is true are these But offices. campaigns for nonfederal state by the already covered were sorts activities same funded be had to thus rules, and pre-BCRA allocation FEC’s as well federal they affect money, because part hard (2002). practical aAs 106.5 11 CFR See state elections. the FEC’s principles merely codifies matter, BCRA adjusting justifiably time same regime at the while allocation to restore in order activities to these applicable the formulas statutory ap- efficacy longtime of FECA’s restriction — proved by allocation re- and eroded FEC’s Court party gime and local committees contributions to state —on influencing See 2 purpose federal elections. for the of §§431(8)(A), 441a(a)(l)(C); Buckley, 424 see also S. C. U. aggregate (upholding $25,000 limit on S., at 38 FECA’s committees); political cf. contributions to candidates Comm’n, Assn. v. Federal Election Medical California (1981) (upholding $5,000 limit on contribu- U. S. FECA’s committees). tions multicandidate 323(b) § premised Congress’ I, Like the rest of Title is on large putting judgment capable a that if a donation is fed- poses contributor, eral candidate in the it threat debt appearance corruption corruption. we ex- or the As 323(b) plain narrowly regulating below, contri- focused on greatest corruption: pose this kind butions that risk of parties those local that can used contributions to state and be directly. regu- candidates Further, to benefit federal these reasonably temporal tailored, lations all are with various designed regulations limitations substantive to focus the important anticorruption interests be served. We 323(b) countering closely drawn conclude is a means appearance corruption corruption. both and the activity,” categories of election The first two “Federal §301(20)(A)(i), registration voter efforts, and voter identifi- generic campaign cation, GOTV, activities conducted §301(20)(A)(ii), clearly election, connection with federal capture activity that benefits federal candidates. Common party’s “undisputed” below, sense dictates, and it was that a sympathetic directly register party efforts to that voters party’s Supp. assist office. candidates federal 251 F. J.). (Kollar-Kotelly, equally 2d, at It is clear that federal reap rewards efforts that candidates substantial registered like-minded voters who increase the number of 168 (“‘[The evi 459 g., id., at e. See, polls.62

actually go to the mobilizes campaign that a clearly that quite dence] shows produce a will precinct Republican highly aof residents state both for candidates Republican votes of harvest federal mention campaign need A offices. federal and a voting such on effect a direct to have candidates effect direct activity has a campaign [G]eneric candidate.... 14)). Report Expert (quoting Green elections’” federal on campaign congressional major four Representatives “ non- ‘transfe[r] and they federal that confirmed committees for’” committees party local and/or state funds to federal that activities, and GOTV and registration voter both of election on the effect significant a have “‘[t]hese efforts (citations 459, 461 Supp. 2d, F. 251 candidates.’” federal omitted). officeholders federal quite that clear makes also record parties that local state contributions grateful for

are 459 id., at See GOTV-type efforts. into converted be can Party Democratic thanking a California (quoting a letter registration and GOTV voter noting CDP’s donor Californian the number help “‘increase would efforts “‘deliver Congress’” and States United in the Democrats ” Presiden- Democratic to the votes’ electoral California’s candidate). tial GOTV,and identification, voter registration, voter Because on benefits activity substantial all confer campaign generic creates activities funding of such candidates, federal corruption. Section apparent risk actual significant Its contribution response risk. 323(b) is a reasonable registration voter the subset are focused limitations prospects likely election to affect activity most days be- within activity occurs candidates: federal drive registration voter if the And election. federal fore GOTV necessary precondition ais identification voter Since equal obviously apply funding regarding GOTV findings program, efforts. identification voter funding force state com- candidate, a federal specifically mention does not Amendment’s the Levin advantage of take can mittees restrictions. source relaxed limits higher contribution II). Similarly, the con- 441i(b)(2)(B)(iHii) (Supp. §§C. U. S. §301(20)(A)(ii) tar- activities applicable to limits tribution generic cam- GOTV,and identification, voter only those get in election an connection “in occur that paign efforts ballot.” the appears on office Federal for a a candidate which implementing §431(20)(A)(ii). Appropriately, C. 2 U. S. all categorically excluded has FEC subsection, the this when runup elections during to the place takes activity that commit- Furthermore, state at stake.63 office is federal no higher Amendment’s the Levin advantage of take can tees 301(A)(20)(i) § fund limits contribution a mention specifically not 301(A)(20)(ii) do that § activities §§441i(b)(2)(B)(i)~(ii). The 2 C. U. S. candidate. federal with these money connection soft use of prohibition on sufficiently to meet closely drawn therefore is activities corruption and avoiding interests governmental important appearance. its a candi- attack or promote communications” “Public elec- “Federal category of third federal office—the for

date undoubtedly dra- have a §301(20)(A)(iii) activity,” tion —also prime a were ads Such elections. federal on effect matic motivating Sen- 3 1998 See passage. BCRA’s behind force (“[TJhe Collins) (additional ate of Sen. views Report 4535 cam generic identification, other GOTV, voter respect With those §323(b) only to apply interpreted FEC has activity, paign fed to the access deadline filing earliest after the conducted activities Janu after primaries, conduct do not or, in States ballot eral election 100.24(a)(1) activi (2002). Any § CFR years; even-numbered ary exempt completely are periods those outside ties conducted pre challenge does course, 323(b). facial § Of this under regulation fact constitutionality. But regulations’ FEC question sent to narrow reasonably FEC basis provides this statute over- of facial claims plaintiffs’ §301(20)(A)(ii) question calls into further (1973). Oklahoma, 601, 613 Broadrick S. v. See breadth. twin evidence overwhelming

hearings provided have advertising issue money bogus of soft loopholes us laws, leaving finance our campaign destroyed virtually rubble”). As explained legal than pile more with little attacks that promotes communication below, any public the elec- affects directly candidate federal identified clearly score this record ishe participating. in which tion overwhelming Given more abundant. be scarcely could defined communications, carefully of public tendency we candidates, federal to benefit 301(20)(A)(iii), directly § to such 323(b)’s caps contribution hold that application anticorruption to the drawn is also closely communications address.64 it intended interest activity,” election of “Federal final for the category

As in preventing interest Congress’ find that 301(20)(A)(iv), we the re- 323(b)’s justifies other restrictions §of circumvention funds federal local spend that state parties quirement 25% of than more spending of employee the salary any pay in connection on activities time his or her compensated 64 §301(20)(A)(iii)is unconstitu argument reject We likewise “attack,” “support” “oppose,” “promote,” The words tionally vague. must speakers party potential which confines within set forth clearly ex “provide words These the provision. avoid triggering to act order of ordi person and “give apply who them” for those standards plicit is prohibited.” to know what opportunity reasonable a intelligence nary (1972). is 104, 108-109 partic This S. 408U. Rockford, City v. Grayned of presumed are by parties political taken here, since actions the case ularly S.,U. at 424 Buckley, See campaigns. with election connection be in disclose committees political requirement a general 79 (noting “politi the term because problems vagueness no raised their expenditures under the that are organizations encompass only committee” “need cal the nomination or of which purpose major of candidate control “are, expenditures committee’s and thus election of a candidate” related”). feel that Furthermore, plaintiffs should definition, campaign by for opinions advisory able to seek are they guidance, further they need doubt thereby any “remove 437f(a)(l), C. clarification, 2 U. S. see v. Comm’n law,” Service Civil meaning as to bemay there (1973). 548, 580 Carriers, U. S. Letter party provision, a this In the absence election. a federal equivalent a full-time money pay for the might soft use simple electioneering, by the engaged in federal employee multiple among dividing workload the federal expedient of us to for suggested no reason have employees. Plaintiffs Accordingly, give we “deference provision. this strike down [this] need congressional [the] determination Ac- Political National Conservative prophylactic rule.” Comm., S., at 500. tion by Imposed the Levin Burdens Associational

b.

Amendment 323(b) be- is unconstitutional also contend Plaintiffs unjustifiably associ- burdens Amendment cause the Levin forbidding by transfers among party committees ation money to among transfers of hard parties, Levin funds state expenditures, and Levin portion of federal fund the allocable recog- parties. We fundraising state joint of Levin funds preserving importance of past, the nize, have in as we g., parties. See, e. freedom the associational California (2000); Eu v. San Party Jones, 530 U. S. Democratic v. Comm., 489 U. S. County Central Democratic Francisco (1989). parties’ other- every minor restriction But not di- ability of constitutional associate is wise unrestrained 11. mension. See Colorado n. II, S., 533 U. parties local matter, note that state and an initial we

As altogether forgoing burdens can avoid these associational pay option electing federal Amendment the Levin money. entirely But with hard election activities raising use, transfer, on the event, the restrictions justifiable measures. anticircumvention Levin are funds among state Levin funds ban on transfers of Without the $10,000 readily the circumvent could committees, donors by Levin account to a committee’s limit on contributions committees to various multiple making $10,000 donations to the committee transfer the donations that could then undergirds goal the anticircumvention The same choice.65 re- this Without Levin funds. joint solicitation ban on organize “all could and local committees striction, state corporate, or union individual, which fundraisers hands” divided soft-money be large donations make could donors purpose, if not case, the In committees. the between §323(b)(2)'s thwarted: be would $10,000 limit letter, of the at fund- large, contributions visible make Donors could corrupting fed- ready provide means would raisers, which interconnected delicate the Given eral officeholders. burdens associational here, at issue regulatory scheme out- are far restrictions by Amendment imposed Levin the entire prevent circumvention by weighed need scheme. 323(b)(2)(B)(iv)’s prohibition on the apparent

Section commit- or money by state, local national, a of hard transfer sepa- hard-money a portion of help allocable fund tee to presents expenditures Levin local committee’s rate state II). §441i(b)(2)(B)(iv) (Supp. C. question. U. S. a closer pre- necessary to restriction defends The Government committee, a national particularly committee, donor vent the con- money to wrest of federal leveraging the transfer Levin recipient committee’s spending of trol over given particularly weak, purported interest This funds. 323(a) attempts national already polices fact S. C. 2 See engage behavior. in such parties con- §323(a)’s to entities §441i(a)(2) (extending restrictions committees). associ- However, party by national trolled hard-money restriction transfer posed burdens ational Party committees, minimis. de as to be are insubstantial so to transfer free remain committees, party including national complex seemingly in such engage would that donors Any doubts See n. Buckley itself. evidence by the record rest put are scheme efforts regarding findings Appeals’ supra the Court forth (setting officials). White House meeting obtain producers of milk Levin long fund as it is used money not so hard unlimited can thus party committees local and State expenditures. money activi- Levin to their “homegrown” hard all dedicate defray the costs transfers relying outside on while ties strong anticir- hard-money expenditures. Given other 323(b)(2)(B)(iv)’s § restric- vindicated interest cumvention strike down will not funds, we of Levin transfer on the tion claim of upon attenuated such an provision based entire infringement. associational §323(b)’s Ability Impact Parties’ on FECA New

c. Advocacy Engage in Effective 323(b) § unconstitutional is Finally, plaintiffs contend soft-money to state contributions on restrictions because its engaging prevent them from will party committees local Kollar-Kotelly Judge noted, the advocacy. As in effective impact on regarding BCRA parties’ evidence political analy- on based “speculative is their revenues campaign history of Supp. If the 2d, 524. at sis.” 251 F. anything, is proves it above regulation discussed finance extraordinarily adapting flexible parties are Moreover, fundraising abilities. on their new restrictions 323(b) § may amount reduce the relative the mere fact federal parties to fund money local state available inconsequential. The question largely election activities is 323(b) funds available is not the amount whether reduces previous cycles, is “so radical but it over election whether [the below recipient’s] voice drive the effect as to ... sound If Missouri, S., 528 U. 397. Shrink level of notice.” showing, as- parties can make such indeed or local state applied challenges available. remain 323(b), closely face, its accordingly

We conclude important governmental interests drawn to match the corruption. preventing corruption appearance of §323(d)’s Solicitations on Parties’ Restrictions New FECA Organizations Tax-Exempt to, and Donations for, party 323(d) local state, and national, prohibits Section “solicit- subsidiaries, from agents or committees, their and any directing] donations” mak[ing] any or ing] or for, funds 501(c) § Internal of the any organization under established to, expenditures in connection makes Code66 Revenue organizations any political office, and federal election for an committee, a political § “other than 527 under established party, political or the aof district, local committee State, or or for State a candidate committee of campaign authorized II). §441i(d) District (Supp. The 2 S.U. C. local office.”67 We reverse face. provision on its down struck Court on ban 323(d),narrowly construing § the section’s uphold and not raised only of funds donation apply donations compliance with FECA. §323(d)’s Regulation Solicitations New FECA 1. of §323(d)’s solicitations on ban defends The Government activity pre- political as engaged organizations tax-exempt of contributions Title limits venting I’s of circumvention party committees. state, local money national, soft history of Con- entirely reasonable. justification That well demonstrates campaign finance reform gress’ efforts at of the limits parties test donors, and “candidates, 66 tax exempted from 501(c) generally groups are organizations Section 501(a). § These S. C. 26 U. Code. Revenue Internal ation under as as well organizations, 501(c)(3) and educational § charitable include 501(c)(4) groups. § social welfare 501(c) orga groups, are, unlike organizations” “political Section activity. partisan engaging of purpose the express nized for fund, association, organiza or other committee, They any “party, include primarily operated (whether organized incorporated) tion or not making or contributions accepting indirectly directly or of purpose to influence attempting “influencing or purpose expenditures” any individual election, selection, nomination, appointment 527(e). U. S. C. State, office.” Federal, public or local II, Absent S., at 457. law.” Colorado current commit- local national, state, party provision, solicitation their for- to mobilize incentives have significant would tees the peddling including apparatuses, fundraising midable like-minded service of officeholders, into federal access to benefiting activities that conduct tax-exempt organizations appearance All corruption their candidates.68 those fundraising on the operation attendant corruption at the behest made Donations follow. would apparatuses be regarded almost certainly would committees party as bene- alike officeholders donors, and federal officials, party Yet, soliciting its well as candidates. the party fiting would the parties organizations, to third-party the donations as its limitations, well and amount source avoid FECA's (Hender- 2d, at 348 251 F. Supp. See restrictions. disclosure that, prior J.) demonstrating declarations son, various (citing disclose did not BCRA, tax-exempt organizations most 68 tax-exempt organizations many targeted of the The record shows pur for the electioneering activities and effective sophisticated engage cam elections, waging broadcast including influencing federal pose of conducting candidates and attacking particular or promoting paigns GQTV instance, the during For and drives. registration voter large-scale National NAACP’s campaign, 2000 Presidential final weeks of the hot 200,000 GOTV promoted a people, than more registered Voter Fund direct several made mailings. ads, ran three line, print newspaper J.). (Henderson, 2d, reports The NAACP 348-349 Supp. 251 F. at voters African-American out one million additional program turned in New by 22% targeted groups among over 1996 and increased turnout effort, cost which York, Florida, Ibid. and 140% Missouri. 50%in an from million million, $7a contribution primarily $10 was funded P. Donald Id., cross-examination anonymous (citing at 349 donor. 3; Trs. on Pub. 15-20, Refiling I Defs. Green, Exh. see University Yale J.) id., (same); 851 (Kollar-Kotelly, at Record); 2d, 522 Supp. 251 F. at J.) J.) in 2000 (Henderson, id., (Leon, (same); (stating at 349 also see (NARAL) League Action Reproductive Rights National Abortion (citing decla voters pro-choice 2.1 million spent $7.5 mobilized million and 271-272, 24)); P., ¶ App. NARAL ration Exec. V. Mary Gallagher, Jane (same). J.) 2d, (Kollar-Kotelly, 251 F. 522 Supp. at 176 (Kollar- contributions); 521 id., at or amount source (same). J.)

Kotelly, that Con- law demonstrates the current Experience under hypo- merely are not circumvention gress’ about concerns created incentives added Even without thetical. unreg- already solicit parties and local national, state, I, Title for tax-exempt organizations soft-money donations ulated activity. electioneering federal supporting purpose of (“In to direct 4013 addition Report g., e. 1998 Senate See, 3 groups, the senior nonprofit the RNC contributions many funds for helped to raise leadership RNC (minority id., at 5983 organizations”); nonprofit coalition’s views) other con- advocacy’ groups and (“Tax-exempt ‘issue federal to circumvent systematically used were duits (Kollar- laws”); Supp. 2d, at F. campaign finance J.). (Leon, candidates J.); Parties id., Kotelly, “politician advantage of so-called begun take also have soft-money fronts more than are little 527s,” which their inter- officeholders federal particular promotion of J.) every (“‘Virtually (Kollar-Kotelly, id., at 519 See ests. position his leadership has Congress in a formal member found Citizen all, In Public group. ... own 527 her own 527s’” their Congress who have members of current Congressional Watch, Congress Citizen (quoting Public Campaign Fi- Need Money Show Accounts Soft Leaders’ Supp. 2d, at 6)); p. 2002, 251 F. Feb. Bills, nance Reform J.). quite successful (Leon, been have These 527s 849-850 corporate in- money from soft raising sums of substantial at parties themselves. national from well as terests, as J.) 27 (finding indus- that (Kollar-Kotelly, 519-520 id., at See year single to $100,000in over donated had each tries single was DNC that groups top politician 527 (citing Cit- Public groups politician 527 to largest contributor 10-11)); at Supp. 2d, 251 F. supra, at Congress Watch, izen J.) (same). tighter restrictions (Leon, BCRA’s Given for money, incentives soft spending of raising and only increase. will organizations exploit such to parties closely to drawn 323(d)’s restriction solicitation Section organiza- tax-exempt using parties from political prevent an abso- Though as phrased surrogates. soft-money as tions sub- nothing than more does restriction prohibition, lute regulatory to FECA’s parties solicited ject contributions solicita- opportunities leaving open substantial regime, organi- these support of activity in expressive other tion 323(d) § solicita- obviously, restricts most First, and zations. expenditures 501(c) “mak[ing) groups § only those to tions Federal an election with in connection disbursements or §527 organi- II), §441i(d)(l) to (Supp. C. S. office,” U. partisan engage in by definition zations, which 527(e). parties re- § Second, 4411(d)(2); § C.S. 26 U. activity, §501(c)’s ato hard-money contributions to solicit free main already §527 organizations well as to as PAC, federal 323(d) to parties § allows Third, PACs.69 qualify as federal direct ways than other organizations qualifying endorse example, with For donations. unregulated solicitations ad- from prohibited 501(c) are § organizations respect to hard-money donations solicit parties can ministering PACs, donating these purpose express for the themselves Finally, with 180-181. organizations. infra, See by party 323(d) solicitations way restricts § 323(a), § in no C. capacities. 2 S. acting individual in their officers and donations 441i(d) to solicitations (extending § restrictions district, state, 323(d)(2) permit has interpreted FEC Notably, the organizations §to 527 donations solicit committees party and local candidates, and local PACs, only state support state-registered are fed with in connection or disbursements expenditures make that do not (2003). determined 300.37(a)(3)(iv) agency 11 CFR eral elections. respect léast with committee” —at “political interpretation that this funda BCRA’s consistent district, local committees —was state, in connection being used money soft prohibiting mental purpose (2002). Reg. 49106 67 Fed. elections. with federal any such agent acting on by or officer made “an of behalf added)). (emphasis party committee” §323(d)’s plaintiffs solicitations, on ban challenging In 323(a)’s § so- respect they to made with argument renew 323(e), § squared with be it cannot licitation restrictions: solicit to officeholders candidates federal which allows organiza- tax-exempt money soft to limited donations Compare 2 activities. engage federal election tions §323(d)’s §441i(e)(4). §441i(d) restric- ifBut U. S. C. they ren- not valid, are are othérwise tions solicitations Congress chose fact the mere unconstitutional dered stringently group as of another regulate the activities S., Right Work, might National See it have. as 641, 656-657 Morgan, 384 U. S. v. Katzenbach 210; see also provi- (1966). the two between difference event, the In party offi- national explained the fact fully sions able officeholders, are candidates cers, unlike federal organizations in nonprofit money on behalf soft solicit 323(e), designed which is capacities. Section individual their speech in- associational the individual accommodate lending personal and officeholders terests candidates content, tight places organizations, also nonprofit support to money of soft on solicitations restrictions source, and amount limits, those Given and officeholders. by federal candidates greater review, rigorous standard less as well 323(d)’s 323(e) § re- solicitation § not render do allowances facially invalid. striction §823(d)’s Donations Regulation New FECA

2. party and local 323(d) state, national, prohibits also Section donatio[n]” “any directing making or committees 2 U. S. C. 501(c) organizations. qualifying II). again §441i(d) defends (Supp. Government agree in- We measure. anticircumvention as an restriction money. Absent soft prohibits the donation of as it sofar could party committees local restriction, state such directly accomplish pre- restrictions what the antisolicitation doing raising large indirectly namely, them from sums vent — organizations money tax-exempt through to launder of soft party engaging in Because the federal election activities. raising potential collecting funds, the itself would be corruption greater. would be We will not dis- that much Congress’ loophole, turb reasonable close that decision to already particularly given demonstrating a record robust an practice parties making Supp. 251 such See F. donations. J.). (Leon, (Kollar-Kotelly); id., 2d, at 517-518 at 848-849 prohibition The does concerns if read to raise overbreadth party’s e., restrict donations from a account—i. funds federal already compliance with that have been raised in FECA’s source, amount, and Parties have disclosure limitations. many tax-exempt organizations, giving valid reasons to is to not the least which associate themselves certain espoused doing, and, causes in so to demonstrate values by party. complete prevents parties A ban on donations making “general expression support” from even the that a represents. Buckley, S., contribution At the 21. already prohibiting parties donating time, same funds from compliance raised in with FECA does little to further Con- gress’ goal preventing corruption appearance or the of cor- ruption of federal candidates officeholders. necessary that the restriction is Government asserts prevent parties leveraging money gain their hard tax-exempt money. group’s

control over a soft if Even we accepted justify rationale, limit, it would at most a dollar any legitimate cap- not a flat Moreover, ban. concerns over time are diminished the fact that the set forth restrictions 323(a) (b) §§ party apply only committees, but 441i(a)(2) to entities under their control. See U. S. C. (extending party “any prohibitions on national committees entity indirectly directly established, financed, is (em- maintained, or such a national committee” controlled party (same §441i(b)(l) local added)); for state phasis committees). to sustain require us however, not, do observations These §323(d)’s restriction. challenge donation facial

plaintiffs’ Congress is drawn validity an act “When constitutionality is doubt serious question, and ... first as- will Court that this principle is a cardinal raised, it possi- fairly of the statute a construction whether certain v. Ben- Crowell may avoided.” be question by which the ble Barry, U. S. (1932); v. Boos also see 285 U. S. son, 769, n. (1988); Ferber, 458 S. York v. New 312, 331 prob- constitutional obligation to avoid (1982). our Given §323(d)’s only apply to to ban narrowly construe lems, we FECA. with compliance raised funds not of donations animating the concerns is consistent construction This loophole. soft-money plug the purpose is to whose I, Title history regarding BCRA legislative little Though there 323(d) § specifically, nothing on almost generally, and regarding cam- Report Senate in the identified abuses organiza- nonprofit use involve the practices paign finance g., See, e. soft-money large donations. as conduits tions (“The that the indicates evidence Report 3 1998 Senate campaign abuses many fueling soft-money loophole is money supplied also Soft by the Committee.... investigated tax-exempt to contributions to make parties used funds pay for election- to funds used in turn groups, which “egre- (describing as an activities”); id., at 4568-4569 related of nonfed- donation million examplfe]” $4.6 misuse gious Reform, which Tax to Americans by the RNC eral funds opera- phone bank and mail spent on “direct organization have advertising”). We anti-Republican to counter tions about, much concerned Congress was that evidence no found already money prohibit, donations it intended less focus exclusive Title I’s Given FECA. fully regulated expect if Con- money, would we to soft related abuses and §323(d)’s dramatic this to have restriction gress meant say constitutionally questionable explicitly. it would so effect, nothing compels us to conclude that there is Because transfers of federal to include Congress intended “donations” an infirmities money, such because of the constitutional and 328(d) § read interpretation raise, would we decline political parties or direct remain free make way. Thus, organization money any tax-exempt that has donations otherwise, compliance with FEC A. been raised in §323(e)’s on Federal New A Restrictions FEC Candidates and Officeholders 323(e) § soliciting regulates raising FECA New money and officeholders. federal candidates soft II). 441i(e) (Supp. prohibits candidates It federal U. S. C. receiving], directing], “solicit[ing], officeholders from money transfer[ing], spend[ing]” in connection soft 441i(e)(l)(A). limits the It also with federal elections. ability solicit, re- of federal candidates officeholders money spend in connection transfer, or ceive, direct, soft §441i(e)(l)(B).70 with state local elections. 323(e)’sgeneral prohibition admits on solicitations

Section exceptions. instance, federal candidates For of a number speak, a permitted “attend, or be and to officeholders are fundraising party event. guest” state featured at a or local 323(e) §441i(e)(3). provides specifically 2 U. S. Section C. 323(e)(1)(B) ability federal tightly constrains the of candidates Section with spend money in connection and officeholders to solicit or nonfederal analogous state or local Contributions cannot exceed FECA’s elections. ef In hard-money prohibited limits or come from sources. contribution 323(e)(1)(B) fect, § to on individuals can doubles the limits what contribute officeholders, restricting or while of candidates and the behest federal federal elections. activities not related to use of the additional funds to If or local or is also a candidate for state federal candidate officeholder office, receive, of solicit, may spend and an unlimited amount he or she election, only subject to state money in connection nonfederal or refer regulation expenditures solicitation requirement and the such 441i(e)(2). § only 2 U. S. C. to or local office. the relevant state may solicita- make officeholders and candidates that federal 501(c) primary § organizations whose money to soft tions ” activities] as in “Federal election engage purpose is to not will specify how the funds does long the solicitation as 501(c) § 441i(e)(4)(A); organizations § to spent, S. C. be ac- engage in “Federal election purpose primary is to whose individu- are limited long tivities]” the solicitations as as year per $20,000 exceed does not 4411(e)(4)(B); solicited the amount als and 501(c) § or- S. C. per individual, U. ac- carrying such purpose of out express for the ganizations exceed does not solicited again long the amount as so tivities, 441i(e)(4)(B). individual, 2 U. S. C. per per year $20,000 constitutionality of seriously questions the party No money di- made §323(e)’s soft general on donations ban agents, officeholders, their rectly candidates to federal on the them. Even or controlled established or entities restricting dona- regulation Buckley, a reading of narrowest to which regardless of the ends candidate, to a tions federal qualifies contribution ultimately put, as are funds those scrutiny. have donations rigorous Such subject to less limit only marginal at the same value, but speech and associational severing By corruption. pose threat a substantial time soft-money donor between link direct the most money §323(e)’s of soft ban donations candidate, federal appearance corruption prevent closely drawn officeholders. corruption federal candidates justified 323(e)’s are on solicitations restrictions Section soft-money dona- Large measures. valid anticireumvention give rise all behest or officeholder’s tions at candidate’s made posed contributions corruption concerns same Though the candi- or officeholder. directly candidate to the spent, the are funds ultimately control how may not date is evi- or officeholder candidate donation value some Without itself. solicitation fact of from dent office- and candidates federal solicitations, on restriction by so- limits easily FECA’s contribution avoid holders could to sources restricted and large donors from liciting funds activi- election engaging federal organizations like-minded passage before even demonstrates, record theAs ties. already had officeholders and candidates BCRA, federal well parties, as local and to state soliciting donations begun own, as help their to order organizations, tax-exempt II, 533 Colorado See cause. electoral party’s, their aswell Congressman fundraising letter (quoting S., at 458 U. “ of what limit at the ‘you are contributor to explaining ‘you can but my campaign,’ to directly contribute you can Republi- assisting Colorado campaign my help further J.) (Kollar-Kotelly, 479-480 Supp. 2d, ”); at F. Party’ can soliciting funds officeholders federal (surveying evidence J.) (same); (Leon, id., at id., at parties); and local state office- federal J.) (surveying evidence (Kollar-Kotelly, electioneering pur- for nonprofits soliciting funds holders so, do J.) (same). incentives (Leon, id., at 849 poses); tax-exempt organiza- respect solicitations with least rais- on restrictions I’s Title with only increase will tions, local and state, national, money soft spending of ing and parties. accommo while 323(e) concerns these addresses Section rights of associational speech and dating individual an place than Rather officeholders. candidates federal organizations, tax-exempt solicitations outright ban money.2 soft solicitations limited 323(e)(4) permits individ 441i(e)(4). accommodates allowance This U. S. C. nonprofit members as active long served have who uals capacities. individual official both their organizations 323(e)(3) tradi preserve 323(e)(1)(B) §§ Similarly, by providing officeholders fundraising of federal role tional officeholders candidates federal opportunities limited through colleagues local state and their to associate §§441i(e)(l)(B), C.S. fundraising activities. joint sub as the as well many exceptions, 441i(e)(3). these Given by dona- posed appearance corruption or its stantial threat officehold- and candidates of federal behest at the to tions or uphold accordingly 323(e) We clearly § constitutional. is ers, challenge. 323(e) Amendment plaintiffs’ § First against on State §323(f)’s Restrictions FECA New Candidates Officeholders 323(f). § FECA new I is of Title provision The final 323(f) pro- II). generally 441i(f) (Supp. Section §C. U. S. local or or office, state or local state for candidates hibits “public com- money fund spending soft from officeholders, 301(20)(A)(iii) a communi- § e., defined munications” —i. candidate Fed- for clearly identified to a “refers that cation for supports a candidate promotes or that office . .. and eral office.” for that opposes candidate a or or attacks office, 431(20)(A)(iii). Exempted from this §441i(f)(l); § C. S.U. with connection made communications are restriction only refer which office or local for state an election expendi- making the officeholder or or local candidate state local or state same any candidate other or to ture 441i(f)(2). § office. money that 323(f) cap amount on the places no Section Rather, activity. spend on can or candidates local state only and amount 323(b), 323(a) the source §§ limits it like on can draw candidates local that state contributions directly elections. impact federal expenditures that fund “public fund used only contributions by regulating And, 323(f) narrowly soft- those § focuses communications,” corrupt or potential to greatest money donations candi- corruption federal appearance give rise to the officeholders. dates against arguments principal two advance Plaintiffs argument, rejected 323(f). already first We have FECA new “public communications” definition overbroad. unconstitutionally vague and 301(20)(A)(iii) plaintiffs’ and Justice only that, add supra. We 64, n. See notwithstanding, post, 316- reading contrary Kennedy’s local candidate state prohibit not does provision this officehold- federal received advertising he has endorsement.71 er’s soft-money contributions argument, second do “public communications” candidates and local state ignores candidates, both corrupt federal to corrupt appear or strong interest Congress’ litigation and this record contribution valid of otherwise circumvention preventing driven has ads issue sham proliferation limits. soft-money explosion. every possi- sought out have Parties They money: soft with ads these produce and way to fund ble re- allocation FEC’s bring under them to labored have money na- soft transferred and they raised gime; have advantage of favor- take to party committees to state tional solicited and they transferred have ratios; and allocation able ads. of such production organizations for tax-exempt to funds prediction eminently reasonable Congress’ upset not willWe and available, state longer no avenues with these other that, con- the next become will officeholders candidates local advertising. funding issue sham soft-money for duits Amend- 323(f) plaintiffs’ First against § uphold therefore We challenge.72 ment (statement Feingold) 71 2002) of Sen. (Mar. 20, Rec. S2143 Cong. 148 See ad run money non-Federal “spending 323(f)

(Section prohibit not does en been have candidates] local or [state that mention vertisements position they identify with say that or candidate by a Federal dorsed sup do advertisements candidate, those long as so Federal a named candidate”). Federal oppose or attack, promote port, “Title Kennedy confront “unwillingness” our faults Justice plan,” protection incumbency like an very much look[s] entirety . . . I’s greater and candidates officeholders 323(e), provides § which citing offi (d) 323(a) party permit §§ money than soft solicit opportunities and, 323(e) officeholders both But, applies Post, 307. at cers. solicita for opportunities minimally greater only allows candidates officeholders, unlike candidates the fact regard tion out of 183; Supra, roles. official of their step out officers, never can party opportunistically might Congress 441i(e). Any concern S. C. B plaintiffs Congress’ I Title Several contend that exceeds authority governing Election to “make alter” rules Clause impairing elections, Const., I, §4, and, Art. federal U. S. regulate authority elections, of the States their own principles of In examin- violates constitutional federalism. infirmity ing congressional under Tenth enactments Amendment, this has focused on laws Court its attention carrying that commandeer and state the States officials regulatory out federal schemes. See Printz v. United (1997); States, States, New U. S. 898 York v. United (1992). By only regu- I contrast, U. S. 144 Title of BCRA private parties. imposes require- lates the It no conduct upon officials, ments whatsoever or state and, States because expressly pre-empt legislation, it does not state it leaves financing States free to enforce their own restrictions on the campaigns. of state I, electoral It is true that Title prohibits fundraising amended, some tactics oth- that would permitted erwise be States, under laws various may financing that it have an on therefore indirect effect campaigns. of state electoral But these indirect effects do not render BCRA It is uncommon for unconstitutional. prohibit private legal federal law to conduct in some that g., Buy- See, States. e. United States v. Cannabis Oakland pass ac- campaign-finance regulation self-serving ends is taken into scrutiny. Congress count level must show concrete applicable evidence a particular type corrupting that of financial transaction is gives rise to the and that the chosen means appearance corruption closely regulation are drawn address that real or apparent corruption. Kennedy bottom, It At long disagreed has done so here. Justice has holding Buckley that rigorous the basic its less scru- progeny of deference in an where tiny Congress shows a measure area —which it contri- enjoys particular campaign to assess limits expertise applies— II, (Thomas, butions. Colorado S., J., dissenting) (joining “Buckley Justice for the should be overruled” proposition Thomas Missouri, (citation J., omitted)); Shrink S., (Kennedy, 528 U. at 405-410 dissenting). (2001). Cooperative, 532 Indeed,

ers’ U. S. 483 such conflict areas is inevitable in of law that involve both state and fed- It is not in eral concerns. and of itself a marker of constitu- infirmity. parte tional (1880). Siebold, See Ex 100 U. S. maintaining system course,

Of the federal envisioned just prevent Founders, this Court has done more than Congress commandeering We have States. also policed congressional power the absolute boundaries of under United, Article I. See (2000); Morrison, States v. 529 U. S. 598 (1995). Lopez, States v. United 514 U. S. But plaintiffs Congress offer no reason to believe that has over- stepped power enacting its Elections Clause BCRA. Congress fully legitimate maintaining has interest integrity preventing corruption of federal officeholders and processes through of federal electoral the means it has cho- analysis sen. finding Indeed, our above turns on our satisfy those interests are sufficient to First Amendment scrutiny. finding, Given that we cannot conclude that those ground interests Congress’ are insufficient to exercise its (re- power. Elections supra, Clause See Morrison, at 607 spect owed to coordinate branches “demands that we invali- congressional only date a upon plain showing enactment bounds”). Congress has exceeded its constitutional

C Finally, plaintiffs argue equal pro- I Title violates the component tection of the Due Process Clause of Fifth Amendment because it against parties discriminates special favor groups of interest such as the National Rifle Association, American Civil Liberties Union, and Sierra explained Club. As imposes earlier, BCRA numerous re- fundraising strictions on political parties, abilities of of which soft-money only ban is prominent. In- the most groups, terest money however, remain soft free to raise to fund registration, mailings, voter activities, GOTV electioneering (other communica- advertising than

broadcast not does disparate treatment tions). this that We conclude the Constitution. offend actually favors BCRA that we note matter, As an initial obviously, party com- ways. many Most parties political that contributions individual receive are entitled mittees to non- contributions on limits substantially FECA’s exceed $25,000 give can committees; individuals political party give maximum they can whereas party committees political addition, In political committees. nonparty $5,000 candi- to contribute effect are entitled party committees ex- those expenditures, making coordinated dates limits contribution may greatly exceed penditures II). §441a(d) (Supp. S. C. See U. apply donors. to other fully entitled Congress is however, importantly, More parties between differences real-world consider the campaign fi- system of crafting a groups when and interest S.,U. Work, 459 Right to National regulation. See nance candidates slates groups not select do Interest at 210. serve will who determine do not groups Interest elections. leadership, or congressional elect committees, legislative influ- have parties Political legislative caucuses. organize vastly exceeds Legislature in the power ence hardly surprising it result, is group. As any interest voters by which way primary party affiliation special ac- have parties in turn identify candidates, or that Con- officeholders. relationships with federal to and cess may account regulation campaign finance gress’ efforts equal plaintiffs’ seriously, Taken differences. salient these just Title question call into arguments would protection FECA pre-existing structure much BCRA, but I of arguments. reject those therefore We as well. Court District judgment

Accordingly, affirm the we 323(f). 323(e) reverse §§ We upheld as it insofar

189 invalidated it insofar Court District judgment 323(d). 323(b), 323(a), §§

> Campaign Ex- “Noncandidate BCRA, entitled II of Title “Electioneering subtitles: into two is divided penditures,” Ex- “Independent and Coordinated Communications” of these challenged section each consider We penditures.” in turn. subtitles “Electioneering ’s

BCRA Definition ” Communications comprehensively amends §201, II, Title The first section file de- political requires committees 304, which FECA The amend- reports FEC. with the periodic financial tailed communications,” “electioneering term, a new ment coins disclosure narrowing of FECA’s construction replace the Buckley. As discussed adopted provisions this Court coverage of limited the construction below, that further expressly requirement to communications disclosure FECA’s particular candidates. advocating or defeat the election “electioneering is communication” By contrast, the term “broadcast, cable, encompass limited, is defined so but communication” or satellite clearly for Federal

“(I) candidate identified to a refers office;

“(II) made is within—

“(aa) special, or elec- days general, runoff before a or sought by candidate; the office tion for “(bb) preference election, primary days a before party has of a or caucus a convention or authority sought office candidate, for the to nominate candidate; and “(III) refers to which of a communication in the case or Vice President than office other an candidate electorate.” relevant targeted to the President, II).73 434(f)(3)(A)(i)(Supp. §C. U. S. commu- a 304(f)(3)(C) provides that § further FECA New it if electorate’” relevant “‘targeted to the is nication dis- the persons” in more or 50,000 received “can be C. represent. U. S. to seeks candidate State or trict 434(f)(3)(C). '§ amend- definition, BCRA’s this setting forth In addition require- disclosure significant § specify to FECA

ments electioneering communications. persons fund who for ments to the however, limited not, is term new of this use BCRA’s (BCRA §203, Act of section A later context: disclosure 316(b)(2)) and corporations’ § restricts FECA amends which electioneering communications. funding of unions’ labor term constitutionality new of the challenge the Plaintiffs expenditure the disclosure both applies in it as contexts. use challenge to BCRA’s plaintiffs’, premise major of Buckley is that “electioneering communication” the term

of express advo- between constitutionally line mandated a drew possess speakers advocacy, and that cacy issue so-called latter engage in the right Amendment First inviolable an Congress can- maintain, plaintiffs Thus, speech. category of expend- regulate of, or constitutionally require disclosure making without “electioneering communications” for, itures not meet do “communications” exception those an advocacy. express Buckley’s definition decisions, prior our misapprehends position That statutory endpoint advocacy was an restriction express In law. constitutional principle of a first interpretation, not “electioneering communi “backup” definition provides BCRA also “held were definition primary if the effective cation,” become which would support judicial decision by final constitutionally insufficient be _ 434(f)(3)(A)(ii). uphold We § S. C. herein.” provided regulation no occasion have accordingly definition .primary applications all backup definition. discuss 608(e)(1) examining S. C. began then-18 U. Buckley we “ IV), (1970 expenditures ‘relative which restricted Supp. ed., we found that candidate,’” clearly identified ato ” “ vague. 424 impermissibly S.,U. to’ was phrase ‘relative vagueness deficiencies concluded that We 40-42. at 608(e)(1) reading only by as limited to “be avoided could advocacy explicit words of that include communications Id., pro- We at 48. candidate.”74 defeat election “ advocacy, ‘vote express as such examples of words vided ” id., ‘reject,’ [and] ‘support,’ ‘defeat,’ .. . ‘elect,’ for,’ eventually gave examples rise to what 52, and those n. requirement. “magic words” now known provisions, includ- disclosure FECA’s considered We then 431(f) (1970 IV), § Supp. which defined ed., ing 2 U. S. C. ” “ money assets or other ‘expendítur[e]’ include the use of to ” “ influencing’ a election. federal purpose of . . . ‘for the Finding “ambiguity of Buckley, that the S., at 77. 424 U. problems,” ibid., we noted posed phrase” “constitutional this if be done statute, that can “obligation the to construe our purpose, legislature’s to avoid the shoals with the consistent omitted). vagueness,” id., (citations “To insure 77-78 at of requirement im- was “not reach” of the disclosure that the purposes ‘expenditure’ construe[d] permissibly we broad, way terms we construed the in the same of that section 608(e) that only used for communications funds reach —to clearlyidéñti- the election defeatofa expressly advocate omitted). Id., (footnote 80 fied candidate.” Buckley plain reading makes that the ex- clear Thus, a press expenditure advocacy and the limitation, in both the

74 that, construed, not restriction did expenditure We then held so the interest, express independent advance a because government substantial line did advocacy danger apparent corruption, a of real or pose easily was express advocacy electioneering between and other activities 608(e)(l)’s bur Amendment heavy circumvented. First Concluding that S., Buckley, 424 U. justified, den was not we invalidated the provision. at 45-48. interpreta- statutory product of was the contexts,

disclosure narrowly In command.75 constitutional than a rather tion problems Buckley to avoid in provisions reading the FECA suggested that nowhere overbreadth, we vagueness and re- be would vague nor overbroad neither was statute we did advocacy Nor express line. the same quired toe (1986), we in which S. 238 MCFL, 479 U. suggest much limitation expenditure FECA another scope of addressed express ad- Buckley's understanding that confirmed statutory construction.76 product of category was vocacy advocacy concomi- express concept of short, In to avoid anof effort born were magic words tant class Bishop v. Catholic NLRB See infirmities. constitutional (1979) Murray (citing v. Schooner 490,500 Chicago, 440 S.U. (1804)). long We have Betsy, Cranch Charming “ ” “ a rule ‘never formulate tenet ‘rigidly adhered’ precise required is than broader law of constitutional ” Raines, v. applied/ United States be it is to which facts (citation omitted), “[t]he (1960) nature 17, 21 S.U. actu- the case to consider us judicial constrains review Georgia, 501 Distilling v.Co. B. Beam us,” James ally before (Blackmun, concurring). (1991) Consistent X, 529, U. S. Buckley MCFL our decisions principle, they no us; language before statutory specific were fixed boundary forever way a constitutional drew 75 our with was consistent construction narrowing aof adoption Our 613; Broadrick, S., at 413 U. See doctrines. and overbreadth vagueness S., at 108-114. 408 U. Grayned, ed.) (1982 76 §441b C. U. S. —re in MCFL —2 at issue The provision funds, rather segregated separate to use and unions corporations quired “'in connection made expenditures moneys, on treasury general than ” Buckley had that noted S., We at 241. 479 U. a federal with’ election. ' ” “ advocacy express to words statutory ‘expenditure’ term limited We held S., at 248. 479 overbreadth.” problems to avoid order “in limitation expenditure to the apply must construction” “a similar that §441b was therefore C. 2 U. S. reach of that in MCFL us before added). (emphasis S., 249 at 479 U. advocacy. express constrained

193 campaign-related scope provisions regulating permissible speech. that of our precedents, persuaded, independent are we

Nor express between a barrier erects rigid Amendment First notion cannot That issue advocacy. so-called advocacy pres- recognition our longstanding be squared distin- meaningfully cannot words absence of magic or ence Buck- ad. See a true issue electioneering speech guish from the lesson Indeed, the unmistakable at 45. supra, ley, District on the as all three judges in this litigation, record is requirement magic-words is that Buckley’s agreed, Court (Hen- 2d, 303-304 at 251 F. Supp. meaningless. functionally id., 875-879 J.); at id., (Kollar-Kotelly, at 534 derson, J.); line by evade J.). easily advertisers (Leon, Not can only seldom would words, but they use magic eschewing And although even if words permitted.77 such use choose to vote the viewer not urge do advertisements the resulting are no words, they many in so a candidate for or against Buckley’s the election.78 to influence intended less clearly “ 77 advis testified, rarely ‘it is consultant major-party one As against.’”” “vote for” or as “vote clumsy words use able to such L. Bai J.) Douglas (Henderson, declaration (quoting 2d, at Supp. F. 3). explained: 1-2, He ¶ App. & Assoc. founder, Bailey, Deardourff ley, “ adver most effective understand advertising professionals ‘All it forcing without conclusion her own to his viewer leads the tising J.). (Henderson, polit Other 2d, at 305 Supp. ” 251 F. down their throat.' has words use of magic confirm and academics ical professionals J.) (citing declara id., at 531 (Kollar-Kotelly, an anachronism. See become 4, 9 Defs. Strother/Duffy/Strother ¶ Pres., Strother, Raymond D. tion of (Krasno & 7; Vol., App. Tab 1334-1335 40); Pp. Exhs., Tab see Unsealed (Henderson, J.); 2d, at 305 Supp. 251 F. also Report); see Expert Sorauf id., (Leon,-J.). id., J.); 875-876 at (Kollar-Kotelly, for Re called group “Citizens an ad example striking One race, in which congressional Montana during the form” sponsored The ad stated: a candidate. Bill was Yellowtail swing family but took values preaches He Bill Yellowtail? “‘Who.is But “her slapped her. only He response? Yellowtail’s at his wife. And a con- . . but is himself order . law talks He nose was not broken.” legislative aided advocacy short, has line, in express Congress corruption, and apparent real combat effort to existing in the found it the flaws to correct BCRA enacted system. §304(f)(3),s definition FECA new

Finally we observe vague- none raises “electioneering communication” Buckley. The term analysis in that drove our concerns ness (1) broad- only to a applies “electioneering communication” office, (2) for federal identifying candidate clearly cast (4) targeted to period, and (3) specific time aired within or listeners. 50,000 viewers least of at identified audience an objectively easily understood components both are These 408 U. S. City Grayned Rockford, v. See determinable. objection that (1972). constitutional Thus, 104, 108-114 to reach Buckley FECA’s limit to persuaded the Court inapposite here. simply advocacy express Requirements §201’s Disclosure BCRA re- Amendment First rejected notion Having differently advocacy issue Congress treat so-called quires concerns plaintiffs’ other advocacy, we turn express “electioneering communication” term use about the those provisions. Under §304’s disclosure FECA amended total- disbursements any person makes provisions, whenever year the direct during any calendar $10,000 ing than more communications, electioneering airing producing costs identifying the the FEC statement file a he must sharing the costs persons and all pertinent elections (D) (B), (Supp. 434(f)(2)(A), §§ S. C. disbursements. corporation’s from a II). made are If the disbursements children, Yellowtail protecting about he talks though felon. And victed child against voted payments support child own make his failed —then family support him Tell Yellowtail. Bill Call support enforcement. views). (minority Report Senate 5 1998 values.’” discuss purely designed was advertisement this notion credulity. strains family values issue

195 segregated by account,79 labor union’s single or or indi- who has vidual collected contributions from others, the state- identify persons must all $1,000 ment who contributed or during to the account or the more individual the calendar (F). §§434(f)(2)(E), year. The statement must be filed hours of within 24 each “disclosure date”—a term defined subsequent the first to include date and all dates on which person’s aggregate expenses undisclosed for electioneer- ing year. communications exceed $10,000 for that calendar (4). 434(f)(1), (2), §§ pro- and Another subsection further vides that the execution of a contract to make a disburse- purposes ment is itself treated as a disbursement for 434(f)(5). § requirements. FECA’s disclosure argument In addition to the failed that BCRA’s amend- § improperly express ments to FECA 304 extend to both §304’s advocacy, plaintiffs challenge issue amended FECA (1) requirements unnecessarily requiring disclosure disclo- persons $1,000 sure of the names of who contributed or more group paid to the or communication, individual that for a (2) mandating executory disclosure of contracts communi- yet rejected cations have not aired. The District Court accepted finding latter, the former but submission the invalid 304(f)(5), § governs executory new FECA which contracts. Relying severability provision,80 on BCRA’s court held executory invalidation of contracts did subsection

79 below, infra, 203-209, As discussed §203 at BCRA bars corporations and labor unions from funding electioneering money communications with treasuries, their general requiring “sepa instead them establish a §441b(b)(2). rate segregated fund” for expenditures. such 2 U. S. C. 80 Section provides: 401 BCRA “If any provision , of this Act or by amendment made this Act or ... the application a provision circumstance, or person amendment or is held unconstitutional, to be the remainder of this Act and amendments Act, made this application provisions amendment any person circumstance, shall not be affected the holding.” S. C. 454 note. FECA amendments BCRA’s balance render curiam). (per Supp. 2d, F. unconstitutional. important state Court District agree with We uphold Buckley Court prompted interests electorate requirements providing disclosure

FECA’s — avoiding corruption and deterring actual information, necessary to data gathering thereof, and any appearance apply electioneering restrictions — substantive more enforce ap- supports amply Buckley Accordingly, to BCRA.81 full the en- to requirements disclosure 304’s FECA plication of the au- As “electioneering communications.” range of tire opinion concluded per curiam Court’s District of the thors purported concerning the use reviewing evidence after elections: federal influence to ads” “issue the the abuse demonstrates record factual “The labor corporations and only permits present law to designed advertisements fund broadcast to unions do to them permits elections, but federal influence public. the concealing identities their while so organiza- require these provisions disclosure BCRA’s public is able so identities their to reveal tions broadcast funding behind identify source to Plaintiffs’ elections. influencing certain advertisements nothing provisions disclosure BCRA’s for disdain re- challenge BCRA’s Plaintiffs surprising. short on electioneering communications on strictions corpo- spend permitted they be should premise sixty in the treasury funds general union labor rate and §304 FECA §201 added BCRA requirements disclosure requirements comparable than less intrusive somewhat actually are For expenditures. independent making persons long applied that have inde making groups required §304 version of previous example, $200. than more contributed who identify donors expenditures pendent amendments requirement comparable 434(c)(2)(C). The S. C. 2 U. II). (F) (Supp. 434(f)(2)(E), §§ more. $1,000 or donors only to applies days elections broadcast advertise- the federal before speech because candidates, ments, which refer to federal wide-open.’ robust, ‘uninhibited, Mc- needs to be (quoting New York Times Co.v. Br. at Sulli- Connell (1964)). Curiously, 254, 270 Plaintiffs van, 376 U. S. ability to run preserve the these advertisements want to misleading hiding behind dubious names like: while Change’ Working for Real ‘The Coalition-Americans (funded organizations opposed organized business (funded labor), for Better Medicare’ ‘Citizens industry), ‘Republicans pharmaceutical Air’ Clean (funded by Wyly). Findings brothers Charles Sam tactics, these Plaintiffs never satis- ¶¶44,51,52. Given factorily question ‘uninhibited, of how ro- answer wide-open’ organiza- speech can occur bust, and when scrutiny voting from the tions hide themselves public. argument Br. at 44. Plaintiffs’ McConnell striking provisions down disclosure not re- BCRA’s does precious inforce the First Amendment values that Plain- argue trampled by ignores BCRA, tiffs are but the com- peting First Amendment interests of individual citizens seeking to make informed choices in the mar- ketplace.” Supp. at 2d, 251 F. 237. Buckley was also correct that fore-

The District Court provision a facial attack on the new in 304 that re- closes quires persons contributing $1,000 disclosure of the names segregated spend or more to more funds or individuals that year electioneering $10,000 than in a calendar on communica- Like our earlier decision in tions. NAACP v. Alabama ex (1958),82 Buckley recognized Patterson, rel. U. S. 82 NAACP v. Alabama arose of a the NAACP in judgment holding out refusing produce to the names and addresses of its members contempt in Alabama. The NAACP “made an agents showing uncontroverted that identity of its on occasions revelation of the rank-and-file mem past reprisal, bers members to economic loss of exposed employ these ha[d] ment, coercion, hostil- physical public threat and other manifestations

198- impose unconstitutional may an compelled disclosures that particular a support of to associate the freedom burden that contention rejected Buckley Nevertheless, cause. constitutionally not could requirements disclosure FECA’s be- candidates independent parties and minor applied to be obtaining information interest the Government’s cause infringing danger of and the minimal parties was such from NAACP, we Buckley, unlike In rights substantial. their eco- exposed to had been party that found no evidence com- of the a result physical threats reprisals or nomic acknowledged 69-70. We S., at disclosures. pelled ad- however, and future, might arise a case such that apply: then proof that would standard dressed proof requirements of unduly strict recognize that “We that follow it burden, but does heavy a impose could necessary. parties is minor exemption for a blanket in the flexibility sufficient be allowed parties must Minor their fair consideration injury assure proof of only a reason- show need offered The evidence claim. par- aof compelled disclosure that probability able threats, subject them will names ty’s contributors’ offi- either Government reprisals from harassment, or Id., at 74. parties.” private cials or minor resolve standard that used years we later A few constitutionality State challenge party’s First We held requirements. disclosure Ohio’s disclosures compelling States prohibits Amendment harass- “threats, persons subject identified would findings District Court’s reprisals,” ment, and compelled it thought apparent We S., 462. 357 U. ity.” ability its members’ NAACP adversely” the “affect would disclosure admittedly they which to foster beliefs effort collective their pursue “to circum- these Id., Under 462-463. advocate.” to right have the determining whether in interest Alabama’s stances, we concluded justify insufficient plainly was in State business doing NAACP was Id., at 464-466. order. its production

199 of a result.83 such a “reasonable probability” established had (Ohio), Campaign Comm. Workers Socialist Brown v. ’74 (1982). 87, 100 U. S. Buckley’s evi- the District applied Court In this litigation with our conclusion found —consistent and standard dentiary Buckley, evi- in Brown —that and in contrast “reasonable probability” did not establish requisite dence The District its members. harm group of any plaintiff concerns, such had expressed noted that some parties Court about the basis evidence a “lack of it found specific but curiam). (per We 2d, at 247 F. concerns.” Supp. these a blan- that, like our refusal but we note recognize agree, Buckley, our rejection minor parties ket exception indi- to disclose to the requirement facial challenge plaintiffs’ future challenges does not foreclose donors possible vidual of that requirement. applications particular to new also are by plaintiffs’ challenge We unpersuaded of executory disclosure 304(f)(5), requires which FECA communications: for electioneering contracts 83We stated: facts of Buckley test to the properly applied District Court

“The govern both found ‘substantial evidence The District case. Court this Workers [Socialist toward and harassment hostility private and mental (SWP)] introduced Appellees proof and supporters.’ members Party and toward the SWP hostility private incidents specific government incidents, These the trial. years preceding within the its members four States, included threaten neighboring which occurred in Ohio and many of literature, mail, burning destruc of SWP calls hate ing phone candidate, party harassment of a police property, of.SWP members’ tion that in There was also evidence of shots at an SWP office. firing Ohio, members, including trial SWP period the 12-month before con Although membership. appellants party were because of fired their motivated, the evi politically tend of the Ohio were firings that two ‘private hostility conclusion dence the District Court’s amply supports main for them to make it difficult members harassment toward SWP Gov past history also found tain The District Court employment.’ Cam v. Socialist Workers Brown ’74 of the SWP.” ernment harassment omitted). (1982) (Ohio), break (paragraph 98-99 paign Comm. U. S. to disburse “Contracts be person shall subsection, a of this purposes

“For person the if a disbursement having made as treated the disbursement.” to make a contract executed has II). 434(f)(5) (Supp. S. C. purpose the important an serves provision view, this In our to amendments BCRA’s advance. did not Court District person a only when if §304 disclosure mandate FECA any cal- in $10,000 totaling than more disbursements makes Plain- electioneering communications. pay for year to endar amount, rather a use of dollar with the issue not take do tiffs identify time the ads, to or dates number the than electioneering communications paying for person when a question they doNor FEC. to the make disclosures must state- parties’ disclosure contents make the to need the elections. in voters advance curious available ments electioneer- which relatively timeframes short the Given assuring that made, interest the are ing communications provide rel- time promptly and made are disclosures significant. unquestionably to voters information evant based filing statements disclosure fixing the deadline Yet $10,000 exceed aggregate disbursements when date the re- were loophole advertisers significant if open would In the absence executory contracts. disclose quired to preelec- avoid supporters could political requirement, final during run concerning ads slated disclosures tion preelection down- making simply campaign of a week payable after the balance $10,000, payment of less than pay waited advertiser Indeed, if election. bal- long as then, year calendar the next until balance might avoid advertiser $10,000, exceed not itself ance did completely. requirements disclosure any harm identifying evidence little contains The record §304(f)(5)’s “ad- enforcement might flow specu- Court District requirement. disclosure vance” have “that contracts about disclosing information lated may lead performed, be may never performed, not been public will upon which record an unclear to confusion marketplace.” operating in the the forces evaluate curiam). re- evidence (per Without Supp. 2d, F. con- executed nonperformance frequency lating public interest outweigh the cannot speculation tracts, such actually takes an election before ensuring disclosure full in 304(f)(5) § re- sometimes will true that doubt is ho place. It of the in advance statements filing of disclosure quire the would But same the anof advertisement.84 broadcast actual requirement, disclosure an advance in the absence true be payment all of for on advance insisted station if a television that possibility the Thus, by a contract. covered the ads prior to require §304 disclosures may sometimes amended of dis- use of the a function as much ad is airing anof the ad) trigger (rather the anof the date than bursements 304(f)(5)’s § treat- function it is a requirement as disclosure executory contracts. ment of §304’s FECA amended observed, District Court As the they because are constitutional requirements disclosure Ibid, (quoting speaking.’” anyone from prevent ‘“d[o] not 112). (DC), p. et al. 02-582 in No. Opposition in for FEC Brief re- have “‘would not required disclosures Moreover, the they yet advertisements, the specific content veal the public informing the important function an perform would day.’” election supporters candidates’ various about before Opposition, Brief FEC (quoting for Supp. 2d, at 251 F. Accordingly, affirm 112) we original). (emphasis in supra, at upheld as it insofar Court District judgment §304 re- FECA requirements amended disclosure relating donors provisions on the attack jected facial con occur, record as this will that the likelihood judge We cannot commonly provisions contractual description of any if tains little rec does Nor communications. electioneering govern payments Kennedy’s post, speculation, to Justice relating evidence ord contain advertiser. an disadvantage may disclosure advance at as it judgment insofar reverse $1,000 more, or 304(f)(5). § invalidated FECA § Treatment “Coordinated 202’s

BCRA as Contributions Communications” 315(a)(7)(C) pro- FECA amends Section of BCRA “electioneering communica- vide that disbursements party will tion[s]” with a candidate or coordinated that are by, expenditures can- to, and treated contributions be II).85 §441a(a)(7)(C) (Supp. party. or 2 U. S. didate C. subsection, scope preceding clarifies the amendment “expend- 315(a)(7)(B), generally that which states more by any cooperation, consultation, person in itures made request suggestion of” can- or concert, with, or S. C. 2 U. party contributions. will constitute didate or II). (2000 Buckley §§441a(a)(7)(B)(i)-(ii) Supp. In ed. and only statutory “expenditure” to reach term we construed advocacy. 40-44, n. 52 express spending S., 424 U. at for 608(e)(1)(1970 IV), § Supp. which (addressing ed., 18 U. S. C. clearly cap expenditures to a placed $1,000 “/relative §202 possible pre-empts a candidate’”)., BCRA identified 315(a)(7)(B) § similarly that coordi- limited, such claim that express expenditures avoid for communications that nated we ex- As advocacy counted as contributions. be cannot 315(a)(7)(C) § reads as follows: New FECA “Elf— any “(i) makes, make, for any disbursement or contracts any person 434(f)(3) (within meaning of section electioneering communication title); this an “(ii) or authorized with a candidate is coordinated disbursement such or candidate, Federal, State, party local political or committee of such candidate, party, such official of thereof, an or agent committee or committee; or as a contracting be treated contribution shall “such or disbursement candi- or that communication electioneering by the supported candidate that candidate’s or by that candidate expenditure party

date’s and as an 441a(a)(7)(C). § .2 U. C. party_” S. supra, Buckley's narrow inter- 190-193, plained above, see “expenditure” not a constitutional pretation of the term was Congress’ regulate power elections. federal limitation on may why Congress Accordingly, not treat is no reason there electioneering communica- coordinated disbursements expendi- way in the it treats all other coordinated tions same judgment insofar We of the District Court affirm the tures. finding plaintiffs advanced “no basis had as it held Supp. 2d, at 250. 251 F. 202 unconstitutional.” Section §203’s Corporate Labor Prohibition BCRA Electioneering

Disbursements for Communications prohibit Buckley, Congress’ power to our decision

Since using corporations and unions from funds their treasuries advocating expressly the election advertisements finance firmly has been or candidates in federal elections defeat of ability and administer in our The to form embedded law. §316, separate segregated FECA funds authorized (2000 II), corpora- Supp. provided ed. and has 441b U. S. C. constitutionally opportu- sufficient tions and with a unions advocacy. nity express this engage That has been challenged in this view,86 is not unanimous and it Court’s litigation.

86 We explained: have §441b statutory purpose prohibit “The ... is to contributions expenditures or labor by corporations organizations in connection 441b(a). section, however, federal elections. 2 U. permits S. C. some participation corporations proc- of unions and the federal electoral by pay expenses ess of allowing them to establish and the administrative fund[s],’ ‘separate may segregated political purposes.’ which be for “utilized 441b(b)(2)(C). 2 U. S. segre- §C. the operations The Act restricts of such gated funds, however, it to solicit by making corporation unlawful for a its ‘stock- by persons contributions to a fund established it from other than holders personnel or and their families and its executive administrative Work, to Right 441b(b)(4)(A).” National § and their families.’ 2 U. S. C. S., 459 U. at 201-202.

204 316(b)(2) § extend to FECA amends of BCRA 203 Section advocacy, express only to applied previously rule, which

this defi- covered “electioneering communications” to all 304(f)(3), § discussed FECA amended term in that nition II).87 Thus, under 441b(b)(2) (Supp. §C. S.U. above. general their may use unions and corporations BCRA, communications, but electioneering treasury finance funds segregated administer organize free they remain corporations can Because purpose. PACs, for funds, or money, it PAC with electioneering communications fund still “complete ban” as a provision view wrong” to “simply is Beaumont, 539 regulation. than expression rather in Beaumont: explained weAs 162. S., at participation corporate option allows PAC “The politi- corporate funds use temptation without sentiments at odds possibly quite influence, cal govern- lets members, it or shareholders some registration through activity campaign regulate ment jeop- §§432-434, without C.] [2 disclosure, see U. S. organiza- advocacy rights of ardizing associational omitted). (citation Id., at tions’ members.” Commerce, Michigan Chamber v. also Austin See (1990). 652, 658 U. S. gen- use prohibition on arguing than Rather prior operates as a complete ban treasury ais funds eral regula- expanded challenge the plaintiffs instead restraint, underinclu- both overbroad it is grounds on the tion challenge is informed plaintiffs’ consideration sive. Our ex- between distinction that the conclusion earlier our 316(a) BCRA, FECA Prior straightforward. amendment organiza whatever, labor or any corporation “unlawful... made it certain with” in connection expenditure or a contribution tion, make FECA ed.). (2000 amends §441b(a) BCRA U. S. C. federal elections. to include expenditure” “contribution the term 316(b)(2)’s definition II). §441b(b)(2) (Supp. communication.” electioneering “any applicable advocacy advocacy issue is not constitu- press so-called light, we must examine de- tionally compelled. In expression First Amendment gree which burdens BCRA compelling governmental interest a whether evaluate question latter Id., at justifies 657. that burden. —. easily compelling answered is the state interest whether —is regula- regarding campaign prior finance by our decisions judgment respect ‘legislative “represent for the tion, which corporate re- special of the structure characteristics that the supra, regulation.’” Beaumont, particularly quire careful Right Work, S., at 209- (quoting 459 U. at 155 National 210). legislation aimed at repeatedly sustained We have aggrega- distorting immense effects of “the corrosive help of the with the are accumulated tions of wealth that to the corporate or no correlation and that have little form corporation’s political support ideas.” Aus- public’s for the supra, Na- supra, Beaumont, 154-155; at tin, 660; at see supra, Right Moreover, at recent Work, 209-210. tional corporate recognized that certain restrictions cases have hedge against permissibly “‘circum- involvement electoral supra, Beaumont, [valid] limits.’” vention of contribution 18.) (quoting II, S., 456, and n. Colorado 533 U. at 155 precedents, plaintiffs light not contest that In do of our regulating compelling adver- interest in has Government expressly or defeat advocate election tisements that they contend that candidate for federal office. Nor do advocacy speech more core so-called issue involved advocacy. express political After speech than are words guarantee ur- fullest and most all, “the has its constitutional campaigns precisely gent application the conduct of Roy, political office,” 401 U. S. Monitor Patriot Co. v. (1971), “[a]dvocacy or candi- of the election defeat protection under office is no less entitled to federal

dates for policy than the discussion of the First Amendment legislation,” advocacy generally passage or defeat argue plaintiffs Buckley, Rather, S., at 48. regulation support the adequately justifications that quantities significant apply advocacy do not express electioneering of definition encompassed the speech of communications. broad ads the issue that extent argument to the fails

This pri federal preceding 60-day periods during and the 30- cast of equivalent the functional are mary general elections of regulation the justifications advocacy. The express pe during those aired equally to ads advocacy express apply decisions voters’ the to influence if the ads are intended riods ads issue of percentage precise The effect. have that were, during aired clearly candidate identified that elec no had timespans but preelection relatively brief those parties dispute between tioneering purpose matter is a See Court. District judges among the J.); (Henderson, id,., at 583-587 Supp. at 2d, 307-312 F. J.). (Leon, Nevertheless, J.); (Kollar-Kotelly, id., at 796-798 An purpose. clearly such had majority ads the vast (Krasno Ex & Sorauf App. Report 1330-1348 nenberg 13-14; J.); (Kollar-Kotelly, Supp. 2d, 573-578 at pert Report); 251 F. J.). precise (Leon, whatever Moreover, id., 826-827 at corpora past, in the.future may been in percentage have during those issue ads genuine may finance and unions tions fed reference avoiding specific by simply timeframes ad by paying cases candidates, or in doubtful eral segregated fund.88 from a Kennedy 826-328, as dissent, we post, emphasizes As Justice speech campaign regulation justify that that the interests

sume that premise ads. issue genuine to the might regulation not apply Kennedy’s is a conclu submission Justice principal underlies apparently to the entitled are nevertheless two speech that categories sion Kennedy correct, Justice that is If protection. constitutional same indeed, our and, Buckley with holding take the basic must issue (1978), Bellotti, S. 765 435 U. Bank Boston v. in First Nat. recognition of corporations’ regulation unusually interests underlie important other Buckley, among cited we Bellotti In speech. campaign-related of the electoral integrity cases, “[p]reserving proposition for the persuaded plaintiffs have car- therefore not areWe proving FECA heavy that amended their burden of ried 316(b)(2) Oklahoma, 413 Broadrick v. See is overbroad. (1973). will that BCRA Even if we assumed 601, 613 S.U. corporate constitutionally protected and union inhibit some “justify prohibiting all assumption speech, would protected application its unless of the law enforcement” also sense, but only in an absolute speech substantial, is “not applica- plainly legitimate scope law’s to the relative (2003). Far Virginia Hicks, 539 S. v. tions.” pure ads application issue establishing that BCRA’s or relative sense in an absolute substantial, either advertising, the record application to election-related its contrary strongly supports conclusion. §316(b)(2)’s segregated- argue FECA

Plaintiffs also electioneering is un- requirement communications fund advertising apply to it does not because derinclusive 434(f) 2 U. S. C. print or on the Internet. media II). (3)(A) litiga developed in this (Supp. The records explain adequately by the Committee Senate tion Congress found that legislative choice. for this reasons money a virtual finance corporations soft to unions used during periods election-related ads televised torrent of that remedial immediately preceding elections, federal money. 251 that flow legislation to stanch was needed J.);

(Leon, Supp. (Kollar-Kotelly,id., 2d, F. at 569-573 at 799 J.); Report id., 4465, 4474-4481; 5 at 7521-7525. 1998Senate step Buckley, may time, As we one held in “reform take active, responsi- alert process, preventing corruption, ‘sustaining] bility wise conduct of the democracy of the individual in a for the citizen S., 435 U. government’ importance.” of the at 788- highest are interests (citations omitted). citi- “Preservation individual and footnote Id,., added, equally important.” zen’s government,” confidence in we “is at 789. from the statute fidelity imperatives apart to sets it BCRA’s those and, matter, banning Ohio the distri- for that from the statute Bellotti — McIntyre v. Ohio literature, bution of struck down in anonymous campaign Comm’n, (1995). Elections 514 U. S. seems which problem phase of the to the addressing itself (inter- at 106 S., 424 U. mind.” legislative to the acute most omitted). might just One and citations quotation marks nal defini- electioneering communication that the argue well days advertising 61 it leaves because underinclusive is tion record The unregulated. entirely an election in advance line-drawing. Congress’ justifies amply §316(b)(2)’s segregated-fund arguing In addition it plaintiffs contend underinclusive, some requirement is companies. media in favor unconstitutionally discriminates elec- definition 304(f)(3)(B)(i) excludes FECA appearing any “communication tioneering communications through distributed commentary, editorial or story, a news facil- such broadcasting station, unless facilities po- party, any political controlled are owned ities §434(f)(3)(B)(i) C. U. S. candidate.” committee, or litical rein gives free provision II). this argue (Supp. Plaintiffs resort speech without engage in companies to media however, is 304(f)(3)(B)(i)’s effect, money. Section PAC ex- provision The suggest. plaintiffs than narrower much af- only; commentary it does cepts items and news ig- generally companies media blanche carte ford exception narrow statute’s provisions. nore FECA’s principles. Amendment First wholly consistent are corporations exists between ... distinction “A valid are that corporations industry other and part of the media to news imparting of regular business the not involved federal Numerous 668. at S., Austin, 494 public.” the law the that to ensure distinction this have drawn statutes re- from press institutional prevent the or hinder not “does newsworthy about, editorials publishing and porting on, C. 2 U. omitted); g., S. (citations Ibid, e. see, events.” ed- commentaries, stories, §431(9)(B)(i)(exempting news C. U. S. “expenditure”); of definition FECA’s from itorials for exemption antitrust limited (providing a §§1801-1804 newscasts, 315(a) news (excepting §C. newspapers); 47 U. S. requirement the documentaries news interviews, for pub- candidates time to equal provide broadcasters that office).89 lic that the extent judgment Court’s District affirm

We 316(b)(2); to the § FECA of constitutionality it upheld we reverse 316(b)(2), §of any part invalidated it that extent the judgment. Corporations Nonprofit Application §204’s

BCRA 316(c)(6), § ap- adds FECA which BCRA, of Section funds treasury the use general the prohibition plies cor- not-for-profit communications electioneering for pay re- BCRA, FECA enactment Prior porations.90 plaintiffs one set argument, related but somewhat a different In press activi advocacy involve issue campaigns contends under rights speakers’ interferes therefore ties, BCRA the Dis We Const., 1. affirm Arndt. U. S. Clause. of the Press Freedom merit. lacks contention this conclusion trict Court’s deal provision In its complex. is somewhat statutory scheme Communications,” BCRA Electioneering Relating to with “Rules ing desig for 316(c)(2)) exception a blanket §203(c)(2) § makes FECA (adding as follows: reads which nonprofit organizations, nated “Exception electioneering (I), ‘applicable term paragraph “Notwithstanding 501(c)(4) a section by a communication not include does communication’ 527(e)(1) of (as in section defined or a political organization organization (F) if communi- 434(f)(2)(E) title 26) of this or section made under title who by directly individuals exclusively provided funds by paid cation permanent lawfully admitted nationals citizens or are United States 8). 1101(a)(20) purposes For (as title in section defined residence not does directly individuals’ sentence, ‘provided the term preceding (a) entity described subsection which is an source of binds the include II). §441b(c)(2) (Supp. 2 U. S. C. section.” this 316(c) “targeted § to exclude §204, however, FECA amends BCRA 316(c)(6) § states New FECA exception. from that communications" com- targeted of a case in the 316(c)(2) apply exception “shall 316(b)(2). 2 in § described” organization made an that is munication “tar- (B) term defines then 441b(c)(6)(A). Subparagraph U. S. C. all including provision purpose geted for the communication”

210 pay to corporations, like business corporations,

quired such rather segregated funds advocacy. from express their for in decision recent Our treasuries. general their than from (2003), 146 S. Beaumont, U. v. Comm’n Election Federal as except insofar was valid requirement that the confirmed as corporations described subcategory of applied to a it MCFL, in decision our as defined organizations,” “MCFL apply- (1986).91 objection constitutional The 479 U. S. MCFL requirement to so-called segregated-fund ing FECA’s force to FECA equal applies with necessarily organizations 316(c)(6). § carefully cate- defined to a related MCFL decision

Our organi- features three gory We identified of entities. holding: to our central that were in that case issue zation at promot- purpose of express for the formed “First, it was activi- engage business cannot ing political ideas, and expressly de- fundraising are events If ties. be will contributions requests for as nominated expendi- including direct political purposes, used activi- business considered be these events cannot tures, politi- reflect political resources This ensures ties. or other has no shareholders Second, it support. cal or assets on its have claim so persons affiliated persons connected earnings. This ensures the Dis- on judges parties communications. electioneering 316(c)(6) can- completely FECA amended assumed trict Court have 316(c)(2). 251 forth in set corporations nonprofit exemption celed the out J.) (“Section cancels completely (Leon, 2d, at 804 Supp. F. 203”). by Section provided corporations nonprofit for all exemption Work did not think Right National Court unanimous “[A] to so ability on their PACs, restrictions including on burdens regulatory corporation’s advocacy as an unconstitutional funds, a PAC rendered licit S., 201-202. at 459 U. See contributions. making political sole avenue for advocacy corporations burden think no reason There is Beaumont, here.” conclusion reach a different today, greater S., 163. for organization no economic disincentive will have the they disagree with its disassociating if with it by a activity. established busi- Third, MCFL was not policy it is its not corporation union, and or a labor ness pre- This accept entities. from such to contributions corporations serving for the as conduits vents such polit- spending a threat to the type that creates of direct marketplace.” Id,, at 264. ical 316(c)(6) § exempt not, face, on its MCFL does

That FECA prohibition reason organizations not a sufficient from its limiting con- If a reasonable the entire section. invalidate to challenged placed stat- could be on the “has or struction been embrace it. concerns, should we ute” to avoid constitutional Buckley, Be- S., at 44. Broadrick, S., 613; 413 U. for on the books was the MCFL case cause our decision presume many years that the enacted, was we before BCRA 316(c)(6) § fully that the aware legislators were who drafted apply MCFL-type validly entities. provision could not (1988); Can- Massachusetts, 879, Bowen v. U. S. See (1979). University Chicago, 441 U. S. 696-697 v. non 316(c)(6) § does itself concedes Indeed, the Government pro- organizations. construed, the apply As so MCFL at S., 661-665 plainly Austin, 494 U. vision is valid. See requirement not ex- (holding segregated-fund that did that a non- to a could MCFL out an carve exception apply plicitly status). profit qualify corporation that did not for MCFL judgment upholding Accordingly, the of the District Court 316(c)(6) § as so limited is affirmed. §212’s Requirement Reporting

BCRA Expenditures $1,000 §304 to add new Section 212 of amends FECA BCRA § applies per- 304(g), requirement, disclosure which FECA expenditures independent $1,000 more making sons during 20-day immediately preceding period an election. the §304(g) treats 304(f)(5), above, new discussed FECA Like a disbursement make contract aof execution goods or services payment equivalent functional provision, this challenging In contract.92 covered rejected in context we argument renew plaintiffs postpone right to 304(f)(5): they a constitutional have services performance after until disclosure expenditure.

purchased their challenge FECA held Court District regulations has issued the FEC ripe § because 304(g) was not they seek”— remedy exact the with Plaintiffs “providing] of inde- “require disclosure declining to specifically is, that ‘pub- prior to their advocacy expenditures express pendent ” (per 85n. 251, and Supp. 2d, at F. dissemination].’ 251 life] (codified (2003) curiam) Reg. 404, 452 (citing Fed. 68 (2003))). (d) certain 109.10(c), not We are §§ 11 CFR range circumstances the to limit purporting regulation a can enforced be will statute speech-burdening a which (concededly challenge the to facial nonjusticiable a render need Nevertheless, we broader) underlying statute. § our 304(g), for constitutionality of the separately address the 194-202, renders supra, at see §201, ruling as to BCRA essentially moot. issue

92 304(g) provides: § FECA New expenditures certain reporting “Time $1,000 “(1) aggregating Expenditures “(A) report Initial contracts committee) makes political a (including person “A 20th after $1,000 or more aggregating expenditures independent make file a shall election an hours, before date than day, but more 24 hours. within expenditures describing report “(B) reports Additional shall (A), person subparagraph under report a files person a “After makes person time each hours after report within additional file an additional an' aggregating expenditures independent to make or contracts report initial which as that election same $1,000 respect with II). (Supp. 434(g) § U. S. C. relates." §213,s Parties Requirement Political ABCR Independent Coordinated Between Choose Nominating a Expenditures Candidate After 315(d)(4) to FECA impose amends 213 BCRA Section the postnomination, during on limits party spending certain 315(d)(4)(A) §of blush, the text At first period.93 preelection to make straightfor- parties political require appears expenditures limited coordinated choice between using ward their to support expenditures independent or unlimited concluded District Court on the All three judges nominees. on the burden an unconstitutional placed provision expenditures. independent make unlimited right parties’ 315(d)(4) as follows: reads New FECA by party expenditures versus coordinated “Independent “(A) In general candidate, party nominates which a or after date “On may make— political party

no committee of the respect to “(i) with this subsection expenditure under any coordinated any it makes time after cycle at during the election the candidate title) 431(17) (as of this defined in section expenditure independent cycle; or election during the to the respect candidate 431(17) (as this of “(ii) in section defined any independent expenditure any time cycle at title) election during the candidate respect with to the with under this subsection any expenditure coordinated after it makes cycle. election during the to the candidate respect “(B) Application established committees paragraph, political “For of this all purposes cam- congressional (including all political party by

maintained a national committees) maintained established and political and all committees paign a State of any subordinate committee party (including by political a State committee) political committee. single to be a shall considered be “(C) Transfers expenditures party makes coordinated political “A committee of a that an not, during shall respect with to a candidate under this subsection coordinated to, authority to make cycle, any assign funds election transfer from, of funds to, a transfer receive this subsection expenditures under an make to made or intends has political party of that a committee the C. 2 U. S. the candidate.” respect with to independent expenditure 441a(d)(4) II). § (Supp. 214 id., at 650-651 J.); (Henderson, 2d, at F. Supp. end, we J.). In id., (Leon, 805-808 J.), (Kollar-Kotelly, to iden- it important believe but conclusion with

agree 315(d)(4) affect §of text complexities certain tify of the issue. analysis our con on limitations various forth sets FECA 315 of

Section individuals, parties, political expenditures tributions “contributions” 315(a)(2) restricts Section other groups. 441a(a)(2). §C. S.U. candidate. $5,000 per parties coordinated are 315(a)(7) treats expenditures Because S. C. candidate, as contributions a candidate with also limit $5,000 II), (2000 §441a(a)(7) and Supp. ed. expenditures. coordinated on cap parties’ operates “Notwithstanding that, however, provides 315(d), Section ex on limitations law with respect of provision other contributions,” parties political on or limitations penditures candidates their in support “expenditures” make may population voting-age to the keyed formula under for candidate aof the case or, in home State candidate’s United States. President, population the voting-age II).94 In (2000 and Supp. ed. §§441a(d)-(3) 2 U.S.C. general contribution from the parties political exempting After II), §441a(d)(l) (Supp. statute, 2 U.S.C. limitations expenditure party limitations 315(d) following substitute imposes FECA spending: any ex- make may not party political aof “(2) committee national any candi- campaign election general with connection penditure party such who is affiliated United States of the President date age voting by the multiplied 2 cents equal amount an exceeds which (e) of this (as under subsection certified States United population in addition shall be paragraph section). this under Any expenditure serving as party of a committee by a national any expenditure President the office aof candidate committee campaign principal States. the United of of committee a State or party, of a “(3) committee national The commit- a State of committee any subordinate including party, a political election general with in connection any expenditure tee, make may not ranging expenditures permitted formula year races, Representatives of for House $67,650 to $33,780 from Colorado races. Senate million $67,650 $1.6 from parties I that in Colorado heldWe 439, n. 3. S.,U. 11, 533 independent unlimited right make constitutional a have 315(d) § extent to the we invalidated expenditures, decision, of aAs result expenditures. such it restricted replacing expenditures, 315(d) only coordinated applies § 315(a)(2) § with in out set cap contributions $5,000 315(d)(1) (3). §§ prescribed — limitations generous more .the supra. II, application in Colorado limited We sustained 315(d) adding a new § amends 213 of BCRA Section 315(d)(4)(A) that, provides after § (4). New paragraph choose must office,it for federal a candidate party nominates option, a the first options. Under spending two between (as de- expenditure independent “makes party that making [301(17)])” thereby from barred is section in fined subsection.” this expenditure under “any coordinated II). sub- phrase “this §441a(d)(4)(A)(i)(Supp. C. U. S. (d) Thus, the 315. to subsection a reference is section” not a expenditure independent making an consequence of expenditure: Al- any coordinated prohibition complete increased advantage party cannot take though up may 315(d)(1) (B), make §§ it still under spending limits — 315(a)(2). As expenditures under coordinated $5,000 demonstrates, million $5,000 $1.6 between the difference affiliated who is in a State office for Federal campaign of a candidate exceeds— which party such Senator, or to the office for election “(A) a candidate case of in the Representative, only one entitled which is a State Representative of— the greater (as of the State population “(i) voting age multiplied by 2 cents section); (e) of this subsection certified under “(ii) $20,000; and Representa- office to the election “(B) candidate case State, $10,000.” any other tive, Commissioner or Resident Delegate, §§441a(d)(2H3). S.U. C. exercise impose on the significant cost a however, that is right. a constitutional provides It first. of the option is the converse The second expenditure “under any coordinated makes party that a (i ordinary $5,000 the that exceeds e., one this subsection” (as expenditure defined limit) independent “any cannot make [301(17)]) candidate.” respect the in section 301(17) §441a(d)(4)(A)(ii). “‘inde- defines Section S. C. expendi- a noncoordinated to mean expenditure’” pendent clearly of a defeat advocating or election “expressly ture §431(17)(A).95 Therefore, 2 U. S. C. candidate.” identified party’s is not option, choice first true of the was larger consequence of initially appears: The as it as stark prohibition of complete a expenditure is not coordinated right to of the forfeiture expenditure, but the independent advocacy.. As express expenditures independent make relating to. provisions explained our discussion we express 189-194, supra, communications, electioneering political com- tiny only represents fraction advocacy defeating electing or purpose of for the made munications option Regardless which campaign. during a candidates independent ex- they to make free choose, remain parties §301(17) A, provides: BCR As amended “Independent expenditure by a expenditure an means ‘independent expenditure’ term “The person— clearly identified of a or defeat “(A) the election advocating expressly candidate; and request at the with or cooperation or “(B) in concert is made com- political authorized candidate, the candidate’s of such suggestion or agents.”. its or committee party mittee, or agents, or their II). §431(17) (Supp. U. S. C. also by BCRA its amendment prior definition The version of a defeat the election advocating “expressly phrase included ed.). (2000 431(17) defini- That S. C. 2 U. clearly candidate.” identified con- narrowing to reflect 1976, presumably adopted had been tion Campaign Election Buckley. Federal adopted Court that the struction 475. 90 Stat. Act Amendments avoid campaign ads majority of the vast penditures magic words. a few use 315(d)(4) much FECA coverage newof sum, In that wishes party A initially appears. it than limited more nominee with its in coordination $5,000 than more spend independent category of only forgo narrow to is forced while magic But words. of make use that expenditures plainly is relatively small, it speech is category of burdened Buckley, 424 See protection. Amendment to First entitled ex- 315(d)(4), party’s political § a Under 48. 44-45, S., at engage in right to constitutionally protected its of ercise in the 48, results id., at expression,” Amendment First “core to available been has that statutory benefit of a valuable loss scrutiny, constitutional many years. To survive parties for supported consequences must be has such that provision a interest. governmental meaningful by a use to avoid parties political requiring The interest Buckley We held an interest. such is magic words of only to ex- applied that expenditures cap on $1,000 a that avoiding justified as a means advocacy not be could press corrup- preventing limits of contribution circumvention restrictions its corruption because appearance and tion es- groups and long persons as easily “So evaded: be could elec- advocate express terms that expenditures chew they free are candidate, clearly identified a tion or defeat and candidate promote the they to want spend as much litigation. in this true is same The Id., at 45. his views.” advo- express independent on Any a restriction that claim by the belied is interest strong Government a cacy serves express advo- between line overwhelming that evidence is, for expression election-influencing types cacy other and Indeed, Con- meaningless. functionally purposes, Congress’ communication[s]” “electioneering new gress enacted express recognized it because precisely provisions capturing commu- inadequate at woefully advocacy was test light In elections. candidate designed influence nications conclude pressed hard are recognition, we of that §315(d)(4)’s burden on meaningful purpose is served advocacy. express engage independently in right party’s 315(d)(4) § argues nevertheless Government (or cap) outright ban is not an because it constitutional parties a volun- independent expenditures, offers but rather statutory right tary a constitutional choice between argument might in the have merit Whatever benefit. 315(d)(4)(B), which for new account abstract, it fails to provides: political paragraph, all committees purposes this

“For political party by a national maintained established committees) campaign congressional (including all by a political established maintained all committees (including any commit- political party subordinate State committee) abe be considered shall a State tee 441a(d)(4)(B) single S. 2 U. C. committee.” II). (Supp. simply each the case that provision, it not that is

Given independent voluntary party a can make committee independent right engage in exercising its to choice between advantage limits on advocacy taking of the increased 315(d)(1) (3). §§ spending Instead, under coordinated — mover, such solely the first in the hands of resides decision and na- party the state can both that a local committee bind thing option.96 spending It is one parties its tional to chosen give Congress may require party to say committee a to that litigation en- this to parties Court and all the Although the District subpara- that text, not clear in it is interpretation forth dorse the set instead (B) to “a State” broadly: read The reference graph should be so com- distinguish between Congress meant suggests “the that States” (which grouped be would party with for each State associated mittees single a committee State, together by grouping treated each choice) party with a national and committees associated purposes polit- (which separate as a treated be together would likewise grouped however, puzzle, committee). interpretive resolve the We ical need committee party reading a local limited the more even under because commit- local or other of a state committee would to tie hands be able in tees the same State. expenditures independent if it

up right believes make its expenditures. accomplish more with coordinated it can that say thing, quite however, that the RNC must It is another expenditures support $5,000 itself to coordinated limit or local committee nominee if state Presidential of its expenditure independent for an ad that uses first makes an any claim magic That odd result undermines words. 315(d)(4) scrutiny simply § can withstand constitutional new voluntary an rather than out- it cast as choice because independent expenditures. right prohibition on judgment District Court invali- portion § dating 213 is affirmed. BCRA Covering §2U’s Changes in Provisions FECA’s

BCRA Expenditures Coordinated Buckley, it has been settled our decision in Ever since by or expenditures that are “controlled a noncandidate campaign” may be and his with the candidate coordinated subject to source FECA’s treated as indirect contributions Thus, 46. FECA S., and amount limitations. 315(a)(7)(B)(i) “expenditures long provided made has with, concert, any person cooperation, consultation, or suggestion candidate, request of, his authorized or at the agents, shall be considered or their committees, §441a(a) C. candidate.” U. S. be a contribution to such 214(a) (7)(B)(i). FECA creates a new BCRA Section 315(a)(7)(B)(ii) expendi- applies same rule national, State, or local commit- with “a tures coordinated §441a(a)(7)(B)(ii) (Supp. political party.” tee of a U. S. C. II).97 214(b) (c) repeal to direct the FEC and Sections of FECA following partial quotation portion italicized 315(a)(7) §214 by of BCRA: was added purposes

“For of this subsection— “(A) any political to committee made contributions to a named candidate shall on his behalf be accept candidate to contributions authorized such candidate; made such considered to be contributions to consultation, “(B)(i) cooperation, by any person made expenditures candidate, of, his author- concert, with, request or suggestion or at the or regulations new promulgate regulations98 and current its by per- paid for communications” “coordinated dealing with Subsection parties. their or candidates than other sons require not shall “regulations (c) new provides that coordination.” establish collaboration formal agreement or II). §441a(a) (Supp. following 2 U. S.'C. Note same may apply the Congress dispute that do not Plaintiffs argue They candidates. parties as to rules coordination implement- §315(a)(7)(B)(ii) its new FECA that instead unconstitutionally vague overbroad regulations ing are in the even finding of coordination permit a they because political point out Plaintiffs agreement. of an absence supporters they liability ex- if criminal subjected to may be ulti- expenditures with limits contribution ceed the im- they stress Thus, coordinated. mately deemed are argue “coordination” definition aof clear portance agree- of an presence hinge does definition First guidance” “precise provide cannot ment Appellant Chamber Brief demands. Amendment p. 48. 02-1756, No. et al. in States United Commerce beyond reaches argument readily admit, that plaintiffs As provisions pre-existing question FECA’s calling into BCRA, candidates. coordinated expenditures governing a con- to be considered shall be committees, agents, or their ized candidate; to such tribution or can- (other candidate than a any person made expenditures “(ii) consultation, concert or committee) cooperation, authorized didate’s State, national, or local commit- of, a suggestion or with, request or at contributions-made to be considered be party, shall a political tee of II). (2000 §441a(a)(7) Supp. ed. and S. C. party such committee...2 in expenditures coordinated defined regulations FEC 98 Pre-BCRA a candidate of” suggestion or request “[a]t made expenditures clude control “exercised party or a candidate which communications or party; mode, in location, content, timing, authority over decision-making or placement”; frequency distribution, or audience, volume tended negotiation” or discussion substantial “[a]fter produced communications agree or collaboration of which candidate, result “the party awith (2001). 100.23(c)(2) 11 CFR ment.” presence agreement of an persuaded that are not We expenditures coor- dividing between that are line marks may regulated as contri- indirect be therefore dinated —and truly independent. We are expenditures butions—and expenditures down limitations repeatedly have struck his cam- totally independently of the candidate and “made ground Buckley, 47, at on the that such paign,” S., 424 U. greater on the freedom “impose far restraints limitations on contributions and than do limits speech and association” “failing] expenditures, id., 44, at to serve while coordinated stemming real- governmental interest in substantial corruption process,” id., in the ity appearance of electoral or (strik- I, S., at 613-614 also U. 47-48. Colorado at See prior by party ing expenditure officials made down limit on any consultation, and without of candidates to nomination nominees). explained Buckley: potential We with expenditures independent contributions, . . . “Unlike cam- may provide little to the candidate’s assistance well may counterproductive. paign prove and indeed prearrangement and coordination of an ex- absence of only agent penditure un- the candidate or his with expenditure candidate, to the dermines the value of danger expenditures will be but alleviates also quid pro quo improper given commitments as a 424 U. at 47. the candidate.” S., affording special protection

Thus, the rationale for wholly independent expenditures nothing to do has agreement everything absence of an func- do with the consequences types expenditures. tional of different In- dependent expenditures poor leverage “are sources of spender they might duplicative counterproduc- because be or point II, tive from candidate’s view.” Colorado By expenditures S., contrast, “wink at 446. made after a will nod” be “as useful the candidate as cash.” often always Congress Id., reason, 446. For has suggestion of” request or “at expenditures made treated 441a(a)(7)(B)(i). § A 2 U. S. C. as coordinated.99 candidate a. request or comply with a candidate’s easily could supporter resulting do and the agreeing so, first suggestion without ‘“virtually indistinguishable from expenditure be would supra, II, at 444-445. simple [a] contribution],’” Colorado that new submission agree with the we Therefore, cannot permits a §315(a)(7)(B)(ii) it because is overbroad FECA notwithstanding the cooperation or finding coordination agreement. pre-existing of a absence agreement anof persuaded that absence are we Nor unconstitutionally 315(a)(7)(B)(ii) § requirement renders support a required to been agreement has never vague. An 315(a)(7) § under candidate with a finding of coordination cooperation, “in (B)(i), expenditures made refers which sugges- request or concer[t] or at with, consultation, or lan- same precisely the Congress used of” a candidate. tion 315(a)(7)(B)(ii) expenditures coor- to address guage in new longstanding definition parties. FECA’s dinated under- of common its reach words “delineates coordination (1968). 611, 616 Johnson, 390 U. S. standing.” v. Cameron language statutory surprisingly, therefore, the relevant Not challenge almost constitutional without has survived insulate Although fact does three decades. scrutiny, undermine does it from constitutional definition 315(a)(7)(B)(ii) is intol- language of plaintiffs’ claim that any present evidence erably vague. do not Plaintiffs was not contention, statutory framework 99 Contrary plaintiffs’ Buckley. rele of our decision the time different at significantly IV), as (1970 coor 608(e)(1) ed.,' treated Supp. §C. 18 U. S. provision, vant candidate.” by the requested or “authorized expenditures dinated we relied on which added.) history, legislative And (Emphasis contributions that are expenditures differentiating individual “guidance in as “inde described expenditures,” independent those treated ... own, his ‘“completely supporter expenditure made pendent” an ” 424 agen[t].’ or his of the candidate suggestion or request at the and not (1974)). 93-689, p. 18 No. Rep. S., 46-47, S. (quoting n. 53 speech, whether between political has chilled definition supporters to the supporters their candidates v. American Liberties Civil public. Reno general See (1997) vague (noting risk that stat- 844, 874 Union, 521 U. S. although plain- may expression). And, protected chill utes engage in intrusive speculate could that the FEC tiffs alleged coordination, into investigations politically motivated why agreement explain re- attempt an they do not even only problem. Moreover, the quirement would solve that regarding enforcement plaintiffs have adduced evidence history during 27-year con- provision its the coordination groups on investigations in the late 1990’sinto three cerns meager evidence Such aisle. different sides §315(a)(7)(B)(ii)will support “fos- the claim not does discriminatory Buckley, application.’” ‘arbitrary and ter Grayned City (quoting supra, v. Rockford, at n. 48 108-109). that FECA’s definition We conclude S.,U. [it] di- to whom is gives “fair notice to those coordination Douds, Assn. Communications v. rected,” American (1950), unconstitutionally vague. and is not 382, 412 U. S. §214 plaintiffs’ challenge Finally, portions of BCRA promulgated under regulations the FEC has focus the (2003). 214(c). ex- District Court As the 11 CFR 109.21 regulations appropri- concerning plained, are not the issues challenge be ately BCRA, in but must raised this facial pursued separate proceeding. agree in Thus, we with the (c) 214(b) §§ plaintiffs’ challenge to is District Court that and alleged ripe to the that the infirmi- extent constitutional regulations implementing than ties are rather found the the statute itself. portions judgment rejecting of the District Court §214

plaintiffs’ challenges are to BCRA affirmed. V “[t]o say Congress Many years ago we observed that appropriate legislation power pass to safe- is without money to improper use the election guard an ... particu- a in vital deny nation to the is to the result influence Burroughs v. United protection.” power self lar the con- conviction We abide S., at 545. States, ill effects the confine effort to sidering Congress’ recent most system. are under We aggregated on our wealth congressional state- last be BCRA will illusion no always find an water, Money,like will the matter. ment on Congress will arise, and how will problems What outlet. main we day. In for another respond, are concerns complementary features: principal, two uphold BCRA’s electioneering regulation of money of soft control part reverse Accordingly, affirm in we communications. respect to Titles judgment with Court's part District I II. ordered.

It so opinion of delivered Rehnquist Justice Chief III IV.* respect Titles to BCRA Court with Title involving miscellaneous opinion issues addresses This Campaign Reform Bipartisan provisions of IV III and discussed (BCRA), reasons 81. For the 116Stat. ofAct Court judgment the District affirm below, we provisions. these respect to §305

BCRA ofAct §305 federal Communications amends BCRA Act) 315(b), § 1088, as (Communications 48 Stat. 1934 days a before that, 45 requires 4, which 86 Stat. amended, sta- election, broadcast general days before or 60 primary charge unit “lowest candidate qualified sell a tions must Kennedy, and Justice Scalia, Justice O’Connor, Justice * Justice Stevens, Justice Justice entirety. in its Souter opinion this join Breyer respect except with opinion, this Ginsburg, and Justice join to BCRA respect opinion Thomas this joins Justice §305. BCRA 403(b). 316, 319, 305, 307, §§304,

225 of time for the and amount for the same class of the station 315(b)(1). 305’s amend- period,” 47 Section U. S. C. same that the benefit lowest turn, a candidate denies ment, “provides written certifica- charge unless the candidate unit (and any au- that the candidate the broadcast station tion candidate) not make di- shall committee of thorized office,” the same to another candidate reference rect 305(a)(3), prescribed in BCRA candidate, in the manner of the broadcast clearly herself at the end identifies 47 U. C.S. approves of the broadcast. she states II). (C) 315(b)(2)(A), §§ (Supp. §305. They argue challenge plaintiffs

The McConnell plans ad- testimony to run that he McConnell’s that Senator opponents in the future and critical of his vertisements standing. past to establish run them in the is sufficient he had think not. We “judicial power” limits the of the

Article III Constitution ele- “controversies.” One of “cases” and to the resolution case-or-controversy requirement is ment of the “bedrock” they standing to sue. have plaintiffs must establish (1997). many occa- 811, On Byrd, 521 U. S. Raines v. requirements that consti- the three have reiterated sions, we standing. minimum’” constitutional tute the “‘irreducible ex v. States Agency United Natural Resources Vermont (2000). plaintiff must First, a 765, Stevens, rel. U. S. "injury "dis- fact,” “concrete,” an which demonstrate palpable,” v. imminent.” tinct and and “actual or Whitmore (1990)(internal quotation marks 149,155 Arkansas, 495 U. S. omitted). plaintiff must establish Second, citation injury conduct “a between the causal connection ‘fairly trace[able] injury to the complained has to be of—the th[e] result challenged . defendant, action and not . . Lujan De- [of] v. party not before the court.’” some third (1992) (quoting 555, 560-561 U. S. Wildlife, fenders of Rights Organization, Ky. Simon v. Eastern Welfare (1976)). show plaintiff must Third, a U. S. 41-42 226

“ remedy will requested relief likelihood’ ‘substantial supra, at 771. Stevens, injury alleged fact.” in § Act’s the Communications above, 305 amended

As noted charge for unit respect the lowest requirements quali price is available broadcasting But this time. primary days election before until fied candidates McCon Senator Because general election. days before 2009, the expire earliest until does not term nell’s current § days before Re by 305 is 45 day be affected he could injury in alleged in 2008. This publican primary election standing. III satisfy Article temporally to is too remote fact (“A injury must be threatened supra, at 158 Whitmore, See (internal in fact” injury impending certainly to constitute omitted)); Angeles also Los see citations quotation marks (A (1983) seeking injunc plaintiff 95, 102 Lyons, 461 U. S. v. “ ‘immediately danger sus ishe must tive relief show challenged [a] injury’ result” as taining direct some plaintiffs conduct). McConnell we hold Because the District challenge affirm §305, we standing to lack challenge BCRA 305. dismissal Court’s §307 BCRA 315(a)(1) Elec- the Federal amends §307, which BCRA (FECA), added, 3, Stat. Campaign Act of tion FECA certain for inflation and indexes 487, increases Stat. plaintiffs chal- Paul limits. Adams contribution they groups contend §307 Both Court. this lenge disagree. Again, we standing to sue. have organi- voters, consisting of group plaintiffs, a The Adams allege two in- candidates, voters, representing zations cognizable, established “as legally argue each juries, and on eco- based outlawing discrimination electoral law case mean- right equally an upholding the status ... nomic et al. Appellant Adams Brief for .” ingful . . . vote p. 02-1740, 31. No.

227 they First, assert the hard-money increases limits deprive §307 enacted equal ability them of an partici- to pate process in the election based on their economic status. satisfy But, to standing requirements, our plaintiff’s a al- leged injury must be an particular- invasion of a concrete and legally protected ized Lujan, supra, interest. at 560. We “[although have noted that standing way depends no plaintiff’s the merits of particular contention that con- illegal,... duct is it often turns on the nature and source of the claim asserted.” Seldin, Warth v. 422 490, U. S. (1975)(internal omitted). quotation marks and citations We recognized have never legal right comparable a to the broad injury diffuse asserted plaintiffs. Adams Their reliance on voting rights this Court’s misplaced. cases is They rely requiring on cases nondiscriminatory access to the ballot single, and a equal vote for each e.g., See, voter. (1974) Lubin Panish, v. S. 709 (invalidating a statute requiring a ballot-access fee fixed at percentage a the sal- ary for sought the office because it unconstitutionally bur- vote); right dened Harper to Virginia v. Bd. Elections, (1966) 663, 383 U. S. 666-668 (invalidating poll a state tax vote). effectively because it right denied the plaintiffs None of these claims equal a denial of access right or the ballot plaintiffs to vote. allege Instead, a curtailment of the of their scope in the elec- participation “ process. toral But we have noted [political ‘free necessarily trade’ does not require participate that all who marketplace exactly do so with equal resources.” Federal Election Comm’n v. Massachusetts Citizens (1986); Inc., Life, 238,257 479 U. S. Buckley see also Valeo, v. (1976) curiam) U. S. (per (rejecting the asserted government “equalizing interest of ability the relative in- groups dividuals and to influence the outcome of elections” justify speech presented burden on by expenditure limits). This injury by claim of plaintiffs is, the Adams therefore, legally cognizable not to a right. they contend plaintiffs-candidates Adams Second, “do candidates injury. Their competitive a suffered

have campaign contributions large accept solicit wish contribu- such ‘Whey believe because by BCRA” permitted influence.” unequal access appearance create tions BCRA they claim result, ¶ As Complaint 53. Adams making it disadvantage,” “fundraising §307 them puts ¶ 56. id., See compete in elections. for them difficult more premise same the injury is based claimed second The hard-money allow limits § increased 307’s BCRA first: the as money, and, more raise opponents plaintiffs-candidates’ compete or ability to plaintiffs-candidates’ the consequently, they But diminished. process is electoral in the participate “fairly traceable” injury is alleged their that show cannot alleged Their 562. atS. Lujan, §307. See BCRA §307, operation of from not compete stems inability to accept or not solicit “wish” personal own their from but Accordingly, choice. personal i.e., their contributions, large that injury in fact allege an here fail plaintiffs the Adams to BCRA. “fairly traceable” § violates BCRA maintain plaintiffs Paul The They Amendment. First of Clause Press of Freedom ad- interest public campaigns and political their contend that, there- and press activities traditional vocacy involve guaran- Amendment’s by First protected they are fore, argue plaintiffs The Paul press. of freedom tee together §307, by BCRA imposed limits contribution contribu- committee action political individual edi- impose unconstitutional §315, FECA limitations tion campaigns. their upon candidates control torial burdens imposing economic by argue plaintiffs Paul see media, institutional upon the not them, upon but story, commen- “any news (exempting 431(9)(B)(i) § S.U. C. any the facilities through distributed tary, or editorial periodi- other magazine, or newspaper, station, broadcasting controlled owned are facilities such unless publication, cal committee, or candidate” party, political § § FECA 315 307 and expenditure), BCRA the definition press. the freedom violate likeli- ‘“substantial plaintiffs show the cannot

The Paul [their] alleged remedy requested will relief that the hood’ The relief the S., at 771. Stevens, 529 U. injury fact,” the con- down Court to strike is for this plaintiffs seek Paul disparate alleged editorial con- removing the limits, tribution §307 imposed But on them. burdens and economic trols inflation certain FECA merely indexed increased adjudicate power to has no This Court limits. contribution litigation in this because limits challenge the FECA provisions are constitutionality of FECA challenges to the appropriate en banc court an subject review before to direct § in the three- 437h, not provided in U. S. C. appeals, 403(a). pursuant to BCRA judge convened District Court challenge to jurisdiction to hear Although has the Court the increases to strike down were §307, if Court remedy the it would BCRA indexes established injury the limitations alleged because both plaintiffs’ Paul exemption would for news media by the imposed and FECA favor, plaintiffs’ ruling in Paul unchanged. A the remain they injury, and alleged their not redress therefore, would Bet- standing. v. Citizens accordingly See Steel Co. lack for (1998). 83,105-110 523U. S. Environment, ter dis- the District above, we affirm Court’s For the reasons challenges plaintiffs’ BCRA and Paul missal of the Adams § standing. 307 for lack of S16, 319 §§304, and

BCRA §§304 §315, and which amend FECA BCRA § § collectively known as 315A, 319,which adds FECA BCRA staggered provide provisions,” for a series the “millionaire applicable contribution-to-candidate increases in otherwise triggering spends amount opponent limits if the candidate’s co- the eliminate also provisions fiinds.1 personal his circumstances.2 in certain limits expenditure ordinated the Adams provisions, millionaire challenge to the their In alleged with re- they injuries allege same plaintiffs they above, §307. discussed reasons For gard to BCRA “fairly traceable” injury that is cognizable allege a fail noted, “none Additionally, District Court as BCRA. affected election in an candidate is a plaintiffs Adams opponent an which in e., one provisions millionaire —i. own funds— in his triggering amount spend the chooses to assume court ‘conjectural’ for purely it would be 176, 431 Supp. 2d F. will be.” any plaintiff ever judg- concurring below) (Henderson, in J., (case 2003) (DC Lujan, 504 (quoting part) dissenting part and ment dismissal 560). Court’s District affirm We S., at U. provisions the millionaire challenge to plaintiffs’ the Adams standing. for lack §311

BCRA “au- communications certain §318 requires FECA clearly committee his or candidate thorized” so author- or, if committee identify the candidate authoriza- the lack announce payor identify the ized, II). (2000 Supp. BCRA ed. and 441d S. C. tion. among them §318, to FECA amendments several makes disburse- regime to include identification expansion of this defined “electioneering communications” ments §201. BCRA “opposition limits, contribution candidate increased qualify 1 To by a candidate on expenditures amount,” depends which fiinds

personal amount.” a “threshold exeeed must opponent, her self-financed II). 441a-l(a)(2)(A) (Supp. §§441a(i)(l)(D), C. U. S. 10 times at least is amount” funds personal “opposition If of $350,000 House in a race, exceeds or in a Senate amount” “threshold do limits expenditure party race, the coordinated Representatives 441a-l(a)(l)(C). §§441a(i)(l)(C)(iii), apply. plaintiffs chal- of Commerce The McConnell Chamber §311 by simply noting along §311, with all lenge BCRA provisions BCRA, “electioneering of communications” §311’s disagree. think BCRA We We unconstitutional. electioneering communications the FECA inclusion of relationship § to the regime disclosure bears sufficient “shed[ding] light important governmental interest of Buckley, financing. publicity” campaign S., 424 U. at 81. on §318 begin Assuming is valid to as we must that FECA §318 amended with, and that is valid as BCRA FECA §311’s electioneering than amendments other the inclusion electioneering challenged communications, inclusion of We affirm the itself unconstitutional. communications is not §311’s expansion upholding District decision Court’s 318(a) to include disclosure disbursements FECA electioneering communications. §318 .

BCRA prohibits §324, individuals 318, which adds BCRA FECA making years younger” contributions to can- “17 old or political parties. 2 didates and contributions or donations II). §441k (Supp. plain- Echols U. S. C. McConnell §318 they argue challenge provision; violates tiffs rights agree. the First Amendment of minors. We of the First Amendment. Minors enjoy protection g., Community Independent See, e. Tinker v. Des Moines (1969). Dist., School U. S. 511-513 Limitations may the amount that an to a candidate individual contribute impinge protected on the freedoms committee expression Buckley, supra, at 20-22. association. See right contribute, When the burdens the we Government (joint apply heightened scrutiny. opinion ante, at 136 See JJ.) (“[A] in of volving limit contribution O’Connor, Stevens ‘“significant associational even interference”’ with rights is ‘lesser demand’ nevertheless valid if it satisfies the ‘ ’ ‘ important being “sufficiently “closely drawn” match a

232 Beaumont, v. Election Comm’n (quoting Federal interest’'”’ a “suf- is (2003))). there whether askWe 146, 162 S.U. is statute whether ficiently important interest” First abridgment unnecessary of avoid “closely drawn” supra, 25. Buckley, 136; Ante, at freedoms. Amendment against protects provision asserts Government The through by parents is, donations by conduit; that corruption appli- limits contribution to circumvent children minor their evi- scant offers the Government But parents. to the cable Perhaps the Government’s of evasion.3 form of this dence activ- such of deterrence sufficient results evidence slim person from any prohibits §320 which FECA, ities or person” another name in the “mak[ing] contribution a person by one made a accepting] contribution “knowingly a more Absent 441f. S. C. 2 U. another,” the name in convincing simply too is interest evil, this the claimed case scrutiny. See heightened to withstand attenuated S.U. PAC, 528 Government Missouri v. Shrink Nixon needed (“The evidence (2000) empirical quantum of judgments legislative scrutiny of judicial heightened satisfy novelty plausibility up vary down will raised”). justification an advances assuming, arguendo, Government Even The provision is overinclusive. interest, important approaches— variety tailored more adopted have States e.g., total against by minors counting contributions lower imposing a family unit, parent or permitted contribu- prohibiting by minors, and cap contributions deciding whether Without young by very children. tions hold tailored, we sufficiently alternatives these broadly. therefore We sweeps too here provision §318 as striking down decision Court’s District affirm unconstitutional. Court, 251 District to the presented were examples Although some offered J.), were none (Kollar-Kotelly, 2003) (DC 176, 588-590 Supp. 2d

F. Court. this §m(b) BCRA argue the Dis- plaintiffs Right to Life National intervenor- grant of intervention Court’s

trict Procedure of Civil Rule pursuant to Federal defendants, § the 403(b), because 24(a) reversed be must and BCRA clear, standing. It is III Article lack intervenor-defendants (FEC) has Commission the Election Federal however, that standing the address we standing, and therefore need identical position here is intervenor-defendants, whose the York, City New g., v. See, e. Clinton the FEC’s. to Synar, (1998); 478 U. S. v. Bowsher n. 417, 431-432, U. S. 54,68-69, (1986). S. Charles, 476 U. v. Diamond Cf. 714,721 day). (1986) question another (reserving for 21n. Court’s District foregoing reasons, affirm we

For §305, challenges to BCRA plaintiffs’ finding judgment striking nonjusticiable, provisions millionaire §307, and the upholding BCRA §318, and BCRA down as unconstitutional Court judgment §311. District

Affirmed. opinion of the Court delivered Breyer Justice V.* respect Title to BCRA § Bi- constitutionality of 504 here the We consider (BCRA), amending of 2002 Campaign Act partisan Reform requires section 1934. That Act Communications politically records of keep publicly available to broadcasters 315(e) § (Supp. S. C. broadcasting requests. related II). who include the National plaintiffs, The McConnell imposes oner- argue that 504 Broadcasters, Association justification, any offsetting burdens, lacks administrative ous simi- For Amendment. consequently First violates found judges the District Court on the three reasons, lar Supp. 2d F. §504 its face. on unconstitutional BCRA Souter, O’Connor, and Justice Justice Stevens, Justice * Justice Ginsburg entirety. opinion its join this below). curiam) (case disagree, We 2003) (DC (per 176, 186 determination. we reverse I following: are requirements § 504’s key BCRA broadcast- for calls (1) requirement A “candidate request” or “made requests of broadcast records ers keep office.” for public candidate of” qualified any “legally behalf II). 315(e)(1)(A) (Supp. S. C. 47 U. calls request” requirement

(2) message “election An (made anyone) records requests to keep broadcasters qual- a “legally either that refer “message[s]” to broadcast office.” Federal election “any candidate” ified (ii). §§315(e)(l)(B)(i), calls broadcasters

(3) requirement request” An “issue broadcast (made by anyone) of requests records to keep of public issue “national legislative to a related “message^]” to a relating §315(e)(l)(B)(iii), otherwise importance,” 315(e)(1)(B). § importance,” of national matter “political in turn. II provision each consider shall We virtu- are requirements request” s “candidate § 504 BCRA Fed- that the in a regulation contained to those identical ally (FCC) promulgated Commission eral Communications FCC modifications with slight which as 1938 early §73.1943 47 CFR since. ever in effect maintained has §36a4); (47 13 (1938) CFR 1692 Reg. Fed. 3 (2002); compare 3.690(d)); 3.290(d), 3.190(d), (47 §§ (1948) CFR 7486 Reg. Fed. Reg. Fed. 3.590(d)); 19 (47 § (1952) CFR 4711 Reg. 17 Fed. 13593 Reg. Fed. (1958); 28 7817 Reg. 23 (1954); Fed. 5949 (47 (1978) 32796 73.120(d)); Reg. 43 Fed. § (1963) (47 CFR (47 (1992) CFR 210 Fed. Reg. 67 73.1940(d)); § CFR Motion in Opposition Brief §73.1943). generally See Summary for of Broadcasters Association National Appellee

235 (hereinafter 02-1676, in No. 9-10 Brief pp. Affirmance Op- Affirmance). Summary posing form the

In its current FCC broadcast regulation requires a available file “of all licensees “keep” publicly requests made broadcast time or on behalf of a candidate for for office,” with a notation whether along public showing (if was includes granted, request granted) history “rates time,” “classes and when the actu- charged,” “spots 73.1943(a) 76.1701(a) (same § 47 § aired.” CFR (2002); ally for cable These systems). regulation-imposed requirements mirror 504 statutory BCRA requirements imposed by minor differences which no one here Com- challenges. II) 315(e)(2) §73.1943 47 with 47 CFR U. S. pare C. (Supp. (see Appendix, infra). .

The McConnell these plaintiffs argue requirements are “burdensome Brief invasive.” “intolerably]” Sen. Mitch McConnell et al. Appellant/Cross-Appellee (hereinafter al., et 74 No. 02-1674 Brief McConnell p. Plaintiffs). But we do not see how that could be so.

FCC has estimated that its “candidate consistently request” each licensee an additional adminis- regulation imposes upon trative burden six to seven hours of work See per year.. (2001); id., 66 18090; Fed. at Fed. Reg. Reg.

(1998); id., 10379; (1992); 57 Fed. see also 66 Reg. (2001) (total Fed. annual burden one hour Reg. per cable That burden means system). annual costs of a few at most, hundred dollars amount microscopic compared millions of dollars of many revenue receive broadcasters from who candidates wish to advertise. reason, for this broadcasters did

Perhaps the past e. the strongly Cf., or its extension. 17 g., oppose regulation (1952) (“No Fed. 4711 comments to Reg. adverse the adoption received”); rule been 32794 have 43 Fed. proposed Reg. (1978) (no comments). adverse Indeed in “CBS” itself ” of “suggested] the candidate file “include a record all requests for cf. 63 Fed. (1992); time.” 57 Fed. Reg. Reg. retention current (FCC “not (1998) persuaded licensees”). burdensome overly years] [two period context, an analogous wrote FCC event, any In “ with run ‘simply requirements recordkeeping broadcaster (1975). Broadcasters Reg. Fed. territory.’” records. numerous available publicly make and keep must of select description (2002) (general §73.3526 47 CFR See stations); see for commercial requirements recordkeeping com- “written all of (retention 73.3526(e)(9)(i) §§73.1202, also received e-mail] and letters [including suggestions ments for three of station” operation regarding the public records, in- identification 73.1212(e) (sponsorship § years); executive entity’s a sponsoring identification cluding “political sponsoring when members board-level officers a controversial discussion involving matter matter station (retention §73.1840 importance”); of public issue (equal § 73.2080 records); broadcast (candidate 73.1942 § logs); 73.3526(e)(ll)(i), records); §§ opportunities employment station’s provided have (“list of programs (e)(12) during issues community treatment most significant narra- “brief including month period,” three the preceding duration, date, time, issues, and] [the describing tive pro- children’s (iii) (reports §§73.3526(e)(ll)(ii), title”); substantiate sufficient records retention

gram, children’s limits commercial “compliance contracts); (network affiliation 73.3613(a) § programming”); re- (ownership-related 73.3526(e)(5) 73.3615, 73.3613(b), §§ agreements”); consultant 73.3613(c) (“[m]anagement ports); Compared agreements”). brokerage (“[t]ime 73.3613(d) ad- an requirements, recordkeeping longstanding these large very ain drop small is a hours seven six ditional bucket. re- “candidate claim also plaintiffs McConnell The impor- further significantly fails requirement quests” Plaintiffs for McConnell Brief interest. governmental tant out has pointed FCC agree. cannot we But, again, 74.

237 permit political necessary to records are candi- that “[t]hese verify complied that licensees have with and others dates obligations relating to use of their facilities candi- their “equal pursuant provi- time” office” dates for 315(a). (1998). § They Reg. 49493 S. 63 Fed. of 47 U. C. sion help the whether broadcasters have vio- determine also FCC obligation time at the “lowest lated their to sell candidates 315(b). § charge.” BCRA, 47 As reinforced unit U. S. C. request” requirements help FCC, will the “candidate public “the Commission, and to evaluate Federal Election requests [candidate] processing are whether broadcasters Summary Opposing Affirm- fashion,” an Brief evenhanded thereby helping broadcasting 47 10, to assure fairness. ance 315(a); Broadcasting FCC, Red Lion v. 395 U. S. U. S. C. Co. (1969). They help public 367, 390 will make the aware money may prepared spend much candidates be how (2000 Supp. messages. 2 434 ed. and broadcast U. S. C. II); (joint opinion ante, at 194-199 of STEVENS see JJ.) (hereinafter they joint opinion). And will O’Connor, independently purposes provide compiled an set of data for verifying compliance re- candidates’ disclosure quirements the Fed- and source limitations of BCRA Campaign §434; 2 eral Election Act of 1971. cf. U. S. C. Kentucky Registry Communications, Inc. v. Adventure 1999) (candidate (CA4 Finance, 429, 3d 433 Election 191 F. (FCC (1998) verification); Reg. compliance 63 Fed. finding public provision provides with “nec- record retention access”). essary adequate authority regulatory note, too,

We that the is broad. FCC’s (“broad” supra, Lion, Red mandate to broad- assure interest); Broadcasting public operate casters National (1943) (same). States, 190, Co. v. And 319 U. S. United authority governmental previously we have found broad agency regulated entities. information demands Com- pare Co., 642-643 United States v. Morton Salt U. S. (1950); Publishing Walling, 327 S. Press v. Oklahoma Co. Inc., Steer, 464 S. (1946); Lone Donovan v.

186, 209 (1984). 414-415 has suggests the Government that Justice The Chief though suc- But it particular claims. these made

not has— regulatory relevant the cinctly cross-referenced has it—for J., dis- C. post, Compare (Rehnquist, at 359-361 rules. Brief Summary Affirmance; Opposing senting), with Brief al. et FEC for 73-74; Brief Plaintiffs McConnell through And succinctness pp. 132-133. al., et 02-1674 No. require- procedural necessary given our was cross-reference all 140-page brief in a forth set the Government ment provisions BCRA concerning the 20 each arguments its Supp. at 186-188. 2d, 251 F. contest. here under 65-year- the to reference given the sum, Government’s In have we considerations regulation the related FCC old the constitu- argument that accept the mentioned, we cannot lacks provision eviden- request” tionality “candidate attempt to ex- no made challengers have tiary support. mass and the contrary conclusions away own plain the FCC’s g.,E. proceedings. records FCC in related evidence 222- ante, at (1992); 235-236; supra, at Reg. cf. Fed. provision (upholding BCRA’s coordination (joint opinion) provision). experience similar under prior part, on based, in long- record, find present cannot, we Because can- likewise we unconstitutional, regulation standing FCC provision BCRA request” “candidate down strike a stat- regulation in simply embodies the latter 504; for repeal it. attempt to any blocking agency thereby ute, M H-Í requirements request message §504’s “election BCRA (made by requests keep records for broadcasters call “message” about public) to broadcast member Fed- “any election or qualified candidate” legally “a II). (ii) §§315(e)(l)(B)(i), Al- (Supp. U. S. C. office.” eral than broader are somewhat requirements though these serve much same requirement, they “candidate request” or account A candidate’s supporters opponents purposes. about broadcast many “messagefs]” requests an about to broadcast “candidate.” Requests messages favor one candidate include may messages “election” be more with other another, may along messages or neutral. the nature of many messages, recordkeeping

Given evaluate and the both the public can help regulatory agencies amount of fairness, money and determine the broadcasting intend or individuals groups, supporters opponents, ante, elect a candidate. Cf. help particular spend on restrictions 206-207 (joint opinion) (upholding stringent all election-time to a candidate be refers advertising of will cause such convey message support advertising often neu the is to broadcast Insofar as request opposition). election, can a candidate or the disclosure tral material about functions, for exam other out carry statutory FCC help is whether a station fulfilling ple, determining broadcasting to its to broadcast material licensing obligation important 315(a) § and the 47 U. S. C. (“obliga the community public. tion ... to afford reasonable for the discussion opportunity views on issues of CFR conflicting public importance”); (e)(12) re §§73.3526(e)(11)(i), §73.1910 (2002); (recordkeeping community). for issues to the quirements important supra, discussed, 235-236, at For reasons previously on the basis of the we cannot say material presented, these will administra- requirements disproportionate impose tive ask the information burdens. broadcaster They keep about and information identi- disposition request, the broadcast the individual or fying company requesting if the (name, address, information, or, time contact requester officials). 47 is not individual, an names of company II). 315(e)(2) U. C. Insofar as the S. “request” (Supp. the “candidate re- made a candidate’s “supporters,” broadcasters quest” requires regulation apparently already (1978). Regard- Reg. 32794 Fed. keep records. such available, for readily prove should information less, toit provide must broadcast requesting individual request. 47 accept the the broadcaster should broadcaster pointed previously (2002). 73.1212(e) have as we And CFR signifi- reach do requirements recordkeeping out, example, rules, recordkeeping beyond FCC cantly other keep material broadcasting licensees requiring those promises license-related their compliance showing g., See, e. importance. public issues material broadcast requirements (e)(12) (recordkeeping §§73.3526(e)(ll)(i), (collecting supra, community); important issues Church United Communication regulations); Office (de- 1983) (CADC 1413, 1421-1422 2dF. FCC, 707 v. Christ required 1960-1981,that during in force rules, scribing FCC man- specificareas programming nonentertainment source, time, detailing date, records publicly available dated have we If, as compliance). description to substantiate constitu- are requirements request” “candidate held, the requirements, message” “election 238, the supra, at tional, only impose interests governmental serve, similar which well. constitutional be burden, must incremental small <! to broadcasters for call requirements request” “issue The public) (made any member requests of

keep records issue legislative national “a “message[s]” about to broadcast national of “any political matter or importance” public of (e)(l)(B)(iii) (Supp. 315(e)(1)(B), §§ S. C. importance.” help likely to seem requirements recordkeeping II). These carrying out are broadcasters whether determine FCC for opportunity reasonable afford “obligations to their impor- public of issues conflicting views of discussion broadcasters (2002), whether §73.1910 tance,” 47 CFR discriminating entertainment, and favoring heavily too are ibid.; public affairs, see against devoted broadcasts 315(a); § S., at 380. Lion, Red 395 U. C. U. S. statutory lan- plaintiffs that claim McConnell importance” or “na- of

guage "political national matter — importance” uncon- public legislative issue tional stitutionally —is McConnell vague Brief for overbroad. or gen- language is no more that But 74-75. Plaintiffs impose Congress has used language that eral than Compare 47 U. S. C. obligations upon broadcasters. other II) 315(e)(1)(B) im- (Supp. (“political § national matter (“national 315(e)(l)(B)(iii) legislative § issue portance”) and §504), (both importance”) BCRA public added 315(a) public § operate in the (“obligation ... S. C. 47 U. opportunity for discussion reasonable and to afford interest” (FCC 317(a)(2) disclosure public importance”); “issues any program” “political or “discus- relating requirements 73.1212(e) issue”); 47 CFR cf. sion of controversial public (2002) issue of (“political a controversial matter or ... (1944) (“public contro- Reg. importance”) 9 Fed. (noting issues”); (joint opinion) that ante, at 222-223 versial regulations undermines longstanding experience under effect). roughly language is also chilling And that claims of uphold language we comparable BCRA to other (joint opinion) today. E.g., and n. ante, at 169-170, II) §431(20)(A)(iii) (“public (Supp. (upholding 2 U. S. C. clearly candidate to a identified that refers communication supports promotes or. . . . and Federal office opposes candidate or office, candidate or attacks for that office”)); (upholding 2 U. S. C. ante, for that 222-223 II) §441a(a)(7)(B)(ii) dis- (counting (Supp. as coordinated consultation, or cooperation, made “in bursements are [a suggestion request or with, concert at “agreement” noting an party]”) against challenge precision). necessary impose disproportionate ad- requirements Whether these say. the one On is more difficult ministrative burdens many heavy that other likely than less are the burdens hand, example, the burden imposed, for regulations have PCC sugges- “[a]ll comments disclosing written keeping and every including e-mail. public, received tions” 73.3526(e)(9) (2002); supra, at see also §§73.1202, CFR than likely heavier are burdens hand, the other theOn 236. previously provisions, other by 504’s imposed BCRA those discussed. depend how the on practice, will burden, in regulatory has provision. The FCC applies this interprets and

FCC may limit, that regulations authority to write adequate legal linguistic potential provision’s specific, the make more 315(d). regu- often ameliorated It has C. 47 U. S. reach. is no past, there interpretation in the latory burdens Red. FCC so See do here. will not it to believe reason (1999) require- recordkeeping (relaxing the ¶ 25 4665, 4653, 5,000 than systems serve fewer that respect to cable ments subscribers); ¶¶ 11121-11122, 20-22 Red. 14 FCC at a file inspect political (1999) (requiring candidates photocop- out to send requiring licensees rather than station request). The telephone upon files candidates ies inter- provisions, as challenge free parties remain applied. as otherwise regulations, or preted the FCC greater information likely provide challenge will Any such bur- administrative justifications and provisions’ about now information, we cannot additional that Without dens. so justifications great, so are say the burdens unconstitu- provisions finding to warrant minimal, as face. their tional make and The Chief plaintiffs

The McConnell Justice request” require- “issue They say one final claim. will reveal information to disclose them will force ment prior perhaps opponents, strategies to their (dissenting opinion). We are post, at 362 See broadcast. form includes some the Constitution willing assume campaign strat- disclosure premature against protection Amendment interest in given free egy though, First the — campaign issues, we make this as- open discussion argument’s Nonetheless, sake. even on sumption purely for §504 can un- assumption see how BCRA be we do not on its face. constitutional requires names, thing, disclosure the statute one

For require request; not dis- of a it does the fact addresses, and campaign 47 U. C. content. See S. of substantive closure II). 315(e)(2) statutory § words (Supp. another, the For 315(e)(3), permit § possible,” would seem FCC as “as soon any premature dis- disclosure-timing avoid rules that would Further, would forbid. itself that the closure Constitution point research cannot plaintiffs to—and our own not the do “strategy-disclosure” such a specific indication of find— problem years respect during past to the arising the requirement, request” existing where FCC “candidate expected Fi- might more acute. strategic problem to be be premised nally, today reject analogous facial we an attack — speculations a similar BCRA of “advance disclosure”—on (joint opinion). Thus, the provision. ante, at 200-201 See argument “strategy does show that BCRA disclosure” § plaintiffs remain face, but the 504 is unconstitutional on its § applied. argument when 504 is free this to raise y arguments important Justice makes two The Chief says

response we First, those we forth. he have set “approac[h] exclusively perspective of 504 almost from the ignoring of candidates licensees, the interests broadcast rights purchasers, speech and association other whose opinion). (dissenting Post, are affected.” at 359 certainly emphasizing im- is correct Chief Justice po- portance speech and other interests of candidates ignored speakers, Amend- their First tential but we have not “perspective.” ment speakers’ interests contrary, we have discussed

theTo two because interests with the broadcasters’ together example, overlap. substantially For interests sets no different vagueness argument is speakers’ g., fact reasons, e. the same broadcasters’, it fails for precise just language as definite BCRA 504’s supra, at 241. today uphold. language we See other speech- only separately the one and discussed We have (or other behalf of candidates claim advanced related by the broad- set forth the claims speakers) that differs that the This is claim supra, at 242-243. casters. See require candidates requirements will statute’s disclosure just said, opponents. strategies We their reveal §504 applied, in a repeat, be that BCRA can we now any requiring such cases, without significant number in disclosure political-strategy because disclosure—either any the FCC risk or because many such not create cases will only requiring after may disclosure promulgate rules disappears, or both. such risk (or §504 af- speakers) whom other

Moreover, candidates (or ways) remain free way adversely in other in this fects regulations implementing challenge of FCC the lawfulness § applied. To constitutionality of 504 as challenge and to oth- of candidates and speech-related interests that the find challenge as-applied is not an may in be vindicated ers interests. “ignor[e]” those Government, says “the Second, Chief Justice support whatever to proffers no interest brief,

in its “pre-existing unchal- adding the existence whole,” re- imposing disclosure regulations similar lenged agency § 504 is con- “compel the conclusion quirements” cannot its the Government “relieve somehow stitutional,” nor justification constitutionally advancing sufficient burden (dissenting opinion). 359-360, 361 Post, at for 504.” saying is correct Again The Chief Justice require- regulation-imposed FCC similar existence of mere years unchallenged for at least 65 if ments —even —cannot But the requirements are constitutional. prove that those regulations be- that we must read means existence of those holding require- those yond these cases before the briefs evaluating the bur- Before relevant ments unconstitutional. acquainted at least become justifications, we must dens and We must follow the view of the matter. with the own FCC’s references to the relevant regulation-related Government’s regulatory regulatory conclusions, related records, FCC experience. take into ac- We must enforcement FCC’s example, that the there is the likelihood reason count, for licensees have treated “nothing that indicates in the record purchasers unfairly,” post, J., at 361 C. dissent- (Rehnquist, regulations many have ing), is that for decades similar FCC are to And, unlawful. if we made that unfair treatment agency law, what disrupting we must evaluate avoid related agency experience hold- records and related before we find ing statutory provision on its unconstitutional this similar face. agency superficial relevant

Even a examination of those strong supporting justifications, a lack reveals materials any significant additional administrative burdens. And facially, imposes upon inter- that the viewed statute, burden by slight protected com- ests the Amendment seems First pared strong to the it enforcement-related interests regulations history, Given the serves. the FCC and their statutory requirements must survive a under attack facial any potentially applicable First in- standard, Amendment cluding heightened scrutiny. that of why why regulations

That is the are is relevant. That brevity the of the Government’s here be discussion cannot why determinative. That is we fear that The Chief Jus- contrary view lead an would us into unfortunate —and tice’s unjustified present law. communications —revolution why is disagree And that we with his dissent. invali- Court District the judgment

The portion reversed. § 504 is BCR A dating ordered. It is so COURT THE OF OPINION TO APPENDIX BCRA by II), as amended 315(e) (Supp. C. Title S. provides: record “Political

“(1) In general for pub- make available maintain, and shall

“A licensee to purchase aof request record complete inspection, lic that— time broadcast can- qualified a legally on behalf of

“(A) is made office; or for public didate to any political relating message

“(B) communicates including— importance, national matter candidate; “(i) a legally qualified office; or to Federal “(ii) election importance. of public issue “(iii) legislative a national record “(2) Contents (1) shall con- under paragraph maintained

“A record regarding— information tain time broadcast to purchase

“(A) request whether licensee; or rejected accepted is time; broadcast for the “(B) rate charged communication which and time “(C) the date aired; is is time

“(D) purchased; class the communi- to which the candidate “(E) name candidate which office refers cation communica- to which election, the election seeking re- communication the which or issue the refers, tion (as fers applicable); of, on behalf or by, made aof

“(F) request case the candidate, the authorized the name of the candidate, a such the treasurer of candidate, and of the committee committee; and request, of the name

“(G) other of the case name, address, time, the purchasing person person, and person such for a contact of phone number of the or members officers executive chief list of a of of directors board or committee executive person. such

“(3) file to maintain Time shall this subsection required under information “The possible and shall as file as soon political placed in be less than period of not by licensee retained be years.” (2002) provides: §73.1943 Title CFR file. “Political public in- permit

“(a) keep and Every licensee shall file) (political orderly record complete and of a spection by on behalf time made for broadcast requests all appro- an together with public office, a candidate li- disposition made showing the priate notation any, if if made, charges requests, and the such censee ‘disposition’ includes granted. The request actually aired, spots purchased, when of time schedule oftime charged, the classes rates purchased, behalf “(b) or on provided for use time is When free be provided shall time the free candidates, a record political file. placed in the paragraph be shall

“(c) by this required All records shall possible and soon as as file placed possi- years. As soon period two for a retained be circumstances.” immediately unusual absent means ble Titles respect to BCRA concurring with Scalia, Justice V, I Titles respect to BCRA dissenting with IV, III and 248 in and dissenting part in the judgment concurring IL A Title BCR respect

part dissent I full II, and V: I, join to Titles With respect of Ken- I opinion Justice join of The Chief Justice; 323(e) of new it the extent upholds except nedy, (FECA) of §202 1971 Act of Campaign Federal Election (BCRA) 2002 Act of Reform Campaign the Bipartisan Buckley Valeo, v. to believe continue I and because part; curiam), I (per decided, also was (1976) wrongly 1 424 S.U. of Justice II-B of the II-A, opinion I, Parts join and. I IV, III and join to Titles With respect Thomas. these Because for the Court. opinion Justice’s Chief avoid I cannot such extraordinary importance, cases of are own. of few words my writings many adding Who could of freedom speech. a sad This is day which, within Court past the same have imagined such upon of restrictions has sternly disapproved four years, virtual child pornog- forms expression inconsequential Coalition, 535 U. S. Speech 234 Free v. raphy, Ashcroft Reilly, Tobacco Co. Lorillard v. (2002), advertising, tobacco intercepted (2001), illegally dissemination 525 U. 533 S. Vopper, (2001), communications, Bartnicki v. U. S. States United v. cable programming, and sexually explicit Group, Inc., (2000), Playboy Entertainment S. heart of to the cuts a law that with favor upon would smile the right meant to protect: is Amendment the First what most offen- is what For criticize the government. are about. We gov- are all of this legislation sive provisions the criti- and this prohibits legislation erned by Congress, entities most those capable Congress cism Members parties voice: national loud such criticism of giving not-for- commercial of the both and corporations, of incumbents criticism pre-election It forbids sort. profit use corporations, not-for-profit even by corporations, of “soft” use national-party and forbids funds; their general find offensive. incumbents so ads” “issue to fund money similarly pro- It legislation is sure, evenhanded: beTo oppose who Members candidates criticism hibits everyone knows, But as reelection bids. their Congress in If fairness. is not evenhandedness in which an area this evenhandedly prohibited, incumbents electioneering were all Likewise, if advantage. incum- an enormous have would quantity of same challengers to the limited are and bents words, In other favored. electioneering, are incumbents speech campaign is upon type any restriction tends to challengers and incumbents equally available incumbents. favor targets legislation present that, however, the

Beyond speech that campaign are categories of prohibition certain you accidental, do Is it incumbents. particularly harmful “hard as much times three raise about incumbents think, that by this generally not restricted funding money” sort —the 1999-2000 challengers? FEC, See legislation their do—as (Jan. Campaigns House Activity Senate All Financial 2001), http:// 2000) (last May 15, modified 31, 1, 1999-Dec. www.fec.gov/press/051501congfinact/tables/allcong2000.xls 2003, avail (all 4, Dec. as visited materials Internet (who file). lobbyists Or that case of Court’s in Clerk able incumbents) percent of their give the favor seek Inter Public S. See U. money contributions? in “hard” Laugh: How K Lobbyist’s Last Group, The est Research McCain-Feingold from the Benefit Lobbyists Would Street 2001), http://www.pirg.org/ (July 5, Bill 3 Campaign Finance oversight, do an Is it democraey/democracy.asp?id2=5068. provisions” raise “millionaire you suppose, the so-called running against an indi a candidate limit for the contribution do) (as challengers often campaign to the vidual who devotes candi limit raise the do not wealth, but great personal cam who devotes against running individual an date do) “war (as election a massive often paign incumbents mere it And is 319. §§304, BCRA See chest”? funding, national-party you estimate, that do happenstance, likely assist by Act, more is severely limited which is flush-with-hard-money in- challengers than cash-strapped Financing Breaux, The Gierzynski D.& See A. cumbents? Legislative Campaign State Finance Parties, Role 1998). (J. eds. Thompson Moncrief & S. 195-200 Elections are free incumbents chance, that unintended, itWas it money solicit and even soft some personally to receive See parties are not? national organizations, while for other (e). 323(a) §§ new FECA might propositions that fallacious three to address I wish of this provisions all of the justify some thought to be explicitly embraced of which last legislation only the — underlie, all of which Court, but opinion for the principal cases. approach to these think, its I Speech (a) Money is Not legislation, this proponents of congressional by said It was Boxer); (remarks (1997) 145 of Sen. Cong. 20746 Rec. see 143 Cleland); 1999) (remarks (Oct. of Sen. 14, Cong. Rec. S12612 Dodd), (remarks (Mar. 19,2001) of Sen. Cong. S2436 147 Rec. g., Wright, Politics see, reviews, e. support the from law 1001 L. J. Speech? Yale Money Is and the Constitution: (1976), nothing but the regulates legislation this that since itself, speech opposed speech, money as expenditure of Amendment First subject to full imposes is it the burden raising and regulate may government scrutiny; forms regulates other just it campaign funds spending of v. States cards, see burning United draft conduct, such as of (1968), National camping out on S. 367 O’Brien, U. Non-Violence, Community Creative v. see Clark Mall, by (1984). endorsed been proposition has That S. 288 468 U. opinion: “The today’s principal of the two authors one of [and] to fund gladiators, money hire right one’s to use own entitled rights . not .. property [are] . proxy,’ . . ‘speech pleases.” say one what right to protection as same to the 377, U. S. PAC, 528 Government v. Missouri Shrink Nixon (2000) today, however, concurring). Until J., (Stevens, jurispru- rejected by categorically our been view has Buckley, “this Court S., 16, we said As dence. dependence a communication of suggested that the never has a money operates itself to introduce of expenditure on scrutiny exacting re- reduce nonspeech element or to First Amendment.” quired today’s cavalier atti correct, and was view traditional

Our (the “exacting financing speech regulating the toward tude any Buckley, ibid., is not uttered scrutiny” see test from which the ones observed opinion, and is not majority dissent) purpose the First the fundamental frustrates I economy operated the most on In even Amendment. public labor, effective rudimentary principles of division the serv requires speaker make use of communication he will may novel, but write An author others. ices of re A freelance it himself. publish distribute seldom print, and rarely story, edit, will but he porter may write a sup government bent To deliver it to subscribers. opportu organization presents pressing speech; mode this you can halt any cog machine, in the nities: Control little it matters printers, and apparatus. License whole the sale of to write. Restrict still free are whether authors Predictably, prints who them. little it matters books, by at

principles repressiveregimes exploitedthese have production dissemination tacking all levels of the §§ 1, g., Printing 1662,14 II, Car. ch. See, e. Act of ideas. booksellers); Print (punishing printers, importers, and 4, 7 Interregnum ing of the 1649, Act of 2 Acts and Ordinances im printers, booksellers, (punishing authors, 245, 246, 250 buyers). have porters, response threat, to this we In g., Ban broadly. interpreted See, e. the First Amendment (“The (1963) Sullivan, 58, 65, S. n. 6 Books, tam Inc. v. 372 U. press embraces guarantee freedom constitutional ...”). publication their well as circulation of books as exchange, mediating requires means labor Division of by money. supplied society, is that means and in a commercial book; right his pays for the to sell publisher the author The print book; it demands pays it its staff who and assemble bring to market. payments who the book from booksellers opportunities repression: presents Instead This, too, individually, parties enterprise regulating the to the various ability suppress coordinate government can their to money. good right to regulating use of What is the their right buy Or print to works from authors? books without a right pay right publish newspapers to without the speak largely right . inef- deliverymen? The would be right engage in financial if it include the fective did not of its exercise. that are the incidents transactions money regula- say regulation is This is not to may government apply general com- speech. tion of The money speech it if regulations those who use mercial money evenhandedly for other applies to those who use them money government singles purposes. out. But where the object, acting legislative it speech as its used fund targeted against speech no than if it had such, less printed the trucks that deliver paper a book was on which it to the bookstore. early

History jurisprudence The best bear this out. press tax the examples from the British efforts to derive licensing press was lapse statutes which after the imposed Stamp regulated. Act of 1712 levies first including additional tax for each adver- newspapers, an all response to unfa- Anne, 18, 113. It was a ch. tisement. “obvious[ly] designed coverage, to check . . . vorable war newspapers pamphlets publication which those cheapness their and sensational- depended sale on for their England, 1476- Siebert, of the Press ism.” F. Freedom (1952). killing approxi- off pp. It succeeded in 1776, 309-310 England year. Id., newspapers first in its mately half the applied Act to the a similar Col- Parliament 312. In

253 §1. likewise The Act colonial 12, ch. III, 5 Geo. onies. latter advertising revenue, the on sales placed exactions . . . “by any was standard advertisement, which per 2s. 3 only from received publisher himself excessive, since Schlesinger, A. repeated insertions.” less and still to 5s. Britain, Newspaper onWar Independence: The Prelude (1958). these founding generation saw p. 68 1764-1776, press. freedom of on the grievous incursions taxes History Revolution Ramsay, of the American g., 1 D. See, e. (L. 1990); A Adams, Dissertation J. ed. Cohen 61-62 (1765), Works reprinted in Life and Law and Feudal Canon 1851). (C. generally ed. See Adams Adams of John 233, 245-249 Co., 297 U. S. Press Grosjean American v. (1936); 67-84. Schlesinger, supra, at by pro- tradition kept Founders’ faith with the

We have Minneapolis press. of the taxation hibiting selective Revenue, 460 Minnesota Comm’r Co. v. Star & Tribune (adver- (ink (1983) tax); supra Grosjean, paper U. S. tax). tax was whether the we have so And done tisement Minneapolis Star & See product motive not. of illicit belie press-taxation cases supra, at 592. These Co., Tribune money speech not fund regulation used to the claim that adver- newspaper’s A a itself. tax on regulation speech any- saying anyone prohibit tising does revenue a part revenue appropriates thing; merely it step even short speaker That is otherwise obtain. would be advertising would totally prohibiting revenue —which campaign-speech analogous prohibition of certain total unquestionably present Yet it is contributions in the cases. a violation of the First Amendment. an principle that

Many exemplify the same cases other speech upon speech funding is an attack upon attack Environ- Schaumburg a Better itself. In v. Citizens for (1980), lim- down an ordinance ment, we struck 444 U. 620 S. In pay iting their solicitors. could the amount charities Vic- N. Y.State Crime Schuster, Inc. Members Simon v. & (1991), unconstitutional held we Bd., S. 502 U. tims bi- proceeds of criminals’ appropriated the statute state Rosenberger inAnd the victims. payment to for ographies (1995), Va., 515 U. S. Univ. Visitors Rector and v. in the university’s a discrimination we held unconstitutional viewpoint. basis speakers on to the of funds disbursement York opinion in New famous perhaps, notable, is our Most (1964),holding paid Sullivan, S. 254 376 U. Co.v. Times First to entitled full newspaper were in a advertisements protection: Amendment discourage newspapers

“Any would other conclusion type, and of this carrying ‘editorial advertisements’ from promulga- for important outlet might off an shut so by persons who do not ideas of information tion publishing facilities—who have access themselves though speech even exercise their freedom wish press. The effect would they not members are attempt in its Amendment the First to shackle be of information possible dissemination ‘the widest secure ” (ci- antagonistic Id., sources.’ from diverse omitted). tations Buckley point re- for passage relied on

This was equiva- money speech are expenditure of for strictions on S., at 16-17. speech itself. on 424 U. to restrictions lent denying protection to appropriate. If was reliance That Amendment,” so the First speech “shackle paid-for would speech. right pay limiting for forbidding or also does limiting the amount then, that a law obvious, be It should is a direct his views spend to broadcast person a can a limit- from law speech. is no That different on restriction pay staff or newspaper can its editorial ing amount a equally clear It is charity pay leafletters. can its a amount any raise from candidate can amount a limit on the that a speaking also direct a purpose of for the one individual limit- a law is no different speech. That limitation any publisher accept from one share- ing amount a can newspaper charge can or the amount lender, holder or customer. one advertiser

(b) Pooling Money Speech is Not explain could at least proposition which some Another today’s opinion is that the First Amendment the results of money speech right right spend include does not spending money speech. with others in Such to combine uncomfortably concluding proposition words fits Independence: support Declaration of “And for the of our mutually pledge other our Declaration, this ... we to each (Emphasis Lives, Fortunes and our sacred Honor.” our added.) with the dis- The freedom to associate others for just by singing speaking in uni- semination of ideas—not or by pooling expressive pur- son, but financial resources for poses part speech. of of the freedom —is government premise form of is built on the

“Our right every engage political citizen shall have the in expression right This enshrined association. was Rights. in the First Amendment of the Bill of Exercise traditionally in of these basic freedoms America has Any through political been the media of associations. party interference with the freedom of is simultane ously an with the freedom of its interference adherents.” (1963) (internal Button, NAACP 371 U. v. S. omitted). quotation marks protects

“The First Amendment association political expression. right well as The constitutional explicated Alabama, association NAACP v. S. (1958), recognition 449, stemmed from the Court’s ‘[e]ffective advocacy public private of both points particularly of view, ones, is undeni- controversial ably by Subsequent group enhanced deci- association.’ sions have made that the clear First and Fourteenth ‘ guarantee oth- Amendments with “freedom associate political beliefs advancement common

ers Buckley, supra, at 15. ideas,” activi engage in right to in the “implicit said haveWe corresponding “a is Amendment” First protected ties variety of a wide pursuit of others right associate cultural religious, and educational, economic, social, political, 609, 622 S. cees, 468 U. Jay States v. United Roberts ends.” includes pursuit” ... (1984). to associate “right That resources. pool financial right to empowered to be Congress would otherwise, were If it proprietor- be sole newspapers to requiring legislation

enact corporate form. partnership banning use ships, their violation an obvious be would restriction sort That why the con- incomprehensible is and it Amendment, First pooling is the at issue change what when should clusion (and threat- perennially most important most for the funds principle The ened) speech. speech: electoral category of enjoy First full does association financial that such politi- of all existence protection threatens Amendment parties. cal Abridged

(c) Can Be Corporations Speech some explain at least might proposition last rights is this: that free-speech abridgment of today’s casual corporation aas known of association particular form course Of protection. First Amendment enjoy full does not applica its limit not does First Amendment of the the text eight of the “[b]y end though fashion, even this in tion figure in Amer familiar corporation was a century the eenth Trust Corporation, Cooke, life.” C. economic ican why reason (1951). basis there is Nor Company corporate asso rights attach not should Amendment First Bos Bank Nat. First so. In said have we ciations—and (1978), unconstitutional we held 435 U. S. Bellotti, v. ton designed to influence speech corporate prohibition a state We proposals. said: referendum vote on practically agreement “[T]here is universal that a [the First] major protect purpose Amendment was to governmental If discussion of the free affairs. sug- corporations, not no

speakers were one would here gest proposed speech. their could silence that the State speech indispensable decisionmaking type of It is the democracy, in a and this is no less true because the speech corporation from a rather than an individ- comes speech ual. The inherent worth of the in terms of its capacity informing public depend upon does identity corporation, source, of its whether associa- (internal tion, union, Id., or individual.” at 776-777 omitted). quotation marks, footnotes, and citations supra, In Button, 428-429, 431, v. we held that NAACP rights could assert First Amendment “on its NAACP though corporation,” own behalf,... and that the activities corporation expression of the were “modes of and association protected by In the First and Fourteenth Amendments.” Cal., & Public Gas Elec. Co. v. Util. Comm’n of Pacific U. S. (1986), 1, 8 we held a state unconstitutional effort to compel corporate speech. identity speaker,” “The we determining speech pro- said, whether “is not decisive Corporations and other like individu- associations, tected. als, ‘discussion, debate, and the dissemina- contribute to the Amendment, tion of information and ideas’ the First Buckley, seeks And in held to foster.” U. S. we un- corpo- upon independent constitutional FECA’s limitation expenditures. rate changed Michigan course in Court Austin v. Chamber (1990), upholding prohibi- Commerce, 494 S. 652 a state independent corporate expenditure support

tion of an of a case, id., candidate for state I in that office. dissented see at 679, and remain of the view that In the it was error. power giving government modern cor- world, to exclude porations effectively from the debate enables it represent significant muffle voices that best the most held so- passionately most economy and the of the segments pool . People who associate—who views. political and cial enter- of economic purposes resources—for financial their form; and corporate overwhelmingly do in the so prise who those incorporation chosen is frequency, increasing ideas—such particular promote and to defend associate Rifle National and Union Liberties Civil the American gov- Imagine, then, cases. parties to these Association, oil and power suppress nuclear that wished ernment —or manufacturing, gun owner- exploration, or automobile gas prohibit power had the liberties —and ship, or civil sure, the proposals. To be against its advertising corporate industries, or by, those benefited in, or involved individuals time) enough form (given causes, could in those interested to make associations or other political committees action en- in which those form organizational But the their case. quickly they most can which exist, already and terprises corpo- message across, is effectively get their and most per- my view does not Amendment The First rate form. the same speech. political And of that restriction mit the speech: should A candidate corporate electoral holds true speech that the effective most from the not be insulated incorporated major economy and major participants generate. groups can interest system posed danger to the about what

But source threat from most direct The wealth”? “amassed payoffs undisclosed favors in the comes form already criminalized, been have elected officials—which legislation at by the discoverable no more rendered will be (like individual corporate wealth use The here. issue “distort” unlikely wealth) is electorate speak to the peo- requirements tell if disclosure especially elections— premise of the coming from. is speech ple where people neither are the American First Amendment considering both fully capable of hence sheep fools, nor proxi- its presented to them speech the substance

259 premise wrong, If that and ultimate source. is our de- mate problem mocracy greater a much has overcome than merely premises of the influence amassed wealth. the Given democracy, thing speech. is no as there such too much of argued, quite apart upon it is from its effect

But, the elec corporate speech torate, form of contributions to campaign, independent or even the form candidate’s of ex penditures supporting engenders obligation candidate, an paid greater in the which is later form of access to of particular ficeholder, or in the form votes on indeed of bills. Any agreement quid-pro-quo would of votes course vio payoff law, §201, late criminal see 18 U. S. C. actual votes favoring not even have been claimed those the restric corporate speech. tions on denied, It cannot however, be (like corporate noncorporate) greater allies will have officeholder, to the and that access he will tend to favor the (which support usually why same as causes those who him is him). they supported politics That is the nature —if properly human this indeed nature —and how can be consid (or “corruption” appearance corruption”) ered “the with regard corporate regard not with allies allies and to other beyond excep Rights is me. If the Bill of had intended an malign speech tion to the freedom order to combat this proclivity agree agree with who officeholder those speak supporters him, more with his his than opponents, surely it would1 have said so. it did not so, do I juice think, squeeze. because the is not worth Evil (and affluent) corporate private enough influences are well (so long adequate checked as campaign-expenditure disclo exist) by politician’s sure rules being portrayed fear of pocket” moneyed “in the of so-called interests. The in by muzzling corporate speech cremental benefit obtained is more than persuasion offset loss of the information and corporate speech can at That, least, contain. as sumption guarantee prescribes of a constitutional which Congress abridging speech. shall make no law the freedom of

260 Government’s While deceived. be us not let

But horri on the focused Court this before arguments briefs floor passionate the most corruption,” “appearance ble pertained legislation on this during the debates statements surely pro Constitution which ads, attack so-called “crack analogized to Congress Members which but tects, (1998) (remarks of Sen. Cong. Rec. cocaine,” Daschle), “drive-by (remarks Sen. id., shooting[s],” (re (1997) Cong. Rec. Durbin), pollution,” “air believe good reason is Dorgan). There of Sen. marks at principal the campaign ads was negative ending of the hope “I said, sponsor A legislation. Senate of traction distracted be attention our allow not will that we debate tenor raise hand—how at issues the real bene oneNo choices. people real give our elections in political Nation’s They aid our don’t negative ads. fits from McCain). (remarks He of Sen. Id., 20521-20522 dialog.” you money, are soft “[y]ou off the cut body that assured unions ads]. Prohibit [attack of less a lot see going to you If that. of lot less a you will see corporations, and you ads, pay for those who those disclosure full demand Cong. S3116 Rec. 147 that....” lot less of going see are (Mar. (Mar. Cong. S2117 2001). Rec. g., 148 e. also, See 29, Cantwell) (“This slow about bill is (remarks 20, 2002) of Sen. advertising slowing political is about It ing war. ... ad interest ads outside negative the flow of making sure airwaves”); 143 permeate continue does groups Boxer) (“These so- (remarks (1997) of Sen. Cong. Rec. candi mention all and regulated at are not ads issues called without directly candidates They attack by name. dates in opportunity an We have ... accountability. is brutal. It Cong. .”); Rec. . . stop that McCain-Feingold bill to Wellstone) 1999) (remarks Sen. (Oct. of 14, S12606-S12607 I think nightmare. advocacy are ads (“I issue these think legislation], [By passing . . . them. hate of us should all television”). off politics poison this some get [w]e could prominent legislative was in the debates theme Another money spent on elections. there is too much the notion be principle that “there should less was first The “reform” 2001) (re- (Apr. Cong. 2, money politics.” Rec. in S3236 special Murray). amounts of “The enormous of Sen. marks system money have become our that flood interest (Mar. democracy.” Cong. 20, Rec. S2151 a cancer our (remarks money 2002) Kennedy). “[L]arge sums of Sen. average Id., at H373 voter.” voice of out the drown (Feb. 2002) (remarks system Rep. Langevin). 13, money.” “drowning Id., at H404 campaign finance Menendez). (remarks expansively: Rep. most And spent campaigns, ever-increasing “Despite sums campaign improvement dis- an have not seen we More or voter education. course, issue discussion money more substance ideas, more does not mean of what depth. Instead, more it means more spots, complain More about most. 30-second voters longer campaign increasingly negativity an more (remarks 2002) (Mar. of Sen. period.” Id., at S2150 Kerry). spots though I

Perhaps detest these 30-second voters do — hour-long campaign-debate suspect they detest even more programming. interruptions entertainment of their favorite persuade voters, or do else Evidently, however, these ads politi- by sophisticated they routinely not be so used would parties. point, event, is that it is not all cians of judge govern cam- which proper of who us role those (do you it “depth” paign speech think and has “substance” incumbents?) damaging and might least that which is be abridge the rest. exactly outrageous frittered sums And are these what pre- report determining govern away A will us? who amount, in hard pared Congress that the total for concluded be- money, was spent federal elections and on the 2000 soft for Con- Report Cantor, CRS J. billion. and $2.5 $2.4 tween Elections: Federal in the Campaign Finance gress, (2001). All Money of Flow of Estimates and Overview elec- including state States, in United spending campaign esti- been has elections, judicial and initiatives, tions, ballot the 2000 Spending Nelson, billion $3.9 at mated (D. 2-1 24, Tbl. Election Financing Elections, in spend- “shattered year that 2002), awas which Magleby ed. taking this Even id., 22. records,” contribution ing and Americans benchmark, it means figure as larger last, officials, Nation’s electing their all much half as spent about ($7.8 tickets on movie they spent federal, as and state on cosmetics they spent as billion); much as a fifth about much as billion); ($18.8 a sixth about perfume sort) ($22.8 (the nongovernmental pork they spent Economic Bureau Commerce, billion). Dept, of , S.U. See 2.6U Tbl. Expenditures, Consumption Analysis, Personal 139). democracy is drown- If our (col. 356,214, AS; rows swim.- cannot spending, it much ing this ^{[*] [*] [*]} litigation began: This I where brings back me Which say I cannot government. criticism preventing about Members any, some, or even many, certain so not did legislation for this voted who Congress their criticism to mute campaigns, but produce “fairer” stipulate Indeed, will I reelection. facilitate records acting they were believed for BCRA voted who all those problem remains country. There good of for the Wil Charles after Phenomenon, named Wilson Charlie supposed to who is Motors, General president former son, hearing nomination his during Senate said have Motors good for General “what’s Secretary Defense country.”* good power, for the giving Those in even them greatest good of the the benefit will, are inclined believe good good country. that what is for them is for the Whether recognition prescient of the Charlie Wilson Phenomenon, good or out of fear old-fashioned, malicious, self-interested “[t]he manipulation, approach fundamental First . Amendment . . was worst, assume the and to rule the regulation political speech simply ‘for fairness’ sake’ out of Austin, bounds.” dissenting). S.,U. at 693 (Scalia, J., Having approach abandoned that to limited extent Buck ley, today. we abandon it much further unquestionably

We will upon be called to abandon it fur- still in frightening passage ther the future. The most in the lengthy legislation floor debates on following this is the as- given by surance cosponsoring one of the Senators to his colleagues: step, step,

“This is a modest it is a first it is an essential step, begin but it does not even address, in some ways, problems the fundamental that exist with the hard money aspect system.” Cong. Rec. S2101 (Mar. 2002) (statement Feingold). of Sen. system power indeed. The first instinct of is the reten- power,

tion of requires peri- and, under a Constitution suppression elections, odic that is best achieved speech. We have witnessed! election-time merely the second scene promises of Act I of what lengthy tragedy. to be a In having Court, scene 8 the abandoned most the First weaponry Buckley Amendment left intact, will even be equipped less writing to resist the incumbents’ of the rules *It is disillusioning to learn that quote the fabled is inaccurate. Wilson actually years “[F]or said: I what was thought good country for our was Motors, good for General versa. vice The difference did not exist.” Hearings Services, before the Senate Committee on Armed Cong., 83d 1st (1953). Sess., 26

264 laws, campaign election federal political debate. show) voluminous, (as so opinions today’s already are which run ordinary dare citizen no complex, that detailed, so so hiring an sum, significant without contribute even office,or grow more expected to be field, can in the

expert adviser years to complex the more detailed, and voluminous, more reducing objective of the always, with always, come—and speech. amount excessive Titles respect BCRA concurring with Thomas, Justice concurring in §§311 318, and except for BCRA IV, and III concurring §318, respect BCRA with the result respect part dissenting in with part and judgment Titles respect BCRA dissenting with II, and Title BCRA §311.* I, V, and “Congress make shall provides Amendment

The First Nevertheless, speech.” abridging freedom law ... no only be described can upholds what today Court and speech the freedoms abridgment of significant most scope, breathtaking With War. Civil since association (BCRA), di- 2002 ofAct Campaign Reform Bipartisan “pri- speech, political core rectly targets constricts v. Nixon protection.” object Amendment mary of First 410-411 377, PAC, U. S. Government Missouri Shrink Amend- First “the (2000) dissenting). Because J., (Thomas, speech application’ urgent most fullest its ‘has ment San Eu v. office,” campaign during a uttered 214, S. Comm., 489 U. County Central Democratic Francisco Roy, S. 401 U. v. (1989) Co. Patriot (quoting Monitor restrictions these (1971)), duty approach tois our “strict- to the subject them skepticism” and the utmost “with J., supra, (Thomas, Missouri, scrutiny.” Shrink est dissenting). II-A, II-B I, * opinion. of this joins Parts Scalia Justice exchange of ideas response on the free to this assault In appropriate only slightest consideration pro- traditional role of of review or the Court’s standard placed freedoms, has its tecting the Court First Amendment very unprecedented restrictions. The imprimatur on these [is] preserve to an unin- “purpose of the First Amendment ultimately marketplace which will in truth of ideas hibited Broadcasting FCC, prevail.” Co. v. 395 U. S. Red Lion (1969). principle today fundamental 367, 390 Yet thought get power of the to “the best test of truth is the accepted competition market,” v. in Abrams itself (1919) (Holmes, J., States, dissent- 616, 250 630 United U. S. preventing purported “cor- ing), in service of is cast aside Buckley corruption.” “appearance ruption,” or the mere curiam). (1976) (per Apparently, Valeo, 1, 424 U. S. 26 v. only fillly open marketplace defamers, to is to be of ideas (1964); Sullivan, 254 nude 376 U. S. New York Times Co. v. (1991) Inc., Theatre, S. 560 dancers, Barnes v. U. Glen Speech opinion); pornographers, v. Free (plurality Ashcroft (2002);flag burners, v. United States Coalition, 535 U. S. 234 (1990); Virginia burners, Eichman, cross 496 U. S. (2003). Black, v. 538 U. S. given agree with the treatment

Because I cannot JUS (herein opinion and Justice O’Connor’s TICE Stevens’ after joint speech “indispensable opinion) processes popular gov intelligent use of the effective and society,” shape destiny of modern industrial ernment to (1940), respectfully Alabama, 88, 103 310 S. I Thornhill v. Breyer’s up opinion from Justice

dissent. I also dissent § join opinion holding I BCRA 504. The Chief Justice’s 403(b); regards 316, §§304, 307, 319, in to BCRA § opinion 318; dissent from the concur as to result Kennedy’s fully agree dis as to I also 311. Justice join portion opinion. Post, of his cussion 213 and at 320.

I A scrutiny,” subject strict laws are “[C]ampaign finance 146, 164 Beaumont, 589 S.U. v. Comm’n Election Federal satisfy must Title I (2003) dissenting), and thus J., (Thomas, (incorrectly) con- if it were demanding even standard limitation. a contribution nothing more than of as ceived I under Title attempt defend even do The defendants restrictions various good reason: standard, and this target narrowly tailored less much I by Title are imposed con- than even donations problematic only corrupting 427- S., at 528 U. See Missouri. in Shrink tribution limits Republican dissenting); see also Colorado J., (Thomas, Comm’n, 518 Election Federal Campaign v. Comm. Federal I) (Colorado (1996) J., concur- 604, 641-644 U. S. (Thomas, I have And, as dissenting part). judgment ring [that] bar “[bjribery why laws unclear it is previously noted, targeted arrangements that are quo quid pro precisely the means “less restrictive laws” are “disclosure and here” curtailing cor- Government’s] in [the interest addressing of supra, 428. Missouri, at ruption.” Shrink Buckley of errors only continues the joint opinion not The scrutiny contribution level of by applying a low Valeo, v. by expanding the upon errors these ceilings, also builds but Admittedly, ex- beyond reason. rationale anticircumvention long pedi- concept a has anticircumvention ploitation an Buckley upheld Buckley itself. least gree, at going back the way both combat ceiling as a $1,000 contribution 26. S., corruption.” at 424. appearance of “actuality and bribery laws Buckley both that contended challengers in The ‘proven dealing with means of restrictive represented “a less ” and id., at arrangements,’ quo pro quid suspected and “most overbroad as ceiling was contribution $1,000 the that a can- improper over influence not seek do large contributors id., action,” at 29. an officeholder’s position didate’s argument grounds that on “laws rejected the first Court giving taking deal of bribes making criminal specific attempts of those with only most blatant governmental id., 27-28, and action,” at money to influence [is] grounds that difficult to rejected on the “it the second broadly suspect contributions,” id., at But a 30.1 isolate general bribery at- would cover even subtle and law2 drawn corruptly, eliminat- government officials tempts to influence bribery ing And, first an effective law concern. Court’s pro quid quos likelihood, in would, actual all would deter corruption system. any appearance in the eliminate Buckley was Hence, root, Court concerned effectively prevent bribery not be enforced to laws could only quid pro quos officeholders, and the between donors Buckley approved reading $1,000 is that it rational ceiling ground. The how- then, this Court contribution having part that individual contri- ever, at least concluded necessary prevent easy ceilings evasion of were bution uphold separate contribution bribery proceeded to laws, justification, using, only “prevention] limitation, as the [of] Id., at 38. $1,000 evasion of the contribution limitation.” was prevent of a limitation that The need to circumvention upholding to the measure led itself an anticircumvention rejected challenge,reasoning 1 The Courtalso an overbreadth “Congress justified was the interest concluding safeguarding against appearance opportunity impropriety requires abuse process raising large monetary in the contributions be inherent S:, Buckley, justification eliminated.” 424 U. at 30. But this was inextri cably difficulty concern over the of isolating intertwined the Court’s contributions, suspect easy suspect contributions. If it were isolate enforced, and if could be then effectively laws there bribery quickly ibid., would process,” be no inherent the “opportunity abuse hence no need ceiling. for an otherwise overbroad contribution statute, §201, current 18 U. S. C. is broad Arguably, antibribery ... enough cover the other influence unspecified “attempts govern S., mental worried 424 U. Buckley action” Court seemed about. that the at 28. of freedom individuals’ significant on restriction

another speech. process. Federal repeats New joint opinion this now

The (FECA) 323(a), § C.S.U. Campaign Act of 1971 Election easy §441i(a) II), prevent circumvention (Supp. is intended opinion (now) joint ceiling. The $2,000 contribution of the that, for heavily relying evidence on recognizes this, even exploited in fact alike have donors “candidates and instance, pros- their increase soft-money loophole, former to on the debt to create latter pects and the of election serving parties as national part officeholders, with the opinion joint The Ante, at 146. willing intermediaries.” 323(a), grounds § become part, that it had upholds on the by using national cap easy $2,000 to circumvent too go-betweens. parties as §323 are remaining FECA provisions of new

And preventing circumvention mostly upheld measures as 323(a), § including ante, at 164-166 limits, contribution other (§ (§ 323(d)); 323(b)); ante, at 182-183 ante, 174-177 at (§323(f)), already (§323(e)); as I have which, ante, at 184-185 measure. anticircumvention second-order explained, is a 323(f) perhaps tell- handling most opinion’s joint 323(f) “Congress’ only emi- upholds because ing, as it local candi- prediction that . . . state nently reasonable conduits for will next become and officeholders dates advertising.” Ante, funding soft-money of sham issue added). upholds a third-order (emphasis is, this Court That anticipation Congress’ based measure anticircumvention anticircumvention these second-order circumvention future, point in the possibly, might at some measures problem. pose some Every law has this leads. where to see

It is not difficult by the always not covered behavior be will limits, and there “cir- easily characterized edges; behavior but at its law regula- speech Hence, prohibition. cumventing” law’s of “circumven- expand new forms again to cover will tion new supposed circumvention only spur tion,” permit never- Rather than this regulations, and forth. so require self-justifying process, I would that the ending and why proposed speech restrictions are explain Government par- interests, in light and, of actual Government needed why bribery laws are not sufficient. ticular,

B joint opinion’s terms. This on the Title I falls even But empirical “[t]he quantum of evidence has held that Court scrutiny legislative judicial satisfy heightened needed to novelty plau- judgments vary up with the will or down Missouri, justification sibility raised.” Shrink of the majority today’s have at 391. And three Members S., U. presented by corruption” opportunity for observed that “the money’ best, “[unregulated is, “at atten- ‘soft contributions” (opinion J., I, S., 518 at 616 uated.” Colorado Breyer, JJ.). observation joined by an Such Souter, O’Connor political party clearly is a quite A donation to a correct. clumsy candidate, as the which to influence a method spend fit, it party the donation however sees is free to money provide help easily spend to the as to no could party soft-money will be of to a And, donation candidate. legal candidate, “because of restrictions even less benefit to a money may spent.” Brief for FEC et al. be on how p. al., It follows that the defendants bear No..02-1674et 43. especially heavy empirical justifying an Title I. burden joint opinion does not meet this

The evidence cited barely anything and would suffice more than standard joint opin- category first rational-basis review. The have ion’s officeholders evidence is evidence that “federal soft-money commonly na- donations to asked donors to make solely tional in order to assist federal committees state campaigns, including Ante, officeholder’sown.” omitted). (internal quotation But to the extent marks do- so that have collaborated donors and federal officeholders party “for national committee give nors to a could donations office,” for Federal influencing election purpose regular actuality a in soft-money is donation alleged the by regulated FECA. already and defined as “contribution” 431(8)(A)(i). joint opinion nor the Neither S. C. See pre- of that enforcement present evidence the defendants ineffective, or even impossible, be proved to has law BCRA difficult. particularly CEOs, “lobbyists, that category is evidence

The second “donat[ed] sums substantial have wealthy individuals” ideological not on committees money to national of soft securing influence purpose express of the grounds, but for (and the if true Even Ante, at 147. federal officials.” over allega- vague nothing than more of evidence consists cited existing bribery laws why wrongdoing), it is unclear of tions joint the Again, neither problem. this address could not en- point to evidence defendants opinion nor ineffective. be or bribery been would has laws of forcement joint widespread, as clear problem has been If the or at least expect convictions, opinion suggests, I would frequent. be prosecutions, would more joint by the category characterized is evidence third The manipulations money to “connecting] soft opinion enact, Congress’ leading failure calendar, legislative reform, legislation, tort drug things, generic among other evidence But the Ante, 150. legislation.” and tobacco has been that there stronger the evidence than no this is for money. The switching soft buying vote or actual vote stand do not to the record joint opinion’s citations dec- instance, the McCain they For claim. propositions exchange of any any of evidence provide does not laration soft).3 (hard kind for donations legislative action his are declaration McCain’s Senator Indeed, contents principal Senator The defeated. were supported he bills several complaints be some connection evidence, had been that there without suggests, also soft-money certain outcomes policy favored his the defeat tween (declaration John McCain Sen. 393-394, e.g., App. See, ¶10 donors. Simpson perhaps declarations, Neither do or Simon exception effectively one addressed Kennedy’s Justice findings by opinion.4 post, fact, In two See at 301-303. judges that the evidence of of the District Court’s confirm any quid pro quo corruption exceedingly weak, if is not non- (DC 2003) (Hen- Supp. 2d existent. See 251 F. 349-352 concurring judgment part dissenting derson, J., J.). (Leon, part); id., at The cited 851-853 evidence [the joint opinion properly as, best, described “at Members conjecture impact Congress’] personal regarding the voting present money practices of their soft donations on J.). (Leon, colleagues.” Id., and former at 852 joint opinion places also a substantial amount of weight 2000, on the fact that “in 1996 and than half more of soft-money top gave 50 substantial sums to both donors major parties,” “leav[es] suggests national that this fact room no conclusion but that these donors were other seeking avoiding pro- than influence, retaliation, or rather moting any (emphasis particular ideology.” Ante, 148 in at necessarily original). the case. The two But that is not major ideological opposites, sup- parties perfect aré not porters opponents policies might of certain or ideas find parties. overlap substantial between the two If donors feel major parties agreement general an that both over are importance it is unremarkable that such them, issue of ¶10) “parliamentary Democratic used (noting procedural device” to block Sarbanes-Oxley one of to the proposed Senator McCain’s amendments cor- bill). porate governance possibility policy that his favored outcomes opponents lost due to lack public support, of or because the of the amend- honestly public, appear ment believed it would do harm to the does not be addressed. 4 Simpson Former seem to have the same re Senators Simon both supra, sponse McCain, 3,n. having as Senator their favored inter see down, ests do similarly explanations voted not consider alternative (declaration 811, for the 11 former ¶ failure of their See of proposals. App. 11); id., (declaration 805, Sen. Alan at 14 Sen. Paul Simpson ¶ former ¶ 14). ¶ Simon 272 This commonsense parties. for both support show donors too-hasty conclu- opinion’s joint surely belies

explanation fact. relatively innocent from a drawn sion sufficient. evidence sparse today such finds The Court complai- “relatively satisfy even be held cannot This as it unless, at S., Beaumont, U. review” sant entirely its role.5 II to abdicate intends appears, Court away First balancing] content is not The Court S., at Missouri, 528 U. Shrink freedoms,” Amendment restrictions context dissenting), in the J., (Thomas, (if be wrongly) arguably could I, which imposed Title also, The Court limits. contribution mere thought to be same do the proceeds to II, virtually Title all upholding “political which constitute expenditures, for limitations process and electoral our core of expression ‘at Buckley, S., at Amendment-freedoms,’” First (1968)). To- 23, 32 Rhodes, 393 U. S. v. (quoting Williams steady de- disturbing trend: holding day’s continues on core scrutiny restrictions applied to in the level crease (First Amend- supra, Buckley, speech. See supra, Missouri, scrutiny”); Shrink “exacting requires ment scrutiny”); Beau- “Buckley’s standard (applying at 387 re- “relatively complaisant (referencing supra, 161 mont, view”).6 review in the most obvious is Although this trend this even what now reached has limits, it of contribution direct restric- recognize as a presumably today would Court independent limitations speech: political on core tion expenditures. 5 Government’s supporting evidence iota of an is not there Because conclusion the Court’s §318,1 in concur in BCRA interests

asserted is unconstitutional. provision this applica disturbing trend: another yet continues opinion joint scrutiny.” “strict of guise scrutiny under level a complaisant tion (2003). Bollinger, S. 539 U. See Grutter v.

A accepting Congress’ expansion of what con course, Of treating expenditures purposes of “coordination” stitutes pretend is, fact, it in still can limitations, the Court as say I need not restricting primarily “contributions.” only already discussed how the I have illusion. about this much 315(a)(7)(B)(ii) § is, even under new FECA language used in fully pro overly broad and restricts framework, Buckley’s v. Colorado Federal Election Comm’n speech. See tected 467- Campaign 431, S. Comm., 533 U. Federal Republican II) (Colorado (2001) par dissenting). The J., (Thomas, person “expenditures ... language used, made ticular or at re consultation, with, or concert cooperation, or local committee national, State, quest suggestion of, a 214(a)(2), § captures expenditures party,” A of a BCR independ purely from “a difference” with “no constitutional dissenting).7 J., And new Id., at 468 ent one.” (Thomas, 315(a)(7)(C), § although using term “coor the neutral FECA scope “clarif[ying] certainly purpose dinated,” has the 315(a)(7)(B),” ante, at 202 preceding subsection, of the expansive should be read to be (joint opinion), and thus 315(a)(7)(B). language Hence, it too overly as the broad is unconstitutional.

B §§203 an- decision on rests its the Court As expansion framework de- the First Amendment other vast Court’s, rather than Con- Buckley, this time scribed in Michigan .making. gress’, In Austin v. Chamber own (1990), recog- 652, 659-660 Court Commerce, 494 U. S. corruption” type the “‘financial nized a “different distorting of im- quid effects pro quo’”: the “corrosive consti there is no has decided that doubly This so now the Court trans of an order “agreement” for the even showing tutional need into a and hence “coordinated expenditur[e]” form an into a expenditure Ante, (joint opinion). at 220-223 for FECA purposes. contribution with accumulated that are aggregations of wealth mense no correla little that have corporate form and help of corporation’s support for the public’s to the tion aggre the “immense only however, that effect, The ideas.” (in independent of the context will have gations” wealth of they might used be is an election expenditures) on certain can to select voters to convince communications fund dis words, the “corrosive In other others. over didates corporations, are that in Austin torting described effects” voters able to convince shareholders, will be of their behalf winning Apparently, of their ideas. the correctness of sign longer “the ultimate marketplace is no of ideas ideas,” or that by free trade good” “reached has been having “the of truth” “the best test speaker survived has mar competition of the accepted in the get itself thought... (Holmes, dissenting). It J., S., at 630 Abrams, U. ket.” is antithet “corruption.” This conclusion of is now evidence stands. First Amendment everything which ical Bellotti, 435 U. S. v. Boston g., Bank Nat. e. First See, (“[T]he (1978) advocacy may persuade fact that 765, 790 it”); Kingsley Int’l suppress hardly a reason is electorate Y,N. 360 S. Regents Univ. Cory. v. Pictures Constitution] protects (1959) (“[I]n [the of ideas the realm is that which than eloquent no less expression which unconvincing”). incompatible “corruption” is definition Austin’s

Because Austin overturn I would Amendment, the First to influ- unions corporations and potential for that the hold at convinc- expenditures aimed independent voters, via ence not a form views, is adopt particular ing these voters suppression. regulation or any state corruption justifying §§203 “corruption,” peculiar variation Austin’s Without government inter- compelling supported no 204 are provi- argue these even opinion does not joint est.

275 corruption.8 pro quo And the share- quid address sions unavailing. equally The protection is rationale holder corporation his own volition and in a of invests “shareholder any any time and for his investment at to withdraw is free compel- no Hence, Bellotti, S., 794, at n. 34. reason,” 435 U. minority protecting sharehold- ling in can be found interest general treasury, es- corporation’s the use of its from ers important “equally pecially contexts, in other where, by management corporate are made decisions controversial percentage predetermined the shareholders.” by of a Ibid.

C from all of I differ an on which I now address issue must provisions 201, now in my colleagues: disclosure BCRA the 304(f). evidence The “historical in new FECA contained attempts opposed Founding-era that Americans indicates the anonymous their identities on authors reveal require that violated the ‘freedom ground forced disclosure ” McIntyre Comm’n, 514 press.’ U. S. v. Elections Ohio (1995) judgment).9 Indeed, concurring in J., 361 (Thomas, recognized in hav- explicitly that “the interest this has Court unques- marketplace anonymous of ideas ing enter the works requiring tionably outweighs public interest in disclo- (NRA) state The Rifle Association plaintiffs compellingly National “(a]s quid corruption, of either the designed prevent measure official pro quo variety, Title II . no more sense than ‘gratitude’ or the .. makes funds corporations Using for their bribes bribery requiring pay statute 02-1675, pp. al. in 24-25. Appellant from NRA et No. PACs.” Brief And, own witnesses corruption: “Defendants’ regarding appearance the slightest ads is not affected public’s perceptions concede with PAC treasury funds or they general purchased whether are Id., money.” at 25. speech in right anonymous The fact that the Founders located moment, “it little difference press” the “freedom of the is of no as makes the First analysis, only in terms which seeks to determine whether of our McIntyre, Amendment, understood, anonymous writing.” originally protects as S., J., concurring judgment). (Thomas, 5 “an author's entry,” and thus a condition sure aspect freedom is anonymous an ... remain decision to Id., at 342. Amendment.” First speech protected allowing principle, away this now backs The Court away stripped speech to be anonymous right to established justifications. the flimsiest based by the defendants asserted only plausible interest providing interest provisions justify disclosure public. But we have speaker to the about “information” providing voters simple in “[t]he interest already that held a justify state does information additional relevant with or disclosures statements make that a writer requirement Buckley course, Of Id., at 348. omit.” otherwise would she expenditures for com- requirement on upheld disclosure advocacy on this express based using words of munications admittedly, atS., 81. And U. interest. 424 informational McIntyre, Buckley. distinguish McIntyre purported to McIntyre distin- ways two supra, But at 355-356. expenditure of disclosure “an Buckley that the guished one,— [than information less reveals far more, use, without and its pamphlet,]” of a the author of identification a forced elections, the “Gov- in candidate two, S., 355; and U. at avoiding identify compelling state interest can ernment expendi- campaign might result corruption that first is inherently implausible. The tures,” id., at 356—are expenditures of one’s wrong. revelation simply The just can be candidates about independent communications pamphlet name on revealing one’s revelation as the as J., id., at 384 election. See also noncandidate for a (Scalia, Buckley rejected- outright was dissenting). The second expendi- independent concluded that the Court itself, where apparent of real or any substantial risk create tures did not reading only Hence, the S., 47. at corruption. 424 U. con- principles it consistent McIntyre remains Buck- Buckley extent it overturned tains is that gov- solely on the based requirement ley upheld a disclosure voters. providing information interest ernmental cannot be based anonymous speech right abridged asserted the defendants. I thus on the interests would §201 A disclosure BCR are hold requirements conclusion, Because of this unconstitutional. so-called §201 advance disclosure falls requirement necessarily well.10

D Buckley maintained that was I have de- incorrectly long II, See Colorado S., and should be overturned. cided Missouri, I, Shrink Colorado 465; S., 410; at 528 U. at But, most of Title II S.,U. at 640. should still be held un- Buckley even under the framework. constitutional Under Buckley Election and Federal Comm’n v. Massachusetts (MCFL), Inc., Citizens (1986) Life, is, 479 U. S. 238 it was, least clear that be- any regulation political speech is un- communications words of yond using express advocacy Hence, constitutional. even under the frame- joint opinion’s work, unconstitutional, most of Title II as both the definition” and definition” “electioneer- “primary “backup 212(a) § 10 BCRA Although plaintiffs only is also unconstitutional. the 212(a), the of dis challenge requirement by requiring advance disclosure advocacy, reporting closure of communications the entire using express §201 is unconstitutional for the same that unconsti requirement reasons tutional. Consequently, provision it follows that the advance disclosure is unconstitutional. §§311

BCRA By and 504 also violate the First Amendment. requiring “elec- television radio the definition of advertisement that satisfies even tioneering identity sponsor, communication” to include the of the and a “full-screen view other representative of a committee or advertisement, person making the statement” in the case of a television §318, §311 new FECA the law at is a carbon issue copy virtual (the (1995) Comm’n, McIntyre v. Ohio Elections differ- only 514 U. S. 334 a ence being the a printed pamphlet irrelevant distinction between advertisement). §504 television or And has only precise radio not §201, well, “message flaws covering any as sweeps broadly but also a ... relating any political importance, matter of national including Hence, §§311 national both legislative public importance.” issue of 504 should be struck down.

278 significant of commu- number a

ing cover communications” advocacy. 2 express words of use do not nications II).11 484(f)(3)(A) (Supp. S. C. ambiguous presented Buckley, was the Court In “ clearly identified a expenditure relative to ‘any ... language noted The Court S., at 41. 424 U. candidate.’” fails a candidate phrase ‘relative to’ of so indefinite “use im- permissible boundary clearly between mark read Hence, the speech.” Ibid. Court permissible candi- of a “advocating or defeat the election phrase to mean omitted). (internal But quotation marks Id., at 42 date.” inquiry. complete vagueness did construction this observed: Court As and can- issues

“[T]he discussion distinction between of candidates advocacy or defeat of election didates Candidates, practical application. may dissolve often public intimately is- tied especially incumbents, are governmental proposals and involving legislative sues campaign the basis only on candidates Not do actions. campaigns public issues, but positions various of their public Ibid. interest.” generate issues themselves issues recognized the constitutional then Court The reading by only provision be avoided by “can raised 11 concluding that Court, provisions of its most upholding constitutionally Buckley is not limitation derived advocacy” “express Appeals every Court blow, line, has, in overturned one mandated FEC, one). v. perhaps, See (except, question this Clifton has addressed Comm., v. Inc. (CA1 Right Vermont 1997); 1309, F. 3d 1312 114 Life Network, Action v. Christian (CA2 2000); FEC Sorrell, 376, 387 F. 3d Moore, v. Commerce (CA4 1997); Chamber 1049, Inc., 110 F. 3d Williams, Comm., Inc. v. (CA5 Right Iowa 2000); 187,193 F. 3d Life Govt. State Responsible (CA8 1999); Citizens F. 3d 968-970 (CA10 2000). 1174, 1187 Davidson, F. 3d Comm. v. Action Political Furgatch, FEC v. See Circuit. the Ninth exception possible one The (1987). 857, 862-863 F. 2d

'279 explicit 608(e)(1) that include communications limited to Id,., of a defeat candidate.” advocacy or of election words at 43. Buckley adopted narrow argues this joint opinion addressing question. a constitutional

reading only to avoid advocacy the concomitant class express concept “[T]he to avoid constitutional of an effort magic born were words examining joint opinion after infirmities,” concludes ignores fact This Buckley. Ante, 192. language of expenditure limitation down struck then the Court narrow: it was too precisely because statutory language exacting interpretation

“The vagueness un- thus necessary avoid unconstitutional loophole- as a effectiveness the limitation’s dermines facilitating those provision circumvention closing upon a improper candidate influence seeking to exert inge- naively underestimate It would officeholder. groups desir- persons nuity resourcefulness they have would believe that buy ing influence expenditures that devising skirted difficulty much but advocacy or defeat express of election restriction Yet campaign. the candidate’s benefited nevertheless by a be served would interest societal no substantial corruption designed provision to check loophole-closing organizations persons and unscrupulous permitted obtain money in order to expend sums unlimited office.” for elective improper candidates influence over S., at 45. doubt, provision from constitutional saving the Far from its way guarantee such as to provision Court read the reg- possibility that some unconstitutionality. were If there express advo- without words ulation of communications have have provision cacy would constitutional, were communications, and the constitu- read these been to include exceed- Indeed, the on.12 head question addressed tional Buckley is language in reading relevant ingly narrow highly strained fact, a is, in text; it by the from mandated far “ clearly identi- ato relative expenditure ... ‘[A]ny reading. ” cover, for to read be better 41, would id., at candidate,’ fied close aired advertisement for an expenditure any instance, deci- the voters’ to influence is “intended that an election endorsed apparently effect,” a ha[s] standard that sions to ex- “equivalent” sufficiently being joint opinion by the By 206. Ante, at regulation. advocacy justify its press reading of the narrow adopting deliberately a strained ques- provision in striking down the statutory then text and regula- that clear narrow, Court made being too tion strictly forbidden. advocacy was nonexpress tion of Buckley and portions other reading is confirmed This limiting disclosure FECA’s instance, in For other cases. advocacy, the involving express expenditures provisions to interpretation narrowing gave such it that Court noted provision] not [the disclosure reach of “[t]o that the insure added). (emphasis at 80 S., 424 U. broad.” impermissibly scope of a dis- limiting the in concern were a If overbreadth lim- in the equally concern surely was it provision, closure MCFL, in And, expenditures. cap actual of an itation remaining ambiguity arguably eliminated Court narrowing inter- stated explicitly it Buckley when necessary “in order Buckley were pretations taken at 248. S., 479 U. MCFL, of overbreadth.” problems avoid away uncom- explain MCFL’s attempt to joint opinion’s The opinion em- joint unpersuasive. language is fortable con- ‘similar that a “held Court MCFL phasizes adopt tous counsels doctrine avoidance all, constitutional After questions,” constitutional decision “avoid statutes constructions v. States United questions. constitutional deliberately create not States United (1971); 368,373 see also U. S. Photographs, Thirty-seven 366, 408 Co., U. S. Hudson & v. Delaware General Attorney ex rel. (1909). as if limitation,” expenditure apply to the must

struction’ (emphasis 192,n. 76 point. Ante, proved its somehow this does said Court the MCFL The fact original). adopting con- a narrow course; anything, of establish over- problems of to avoid “in order statute of a struction awith perfectly consistent S., 248, is at breadth,” 479 U. statute narrowing construction, the lacking holding that, overly e., unconstitutional. broad, i. be would response that in is argument principal defendants’ The that Constitution conclude bizarre would be “it or corporate of the use prohibit Congress to permits electioneering adver- for treasury funds general union con- it can only that standard but that tisements, misses advocacy) one is that stitutionally (express use (88.6 that advertisements percent) of majority the vast electioneering.” Brief use themselves candidates (emphasis p. al., et 02-1674 No. al. in et for FEC original). express advo stating this, joint opinion echoes recogni longstanding our squared with cacy be line “cannot magic cannot words presence or absence tion that the true speech from a electioneering distinguish meaningfully “magic presence First, the Ante, at 193. ad.” issue cate way between meaningful in a does differentiate words” is “magic containing words” Speech gories speech. 81, supra, Buckley, at campaign related,” “unambiguously far Second, it is not. is these words speech without while speech regulable) (potentially suggest that from bizarre pro fully impossible to differentiate practice in is part rather, is, It fully protected. speech must be tected g., See, e. principles. first parcel First Amendment (“The Government at 255 S., Coalition, 535 U. Speech Free suppress speech as the means may lawful suppress unpro not become speech does speech. unlawful Protected The Consti- the latter. merely it resembles tected because reverse”). Amendment fact, In First requires the tution ar category of to that fundamental protection extended was only but sake, entertaining speech not its own tistic and speech in practically, from indistinguishable, it was because Wilson, Burstyn, v. Joseph Inc. inform. See tended (1952); 507, 510 York, 333 U. S. v. New Winters U. S. (1948) protec constitutional “the suggestion that (rejecting exposition ideas” only to the applies press a free tion for entertaining informing and the the “line between noting right,” basic protection for the too elusive doc another’s amusement, teaches “[w]hat man’s is one trine”). significant clearly role played a principle This (after noting that “the Buckley S., 424 U. itself, see candidates of issues and discussion distinction between may dis often defeat of candidates advocacy of election “express ad holding that the application,” practical solve interpretation of adopted as the must be vocacy” standard FECA). express-advocacy The language in the relevant of protection of “discussion the the to ensure was line drawn strange of obsession some out of candidates,” not issues joint opin meaningless And the lines. create the to Court “Buckley’s express that it notes point when the ion misses legislative effort the not aided short, has advocacy in line, Ante, at 193-194. corruption.” apparent or to real combat combating solely to aid in this line Buckley draw not did the ensure corruption, to but rather also apparent real campaigns.13 to election speech unrelated protection of express advo- speech of say with words to this Nor is implies. opinion joint the protected, as less cacy somehow is is rule bright-line why of such a example an excellent These cases are Amend- the First the notion that Court, “rejected having The necessary. from differently advocacy issue treat so-called Congress requires ment ante, restric- 194, new uphold significant proceeds at advocacy,” express word, pure issue-related is, sense every on speech tions rule, subjects politi- now bright-line the abandons The speech. Court by Congress. regulation of the risk virtually any kind cal of speech an Buckley recognized in- The Court 205-206. Ante, at justified imposition a dis- the interest formational campaign-related speech. See requirement on closure regard to implicated not This interest is atS., 81. U. it campaign. Hence, to an election speech that is unrelated impose re- such a disclosure be unconstitutional would speech. “the dis- And, as quirement non-election-related may ... discussion of issues and candidates tinction between only practical application,” id., 42, the often dissolve unjustified burdening of nonelection way prevent speech that is impose regulation only on speech is to speech campaign e., “unambiguously id., at i. related,” speech uses express advocacy. using Hence, words of same, advocacy protected express under words of speech. The scrutiny, forms as all other standard, strict governmen- only Buckley, there is that, difference is under using words regulation supporting of those tal interest some speech. advocacy express present forms of in other ^{[*] [*] [*]} reasoning chilling is not diffi- endpoint of the Court’s press. None outright regulation

cult to foresee: none of rea- defendants, rationales offered press. “This soning employed exempts the Court, impossibility, is so because of difficulty, and perhaps distinguishing, constitutional either as of fact or a matter corporations corporations.” [nonmedia] law, media concurring). Bellotti, (Burger, Media S., J., at 796 C. companies easily as non- procandidate can run editorials corporations media pay Candidates can for advertisements. just they grateful can can companies be as as be to media corporations to “the corrosive and unions. In terms by corporations distorting effects” of wealth accumulated support public’s for that has or “little no correlation to the corporation’s S., at 494 U. Austin, ideas,” corporation and 660, is there no media distinction between influen- are corporations Media corporation.14 a nonmedia and commen- editorials that doubt little There is tial. doubt there any Nor is elections. affect run can they tary One elections. influence often wish companies that media that hopes fervently York Times New think that would in- will actually candidates Presidential its endorsement from de- a future Congress tois stop What people. fluence influential,” and that “too is that press termining when media organi- is significant corruption” “appearance news “biased” or run “slanted” or candidates endorse zations easier, Or, even of candidates parties? in favor stories that concluding Congress a future what is stop creates a loop- media corporations of unregulated availability limitations of the “circumvention” allows easy hole finance laws?15 of the current campaign unchal and heretofore that longstanding I Indeed, believe Publishing v. Tor Co. Herald Miami as such lenged opinions the Court There, in nillo, 418 U. S. (1974), are peril. na newspapers, national of newspapers, “[e]hains noted that are towns, services, and one-newspaper news wire and tional in point this on precisely commented Burger presciently Justice Chief (concur (1978) Bellotti, 435 U. S. 765, 796-797 Boston v. Bank First Nat. omitted): (citations ring opinion) ‘corporate process’ the political advantage of ‘unfair terms “In media such argued it be could process,’ electoral of the domination to valid threat realistic much more I pose describe as conglomerates concerned regularly entities and similar appellants than do interests Pub Herald Miami See issues. public opinion shaping popular Tornillo, (1974)]. example, In Tornillo, S. 241 U. [418 lishing Co. v. growth of the a result advanced that contentions the serious we noted the power hands a few place been ‘has empires media modern S., at 250.” opinion.’ public shape people American inform the ex laws finance campaign of the “circumvention” appears It plain one being already planned is exemptions media ploiting Outlet, News Theimer, Status NRA Seeks See litigation. tiffs this look NRA 2003, (reporting A09 Post, p. Dec. Washington news as a classified to be seeking outlet and a broadcast acquire ing organization). press noncompet- features of a dominant that has become enormously powerful capacity and and influential in its

itive opinion manipulate popular change the course Despite sympathy expressing Id., at 249. some events.” arguing legally “right for a for those created of access” encourage diversity viewpoints media, in the the Court noting laws, down such that these struck laws acted both speech “intru[de] suppress and to into the of edi- function by interfering “the tors” exercise of editorial control judgment.” supporters Id., Now, at 257-258. of such only argue press’ “capacity manipulate laws need that the opinion” gives “appearance corruption,” popular an rise to especially capacity promote particular is used to when this party. drumming up evidence,16 After some candidate regulating laws media outlets their issuance of editorials (a opinion’s upheld joint reasoning under the result would be beyond pale Publishing considered so in Miami Herald it the Court there used as reductio ad absurdum against right-of-access being addressed, id., law see 256). anything joint opinion Nor is there that would prevent Congress imposing Doctrine, not the Fairness just broadcasters, and television but on the entire on radio (defin- Broadcasting, media. S., See Red Lion 395 U. at 369 ing “requirement doctrine” as a that discussion the “fairness issues be ... and that each of those side public presented given coverage”). issues must be fair

16Given the of the the Court quality evidence Title upon uphold relies I, Preston, not be hard to come by. evidence should See Kane & Fox (“GOP Seat, Call, 12, Chief on Roll June House Hot leaders as such (R-Texas) Majority DeLay Tom have labeled Leader CNN as the ‘Commu nist they News Network’ and the ‘Clinton News suggesting Network’ — only presented the viewpoint liberal that of former Clin President ton”); Jones, Mainstream, News Moves Fox from the to the Shor Margins Center, Harvard, enstein Fox Dec. A1 describing Gore (quoting News Washington “part and the Times as parcel Republican Party”). as “one press,” described freedom

Hence, “the the on Elliot, Debates liberty,” 1 J. greatest bulwarks the 1876)(declaration of Rhode (2d ed. Constitution Federal Constitution),17 be could of the upon ratification the Island does opinion today’s Although chopping block. on the next protection, Amendment press strip of First expressly the not the prevent would logic that lawof or principle is no there setting. The reasoning Court’s application Congress. the whim operates at press now part judgment concurring in the Kennedy, Justice II.* I and Titles BCRA respect to part dissenting with and right to our citizens guarantees Amendment The First ex- for means effective the most themselves judge for which themselves for decide to political views and pression of portions Significant speakers. as reliable trust entities Act Campaign Reform Bipartisan of the Act) and II I of Titles new These freedom. (BCRA constrain or for preference own their abandon speakers to force laws they pro- And organizations. parties through and speaking suggesting press, mainstream to the harbor safe vide burdens to alleviate suffice corporate alone media ordinary citizens. rights freedoms places on the Act simply to purports laws upholding these Today’s decision curiam), (1976) (per Valeo, 424 S. 1 Buckley v. follow opinion (joint at 137-138 ante, decisis, see stare to abide (hereinafter ma- Court JJ. of Stevens O’Connor, must work, decision its majority, make jority)); but Buckley did not. Buckley did speech where abridge free England Laws on Blackstone, Commentaries 4 W. also See of a nature to the (1769) (“The essential indeed press is liberty state”). free Scaua Justice entirety. in its joins this opinion Chief Justice *The 323(e) and FECA new upholds it to the extent except joins opinion this BCRA respect with this joins opinion §202. Justice Thomas BCRA §213. decide what and forms shapes Congress authorize reach deci- take. To today’s dialogue

national Buckley’s limits and Con- sion, expands the Court surpasses In so it discrete replaces doing, power. regulatory gress’ new, amor- Amendment First principles and respected rules basic rules, which dismantle pro- and unsound phous, tections speech. show how BCRA reorders rights speech

A few examples own certain the Government’s codifies preferences have would imposed felony punishment BCRA speakers. the Reform Com- efforts to build Party. Perot’s 1996 Ross (FECA) Act of 1971 Election Federal Campaign pare 323(a)(1) 315(a)(1)(B), and 309(d)(1)(A), by up §§ (prohibiting, over individual giving to five any years’ imprisonment, with a national By to $25,000 party), Spending annually WL 13,1996, 43, 1996 Chronicle, Dec. Houston Perot, p. The million contribution Perot’s founding $8 11581440 (reporting an envi- makes it a BCRA felony the Reform Party). to an within 60 of ad, to an days ronmental broadcast group im- election, protest Congressman’s exhorting public See in national forests. vote to logging permit pending discrimination §203. escalates Congress’ BCRA BCRA media of favor of the speech giant corporations rights both of other profit corporations, against speech rights v. Michi- Austin with BCRA Compare nonprofit. gan (1990) Commerce, 652, Chamber 494 U. S. 659-660 of (first discrimination). this of type sanctioning First

To the all is not valid under the this majority, only Amendment of but also is part Congress’ “steady improve- Ante, ment of the national laws.” at 117. We election should no is the codification make mistake. It is neither. It of an can the mainstream media alone pro- assumption tect of to en- freedom It is an effort speech. by Congress sure that civic the modes discourse takes place only through of its as its con- And is BCRA choosing. only beginning, admit: gressional proponents freely step, essential it is an step, first it is a a modest

“This is some address, in begin to even not step, it but does hard exist problems that ways, the fundamental S2101 Cong. Rec. system.” 148 aspect money (statement 2002) Feingold). (Mar. Sen. 20, Wellstone) (“[P]assing this (statement of Sen. Id., S2097 more”); id., at appetite for people’s whet will legislation . . . Boxer) (“[T]his be-all not the (statement bill Sen. S2101 (state start”); id., at S2152 strong is a but it end-all, Corzine) (“[T]his not be will not and should of Sen. ment on the Senate is debated reform campaign finance last time campaign is finance important many more haveWe floor. Torricelli) (statement of Sen. id., explore”); at-S2157 sues (“Make end reform, not beginning of a [BCRA] the 2002) (statement Dog Rep. (Feb. reform”); id., at H442 that it defect, it is (“Mr. has [BCRA] Chairman, if gett) much”). too little, too does cannot all, Government teach, above precedents

Our sfippression rules its own moderate be trusted led regulations have by speech posed dangers speech. The and a lines constitutional upon principled insist the Court majority now abandons review. rigorous standard limitations. distinctions these uphold- opinion majority from the I respect, dissent With judgment I concur I and II. ing Titles BCRA 323(e) judg- § in the concur §213 FECA and new BCRA §§201, part BCRA as to in dissent part in ment and 214. PROVISIONS I AND COORDINATION TITLE

I. receipt, transfer, solicitation, principally bans Title I (new parties money by the national spending of soft II)). §441i(a) bans It also (Supp. 323(a), § S. C. FECA (new FECA parties by money state soft certain uses parties to money national from 323(b)); § of soft the transfer 323(d)); solicitation, re- (new § FECA nonprofit groups spending money federal candi- transfer, and of soft ceipt, (new 323(e)); § and certain and officeholders FECA dates (new 323(f)). § money by FECA soft state candidates uses of provisions with which provisions, and the other this These set out in principally concerned, full, are' see opinion is speech cursory review of the Appendix, Even a infra. their these laws create makes First association burdens infirmities obvious: Amendment pool- shared beliefs from

Title I bars individuals with by Congress money ing their above limits set to form a 323(a). party. third new new See FECA soliciting party from I bars national officials Title money parties directing use on a state soft to state true even if no federal ballot initiative. This is office appears on ballot as the state initiative. See the same ibid. party’s strategic

A in the national mere involvement fundraising risks planning of for a state ballot initiative party exercising is “in- a determination that the national party. of the state If that determination direct control” regula- party must made, is the state abide federal even if the And this is so federal candidate tions. unopposed runs certain ballot, one, if is or is so there only voter state that the interest election ibid. campaigns. and local See Party compels speech.

Title I officials who want to engage activity fundraising speak such as must now magic words to inter- ensure the solicitation cannot be preted anything other than a hard, solicitation for money. soft, See ibid. prohibits parties giving any I the national

Title federally nonprofit regu- sort even entities, of funds to money, hoped sponsor party and even if the lated hard group’s exploration particular the interest of a issue party’s platform. addition of it their advance of 323(d). See FECA new multiple different imposes I Title

By express terms, their candidates, caps parties, on spending of forms (f). (e), 323(a), §§ FECA agents. See new quasi-soft-money raise parties to state I allows Title fed- might affect activities for use in funds Levin parties from national prohibits Act election; the but eral executing these developing and in assisting parties state only seek parties the when fundraising plans, even FECA new See interests. election state advance 323(b). accepted has Court cases, the today’s consolidated Until validity of cam- determining the principles use but two anticorruption ra- the First restrictions. paign finance agreement course, is concern, of principal The tionale. candidates) (or quo officeholders pro between quid for a said has The Court them. to influence seek would those who on limitations corruption allows preventing interest the receipt regardless officeholder, or quid a candidate officeholder. or donor the intent or of gives who it 291-294. at 45-48; 26-27, infra, S., at Buckley, 424 U. See classify analyzed laws has Second, the Court identity under union corporate speaker’s basis said has Court The speech corporate rationale. corporations entity form adoption willing ability to differently: Their regulating justifies them unions but only limits subject not may quids be give candidates be may likewise speech outright bans; electoral their also Elec- 659-660; Federal S., Austin, 494 U. See curtailed. S. Comm., 459 U. Right to Work v. National Comm’n tion (1982). 197, 201-211 suggests rhetoric today opens with majority

The corporate anticorruption rationale conflation to, (hearkening back ante, at 115-118 See speech rationale. use against the advocacy and his among Elihu Root others, conflation campaigning). corporate funds un- here regulated speech designed cast the appears seemly corporate speech. effort, is however, unwar- just money ranted, per and because is not the se evil the majority regulations Most notably thinks. issue, at soft-money all of the Title I bans II and the Title coordina- provisions, tion corporate do not draw distinctions based Referring union corporate speech or status. to the rationale linchpin corporate as if it speech were the of the case, when primarily at analy- issue, is not adds force to the no, Court’s Buckley's Instead, sis. the focus must anticorrup- be on tion rationale and rights the First Amendment of individual citizens. Constitutionally

A. Sufficient Interest Buckley, In only the held that Court one, one, interest justified significant right the burden on the association eliminating, preventing, involved there: corruption or actual appearance or corruption stemming from contributions to candidates. unnecessary beyond

“It is primary pur- to look the Act’s pose actuality appearance limit corrup- —to resulting large tion from individual financial contribu- constitutionally tions—in order to find a sufficient justification for the $1,000 contribution limitation.” 424 S.,U. at 26. ibid,

See also this interest was suffi- (concluding corruption ciently “significant” “closely to sustain drawn” interference protected rights). First Amendment parallel,

In Buckley expenditure concluded the limitations question they were invalid because did not advance that (“[T]he same interest. id., See independent at 47-48 ex- penditure ceiling govern- thus fails to serve substantial stemming mental interest in reality appearance or of cor- ruption process”); in the electoral id., see also 46. though Buckley

Thus, subjected expenditure limits to scrutiny strict exacting contribution limits to less re- it view, held neither challenge could withstand constitutional interest. anticorruption to advance shown was it unless repudi- Buckley to be unless cases, consolidated In these in- further regulations conclude must ated, we closely drawn they are considering whether before terest reg- advanced, is not interest If the narrowly tailored. apart quite Constitution, comport with cannot ulations of review. standard con- its express language by its clear, Buckley made regulating justifies only corruption interest text, that call can receipt we of what officeholders’ candidates’ rested Court quo pro formulation. quid “quids” regulation campaign finance principle that on decision its particular proof of requiring speech without restricts that only if challenge constitutional withstands corrupt action pro quo quid demonstrable posing a regulates conduct it danger: se- given to are contributions large extent

“To potential quo current pro quid political cure a representa- system of integrity of our holders, office Id., at 26-27. democracy is undermined.” tive large inde- arguendo, (“[Assuming, at 45 id., also See ap- actual dangers pose same expenditures pendent large contributions as do arrangements quo quid pro parent pro quo quid ...”). on this decision Buckley rested its That this held was. haveWe observation. a novel is not standard case: being justified limits [of contribution exception “The perception Amendment] to the relates First under a candidate: large contributions influence of undue se given to are large contributions ‘To the extent potential quo from current pro quid cure represent system of our integrity of holders, the office Against Citizens democracy undermined.’” ative Berkeley, Housing v. Fair Control/Coalition Rent (1981) (quoting 290, Buckley, supra, 454 U. S. 26-27). at also Federal Beaumont, See Election Comm’n v. 539 U. S. (2003) (furthering anticorruption this by up- rationale holding candidates); given directly on limits contributions Nixon v. Shrink PAC, Missouri Government U. S. (2000) (same).

Despite attempt rely language Court’s from cases defining like Shrink Missouri to establish that the standard corruption is quid pro than presents broader conduct that danger, quo ante, see 152-153, at n. those cases the upheld in fact possessing quid pro Court limits on conduct quo dangers, nothing more. See also infra, 296. For example, the distinguishing Missouri Shrink Court’s of what quid pro quo, was at issue only there and in fact, shows quid pro quo it used the corrupt, term to refer to actual vote-buying exchanges, opposed pos- to interactions that quid pro quo potential sessed innocently even if undertaken. Thus, the Court said: spoke

“[W]e Buckley perception corruption regime large ‘inherent in a financial individual contri- public butions’ to candidates for ... as a office source of equal’ quid pro quo concern improbity.” ‘almost to (citations omitted). S.,U. at 390 perception

Thus, the corruption majority of that the as- now serts is quid pro quo somehow different from potential the discussed in opinion this by exchange was created an fea- turing quid pro quo potential directly to a —contributions candidate. . determining

In poses whether quid pro quo conduct dan- ger analysis the is Buckley, functional. In the con- Court expenditure provision fronted an limitation capped that money amount of spend any individuals activity could in- (i. tended to influence federal e., election it reached both to independent expenditures). and coordinated S., 424 U. See limitation though that concluded Court The

at 46-47. expenditures, and independent coordinated both reached coordi- barred that provisions FECA valid other there were added only issue limit Hence, nated expenditures. it basis that On expenditures. to independent regulation cor- valid any unsupported was the provision concluded regulation it added which conduct The interest. ruption danger. quo pro no quid posed expenditures) (independent ibid. See context in the rationale anticorruption Buckley’s Placing rule: following yields power legislative federal a basis provides corruption in preventing interest Congress’ receipt officeholders’ candidates’ federal for regulating corruptly or officeholder the candidate or not whether quids, Court rule requires Conversely, them. received not do they when regulations finance campaign strike down arrange- quo pro quid or “actual apparent regulation add Id., at 45. ments.” bounds constitutional these ignores The Court regula- to allow rationale anticorruption effect interprets arrange- quo pro quid “actual apparent tion just goodwill wins that conduct ibid., any but ments,” there is not It of Congress. a Member or influences the majority opinion this between quarrel conduct certain whether has been since Buckley inquiry we ante, at 154. On See influence.” “undue creates was however, standard, Buckley’s aim very The agree. the presence reference influence undue define con- Court, officeholder. involving quo quid pro influence more, access, proves without trast, concludes legal the same view, has the Court’s Access, is undue. officehold- corruption or apparent as actual ramifications all pro- away sweeps of corruption definition ers. This new lie in its path. tections speech this in cases our abandoning is not it says The majority otherwise: shows reasoning its but way, importantly, plaintiffs corruption “More conceive of narrowly. firmly too Our cases have established that Congress’ legitimate beyond prevent- interest extends simple ing corruption curbing cash-for-votes ‘undue judgment, on appear- influence an officeholder’s and the [Federal of such ance influence.’ Election Comm’n v. Republican Campaign Comm., Colorado Federal (2001) (Colorado II)J. Many 431, U. S.

‘deeply disturbing examples’ corruption this cited Buckley justify Court limits FECA’s contribution episodes buying, were not of vote but that vari- evidence corporate given ous interests had substantial donations gain high-level government access to officials. Even certainly if that access did not influence, secure actual it gave ‘appearance II, of such influence.’ Colorado supra, [Buckley at 441; Valeo, see also 821, v. 519 F. 2d (CADC 1975)]. present replete

“The record in case is similar examples party peddling of national committees access exchange to federal candidates and officeholders in large soft-money [251 Supp. donations. F. 2d See (DC 2003) J.)].” (Kollar-Kotelly, 492-506 Ante, at 150 (some omitted). internal citations majority regulated

The notes that access flowed from the conduct at issue Buckleyandits progeny,thenusesthat concluding fact as the basis for peddling that access parties equals corruption by the candidates. That conclu- only by sion, quick however, is tenable shift, and subtle ground: majority ignores one that breaks new quid pro quo regulated nature of the conduct central to our solely earlier decisions. It relies fact instead access flowed from the conduct. ignore

To Buckley money the fact that in issue was given creating pro quid quo danger candidates, an obvious as much providing as it led to the candidates also access to ignore the donors, Buckley the Court’s comments the importance of central quo pro was quid that show ig- majority also The 26-27, 45. atS., 424 U. analysis. See party contribu- since, those Buckley, ever and in that nores were congressional limit subject to been have that tions only contribu- were but contributions party-building general they is, That elections. particular .influence tions used particular candidate’s to a flowed contributions were ignores And it danger. quo pro quid posing a again benefit, was which was that spending party II, the in Colorado thereby implicating candidate, particular awith coordinated majority ways the these dangers. In all quo quid pro and quid access and between necessary tether breaks corruption by itself, demonstrates all access, assumes at 156 ante, also regulation. See support can so committees party to national soft-money donations (“[L]arge office- to federal access preferential buy likely donors are are contributions their to which the ends no matter holders eventually put”). general in a only that shows however, itself, in

Access has someone or that someone favors an officeholder sense in law or basis, in no There is officeholder. influence same general is influence say or fact, to favoritism equating, By particular. or influence corrupt favoritism ac- with influence or of favoritism claims vague generic adopts a definition the Court corruption, apparent or tual rules, Amendment First basic dismantles corruption that quid a absence speech in suppress Congress to permits is Buck- rationale beyond moves threat, pro quo very ley's foundation. by theory articulated influence favoritism generic analy- Amendment First standard is at odds Court limiting no susceptible to is it unbounded because ses any given might be favored given Any action principle. loyalty of reasoning Court’s person, so remaining no There prohibited. be can purest sort finance campaign whether inquiring principled method corruption regulation regulate does fact in a serious and meaningful way. congressional We are left to defer con- clusion that certain favoritism conduct creates or influence.

Though majority sense as the cites common foundation corruption, ante, for its 145, 152, definition see in the only single corrup- context of the real world a definition of identify corruption political tion has been found to success- fully distinguish responsiveness good political and to quid pro quo. bad—that is and not, Favoritism influence are theory suggests, repre- as the Government’s. avoidable in politics. repre- sentative It is in the nature of an elected policies, by necessary sentative favor certain and, corol- lary, support to favor the voters and contributors who those policies. legiti- It is well understood that a substantial and only reason, reason, mate if not the for, cast a vote or to to, make a contribution one candidate over another is that respond, by producing the candidate will those out- supporter Democracy premised comes the favors. is re- sponsiveness. pro quo corruption has Quid been, now, until only agreed upon represents the that conduct the bad form responsiveness presents justiciable of and standard relatively limiting principle: responsiveness may clear Bad by pointing relationship be demonstrated to a an between quid. official and a

The to mask its extension of majority attempts Buckley under prevents claims that appearance corrup- BCRA the of prevent tion, corruption, even if it does not actual some since money political party assert that donation of to a is sus- pect. Buckley’s ante, See holding at 149-152. Under that Congress reality stemming has a valid “interest the appearance corruption,” of S., however, at the 47-48, inquiry persons does not turn on whether assert that some appearance an corruption inquiry Rather, exists. the turns Legislature on whether the has established that regulated corruption potential, conduct has inherent thus justifying regulating that stem inference the conduct will Buckley guided was real corruption.

the appearance expenditure down striking In analysis. this constrained people whether ask in Buckley did Court limits clearly because corrupt, expenditures election large thought Congress a majority including many persons, time at the par- id., (“According at See President, did. Act ... amici, served interest the primary ties the appear- corruption is the whole, prevention aas whether asked Instead, Court corruption”). ance conduct, ex- regulated had proved Government poten- quo pro corruption quid inherent posed penditures, id., 46. See tial. clearer even analysis this made Buckley decision if ac- even stated It limitations. contribution upholding proved, been had not practices contribution corrupt tual of cor- the appearance in regulating interest an had Congress fi- individual large a regime “inherent ruption contributions Id., at (discussing contributions.” nancial pro quo quid id., at The 30. candidates). also See conclusion justified contributions of candidate nature potential; corruption inherent pose contributions that regulation their that conclusion turn justified this and corruption. real the appearance stem would ask, not should today Court that it follows that From of Con- Members even some persons, whether does, it as conduct appears the regulated assert conclusorily gress, in- instead Buckley, it should Following to them. corrupt inherently poses now prohibited conduct whether quire regula- its so quo pro danger, quid or real substantive pro quo corruption. of quid the appearance stem tion will (f) (d), (b), 323(a), §§ FECA New 1. (b), 441i(a), §§C. (f), S. (d), (b), 323(a), Sections do not they because stand II), cannot (f)

(d), (Supp. quid a demonstrable that poses conduct regulation add Buckley^ corruption further not do They quo pro danger. interest. 323(a) § as aimed paints majority, brush, with a broad officeholder cor- limiting possessing federal contributions §323’s re- justify

ruption potential. From there it would to ensure the complements maining provisions necessary §323(a)’s prohibitions. parties circumvent national cannot provi- when the approach however, fails, The broad brush of cor- Buckley's proper definition sions are reviewed under potential. ruption 323(a) § regulate candidates’ federal its face does not

Oh regulate receipt not quids it does or officeholders’ because by, or officeholders. or to, contributions conduct candidates 323(a): 101(a) § § (setting National out new FECA See BCRA person may parties to another “solicit, receive, or direct not money]”). [soft spend or ... furthermore, not do statute,

The realities that underlie the support majority’s interpretation. Before BCRA’s en- money parties only for a candidate’s actment, soft could use parties now {e.g., through all ads, “benefit” which issue elections) may independent admit of that candidate. influence 323(e) validly prohibits And, federal can- later, as discussed soft-money party didate do- officeholder solicitation 323(a), only therefore, nations. at 314. See Section infra, regulation soft-money party adds not solicited donations by, spent or officeholder. with, coordination a candidate or (noncandidate

These solicited donations officeholder soft-money party spent) independently do donations are pose quid pro quo dangers provide the basis restricting protected Though speech. the Government 323(a) argues regulate does and office- federal candidates’ receipt quids, holders’ argument this it bases its on reasoning: flawed

(1) “[F]ederal inextricably elected officeholders are political parties,” Appellee/ linked to their Brief for p. Appellant al., 21; Cross in et FEC et al. No. 02-1674 Republican Campaign cf. v. Colorado Federal Comm. (Col- (1996) Comm'n, 604, 626 Federal Election 518 U. S. dis- I) in judgment concurring J., (Kennedy, orado in part). senting to, connected be must receipts (2) party All among these favoritism corrupt donor create, must officeholders. reg- receipts equals party regulation (3) Therefore, officeholders. party’s the quids to ulation reliance the Government’s because reasoning is flawed only es- concurrence I Colorado to the reasoning parallel on party is a a logic: chain in its step first the tablishes not establish does It generally. its candidates proxy for all generally, candidates its proxy for step: as a second solicited, soft- (not just candidate party receives moneys the activity) in coordinated used donations, donations money officehold- candidates party’s all quids represent what a with analysis is inconsistent The Government’s ers. said. have opinions, in different Justices, majority of v. Comm’n Election Federal dissent Thomas’ Justice 476- S. Comm., Campaign Republican Colorado II), together (Colorado JUSTICE (2001) taken Court judgment announcing opinion Breyer’s ar- Government’s step of the second rebuts I, Colorado general demonstrated Thomas gument. Justice he As exist. not linkage does corruption party-candidate out: pointed is unsur- corruption] [of such of evidence dearth “The relationship between unique light

prising of a very aim ‘The candidates: its party and political stance candidate’s its influence tois party political reelected, isor office takes candidate if and, issues achieve help expenditures coordinated If votes.’ his . constitute . . ‘does achievement aim, this II, Colorado process.”’” subversion “a omitted). (citations 476-477 supra, at reached the same conclusion'about the Breyer Justice corrupting general party receipts partic- effect could have though grounds. candidates, ular on narrower He concluded independent party quid pro quo conduct corrup- lacks potential. tion See I, S., 617-618; Colorado 518 U. at id., at (“If anything, independent an [party] expenditure made possible by $20,000 donation, a but controlled and directed by party rather than likely donor, would seem less (or corrupt independent than the same larger) a much ex- penditure (“[T]he donor”); directly by made id., at 616 opportunity corruption by posed [soft-money] contribu- is, best, tions they may attenuated” because not be used purposes for the influencing a federal election under FECA). opinions

These independent establish party activity, which independent definition receipt includes spend- ing money, possibility soft quid lacks pro quo corrup- tion federal This officeholders. must be all the more true party’s independent of a receipt spending soft-money donations neither directed to nor solicited a candidate.

The premise Government’s unsupported also by the rec- ord us. The soft-money record confirms party before contributions, without do quid more, pro quo create cor- ruption potential. conceptual As a generic party matter, contributions may , will from a engender candidate good officeholder because, as says: “[A] Government Member Congress expected can be to feel a temptation natural ” favor persons those helped have who the ‘team,’ Brief for Appellee/Cross-Appellant FEC et al. in No. 02-1674 al., et p. 33. Still, no Congress Member of testified this favoritism changed voting behavior. piece of record evidence the puts Government forward

on this by way score deposition comes testimony for- mer Simon Senator Feingold. Senator Supp. See 251 F. J.). 2d, at (Kollar-Kotelly, reported Senator Simon an colleague unidentified indicated op- frustration with Simon’s contributor party a benefit would that legislation tó position iswho pay attention got to “‘we’ve grounds that the there think not did he testified buttering bread’” our ” “ way”) (i their getting e., “donors ‘this’ question was Senator App. 805. passed. See legislation why the was suggested colleague unidentified an Feingold, too, testified “ donor] ‘they [i. the e., because legislation support the he ” 2d, at Supp. F. $100,000.’ party] [i. e., gave the just us J.). (Kollar-Kotelly, against the Government. works fact evidence That the disgust toward expressed testifying Senators two These good will one the not soft-money giver, and favoring aof theory. That Government’s the expected under have would corruption Gov- the inference the necessarily undercuts evidence. the from draw us have would ernment from argument Government’s the damaging to more Even the testimony Senator that testimony absence the is the himself had corrupt influence allegedly succumbed who Equally, question. donor money the from soft solicited company the simply favored he indication no is there him, from any involvement had, without it because vote his is fact belonged. This he party which to the given funds solicitor the had been himself the If Senator crucial. nothing more does incident question, soft-money funds re- finance campaign at Congress’ efforts that confirm than quid implicates that to conduct directed ought be form some evidence was Only there if relationships. quo pro could donor funds solicited not had officeholder party general episode this extrapolate from Court corrupt favoritism inspiring quids, function contributions its single one episode is party members. among sufficient seem not does record in the reported type practice. Given into settled incursions major basis for is problem corrupt favoritism claim Government’s single in- more than produce inability to its widespread, point demonstrates illustrate purporting stance fairly has not general Government characterized the atti- soft-money tudes Members toward donors from whom they have not solicited. aspects

Other of the record confirm the has Government produced not evidence corruptly Members favor soft- money party per donors to their as a se matter. Most testi- mony from which the Government would have the Court corruption testimony infer that Members are rewarded parties soliciting their money. soft id., See 438-521 J.). says (Kollar-Kotelly, nothing This about how Members party’s feel about soft-money they donors from whom have Indeed, solicited. record point again evidence on this against cuts the Government:

“‘As a Member of the Senate Finance Committee, I experienced pressure first hand. On several occa- debating sions when we important were bills, tax police I get needed a escort to into the Finance Com- hearing many lobbyists mittee room because so were crowding trying get halls, to one last chance to make pitch their generally each Senator. Senators knew lobbyist represented which large interests of which glad donor. I was often that I limited the amount of money fundraising soft I did and did not take PAC con- tributions, extremely because it would be difficult not to feel beholden to these donors otherwise»’” Id,, at 482 (testimony of former Boren; Senator see 6-R Defs. 8).¶ Exhs., Tab

Thus, one of the handful of Senators on whom the Govern- ment candidly relies to make its pressure case admits the of appeasing soft-money donors derives from Members’ solicitation of not donors, from those giv- donors’ otherwise ing to party. their 323(a) § light

In this, of all no anticorruption has valid in- terest. The anticircumvention interests the Government of- (f) 323(b), §§ (d), fers in defense must also fall with the 323(a). Any anticircumven- justify asserted interests justify- interest compelling as the only as can be interest tion regulation. underlying ing the justifying independent an has sections other of these None only regulation 323(b), example, adds Section

interest. District party. In state activity undertaken particular fact judges found three two Court state participate primarily exist parties and local state re- majority their spend the they local.elections, that registration voter their elections, and those sources are (GOTV) particular, activities, in get-out-the-vote See elections. and local at state primarily directed judg- concurring in (Henderson, J., 301-302 Supp. 2d, at F. (Leon, id., at 837-840 part); dissenting in part and ment other, valid together BCRA’s with J.). findings, taken These candidates federal barring coordination prohibitions demonstrate solicitation, soft-money their officeholders poses 323(b) regulation conduct add does receipt of or officeholder’s candidate’s a federal danger of quids. state bans which §323(b)’s regulation, narrowest

Even (1) clearly identi- to a refer ads that soft-money funded party (2) support or attack either candidate, and federal fied can- federal clearly mentioned office for the candidate 301(20j(A)(iii), the constitu- § fails FECA new didate, see own by statute’s conduct ban The test. tional sug- candidate a federal the interest may serve definition pro poses quid it conduct is majority that gests to the Yet, or officeholders. candidates federal danger quo excising coordination after this effect—considered even prohibited elsewhere aspects funding and candidate-solicited §323(a) poses 214(a) FECA §§202 new — BCRA receipt officeholder’s candidate’s danger federal of a no individ- an from different is no conduct quid. That of a supporting referring to and expenditure independent ual’s poses regulable no clearly candidate —and this identified danger. 323(d), governs relationships between the which

Section nonprofit groups, fails parties for similar rea- national noting record neither the nor our own It is worth sons. significant funds these transfers are experience tells us how plain, however, that the First It is Amendment at this time. permit Congress manipulated to forbid a ought not to be aiding speakers party party whom the political other addressing effective in discrete issues. deems more One Congress determining is that is the central flaws BCRA expression course the creation of ideas and what future attempt follow. Its to foreclose new and cre- of views must speech, partnerships here, as illustrated is consist- ative principles traditions nor of our free ent with neither the speech guarantee, people, which insists that the and not expression Congress, what modes of are the most le- decide gitimate and effective. 323(d) majority’s upholding unsettling

The is all the more way ignores Congress because of the it the Act as wrote it. Congress parties any said national “shall not solicit funds 501(c) nonprofit for, to,” or make or direct donations engage activity organizations or to in federal election §527 however, Court, committees. The reads out and “dona- “funds” the word and construes words “any” “soft-money “soft-money tions” to mean funds” and dona- (“This ante, tions.” See construction is consistent animating plug purpose I, with the concerns Title whose is to soft-money statutory loophole”). The Court’s amend- may anti-soft-money rationale; ment its be consistent with it plain is not, however, consistent with the and unavoidable statutory Congress given has Even as construed text us. Court, moreover, it invalid. majority provision to save from what must strains unduly seem to Amendment. It so it an harsh First does by making legislative Congress chose not to determination con- within money soft money hard

make: prefer groups. nonprofit with relationships party of national struct to regulate of a preference indication no gave Congress Rather, it simply context. this or soft hard money either two organiza- between money transfers all proscribed any to raise parties national efforts by all and tions The question behalf. groups’ the nonprofit on money strike, sever text of a not which part is faces Court altogether. transfers such can prohibit Congress whether but ante, See no. is recognizes, answer, majority already funds donating from (“[Pjrohibiting parties Con- to further does little FECA with compliance raised in or the appearance corruption of preventing gress’ goal officeholders”). candidates federal corruption con- candidate limits 323(f) imposes in effect § Though of- candidate federal address does tributions, it federal the possibility it is Yet contributions. ficeholder animates quo pro quid potential corruption officeholder (as opposed Acts Buckley’s Congress relates as it rule (“The con- at 13 S., 424 U. See of state legislatures). to Acts is elections federal to regulate Congress power stitutional established”). well (f) do not (b), (d), and 323(a), §§ one recognizes When contemplates, rationale anticorruption interest serve in- like an much very look begins entirety Title I's Politics Miller, Monopoly J. See plan. protection cumbency election limiting regulations (1999) (concluding 84-101 than more challengers constrain spending fundraising fact worsened incumbents). That impression strin- the more officeholders its exempted Congress new Compare officials. on party imposed gent prohibitions 323(a) 323(e). Section 323(a) FECA new FECA solicitation, soft-money bar against an inflexible raises contrast, 323(e), Section officials. or party parties way, by (the officeholders federal rule to the exceptions enacts corruption), centerpiece possible and allows them to very money organizations. various uses and soft solicit regulation of respects even weakens the law some The law, of- former officeholders. Under candidates and federal receipt of hard limited to to be were understood ficeholders §§431, money by campaign U.2 S. C. their committees. See II) (2000 pre-BCRA Supp. (setting FECA out ed. and 441a their them and cam- regime). however, now allows BCRA, money the hard- that fits soft paign receive committees to long as the office- money restrictions, so source-and-amount money candidates. to other nonfederal on direct that holders 323(e)(1)(B). majority’s § characteriza- The new FECA See constraining]” regime “tightly weakening the this tion of example prime of its unwill- 70,is a ante, 181, at n. candidates, persisting Congress’ or the ingness own interest to confront freedoms. regulations Amendment violate First fact that incumbency-driven accorded to lenient treatment more The represent party broad national politicians who than to officials Congress’ suspect more all the constituencies must render corruption. stop purpose tois that the Act’ssole claim by stating obvious, charge majority The answers this 323(e) “§ applies candidates.” and to both officeholders controlling point, is the course, The Ante, at n. 72. ap- prohibition practical challengers. That the burden estab- in no way incumbents to both challengers plies regard. equally Name lishes that it burdens them in that recognition advantages ensure other held incumbents general advantaged that as a rule incumbents will be legislation today upholds. the Court anticorruption

The interest Government identifies no valid (f). 323(a), (b), §§ (d), very justifying nature of imposed by provisions all makes one restrictions these skeptical explanation interests of the more Court’s provisions First under the stake. These cannot stand Amendment. 323(e) FECA

2. New provisions challenged I Title Ultimately, only one First and the anticorruption rationale Buckley’s satisfies 323(e). provision is This It is guarantee. Amendment’s necessary reg- is a direct and aspect I that Title the sole receipt of officeholders’ candidates’ of federal ulation individuaos] 323(e) “eandidate[s], governs quids. Section or an individual agent[s] a candidate holding office, Federal indirectly directly es- entity or an office, or holding Federal acting by or or controlled financed, maintained tablished, holding Fed- or individuals of or more candidates on behalf II). §441i(e) provi- (Supp. These office.” U. S. C. eral candidates’ regulations limit follow, sions, and the regulation aof money. The soft agents’ of solicitation their constitutionally suf- receipt furthers of funds candidate’s question the difficult, however, More ficient interest. also of funds regulation solicitation candidate’s of a whether given another. are the funds interest if furthers this regula- broader solicitation agree that the the I with Court making a so- of interest. further sufficient does tion money and to recipient of quid the to the gift both licited is a (by granting request). payment his the one who solicits the of solicitation governing candidates’ officeholders’ Rules governing re- regulations their therefore, are, contributions Buckley’s anticor- regulation under fits ceipt quids. This of ruption rationale. Review

B. Standard opin- majority and this ground between It is common regulation, campaign finance speech-suppressing that a ion un- interest, is supported a sufficient Government if even review. designated satisfy standard our if it lawful cannot “closely applied Buckley, we In ante, 134-137. See at scru- strict scrutiny limitations contribution drawn” S., Compare 424 U. expenditure tiny to limitations. majority as- backdrop, Against that id., at 44-45. Buckley applied in because the rationale the con- sumes expenditure application limits, its text contribution gives Congress capacity classify Court and the challenged campaign regulation as either a finance contribu- expenditure Thus, or an it first concludes tion limit. Title regulations proceeds Ts limits and are contribution then apply scrutiny. the lesser

“Complex may provisions be, §323, main, as its regulate ability wealthy does little more than indi- corporations, large viduals, and unions to contribute money sums of to influence federal elections, federal can- didates, Ante, and federal officeholders.” at 138.

Though majority’s analysis dynamics it, denies Title I’s defy facile, this initial classification. provisions prohibit receipt

Title I’s funds; most but instances, all, this can be defined a contribu- They prohibit tion spending funds; limit. and most expenditure They instances this can be defined as an limit. prohibit giving nonprofit groups; of funds to and this falls Finally, within neither definition as we have ever defined it. they prohibit fundraising activity; parties dispute and (the regulation challengers say the classification of this it political says association, is core while the it Government results in a limit on contribution ultimately only receipts). majority’s The classification competing overlooks these exchanges Buckley’s characteristics and substance for a for- Despite parties’ mulaic caricature of majori- it. and the ty’s best efforts on sides question, both ignores it real- ity regulations to force these legal into one of the two categories as expenditure either contribution or limitations. Instead, these Congress characteristics seem to indicate has regulations enacted that are neither contribution ex- nor penditure perhaps limits, or are both at once.

Even if the only laws could be classified in broad terms as majority limits, contribution as the do, is inclined to still if include question limits” can what “contribution leaves application Buckley. Buckley’s upheld they to be under are be con limits must exacting to review contribution of a less money directed, gifts are category of fined to the narrow Any broader or officeholder. to a candidate manner, in some quo quid pro Buckley’s category contradicts definition Buckley’s language, which contem and overlooks rationale campaign or candidate plates contributions a limits on (applying S., explicit at terms. See 424 U. committee in the . limitations . . exacting to “contribution review less contributing than more prohibiting] Act individuals single single year $1,000 or more than $25,000 in a (“[T]he contri campaign”); id., at 45 an election candidate large giving a] [apply limitation^] ban total bution candidates”). 20, 25, 28.. money id., at See also amounts Buckley and acknowledged, both Court, it must be due contribution limits occasions, has described on other precise At terms. in less than deferential review some more parties political would also implied donations to times it be sub- too would qualify limitation whose as contributions (“[T]he 23-24, n. exacting id., ject at See less review. political contri- understanding a general what constitutes party political or provided bution[:] or to a candidate Funds indirectly through an directly or campaign committee either contribution”). Federal intermediary See also constitute (“‘[Contri- at 161 Beaumont, S.,U. v. Election Comm’n spent expression a candi- if may butions result ” 21)). supra, Buckley, (quoting an date association’ conflicting are best reconciled seemingly statements These applying underlying Buckley’s rationale reference imperative, similar, more exacting but In review. less regula- review to standard of proper application of the sense (or expenditure limits nor neither contribution tions that are once) by only reference determined can be both at which are rationale. exacting re- is underlying this: Less Buckley’s rationale “significantly regulations that applies to Government view rights But of association. Amendment with First interfere” rights creating speech associational regulation of or significant such inter- greater than “markedly interference” scrutiny. and ill advised Unworkable receives strict ference unavoidably this test: may Buckley sets forth though be, it ‘ rights protected “significant with interference” “Even a may if the State be sustained political association’ of demonstrates ^[1] sufficiently important interest and ^[2] employs means closely drawn to avoid unnecessary v. Wi Cousins abridgment of associational freedoms. (1975)]; [371 Button, [419 goda, NAACP v. 477, 488 U. S. (1963)]; [364 Tucker, 479, v. U. S. Shelton 415, 438 U. S. (I960)].” S., at 25. [refer markedly greater on basic freedoms burden “The association’] speech and caused ring ‘the freedom simply limits] be sustained [expenditure thus cannot maximizing invoking effectiveness the interest Rather, limitations. contribution intrusive of the less limits] [the constitutionality expenditure turns sup its advanced in governmental interests whether the exacting scrutiny applicable limita satisfy port political rights ex Amendment First tions on core at 44-45.* pression.” Id., enough, majority, oddly first states this standard Compare: accuracy, but then denies it.

relative * Beaumont, Election Comm’n v. 539 U. S. also Federal See (2003) (“[T]he First Amendment setting we have followed in premise basic level [is that] financial restrictions reviewing political standards activity at issue’ importance “political scrutiny is based on Party v. association”); Democratic effective speech political California (“We Jones, (2000) on a can think no heavier burden 567, 582 530 U. S. un- 198 is therefore Proposition freedom. associational party’s state compelling to serve a narrowly it tailored constitutional unless interest”). of scru- determining level the [in inquiry relevant “The implement adopted to mechanism whether the tiny] is circumvention prevent or to limit, contribution the restric- way direct a that a speech in limit, burdens that 138- ante, at not,” would itself contribution the on tion with: alleged associational the suggest that to of this is “None in the place no have parties imposed on burdens only we account that analysis; isit Amendment First the choice, of than rather application, them ante, 141. scrutiny,” level appropriate on burdens how out separate attempt to majority's affect rights associational on rights burdens speech to true even It is misguided. is review standard Buckley, shown test. Buckley’s unconventional of review standard explained lower above, quotations . rights, and associational on of burden the level reference by ref- review higher standard ¿xplained need it associational both on higher burdens erence light rationale, and Buckley’s light of rights. In speech on affirming burdens precedent ample Court’s of this S;, at 424 U. scrutiny see review, strict speech necessitate core limitations scrutiny [applies] (“[E]xacting 44-45 “closely expression”), rights Amendment First law of a only in review employed be scrutiny should drawn” bur- only where association, rights of burdens Court markedly greater. Since significant, not is den say first, to right Buckley, was it repudiate professes not regula- BCRA’s significant burden how determine we must though it should rights, Amendment First place on tions of asso- those implicated are rights specified have flatly contradicts analysis of that denial later Its ciation. Buckley. im- already awkward Buckley’s, majority makes Thé one If application. its meaningless in but precise all test Buckley's majority lens, as the through viewing BCRA markedly the Act creates conclude do, one must purports significant burden than the burdens greater associational contribution and, unlike limitations by contribution created speech itself. burdens on significant creates limitations, also which limitations, contribution federal contains While BCRA goes The it even further. association, significantly burden na- of relations between entirely the nature reorders Act candidates, between national parties political and their tional parties, na- and between local political parties and state organizations. nonprofit political parties and tional regulations im- Title aspects of I’s many and varied rights of the the associational pose greater far burdens regu- candidates, and citizens than do parties, officials, their money per- cap the amount of than that do no more lations or committee. candidate contribute to a can sons long parties a tradi- have shows that national The evidence activities, such as engaging in associational essential tion of fundraising local coordinating with state and planning and not federal respect that are parties, to elections often with regula- that the strengthens the conclusion in nature. This unprecedented impact. It makes us have now before tions contrary conclusion—which impossible, moreover, necessarily im- determination of review Court’s standard much soft-money regulations will not plies BCRA’s —that candidates, change parties, between the nature association Similarly, nonprofit groups, Title I now com- and the like. sure pels speech by party These must be officials. officials offi- uttered their their words mistaken for words are not soliciting prohibited soft, capacity mistaken for cial or speech, money. asso- Few interferences with hard, greater than expression people our are ciation, and free say by groups can or cannot ad- attempts Congress to which they must do how it. cause, vocate reordering comprehensive Congress this has undertaken enforcing rights name of con- speech in the ássociation and “[t]he Buckley, Here, however, as limitations. tribution by caused on basic freedoms markedly greater burden simply regulation] sustained cannot be pervasive [BCRA’s maximizing the effectiveness invoking the interest fun- Ibid. BCRA limitations.” contribution less intrusive speech protected thereby burdens, damentally alters, and scrutiny society. throughout Strict our and association constitutionality. strict Under apply of its ought to review part, cannot most scheme, for the scrutiny, congressional Government, acknowledged but This is all survive. scrutiny met. be argue could that strict fails even which 323(e) § 1. New FECA far do so provisions I discussed the Title Because most interest, the standard compelling or sufficient not serve respect new only dispositive analysis of review §441i(e) (Supp. 323(e). 323(e), C. 2 U. S. As to FECA provision withstands II), this agree the Court I with scrutiny. constitutional 323(e) and solely to candidates federal directed is

Section by candidates, all solicitation agents; not ban it does their contributions; it soft-money and only their solicitation but (candidates exceptions limits important to its incorporates comply hard- with may funds that solicit, receive, or direct fundraising may speak at money standards; candidates unlimited funds may or direct solicit events; candidates activity; and federal election organizations involved not per up individual $20,000 may solicit direct candidates elec- federal with certain year organizations per involved (e. provi- registration)). These activity g., voter GOTV, tion satisfy narrowly tailored help the law is ensure sions agree I reasons, requirements. For these Amendment First 323(e) § is valid. (f) (d), 323(a), (b), §§ and

2. FECA New the first test survive even not Though do sections these necessary as constitutionally interest, it is serving valid remainder vast overbreadth examine the well to today holding majority’s import of the I, Title so (f), (b), (d), 323(a), 2 U. C.S. and Sections understood. is narrowly (f) II), (d), tai- (b), 4411(a), (Supp. §§ are not and be scrutiny, con- cannot even and strict lored, cannot survive emptied phrase of all is closely drawn, unless that sidered meaning. By reg- possess fatal overbreadth. all

First, the sections dangers, quo quid pro pose ulating that does conduct protected important categories of they are incursions party officials. speech voters 323(a) overly analytical detail, next level

At the parties, national regulates all it as well because broad elections. federal they present candidates or not whether direc- parties’ solicitation regulates national It also only years state when in odd-numbered tion of funds are at stake. local elections 323(b) party prohibit state might some

Likewise, while conjunction undertaken otherwise be conduct that would beyond a consid- that to candidate, it reaches with a federal parties on non- speech campaign the state range erable say: might party want A state or local issues. federal opposes assembly President for state “The Democratic slate tell Republican slate policy Elect tax .... Bush’s higher Section taxes.” Washington, we don’t want D. C. 328(h) prohibits speech it encompassesthis essential quid speech poses equally with a federal officeholder quo pro danger. demon- predictable political further

Other circumstances §323(b)’s proscribes soft the use of It overbreadth. strate occurring party registration money efforts all voter state vagaries of days So, the of a federal election. within 120 corruption, any related to timing, real interest election not nonfederally spend parties can will state control whether overreaching regulated contra- This on ballot efforts. funds pro- recognize precedents the need important dicts to ballot meas campaigns related speech tect Against Rent Control/ generally Citizens See ures. (1981); Berkeley, S. 290 U. Housing v. Fair Coalition for (1978). S. Bellotti, 435 U. v. Boston Bank Nat. First requirement 323(b) tailoring narrow fails also Section options were available. regulatory less burdensome because stop attempt to an provision as justifies the Government The soft-money alloca- circumventing the parties from national regime. prior FECA they under the faced tion constraints parties would let national that otherwise told areWe however, If, money behalf. spend their parties state Congress could rates, of allocation problem were avoidance party by money a national any transferred soft have made governed subject rates that allocation party to the ato state money. use of the parties’ similar national proscrib- 323(d) provision, narrowly § The tailored. Nor is par- prohibits the funds, any or direction ing solicitation money regulated soliciting distributing or ties from even (i. category of on this complete money). ban is a It e., hard limits contribution prevent circumvention speech. To burden the is to complete contributions ban on imposing a underlying severely than the circumventing more conduct be suspect burdened. conduct could does speech prohibits

By terms, the statute its own prohibits provision implicate elections. federal §527 not irrespective whether organization, transfer to activity. un- This is engages in federal election organization narrower Congress a much necessary, enacted well, since par- 323(a)(2) § prevent circumvention provision in 323(a)(2) organizations. Section other via control ties indirectly... directly controlled entity or “any is makes 323(a) pro- subject same parties by” the national (Supp. 441i S. C. parties themselves. hibitions as II). even close narrowly 323(f), tailored too,

Section expres- speech body substantial it. It burdens candidate. federal independent of entirely made sion At- Alabama example, evidence contains record, for picture of showing a flyers Pryor’s reelection torney General stating: “Bush and Bush President shaking with hands Pryor George co-chairman Pryor to be Alabama appointed of circumstances host campaign.” A President Bush for W. candidates for state advisable statements make such could Sec- candidate. with a federal any coordination without use an 323(f) feature, such distinguishing incorporates no tion pro- Amendment First coordination, ensure element up bounds. swept within its speech is not tected 323(e), § which narrowly Compared tailored effort candidates’ specific federal terms in direct addresses net wide cast sections quest dollars, these officeholders’ or candidate categories of federal to the critical not confined narrowly tailored; They are not involvement. officeholder they First flatly they violate the closely drawn; are not speech encompass some they do Amendment; even,if assur- quo danger, that little pro regulable quid poses so silences regime which justify permit a does ance not sphere. protected many legitimate in this voices Provisions C. Coordination alongside analysis require Title II sections Other BCRA regulations they, too, are provisions I, Title anticorrup-

Buckley's operate principally ambitof withinthe provi- §§ of these principle. and 214 two tion are BCRA They of coordination. Act’s new definition sions. involve the system §213 which new is institutes a BCRA another. It types parties two different between are forced choose relationships with their candidates. 1. (c) 214(b) §§ agree do I majority with justiciable. See they merit our now are not review because majority’s view ante, disagree, however, I 223. Nor valid. provision, 214(a), justiciable sole 214’s entirety. § its is valid in agree that can I hard-money 214(a) define, to FECA amends Section an expenditures individual party, political to a contributions This ante, at 219. party. See with in concert makes discussion earlier As the my fall. view, must provision, in political to explains, contributions individual I of Title soft-money Since context. capped in be parties cannot may party not to a soft-money contributions an individual’s an individ force greater even with limited, it follows be party for1 with money, coordinated expenditure of ual’s soft spend unlimited party could on which activities capped. money, be cannot analysis of Title only an from emerges not conclusion

This opin- Breyer’s There, Justice I. Colorado I also from but political concluded judgment of the Court announcing the ion independent engage right to parties had a constitutional (1996). S. 518 U. candidate. advocacy of a on behalf activity money this soft spend parties unlimited can That party’s consti- A necessary implication. by follows a advocacy independent of money on spend right to tutional 214(a) § substantial by ain direct burdened is candidate coor- party to refrain way. commands The statute advocacy if the engaging even dinating an individual with candidate. independently of the acting individual is operation to a similar manner 202 functions Section “electioneer- 214(a). persons make § when It directs 304(f)(3), § S. U. C. new FECA see communication,” ing a candi- with 434(f)(3) fashion II), in coordinated (Supp. expense must communication coordinated party, the date or a person to hard-money contribution as a be treated erroneously be- court trial party. The or candidate §304’s definition whether determine it needed lieved unconstitutional itself was electioneering communications may lead statutory definition provision. While this assess may application, it under one result an unconstitutional Compare another. result under to a constitutional lead is It at 333-337. page 321-322 infra, this infra unhelpful being unconsti- the definition in terms of to talk question only relevant when the constitutional tutional prohibition, here a substantive as animated whether, results. leads unconstitutional §202, definition electioneering employ provisions that 304’s II Title other analyzed the con- below, within are definition communication pro- speech corporate the disclosure rationale and text judged under the be 202, however, must Section visions. distinguish ac- anticorruption it because does rationale in- does not cording corporate status, and it or union simply limits requirements. Section volve disclosure speech “persons.” of all the anticorruption satisfy Buckley’s rationale does

Section electioneering ex- respect: communications It one treats in a candi- with person in coordination penditures made For hard-money candidate. to that contributions as date 323(e) § § 202, in this many valid, is that same reasons quid poses regulates single way, that It conduct is valid: request. quo danger of a candidate’s pro —satisfaction political §202 regulates with a coordination Insofar as 214(a). § flaws as party, however, it from same suffers possible, sever to Congress us, as as much has instructed parts, statutory portions text fromthe valid infirm up- §401. Following instruction, I would that see BCRA §202’s regulation text as its candidate coordination hold (the 315(a)(7)(C)(ii), 2 U. S. clause of new FECA C.. first 441a(a)(7)(C)(ii) II), (Supp. that its text but rule invalid political parties. applies provision the coordination aspect provision “advance contracts” This includes an in- provision, own, would be aspect well. of the on its That respect many with valid, reasons discussed below requirements in BCRA embodied to the advance disclosure §§201 at and 212. 321-322. See infra,

2. Buckley’s anti- that implicates of BCRA final aspect The choice provision. forced §213, rationale corruption Constitution. §213 violates concludes majority that out the case point this aspect on write I agree contours from unique flows unlawfulness the section’s may parties much how settle statute ante, 215-219, see campaign, candidate’s their spend protected constitutionally raw suppression its but speech. to surren- parties forces the unconstitutionally

Section affirmed We rights. Amendment First two one of der inde- to make right protected constitutionally have a parties believe, I. Colorado continue I expenditures pendent Buckley has party a political under even moreover, expenditures coordinated to make right a protected II, 466-482 S., at Colorado See candidates. its constitu- well-established Our J., (Thomas, dissenting). electoral play role parties respects tradition tional democracy. representative our stabilizing process a strong emergence doubt little can be “There has contributed country in this system two-party and stable Davis v. government.” effective sound and enormously J., con- (O’Connor, (1986) Bandemer, 144-145 S. in be undermined would role This in judgment). curring candidates. to coordinate ability aof party’s absence J., concurring supra, (Kennedy, I, Cf. Colorado effect can “give (parties in part) and dissenting judgment candidates”). and supporting selecting by only their views First one abandon parties command 213’s Section even Constitution offends the other right Amendment First a between choose a person command than more right. statutory right Amendment II. TITLE II PROVISIONS

A. Disclosure Provisions requires electioneering §201, BCRA which disclosure of including communications, party those coordinated with the independent substantially but the candidate, re- does not gathering late to a valid compliance interest in about data deterring corruption. with contribution limits or in Contra, ante, analysis at 196. As the above demonstrates, of Title I Congress regulating soft-money has no valid interest in con- pose quid pro quo tributions that do corruption potential. In the imposing absence of a valid basis for such limits the effort compliance here to ensure with them and to deter their allegedly corrupting justify effects cannot disclosure. The regulation substantially does relate to other interest the majority details, however. ibid. This assures con- See its stitutionality. agree For that reason, I with the Court’s judgment upholding provisions the disclosure contained in exception. 201 of Title II, with one requirement Section 201’s advance disclosure aspect —the provision requiring those who have contracted to speak speech my disclose is, view, their advance— imposes unconstitutional. Advance disclosure real burdens political speech on post hoc disclosure does not. It forces strategy by revealing disclosure of where ads (based are to run be and what likely theircontentis to be ad). running who provides opportu- It also an nity buyer’s for the opponents ad to dissuade broadcasters running ads. Plaintiff-Appellant/Cross- See Brief for Appellee Right National to Life Committee, Inc., et al. in No. et pp. al., 02-1733 44-46, Against and nn. 42-43. those tangible additional burdens, the Government identifies no additional uniquely interest served advance disclosure. If Congress intended to ensure that advertisers could not flout these disclosure running laws an ad before the elec-

322 then 200, ante, at see afterwards, it paying but

tion, upon the disclosure required simply have should Congress fur- Amendment Burdening First the running the ad. the constitutionally anot is disclosure requiring advance ther ad- §201 requires extent To acceptable alternative. its in subordinat- justification finds no disclosure, it vance First than burdens greater imposes ing interests permits. Amendment incor- likewise provision, disclosure another Section plaintiffs The requirement. disclosure advance porates an not requirement, disclosure advance only challenge this con- majority The section. of this substance broader disagree. I ripe. challenge not is this cludes Federal The disclosure. advance commands statute The §212 under regulation issued has Commission Election re- particular this implement not terms, does by its that, (to (2003) codified be 452 Reg. 404, Fed. 68 quirement. See does regulation 109.10(c)(d)). of a Adoption at CFR erase not does extent full to its statute implement the not which a case is This statutory requirement. can be interpretation agency ambiguous and is statute uncertain is obligation statutory avoid a upon to relied point to at this regulation failure arguable. The Contra, no moment. is of disclosure require advance an curiam). is validity The (per Supp. 2d, at F. ad- ripe; and the is determination; it our presented for issue when given . reasons requirement, vance disclosure unconstitu- §201, provision under parallel discussing the ripe- (declining to address ante, Contra, tional. chal- rejection majority’s light of the question in ness 201). § notice lenge to advance §203 B. BCRA intrusion serious permits a new majority II Title key provision §203, the upholds speech it when using from unions labor corporations prohibits electioneering to fund treasury general money their majority compounds The communications. the error made Michigan Austin Commerce, v. Chamber 494 U. S. 652 (1990), political speech and silences central to the dis- civic processes. that sustains and course informs our democratic corporations, including nonprofit corporations, Unions and penalties advocacy broadcasting now face criminal severe “refe[r] messages clearly to a candidate,” identified 431(20)(A)(iii) II), (Supp. 2 U. S. C. an election sea- extending suppress son. Instead of Austin to new vi- voices, I campaign brant would overrule it and return our jurisprudence principles finance consistent with the First Amendment.

1. majority right The Government the are about one thing: express-advocacy requirement, The with its list of magic easy words, is to circumvent. The Government seizes arguing §203, on this observation to defend it will BCRA prevent really what it calls “sham issue ads” that are the express counterparts. same Ante, effect as their more 185, 193-194. What call Court Government speakers sham, however, are the ads find most effective. express nothing imagination, leave Unlike ads that to the preferred the record shows that ads are almost all issue though politicians, corporations, candidates, even unlike can lawfully they express broadcast ads if It is a so choose. protected measure of speech the Government's disdain for it would label as a sham the mode of communica- sophisticated speakers tion choose because it is most powerful. pejorative

The Government’s use of the label should practical prohibits obscure 203’s effect: It a mass communi- technique cation political process favored in the modern very potent. reason that it is most That the Govern- regulate ment would goes only it prove for this reason illegitimacy purpose. majority’s of the Government’s The validation of it accepted is not sustainable under First principles. problem Amendment majority The is that the Amend- our First unfaithful itself a Austin, decision uses range greater banning far justify precedents, ment speech is protected If backwards. all it has This speech. inquiry. end be must being suppressed, First reconciled be cannot holding majority’s (1978), which 435 U. S. Bellotti, v. Boston Bank Nat. busi banks prohibiting law Massachusetts invalidated pur "for expenditures making corporations ness riot do issues on votes influencing referendum pose of” 767. Id., at interests. business their “materially affect” on arguments same face in the decided was Bellotti the participation, Corporate relies. majority now the which in undue an exert Bellotti, “would argued Government 789. Id., at vote.” referendum aof outcome the fluence ag “immense because undue was presumably, influence, The “unique state- by the facilitated were wealth” gregations 660. S., at 494 U. Austin, structure.” corporate conferred corpora id., advantages,” “state-created thesé With “destroy view” points of other out “drown would tions Bel process,” democratic the people in the confidence the arguments in rejected these Bellotti 789. S., at U. lotti, 435 emphatic terms: the may advertising influence corporate sure, “To be the But purpose. its be would this vote;

outcome hardly is electorate persuade may advocacy fact ex ‘protects Constitution reason, it: suppress which is than less eloquent no is which pression Re Corp. v. Pictures Kingsley Int'l unconvincing.’ govern concept that ‘[T]he at 689.... S., gents, U. our elements some speech may restrict ment of others voice relative to enhance society order Buck Amendment....’ the First foreign to wholly 790-791. Id, at 48-49.” S., at ley, 424 pro- argument similarly dismissed Bellotti corporate shareholders” “protecft] necessary to was hibition corporate “by preventing the use of resources in further- may disagree.” which some views with shareholders ance of problems, Among the statute was other Id., at 792-793. overinclusive: corporation supporting

“[It] prohibit a would proposal opposing a referendum even if its share unanimously ex authorized the contribution or holders Acting through power penditure. . their to elect the . . protective provisions upon board of directors or to insist corporation’s normally charter, are in the shareholders competent protect presumed their own interests. ... [Minority generally ju have access to the shareholders challenge corporate remedy of a derivative suit to dicial arguendo, protec Assuming, .... disbursements ‘compelling’ tion interest of shareholders is a under substantially case, this we find ‘no rele circumstances of governmental as vant correlation between interest prohibit appellants from effort’ to serted and State’s speaking.” (quoting Tucker, Id., at 794-795 v. Shelton (1960)). 479, 485 364 U. S. (1977) Ed., v. Bd. 209

See also Abood Detroit U. S. of members). analogous protections (providing to union holding, not because the turned its back on this Austin in Bellotti had Government’s interest Court overlooked the pro quo combating quid corruption, but because a new ma- jority recognize corruption,” type decided to “a different of Austin, S., e., 494 U. at i. dis- the same “corrosive and torting aggregations of immense wealth,” ibid., effects of prohibition just found to insufficient sustain a similar a dec- apply, exceptions ade earlier. Unless certain narrow see Federal Election v. Comm’n Massachusetts Citizens for (1986) (MCFL), prohibition Inc., 479 U. S. 238 the ex-

Life, nonprofit corporations organized tends promote even to to point disregard precedents, of view. Aside from the its majority’s ready willingness equate corruption to with all grave insult ais form corporate adopting

organizations alike, entities corporations for-profit and nonprofit to dialogue. civic our long enriched have only our .time now, and, until the first was Austin power to exercise Government allowed had Court corporate speaker’s on speech based political to censor simply incor- contrary is contention majority’s identity. The Buckley, (“Since in our decision ante, at Contra, rect. from corporations and unions prohibit power to Congress’ ex- advertisements finance treasuries in their using funds in fed- of candidates defeat election advocating pressly law”). in our firmly embedded been has elections eral be- 695, and continue atS.,U. Austin, 494 I dissented from departure indefensible represents an case lieve my col- Two debate. robust free our tradition today’s ma- including a Member dissent, leagues joined id., at also See JJ.). Ibid. Scalia, jority. (O’Connor dissenting). (Scalia, J., Aus- advocacy,whereas issue concerns sure, Bellotti beTo appears advocacy. distinction This express about tin is Members two least at position have accounted (Brennan, J., concur- S., at 675-676 494 U. See the Court. corporations prohibits (“The . . . Michigan law ring) expendi- independent making only treasury funds using in state any candidate to, opposition inor support of, tures general to use ... free remains corporation A elections. a state proposal support an initiative treasury funds J., omitted)); id., (citations (Stevens, referendum” lobbying between (“[Tjhere difference a vast concurring) cam- hand, the one debating public issues other”). dis- on the public office paigns for election for expenditures independent however, between tinction, supporting and hand, the one issues, on commenting on Amendment First no other, has candidate, on opposing a arbitrary line. Austin's apart significance Austin faulty assumption. was based on a Contrary to proposal that there is “vast difference be Justice Stevens’ lobbying tween debating public and issues on the one hand, political and campaigns public for election to office on the other,” ibid., general recognition there ais now that discus sions of quite candidates and issues are often intertwined practical terms. g., See, e. Brief Intervenor-Defendant (“ Sen. John McCain et p. ‘[The] al. in No. 02-1674 et al., legal... wall advocacy between issue advocacy and ... is built of sturdy material, the same emperor’s as the clothing. Everyone sees No it. one (quoting believes it’” (PAC) the chair of the Political Action Committee of the Na (NRA))). tional Rifle Association To abide Austin1s re pudiation ground of Bellotti on the that Bellotti did not in express advocacy volve adopt fiction. Far from providing a for expanding rationale Austin, the evidence these consolidated cases calls for its reexamination. Just arguments aggregations about immense corporate wealth and protecting concerns about shareholders and union mem justify bers not do a ban on they ads, issue cannot sustain a independent ban expenditures express In ads. hold ing otherwise, Austin “forced politi substantial amount speech underground” cal species created a of covert speech incompatible with our open society. free and Nixon v. Shrink Missouri Government at PAC, (Ken S., dissenting). J., nedy, majority only refuses expe- heed the lessons of perpetuates

rience but also the conflict Austin created with fundamental First principles. Amendment Buckley foresaw that “the distinction between discussion of issues and candi- dates advocacy of election or defeat may of candidates often practical application,” dissolve in S., 424 U. 42; at see id., also recognized at 45. It ‘“[p]ublic discussion public issues campaign which also are readily issues unavoidably often draws in positions, candidates and their their voting records other official Id., conduct.’”

328 “ well issues, those of Hence, ‘[discussions 50.

n. them, on opinion public influence to efforts more positive vot- on influence some exert to inexorably naturally tend Austin’s oppo- over Ibid. In glossing at elections.’” ing is differ- advocacy express that assumption site —and false — a distinction elevates reality ignores ent, majority the Buckley in clear terms. rejected the before then statute Buckley construed the after Even limits it invalidated advocacy, express only reach to Court of “[a]dvocacy observing expenditures, independent on no is office federal for of candidates or defeat election the than Amendment First the under to protection entitled less of advocacy or generally policy of political discussion Austin 48. S., at 424 U. of legislation.” defeat or passage content- the impermissible made It this principle. defied less de- is candidates commentary based judgment of than discussions protection Amendment First of serving the majority today, Austin reaffirm to haste its In policy. Austin between conflict basic this confront to refuses Amendment First diminishes Buckley. more It once no power has Government its command ignoring Consoli- See discuss. may citizens its what topics dictate Y,N. Comm’n Serv. Public Y. v. N. of Co. Edison dated (1980). 530 U. S. be justi cannot Austin, course, adherence Continued does only Not the speaker. identity corporate fied by at 777 S.,U. Bellotti, for account fail this argument capacity of its terms speech worth (“The inherent identity upon not depend does public informing for indi union, association, corporation, whether source, of its Amend First “[t]he Buckley itself warned vidual”), but free abridgment governmental against protection ment's on a person’s depend be made properly cannot expression S.,U. discussion.” public engage in. ability financial Mos Chicago v. Dept. Police 48-49; id., at also 49; see at media broadcast exemption (1972). ley, 408 U. 92 S. companies, moreover, makes the problems First Amendment worse, Austin, S., better. See 712 (Kennedy, (“An dissenting) independent ground J., invalidating this exemption statute corporations.... blanket for media corporations All public with communicate the to some de- gree, whether it is their not; business or and communication particular importance nonprofit corporations”); see (“Amassed id., at J., also 690-691 dissenting) corpo- (Scalia, regularly rate wealth that ordinary sits astride the channels likely produce of information is more much the New Cor- (too view) ruption point much one than amassed cor- porate generally busy wealth that is making money else- where”). majority In the supply end the principled can no away basis to reason anomaly. Austin’s Austin’s errors exposed, stand duty say it is our so.

I majority, along surmise that even the with the Govern appreciates ment, problems why these with Austin. That is justification. it invents a new We are now told that “the government compelling also a insulating has interest in fed type eral elections from corruption arising the from the apparent real political or Ap creation of debts.” Brief for pellee/Cross-Appellant et p. FEC al. No. 02-1674 et al., 88. “[Electioneering paid general communications for with the treasury corporations,” funds of labor unions and the Gov ernment warns, those entities to “endea[r] elected officials way perceived that could be public corrupting.” J.) Supp. See 251 F. (Kollar-Kotelly, at 622-623 (stating 2d, position). the Government’s

This limiting rationale has no principle. Were we to ac- cept Congress it, authority would have the to outlaw even pure ads, they, issue sponsors too, because could endear their adopt candidates positions. who the favored Taken to its logical alleged conclusion, the “in Government interest insu- lating federal apparent from... the real or creation elections Buckley. debts” also conflicts with If a candidate grateful feels impersonal corporation to faceless, for mak- -330 be cannot gratitude expenditures, independent

ing pocket. own CEO’s money came when less independent limitations down Buckley, however, struck corruption ar- Government’s rejected the expenditures S., 424 U. See coordination. evidence absent gument line eviscerate position would The Government’s 51. subject both contributions expenditures between First Amendment.” under review “complaisant same at 161. S.,U. Beaumont, 539 v. Comm’n Election Federal authority to the cede we otherwise, cannot Complaisant pleases. itas Amendment First Legislature to do Amendment, its First with the is inconsistent Austin Since further. even Amendment First diminishes extension unconstitutional. held be should reason this For 2. par- All § not stand. could 203 Austin, ABCR

Even under § far however, is applies; 203, scrutiny agree strict ties narrowly tailored. §203 aas unwilling to characterize The Government electioneering commu- funding of possibility citing the

ban, option, This fund. segregated separate a of out nications prohibi- of nature categorical alter though, not does corpora- a corporation “[T]he corporation. tion on 681, S., at Austin, speaking.” prohibited from tion is permit- the law dissenting). What allows— n. J., (Scalia, treasurer and founder as the serve corporation “to ting or endorse can individuals association of a different corpora- by the speech political candidates” —“is oppose Ibid. tion.” corporations practical difficulties recognize cases Our through communicating PACs. they limited are face when S. MCFL, 479 U. than no further majority look need confront: have PACs of hurdles list for an extensive ap- ed.)], [(1982 [MCFL] must §432 C.] [2 S. “Under U. are 432(a); § that contributions ensure treasurer, point a days treasurer within 10 or 30 forwarded receipt, depending contribution, amount of 432(b)(2); § keeps see that its treasurer an account of every regardless contribution name amount, the any person who makes a address contribution ex- $50, all cess of contributions received from com- any person mittees, and the name and address of regardless whom a disbursement is made of amount, 432(c); preserve receipts for all disbursements over (d). 432(c), §§ years, and all records for three $200 organiza- §433, must file a Under MCFL statement of containing name, address, tion its the name its custo- safety deposit records, banks, boxes, dian of and its or 433(a),(b); §§ depositories, report any change other must §433(c); days, in the above within information may only upon filing dissolve a written statement longer will it no receive contributions nor make dis- outstanding bursements, and that it has no or debts obli- 433(d)(1). gations, monthly reports §434,

“Under MCFL must file either reports following with the on the FEC schedule: quarterly reports during years, pre-election election report day election, no later than the 12th before an postelection report days within election, after an 6 months nonelection reports every during years. (B). §§434(a)(4)(A), reports These must contain infor- regarding mation hand; amount of cash on total receipts, amount categories; detailed different the identification of each committee and candi- date’s authorized or making affiliated committee contri- any persons making butions, providing loans, re- any bates, refunds, dividends, or interest or other offset operating expenditures aggregate in an amount over $200; the total disbursements, amount of all detailed categories; different names of all authorized or expenditures affiliated committees aggregating to whom repay- loan persons whom made; have been $200 over of all total sum made; have been or refunds ments outstanding debts expenses, operating contributions, retire- of the terms the settlement obligations, 434(b). addition, In obligation. debt ment segre- separate its for may contributions solicit MCFL 441b(b)(4)(A),(C), §§ ‘members,’ only its gated fund merely have who persons those not include which does organization support for the or indicated contributed Id., past.” at 253-254. in the require- than minor clerical more are regulations

These speech, for major create disincentives they Rather, ments. heavily entities smaller falling most the effect compli- bearing the costs difficulty most have the often yet set has not organization that worse, an for Even ance. clearly identi- a speech that “refers spontaneous up PAC, impossible, even if becomes office” for Federal fied candidate legis- by piece are threatened group’s interests vital elec- of a federal Congress eve on the pending before lation of Commerce Appellant Chamber Brief tion. See Couple p. 37. al., et No. 02-1756 al. in et States United categorical restric- with the burdens litany of administrative “members,” and activities to limiting PACs’ solicitation tion for cor- inadequate substitutes PACs are apparent it is expression. engage ability in unfettered porations in their manage mem- to attract PACs newly formed Even if the heavy against messages these their and disseminate bers identity while a false to assume forced they been have odds, (ACLU) Union Civil Liberties American doing theAs so. de- minute regulated in are political committees points out, federal to influence purpose is primary their tail because organizations other and thousands ACLU “The elections. there- purpose and this not created “are however, it,” like they if were.” operate as required to be should fore p. 15. al., et No. 02-1734 Appellant ACLU Reply Brief for egos adopt alter corporations to coerces requirement A , communicating public is, itself, with the sufficient option many organiza- a false choice for civic make PAC Forcing speech through an artificial “secondhand en- tions. structure . . . debases the value of the dorsement voice [because] corporate nonprofit speakers interim, ... PAC’sare continuity organizations responsibility.” with little or ad hoc dissenting). at Austin, S., J., 494 U. 708-709 In (Kennedy, organizations sponsoring continuity, contrast, their “have a stability, and an influence” that allows “their members and public large credibility.” Id., at to evaluate their . . . at 709. majority justification compelling can articulate no

imposing compulsory ventriloquism. this scheme If the majority corruption about concerned distortion of political process, it no makes sense to diffuse the cor- porate message penalties, and, under threat of criminal compel corporation spread the blame to its ad hoc intermediary. option reasons,

For all these cannot advance the PAC argument provision Government’s that the meets the test scrutiny. g., See, id., 657-660; strict MCFL, e. 479 U. S. Playboy 238; see also United States v. Entertainment (“When (2000) Group, purpose Inc., U. S. design regulate speech by a statute is its reason of consideration special content, or latitude is not accorded merely the Government because the law can somehow be outright suppression”). described as a burden rather than away Once we option, turn from the distraction of the PAC provision scrutiny. cannot survive pri- strict Under the mary prohibits corporations definition, 203 unions and funding general treasury any from their broadcast, cable, satellite communication which—

“(I) clearly refers to a identified candidate for Federal office;

“(II) is made within— elec-

“(aa) special, or runoff days general, a before or by candidate; sought office for the tion election, “(bb) preference primary days or a before party has a caucus of or convention or a sought office candidate, for the authority a nominate to by candidate; and

“(III) which refers of a communication case in the Vice or President than office other for an candidate electorate.” targeted relevant to the is President, II). §434(f)(3)(A)(i) (Supp. C. U. S. geographic temporal and its crude prohibition, with

The protected on unprecedented ban and proxies, a severe is suppose a few Senators outset, at the speech. As discussed industry how logging in constituents to show their want propose law, 60 working they families about care much environment harm the days election, that would before the §203, a non- Under allowing logging in national forests. ad run an group be unable would profit environmental sugges- The districts. in referring their Senators to these short in the a PAC group and fund form could that the tion political de- participation required effective time moreover, already discussed, For reasons bate fanciful. the environmen- as effective as would not be PAC an ad hoc public. Never credibility gaining group tal itself sup- upheld history a law the Court has in our before presses speech this extent. Senators, either these to refer to group would want

The an elec- necessarily because by photograph, not by name or hypothetical supposed Sen- might be It is at tion stake. record, so impeccable environmental have an ators had present in- previous group might no have environmental Or, the opinion their candidacies. expressing an terest districts, hotly in some might contested not be election practical effect says have group no would so whatever ability to candidates refer outcome. on the electoral important public officeholders is because it allows the communicate with them on issues common concern. Sec sweeping approach tion 203’s fails to take into account this significant speech free interest. Under conventional definition of scrutiny overbreadth, it fails to meet strict standards. electioneering It forces spon communications sored an group environmental to contend with faceless opponents consign nameless their broadcast, as the puts NR A well politicians it, to a world where who threaten “ the environment must be referred to as ‘He Whose Name ” Spoken.' Reply Cannot Be Appellant Brief for NRA et al. p. in No. 02-1675 al., et 19. example §

In the above, it makes no difference to 203 or to the sponsors may Court that the bill have such well-known ideological biases that revealing identity provide their would essential instruction policy to citizens on whether the bene- fits community. them or any their Nor does it make differ- ence sponsors, that the names of perhaps the bill through repetition in the news synonymous media, have become so proposal with the referring politicians to these name in an way ad is the most effective to with the communicate public. comprehensive Section 203 is a pain theOn censor: felony of a offense, the ad not must refer to a candidate for during federal office the weeks crucial before an election. supposed We are to find knowledge comfort in the §203 the ad is banned only under if targeted it "is to .the relevant electorate,” defined as can communications that be received persons 50,000 or more in the dis candidate’s 434(f)(3)(C) II). trict. See 2 (Supp. U. S. C. This Orwell ian criterion, however, analogous is to a law, unconstitutional under theory, known First Amendment would allow speaker say anything to long he chooses, so as his intended audience could not hear him. See Mandel, v. Kleindienst (1972) 753, U. S. (discussing 762-765 the “First Amend right (internal ment to receive quota information and ideas” omitted)). tion marks purpose A central of ads is issue plat- candidate’s to the attention close pay public urge the in the broadcast By banning issues. featured the form election, standing for is candidate very where district Amend- of the First heart §203 shields information right value most who citizens those precisely from ment voting booth. at the judgment responsible amake with sub- statute on a attack facial against a defending In corporations say that answer overbreadth, it is no stantial case-by-case challenges on a as-applied bring may unions law our 203, of out bounds is as a statute When basis. consider- to “undertake speakers force simply does rights risk) vindicating their (and of sometimes able burden Hicks, 539 Virginia v. litigation.” case-by-case through pro- “abstain (2003). they instead If S.U. society but only themselves “har[m] not they speech,” tected marketplace deprived an uninhibited whole, which aas today’s effects of ill least Not Ibid. ideas.” a bulwark doctrine, once overbreadth our is that decision by the manipulated been has now speech, for free protection self. its former a shadow but become Court intervenor-defendants Government In the end §203 between the connection looseness dispute cannot stemming cor- interest proffered Government’s pre- drop they all briefs, in their points various ruption. At a relation close electioneering bears ban the tense §203 on the they defend Instead, purposes. antieorruption “likely to are “may influence,” targeted ads the ground that influ- effect have all likelihood “will influence,” or Appellee/Cross- for Brief See election. encing” federal a pp. 14, 24, al., et 02-1674 No. in al. et FEC Appellant McCain John Sen. Intervenor-Defendant for 92-93, 94; Brief fact mere The pp. 42-43. al., et 02-1674 al. in No. et election an another, influence or fashion may, in one ad an have should outlawing I it. reason an insufficient is politi- point of the whole be influencing elections thought standard other scrutiny nor strict Neither speech. cal outlawing speech adopted permits to date has the Court might might election, which ground it an influence organi- sponsoring politicians greater access to lead appear- corruption might or the lead to zation, which actual requires a and close corruption. real law ance of Settled causa- attenuated end and means. The between connection majority today to the con- is antithetical tion the endorses tailoring. cept of narrow

3. §203 primary definition, I invalidate under As would backup provi- necessary add a few about it is words prohibits backup applied §203, definition sion. As general financing corporations from their and unions from treasury funds

“any which broadcast, cable, or satellite communication supports office, or at- promotes for that or a candidate (regardless opposes office or a candidate tacks expressly a advocates whether the communication candidate) sugges- against a and which also vote for or plausible meaning than an exhortation no other tive of against specific 2 U. S. C. candidate.” to vote for or II). 434(f)(3)(A)(ii) (Supp. backup prohibition the same has much of The under as the under ban though imprecision primary definition, primary here there is even more overbreadth. Unlike temporal geographic backup definition, the contains no or Any broadcast, cable, limitation. or satellite communica- just period tions—not those aired within a certain blackout segment population received certain —are prohibited, they “promote,” “support,” provided “attack,” “oppose” showing per- is no that such a a candidate. There ubiquitous manent Amendment restriction meets First relationship means and ends. standards for the between backup flawed for the further reason that definition is vague. “promote,” “support,” it is “at- The crucial words— respect the In this defined. nowhere “oppose” tack,” —are Election Federal provision in to the backup similar is unconstitutionally to be Buckley held Campaign Act (“ may make person ‘No S., at 39-44 424 U. vague. Cf. dur- clearly candidate identified to a relative ... expenditure expendi- other to all added year which, when ing a calendar advocating the year during person by such made tures ”). $1,000’ candidate, exceeds of such defeat election or meaning plausible no “suggestive of statutory phrase The specific against a for or to vote an exhortation other than . vagueness of overbreadth cannot cure candidate” provision, key in the terms Like other backup definition. presents guidance The lack defined. are these words some- means uncertainty. “plausible” If problems of serious totality cir- light of the thing close “reasonable insufficient provided with an speakers will be cumstances,” engage in wide- result, will, as protection and degree of penalties. criminal self-censorship severe to avoid spread ex own even defendants’ vagueness, the statute’s Given specific ads whether among about perts disagree themselves intel “of people Hence, common prohibition. within fall definition’s] backup [the necessarily guess ligence must Connally v. Gen application,” its as to meaning differ (1926). these rea For 385, Co., U. S. eral Constr. electioneering com ban also invalidate I would sons, backup definition. under the munication

4. necessary II, analysis it on.Title concluding the Before §204. analysis majority’s about words to add few damage done under minimize attempts to majority Amendment) (the in- Wellstone by construing 204 corporations. MCFL-type See exception for corporate an does no such however, Section 238. MCFL, S. provision concedes, the “does majority thing. even the As prohi- its organizations exempt MCFL face, not, on its normally Although presume Ante, at we 211. bition.” deliberately enact an would not unconstitutional legislators inapplicable presumption here. is no There statute, that §204 regarding accomplish. is intended to ambiguity what supersede to Amendment Enacted Snowe-Jeffords precisely exception this for MCFL have carved out would scope to- broaden corporations, 204 was written BCRA’s g., issue-advocacy groups. App. Brief See, e. to to include pp. al., 65a, A in No. 02-1675 et 67a Appellant NR et al. Wellstone) (“[I]ndividuals (Sen. will with all this wealth” money issue soft contributions these sham “make their loop- organizations, which under this all these ... ads run “poisonous operate impunity” I to run ads.” hole can money make[s] big sure ... this have an amendment that... deleting get [through]”). Instead of the Snowe- doesn’t bill, however, Jeffords Amendment from the the Wellstone separate preserve in a section to Amendment was inserted severability. indulge Congress presumption under-

Were we to legislated, it the Wellstone Amendment stood the law when challenge only frontal to MCFL. could as a be understood majority’s interpretation agree Even I with the were analysis my of Title II remains unaffected. 204, however, organizations, right protects all The First Amendment speech. just engage See them, a subset of Austin, (“The (Kennedy, dissenting) S., at 700-701 J., permit speech First Amendment does not courts to exercise suppression authority legislatures”). denied to

5. vagueness Title II’s and overbreadth demonstrate Con- gress’ misunderstanding First fundamental Amend- Court, said, ment. The it must be succumbs the same majority begins of direct mistake. with a denunciation The campaign by corporations and unions. It then contributions uphold leverage uses this as its rhetorical momentum on elec- IPs ban however, is that Title problem, The Act. on general commentaries tioneering covers communications prohibiting di- from laws removed and is far political issues The treasuries. corporate and union rect contributions independent this ban burden First Amendment severe stronger justifications than the requires expenditures much Buckley, supra, at 23. majority See offers. infuses corporations unions that hostility toward viewpoint neu- with the opinion majority is inconsistent

the all Government demands trality Amendment the First Corporations, this Court. including the Members actors, They economy. fa- engines modern of our all, are the after prosperity the Nation’s operations which complex on cilitate public to the alert say cannot these entities depends. To country’s eco- may the threaten political issues pending an estab- are also unprecedented. Unions is nomic interests They, system. too, have economic part national of the lished political de- to the insights unique to contribute their own The just as severe. impact is on them bate, but the law’s the “cor- about misplaced majority’s concerns costs aggregations of distorting of immense effects and rosive weigh most will moreover, supra, Austin, wealth,” upon which nonprofit entities budget-strapped heavily on commentary and advo- political rely for many our citizens staying on between groups now cacy. choose must These establishing a PAC election in the next the sidelines legal con- are a PACs identities. against their institutional necessarily They not by Congress. are struct sanctioned preferred and chosen means communication citizenry. suggest quite incorrect Court

In vein the the same palliative press is sufficient mainstream that the political imposes this law and constraints novel severe dynamic contri- appreciate the process. The should Court intellec- make to associations groups and bution diverse permit not It should Nation. tual cultural life Congress to groups partici- foreclose or restrict those pating political process by applicable constraints not press. to the established

CONCLUSION The First Amendment experi- underwrites the freedom to ment create thought realm of and speech. Citi- zens must be free to use new forms, new forums, for expression belongs of ideas. The civic discourse to the people, may prescribe and the Government the means used to conduct it.

The First Congress Amendment commands “shall abridging make no law . speech.” . . the freedom of command cannot Congress be read provide to allow for the imprisonment attempt of those who to establish new parties and alter pluralistic the civic society discourse. Our is filled with expressing voices new and viewpoints, different speaking through modes mechanisms must be al- change response lowed to to the demands of an interested public. As grown communities have and technology has speech evolved, only concerted not has become more ef- single fective than a voice but also has become the natural preference and many efficacious choice for Americans. The upholding Court, multiple suppress spontane- laws that both speech, ous and concerted leaves us less free than before. Today’sdecision breaks faith with our tradition of robust and unfettered debate.

For foregoing respect, reasons, I dissent from the Court’s upholding decision the main features of I Titles and II.

APPENDIX TO OPINION OF KENNEDY, J. 101(a), § BCRA Stat. which forth sets new FECA II), 323, 2 (Supp. provides: S. C. 441i PARTIES, “SEC. 323. SOFT MONEY OF POLITICAL “(a) NATIONAL COMMITTEES.— polit-

“(1) of a national committee IN GENERAL. —A campaign congressional (including party a national ical receive, may solicit, party) not political aof committee donation, or contribution, a person another or direct to spend value, or any thing of other or funds transfer of prohi- limitations, subject to the not any are funds, that Act. requirements of this reporting bitions, and “(2) prohibition established APPLICABILITY. —The (1) committee, any national applies to such by paragraph a national such agent acting on behalf any or officer indirectly directly entity or any is committee, and by such maintained, or controlled financed, established, committee. a national

“(b) DISTRICT, COMMIT- AND LOCAL STATE, TEES.— para-

“(1) Except provided in IN GENERAL. — (2), expended disbursed or is amount that graph an or local activity by State, district, a Federal election (including entity that party an political a committee of main- indirectly financed, established, directly or by district, or commit- State, local a tained, or controlled acting agent party an officer or tee of entity), an or association or committee of such behalf or office or local group State of candidates or similar made holding office, shall be or local State of individuals prohibitions, and limitations, subject to the from funds this Act. requirements of reporting “(2) APPLICABILITY.— (i)

“(A) Notwithstanding clause IN GENERAL.— 301(20)(A), subparagraph (ii) subject to section (1) ex- (B), apply amount shall paragraph district, or local State, commit- pended or disbursed either activity described in political party an tee of a expended dis- or amounts extent to the such clause (under regulations activity are allocated bursed such Commission) among amounts— by prescribed “(i) solely subject of contributions which consist reporting require- prohibitions, and limitations, (other described in sub- this Act than amounts ments of (B)(iii)); paragraph

“(ii) subject which are not to the other amounts reporting requirements prohibitions, and limitations, (other any requirements of this this Act than of subsection). (A) “(B) only Subparagraph shall CONDITIONS.— apply if—

“(i) clearly activity not refer to identi- does office; Federal fied candidate for

“(ii) expended are amounts or disbursed broadcasting, any cable, or satellite com- for the costs than a communication which refers munication, other clearly solely or local identified candidate for State office;

“(iii) expended disbursed which the amounts or (A)(ii) paid subparagraph are described in are law which are donated accordance with State amounts (C), requirements subparagraph and which meet the person (including any person except established, that no may person) maintained, or controlled such financed, district, local $10,000 State, to a or more than donate year political party in a for such of a calendar committee expenditures disbursements;

“(iv) expended the amounts are or disbursed solely local, State, made from funds raised or dis- expenditure trict which makes such or dis- committee any provided to bursement, and do not include funds from— such committee

“(I) any State, other committee local, or district party, State “(II) party of a the national committee (including congressional campaign committee a national political party), of a acting behalf

“(Ill) agent any or officer (I) (II), or or in subclause described any committee indirectly estab- directly “(IV) entity or any any by com- controlled maintained, or financed, lished, (II). (I) or subclause described mittee NA- OF “(C) INVOLVEMENT PROHIBITING AND CANDIDATES FEDERAL PARTIES, TIONAL ACTING PARTIES STATE OFFICEHOLDERS, AND (other (e) than Notwithstanding subsection JOINTLY.— to be authorized (e)(8)), specifically amounts subsection (B)(iii) require- meet the subparagraph spent under only if amounts— subparagraph of this ments directed, trans- “(i) received, solicited, are not any person de- name by in the spent or ferred, or (e); (a) or subsection scribed or directed “(ii) received, solicited, are by or jointly conducted fundraising activities through any political committees local, or district State, more district local, or State, or agents, party or their State, party on behalf political aof committee its party political or aof committee local, or district States. other or more agent in one by a spent “(c) amount COSTS.—An FUNDRAISING (b) (a) funds raise or in subsection person described expenditures part, for inor in whole used, are activity be shall election a Federal disbursements prohibitions, limitations, subject to the funds made Act. of this requirements reporting national, “(d) ORGANIZATIONS.—A TAX-EXEMPT (in- party political of a local committee district, or State, committee campaign congressional cluding a national indirectly directly entity or party), an any controlled maintained, or financed, established, its or committee or local district, State, national, such any acting on behalf agent or officer agent, an any entity, party or shall not committee solicit such direct to— for, make or donations funds 501(c) “(1) organization in section that is described an exempt from Code of 1986 and of the Internal Revenue (or 501(a) has sub- of such Code taxation under section exempt application for determination of tax an mitted section) expenditures and that makes status under such with an for Fed- or in connection election disbursements (including expenditures or disbursements office eral activity); election or Federal

“(2) organization 527 of such describéd in section an (other political district, committee, State, a Code than a political party, committee of a or the authorized or local campaign local committee of a candidate for or State office).

“(e) FEDERAL CANDIDATES.—

“(1) holding candidate, individual IN GENERAL. —A agent of a candidate or an individual hold- office, Federal indirectly ing entity directly es- office, Federal or an or by or act- tablished, financed, maintained or controlled ing or individuals on behalf of 1 or more candidates holding not— office, shall Federal

“(A) spend funds solicit, receive, direct, transfer, or includ- office, with an election for Federal connection any activity, ing fundsfor Federalelection unlessthe subject prohibitions, limitations, funds are to the reporting requirements Act; of this or

“(B) spend solicit, receive, direct, transfer, or funds in connection with election an other than election for Federal office or funds with disburse in connection such an election funds— unless the

“(i) permitted are not in excess of the amounts respect with to contributions to candidates and (3) (1), (2), paragraphs committees under of section 315(a); and by Act this prohibited

“(Ü) sources from are not elec- an in connection making contributions office. for Federal tion (1) apply to does not

“(2) Paragraph STATE LAW.— indi- an funds spending of receipt, or solicitation, also was iswho or paragraph such vidual described solely connection office or local for State candidate the solicita- if local office or for State election with such under permitted spending funds receipt, or tion, candi- or local only State to such refers law State local State for the any other candidate date, or to candidate, or both. sought such office Notwithstanding “(3) FUNDRAISING EVENTS. — (b)(2)(C), or an (1) a candidate or subsection paragraph speak, or may attend, holding office Federal individual State, fundraising for event guest at a featured be a party. aof committee local district, or “(4) SOLICITATIONS.— CERTAIN PERMITTING

“(A) SOLICITATIONS. —Notwith- GENERAL an indi- subsection, this provision of any standing other (1) general may make paragraph in described vidual any organization that on behalf of funds solicitation 501(c) Code Revenue the Internal section described 501(a) section under exempt from taxation and of deter- (or application for an has submitted Code such section) (other such exempt under status of tax mination to conduct purpose is principal entity whose an than (ii) (i) section and in clauses described activities specify how not 301(20)(A)) does solicitation such where spent. be or should will funds “(B) SOLICITATIONS.—In SPECIFIC CERTAIN under permitted general solicitations addition paragraph (A), described an individual subparagraph funds obtain explicitly (1) solicitation may amake (i) carrying out activities in clauses described (ii) 301(20)(A), entity section or for an whose principal purpose activities, is to conduct such if—

“(i) only the solicitation is made to individuals; “(ii) any the amount solicited from individual dur- ing any year calendar does not $20,000. exceed “(f) STATE CANDIDATES.—

“(1) IN GENERAL. —A candidate State or local holding office,individual agent State or office, local or an may of such a spend candidate any individual funds for a communication described section 301(20)(A)(iii) subject unless the funds are to the limi- prohibitions, reporting requirements tations, this Act.

“(2) EXCEPTION FOR CERTAIN COMMUNICA- (1) Paragraph apply shall not an individual TIONS.— paragraph described in such if the communication in- volved is in connection with an election for such State only or local office refers to such individual or to other candidate for the State or local office held or sought such individual, or both.” 101(b) BCRA adds a definition of election “federal activ to FECA U. S. ity” §431(20) C. which II), §301, 2 (Supp. pro vides as follows:

“(20) FEDERAL ELECTION ACTIVITY.—

“(A) IN GENERAL. —The term ‘Federal election ac- tivity’ means—

“(i) registration activity voter during period begins that on days date that is 120 before the date regularly a scheduled Federal election is held and ends on the date of the election;

“(ii) get-out-the-vote voter activity, identification, or generic campaign activity in connection conducted with ap- office Federal for candidate which a in election an candidate a whether (regardless the ballot on

pears ballot); appears on also office or local State for clearly to a refers that “(hi) communication public a (regardless office Federal for candidate identified men- is also office or local State for candidate a whether supports a identified) or promotes that or tioned a candi- opposes or attacks office, or for that candidate communi- whether (regardless of office for that date against a candi- or a vote expressly advocates cation date); or by an any month during “(iv) provided services po- of a committee local district, or State,

employee a percent than 25 spends more party who litical ac- during month compensated time individual’s election. a Federal connection tivities ‘Federal term “(B) ACTIVITY.—The EXCLUDED expended an amount include activity’ not does election aof committee local district, or by State, a disbursed or for— party political solely to a refers “(i) public communication office, if or local State candidate clearly identified activity election Federal not is communication (ii); (A)(i) or subparagraph described local or for State “(ii) a candidate a contribution designated contribution provided the office, sub- activity described election Federal pay for a (A); paragraph district, or local State, “(in) of a costs convention; and in- materials, campaign

“(iv) grassroots costs signs, yard stickers, and bumper buttons, cluding office.” local or for State only a candidate depict name (2000 Supp. (b)(lM2) §§441b(a) ed. C.S. 2 U. Title provide: by BCRA II), amended “(a) any any corpo- bank, It is unlawful national or by authority any Congress, organized of ration law expenditure make a contribution in connection with or any any political office, election or in connection with any primary political or convention or caucus election any political office, held to or for select candidates for any any corporation organization, whatever, or labor expenditure make a in connection contribution or with any presidential presidential vice election at which Representative Delegate in, electors or or or Senator Congress be to, or Resident Commissioner are to voted any primary politi- for, or in with or connection election any cal convention or select caucus held to candidates foregoing any offices, candidate, or for accept person knowingly committee, or or re- other any prohibited by any section, ceive contribution or this any any corporation any officer or national director or any any organization or bank officer of labor to consent any expenditure by corporation, contribution or may organization, bank, be, national or labor as the case prohibited this section. (cid:127) “(b)(1) purposes For the of this section the term ‘labor organization’ any any any organization means kind, or agency employee representation plan, or or committee employees participate in which and which exists for the purpose, part, dealing employers whole or in concerning grievances, disputes, wages, labor rates of pay, employment, hours of or conditions of work.

“(2) 791(h) purposes For of this section and section expenditure’ title the term ‘contribution or includes expenditure, a contribution or as those terms are defined any in section 431 of title, this and also includes direct payment, or deposit, distribution, advance, indirect loan, gift money, anything or services, or of value money (except a loan of a national or bank made State applicable banking reg- in accordance with the laws and business) any to of ordinary course and ulations or- party or political committee, or campaign candidate, any to any election with connection ganization, any applicable or section this to in referred offices electioneering include shall but communication, stockholders its to corporation by a (A) communications fam- their and personnel administrative or executive and their and members its to organization by a labor or ilies and registration (B) nonpartisan subject; on families its aimed corporation by a campaigns get-out-the-vote personnel administrative or executive and stockholders its aimed at organization by labor families, or their and (C) establishment, families; and their and members sep- ato contributions solicitation administration, and pur- political be to utilized fund segregated arate membership organization, labor corporation, by a poses capi- without corporation or cooperative, organization, stock.” tal to respect dissenting with Rehnquist, Justice Chief V.* I and Titles

BCRA write full, I opinion in Kennedy’s join Although I Justice Court, on disagreement my highlight separately of 2002 Act Campaign Reform Bipartisan I of Title opinion Court’s to dissent (BCRA), 81, 116 Stat. V. Title upholding

I implies, Court not, as the I is Title presented The issue contri- campaign regulate permissibly can Congress whether elimi- or seek otherwise, or candidates, butions defacto issue Rather, process. political corruption nate speech regulate much permissibly can Congress whether contributions candidate connection plausible no has precedent, our Under goals. those corruption achieve entirety. Kennedy in its opinion this join Justice Scalia * Justice important implicate contributions restrictions they only if constitutional Amendment values and are First candi- corruption federal “closely drawn” to reduce the are Buckley Valeo, appearance corruption. v. or the dates curiam). (1976) (per Yet, the Court 25-27 U. S. characterizing restrictions, glosses over the breadth regulating] “do[ing] little more than I of Title ability BCRA wealthy corporations, unions to individuals, elections, money large federal sums of to influence contribute Ante, at 138 candidates, and federal officeholders.” federal JJ.). Because, in (joint opinion of Stevens O’Connor, regu- allows, reality, I much broader than the Court Title is potential speech have the lating good not deal of that does a I dissent. corrupt officeholders, candidates and to federal 323(a), prohibits na- linchpin I, of Title new The FECA “soliciting],” political party “receiv- committees from tional person,” “spending]” “directing] ing],” to another subject regulation, funds even if those to federal funds not 2 C. U. S. non-election-related activities. are used for II). §441i(a)(l) (Supp. a re- that such The concludes Court justified FECA, “donors have been under striction is because money the na- sums soft to of free to contribute substantial specific parties spend parties, for which the can tional influencing particular federal elec- purpose candidate’s only Accordingly, plausible, “[i]t is not Ante, tion.” at 145. likely, grateful for such dona- but that candidates would feel exploit gratitude.” to tions and that donors would seek Certainly point. Ibid. misses the “infusions But the Court money campaigns,” [candidates’] Election into Federal Comm., Political Action Comm’n v. National Conservative 323(a) (1985), regulated, can be does 480, 497 but U. S. given particular only regulate to influence donations politi- regulates national election; federal it all donations to put. are cal committees, no the use to which the funds matter attempts sidestep unprecedented breadth to Court relationship regulation stating “close be- this makes parties” national officéholders federal tween at Ante, “suspect.” parties national to the donations all especially others, association a close But 154-155. corrup- surrogate anot is speech, political realm rights. Amendment First treasured most of our is one tion; it 567, S.U. Jones, 530 v. Party Democratic See California Central County Democratic Francisco (2000); v. San Eu Republican v. Tashjian (1989); 214, 225 S. Comm., will- (1986). The Court’s S. Conn., 479 U. Party of relationship aof basis on the corruption impute ingness to Congress’ expands rights infringes associational greatly nothing in is there And speech. political regulate ability to regulation congressional limits analysis that the Court’s part relies Court fact, the In parties. political national organizations. nonprofit regulate rationale this closeness will association what knows Who 51. 156-157, n. Ante, at aWhen next. officeholders federal close too deemed be fed- corrupt a potential no has organization anto donation officeholder relationship between officeholder, eral simply irrelevant. organization par- political national that the recognize fails The Court govern- all levels speech exemplars ties are candi- federal fundraisers to effective addition ment, party political national sure, For officeholders. and dates but candidates, federal to elect large part in exist committees promote they also found, Court District majority of the aas pol- public in participate messages and political coordinated in even promote, elections, to federal icy unrelated debates in- seek and candidates local and elections, state off-year participa- public increase levels, and policy those at fluence 176, 334- Supp. 2d F. 251 See process. electoral tion in part judgment concurring in (Henderson, 2003) (DC J., 337 J.). Indeed, (Leon, at id., 820-821 part); dissenting in and pur- for primarily parties exist some national App. 185- debate. generating ideas expressing pose of (declaration ¶ Stephen (describing L. Dasbach et al. Party)). Libertarian political parties illustrate,

As these activities often foster speech healthy democracy, Supp. 2d, crucial to a 251 F. at (Leon, J.), fulfill need for like-minded individuals promote together political philosophy, to band see supra, supra, political par Jones, 574; Eu, at at 225. When political speech engage pure po ties that has little or no corrupt officeholders, their federal tential candidates and constitutionally speech their Government cannot burden any speech more than it could burden of individuals en gaging g., same these activities. E. National Conserva supra, Comm., 496-497; tive Political Action Citizens Against Housing Rent Control/Coalition Fair v. Berke (1981); ley, Buckley, U. S. 297-298 S., 424 U. at 27. Notwithstanding the citation to the Court’s numerous abuses scrutiny,” “exacting FECA, under definition of by Congress, restricting means chosen all na donations to parties they purpose given tional no matter the for which are “closely unnecessary used, are are not drawn to avoid abridgment id., freedoms,” associational at 25. politi- overinclusiveness

BCRA’s is not limited to national parties. prevent cal To the circumvention of the ban on the parties’ extensively national funds, use of nonfederal BCRA regulates parties, primarily state state elections, and state example, 323(b), by candidates. For new FECA reference 301(20)(A)(i) (ii), §§ prohibits parties new FECA state — using general partybuilding nonfederal funds1 ac- registration, tivities such voter voter identification, get out the vote for state candidates if even federal can- §§441i(b), didates are not mentioned. See 2 U. S. C. 431(20)(A)(i) (íí) II). 323(d) (Supp. prohib- New FECA — 1The points Court out that may state for certain parties use Levin funds funds, however, activities. Levin speech, are still federal on restrictions even if they are less onerous than placed the restrictions national parties. na their committees, like party local

its state “any donating funds” soliciting and counterparts, from tional Associa Rifle National such organizations nonprofit to of Col Advancement for the Association the National or tion §441i(d). new And, (NAACP). S. C. See People ored to candidate gubernatorial 323(f) a state requires '§ FECA airing television a when funding restrictions by federal abide Pres oppose the would elected, he if that, voters that tells ad within exploration gas oil of increased policy ident’s 2See environment. harm would it because the State “public coramu 431(20)(A)(iii) (regulating §§441i(f), C. U. S. for clearly candidate identified refe[r] ato nication[s] that State for a candidate of whether (regardless office Federal identified) . . . and that or mentioned is also office local or office”). that for candidate opposes or attacks activities focused more are provisions Although these evidence scant elections, there federal may affect or officeholders candidates federal indicate the record for corrupted donations appear corrupted would or are 416, 422 407, 403, 2d, Supp. at F. See activities. these dissent part and judgment concurring in (Henderson, J., (Leon, J.); Colorado also see 779-780, id., part); at ing in Election Federal v. Campaign Comm. Federal Republican (noting opinion) (1996) (plurality 604, 616 U. S. Comm’n, 518 [nonfederal posed corruption opportunity “the voter get-out-the-vote, elections, state contributions attenuated”). Nonethe best, activities] is, at registration activities these because benefit concludes the Court less, pre or ante, see officeholders, candidates federal contemporaneously pre-existing the circumvention vent 165-166, 174-177, 178-179, ante, at see restrictions,2 enacted exercise trusted be view, cannot Congress Court’s in the Ironically, deci voting usual in its donors large parties’ itsof independent judgment reelection members’ its further may be used donations because sions comprehensive passes it when be must deferred yet but campaigns, me It seems speech. election-related that restricts regime regulatory 185, it must ‘“predictive defer to judgments of Con- ” gress,’ (quoting ante, at 165 Broadcasting Turner System, (1994) FCC, Inc. v. (plurality 622, 512 S. opinion)). truly Yet the says. Court cannot mean it Newspa- what per political editorials and talk shows federal candi- benefit dates and every generic officeholders bit as much aas voter registration party; drive conducted a state there is little doubt that major newspaper the endorsement of a affects elections, federal and federal candidates and officeholders are surely “grateful,” positive ante, 168, at media coverage. I doubt, however, the seriously Court would contend that we Congress’ to judgment must defer if it chose to reduce political influence endorsements in federal elections.3 See Publishing Miami Herald Tornillo, Co.v. 418 U. S. 241,247, (1974) (holding required state law unconstitutional newspapers provide “right reply” any candidate who personally was professionally assailed in order to elimi- nate the manipulative of bias “abuses reportage” by press).

It is any also true that ultimately circumvention rationale must rest on the leading itself corrup- circumvention to the tion of federal candidates and Buckley, officeholders. See supra, at (upholding restrictions on funds donated na- no less would create rules that favor its likely Members’ Congress chances, reelection be corrupted than by the influx of money to political its parties, which may in turn be used to fund a portion of the Members’ reeleetion campaigns. 3The suggestion Court’s the “close relationship” between federal officeholders and and local political state parties in way some excludes the media from its rationale ante, is unconvincing, see (Thomas, n. 16 J., concurring in part, concurring in part, result dissenting part), particularly because such a relationship may be proved with minimal evi Indeed, dence. although Court concludes that political local parties have a “close relationship” with candidates, federal thus warranting greater congressional I am unaware of any evidence in the regulation, record that indicates that local political parties have any relationship with federal candidates. influencing purpose of. “for parties political

tional prophylactic they were because office” Federal election contribution prevent evasion” designed “to measures sifted candidates). speech All limit on regulatory regulation circumvents through federal Court’s thus another, and degree or some scheme system.4 Un- “loophole” in current abe would standard funding all regulation uphold federal would the Court less circumvention dependent on rationale speech, a political corrup- inquiry untethering its By not do. will alone has removed corruption, the Court appearance of the or tion has and precedent campaign finance our touchstone the limiting principle. logical replace it with failed analy- necessary to the Court’s untethering is an such But a fed- to conclude language amorphous using by Only sis. Court the can defined, exists vaguely interest, however eral (d), (b), 323(a), §§ FECA new fact obvious the avoid law campaign finance Any (f) vastly overinclusive. are and surely fed- affect corruption almost will reducing aimed law, federal circumvention prohibit the or elections eral some generally reduce will enough, laws most broad if and precisely because it is Indeed, corruption. appearance of currently exist. “loopholes” close all not even BORA does disclosing, without accept, currently able to are organizations Nonprofit identification, get- voter registration, for voter donations unlimited organizations such indicates activities, record the out-the-vote dollars, for millions the in donations, sometimes large receive already (Henderson, J., 2003) concur (DC 176, 323 2d activities, Supp. F. these NAACP (noting that part) dissenting part judgment ring get-out- for million donation anonymous $7 single, received Fund Voter non to these why all donations activities). reason is little There the-vote used, money is which purpose no matter organizations, profit parties state provides Court than protection any more will deserve next what knows who And them. regulate decides Congress if be. will “loophole” nominally legitimate inter- likely further are laws

broad requir- restrictions; Congress require to tailor its that we est campaigns their to self-finance ing all federal candidates corruption, but surely appearance of donor reduce would allowing Congress hardly In be constitutional. it would affecting a election principles federal rely general such existing law, the Court prohibiting the circumvention or requirement “closely tailoring drawn” all but eliminates meaningful judicial review. many abuses of Congress was convinced doubt No something area must be done. system in this the current Many of the abuses response, however, wás too blunt. Its that were made involve donations the Court described thus influencing election,” and “purpose of a federal Buckley, supra. Congress already regulated. See are existing enforced sought restrictions have the have could “closely its drawn” to that are to enact other restrictions broadly able to legitimate not be But it should concerns. Today’s speech it has chosen. in the fashion restrict signifi- requiring restrictions, has tailored decision, having speech political lit- protection cantly the for reduced appearance of corruption the nothing or to do tle or corruption.

II §315 §504 Act of amends the BCRA of Communications require disclose to maintain and 1934 to broadcast licensees any request purchase broadcast time that “is to records of pub- legally qualified a candidate for or on behalf of made message relating to a lic office” or that “communicates including importance,” commu- of national matter “any relating legally qualified candidate,” “a to nications legislative issue “a national office,” and election to Federal 315(e)(1) public importance.” §504; 47 U. S. C. of BCRA disclo- other BCRA differs II),5 section This (Supp. licensees dis- broadcast it requires because sections sure than requir- rather time requests to purchase broadcast close broadcast disbursements for their purchasers disclose ing concludes Court e.g., §201. See, BCRA time. ap- any potentially under attack a survive “must §504 facial 504,provides: by BCRA 315(e), amended Section record “Political “(1) general In a inspection, public for available maintain, and make shall “A licensee that— time broadcast purchase a request of record complete public for candidate qualified legally of a “(A) on behalf by or is made office;or national matter any political relating “(B) message a communicates including— importance, candidate; “(i) qualified legally office;or “(ii) to Federal any election importance. public “(iii) issue legislative a national “(2) record Contents information (1) contain shall paragraph under maintained “A record regarding— or re- accepted is time broadcast “(A) purchase request to the whether licensee; by the jected time; broadcast the “(B) charged the rate aired; is communication the “(C) on which time the date purchased; is “(D) of time class the refers communication the which “(E) candidate name of the to which election, the election seeking the candidate to which office refers communication to which refers, the issue the communication (as applicable); candidate, the of, a on behalf by, or made “(F) request case of in the candidate, committee candidate, authorized name committee; and of such treasurer purchasing person name request, “(G) any other case in the person of a contact number address, and name, phone time, the or members officers executive chief a list person, such person. of such of directors board or of the committee executive “(3) file to maintain Time ain placed be shall subsection this under required information “The licensee by the be retained and shall possible as file as soon years.” than 2 not less period plieable including height- standard, First Amendment that of J.). scrutiny.” (opinion Ante, I ened at BREYER, disagree. is

This section deficient of a suffi- because of the absence governmental justify cient interest disclosure of mere re- to quests purchase purchases time, broadcast well as § approaches exclusively themselves. Court 504 almost perspective ignoring from the licensees, the broadcast speech interests of purchasers, candidates and other whose rights g., ante, and association are See, e. affected 504. (noting subject at 236 that broadcasters are to numerous rec- ordkeeping requirements); (opining ante, this at 237 recognized has governmental authority Court “broad entities”); agency regulated ante, information demands from (“[W]e say impose requirements cannot will that these burdens”). disproportionate approach An administrative simply focuses on whether the administrative burden justifiable impinges is untenable. Because 504 on core rights, demanding First subject Amendment it is a more test than applies mere rational-basis review. The Court by asking essentially latter whether there is conceivable ibid, §504. support ways reason to (discussing See in which the help” pub- disclosure “can and the FCC lic); ante, (noting at 240 “recordkeeping require- ments seem the fairness FCC” enforce likely help doctrine).

Required provisions constitutionally disclosure that deter protected speech rights association subject height- are scrutiny. ened Buckley, See ap- 424 U. S., at 64. When plying heightened scrutiny, we first ask whether the Gov- ernment has an justify asserted interest sufficient to requests disclosure of purchase Ibid,.; broadcast time. see ante, (joint JJ.) at 196 opinion of Stevens and O’Connor, (concluding that important Buckley state interests the justified Court held requirements apply FECA’s disclosure §201’s to BCRA requirement). disclosure But the Govern- 360 support whatever interest no proffers brief, its in

ment, § a whole. 504 (opinion 238 ante, at suggestion, Court’s the Contrary to succinctly not does brief Government’s the Breyer, J.), para- two 504. support sufficient interests present following; the provide on relies Court the graphs opposition brief government’s explained “As filed issue this summary affirmance motion to the (NAB), of Broadcasters Association National by plaintiff re- impose disclosure regulations FCC longstanding broadcast sponsorship respect to the with quirements issue aof controversial ‘involving discussion matter (e) 73.1212(d) and R. C. F. 47 importance.’ public (same (2002) 76.1701(d) stand- R.F. (2002); C. see cablecast- governing regulation in disclosure used ard identify the. listeners enabling viewers By ing). aimed communications responsible actually persons public assist regulations those audience, mass at a Bellotti, 435 See message transmitted. evaluating the of adver- (‘Identification source 32n. S. at be people will so ... required may tising be being they are to which arguments evaluate able subjected.’). disclosed be required information range of “The man- disclosures comparable to BCRA

under S. C. Compare 47 U. rules. FCC by pre-existing dated 315(e)(2)(G) R. F. §504), C. (added BCRA at- (2002). do 76.1701(d) Plaintiffs 73.1212(e) and more are requirements § 504’s BCRA show tempt to they rules, nor do longstanding FCC’s than onerous are regulations agency pre-existing contend 02-1676 generally See unconstitutional. themselves 4-9. Aff. for Summ. of NAB Mot. Opp. to inBr. Gov’t es- essentially a codification §504 is BCRA Because requirements, regulatory unchallenged tablished plaintiffs’ First rejected.” claim Amendment should be Brief for FEC et al. in pp. No. 02-1674 et al., 132-133. paragraphs While these attempt to set justification forth a §315(e)(1)(B), for the new Communications Act discussed below, I any justification § fail to see for BCRA 504 in its entirety. persuasive Nor do I find the Court’s and the Gov- argument ernment’s pre-existing unchallenged agency regulations imposing requirements similar disclosure compel §504 the conclusion that is constitutional and somehow re- lieve the Government of its of advancing burden a constitu- tionally § justification sufficient for 504. argument,

At oral the Government counsel indicated that §504 one of the supporting interests in its entirety stems from the fairness doctrine, Arg. Tr. of Oral which in general imposes obligation an on licensees to devote “rea- percentage” sonable of broadcast time to public issues of im- portance way ain opposing that reflects See views. Red Broadcasting (1969). Lion FCC, Co.v. 395 U. S. 367 Assum- ing, arguendo, latter-day this assertion should be considered, I think the District correctly Court noted that there is noth- ing in the record that indicates pur- have licensees treated unfairly. J.). (Leon, chasers Supp. 2d, 251 F. at 812 In addi- tion, this wholly interest seems unconnected to the central purpose of BCRA, and it is not all govern- similar to interests Buckley that we found to be “sufficiently mental important outweigh the possibility infringement,” U. S., at 66.

As to the requirements disclosure involving “any political matter of importance” national under the new Communica- §315(e)(1)(B), tions Act suggests Government that disclosure enables viewers to evaluate message transmit- §504 ted.6 First, insofar as requires BCRA reporting of 6Communications relating to candidates will be covered the new Communications 315(e)(1)(A), Act so, context, in this we consider, must for example, the plaintiff-organizations, which may attempt to use the broadcast medium convey espoused by message the organizations. broadcasts, as actual well time” for] broadcast “re,quest[s ma- not do Requests goal. by this supported

it is in- viewers, but no have will purchases actual into ture obtain adversaries or competitors may allow formation strategies organizational regarding information themselves, broadcasts as to even Second, purchasers. cry from far goal is a this context, noncandidate-related this Buckley, were which endorsed interests Government federal corruption of preventing evaluating and limited Elections Ohio McIntyre v. also see Ibid.; candidates. (1995). 334, 354 S. Comm’n, to candidates respect requirements disclosure toAs 315(e)(1)(A), BCRA Act Communications new under today also which §201, overlaps with §504 significantly of Ste- opinion (joint ante, at 194-202 Court, by this upheld “elec- of purchasers JJ.), requires and O’Connor, vens and array of infor- a wide disclose to tioneering communications” the and disbursement of each including amount the mation, pertain. electioneering, communications to which elections § imposes a overlap, 504 is this there recognize that IWhile rights: Amendment First purchaser’s the burden different disclosure purchasers’ § to is limited 201 above, as noted communications, whereas electioneering for disbursements requests disclosure licensees’ § requires broadcast purchasers’ only the are Not by purchasers. time broadcast advertisement, actual in an result may never which requests, §504 un- will requirements, but disclosure subject the because of communication costs doubtedly increased result disclosure onerous the costs will shift licensees Gov- The purchasers. requirements recordkeeping and burden separate for the reason offer fails ernment overlap. apparent has matter, that justify, and cannot The Government for] “requests requirement its justify, attempted to this before record theOn publicized. be time broadcast” interest governmental to a speculate even Court, I cannot would allow me to conclude the disclosure of “re- quests” upheld. should be Such risks, alia, disclosure inter allowing political groups candidates opportunity purchaser’s strategy out a ferret ultimately, and, un- duly purchasers. burdens the First Amendment freedoms showing

Absent some of a Government interest served § light and in “requests,” of the breadth of disclosure of satisfy I conclude that 504 must fails to First Amendment scrutiny. §305.* dissenting Stevens,

Justice with respect to writing The Chief Justice, for the Court, concludes that §305 plaintiffs standing challenge McConnell lack (BCRA) Bipartisan Campaign Reform Act be- cause Senator provision McConnell cannot be affected days Republican until “45 primary before election in persuaded Ante, 2008.” at 226. I am not that Article Ill’s case-or-controversy requirement imposes such strict tem- poral jurisdiction. By asserting limit on our that he has run past, plans attack ads in the that he to run such ads his campaign, adversely next 305 will affect his cam- paign strategy, Senator McConnell has identified a “con- “ ” injury, crete,” ‘distinct,’ “actual” Whitmore v. Arkan- (1990). sas, 495 injury U. S. That is distant in illusory. time does not make it prong standing second inquiry oí the —whether

alleged injury fairly traceable to the defendants’ chal lenged party’s action and not independent the result of a third poses ch question. a closer Section 305 does not oices† — require charge broadcast to higher stations a candidate rates unsigned for ads that mention opponent. the candidate’s provision simply permits Rather, charge stations to their normal rates for may such ads. Some stations take advan-

* Ginsburg Breyer Justice join and Justice this in its opinion entirety.

†Lujan Wildlife, 504 U. S. (1992). 555, v. 560-561 Defenders of that pricing schemes adopt gap and regulatory

tage this of McConnell Senator that of ads kind between discriminate §305. comply strictly with that past those in run has incurring of instead that however, possible, also It with compliance candidates’ policing costs transaction for at- rates charge the same to § will continue stations 305, absence In the ads. campaign other all for ads as tack to uniformly choose will stations evidence any record he ads attack higher rates McConnell charge Senator alleged his arguable least is at it 2008, run proposes §305. to BCRA traceable injury is not challenge to plaintiffs’ entertain would Nevertheless, I BCRA Like section. uphold the §305 merits on the con- important §305 an serves §§201, 212, —and Moreover, purpose. stitutionally sufficient—informational §311, overlap those largely requirements § disclosure 305’s already why any candidate identify no reason plaintiffs marginal by the harmed §311 bewill with compliance I §305. am Indeed, complying with burden additional interest governmental important “the convinced financing,” in- campaign on publicity’ light of ‘shed[ding] the ante, (opinion §311, voked, with in connection above legislative support J.), suffice would C. Rehnquist, ads of attack sponsors all requiring expressly provision achieve seeks That ads. their identify themselves statutory withdrawing a indirectly, purpose same sound. less provision render does not benefit, suspect constitutionally as a regard Finally, doI Appellant/Cross- Brief regulation.” “viewpoint-based al., et 02-1674 in No. al. et McConnell Mitch Sen. Appellee §305 requirements, disclosure other BCRA’s p. Like 67. electioneering its speech based evenhandedly regulates men- only ads reaches section Although the content. ads. all such equally applies it candidates, opposing tion expresses obviously opponent one’s Disagreement §305 “viewpoint,” but expression treats that exactly like the opponent’s responsé.

In sum, I uphold would 305.

Case Details

Case Name: McConnell v. Federal Election Commission

Court Name: Supreme Court of the United States

Date Published: Dec 10, 2003

Citation: 540 U.S. 93

Docket Number: 02-1674

Court Abbreviation: SCOTUS