Chief Justice ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which Justice ALITO joins.
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 91, 2 U.S.C. § 441b(b)(2) (2000 ed., Supp. IV), makes it a federal crime for any corporation to broadcast, shortly before an election, any communication that names a federal candidate for elected office and is
Last Term, we reversed a lower court ruling, arising in the same litigation before us now, that our decision in McConnell left "no room" for as-applied challenges to § 203. App. to Juris. Statement 52a. We held on the contrary that "[i]n upholding § 203 against a facial challenge, we did not purport to resolve future as-applied challenges." Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U.S. 410, 412, 126 S.Ct. 1016, 163 L.Ed.2d 990 (2006) (per curiam) (WRTL I).
We now confront such an as-applied challenge. Resolving it requires us first to determine whether the speech at issue is the "functional equivalent" of speech expressly advocating the election or defeat of a candidate for federal office, or instead a "genuine issue a[d]." McConnell, supra, at 206, and n. 88, 124 S.Ct. 619. We have long recognized that the distinction between campaign advocacy and issue advocacy "may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions." Buckley v. Valeo, 424 U.S. 1, 42, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Our development of the law in this area requires us, however, to draw such a line, because we have recognized that the interests held to justify the regulation of campaign speech and its "functional equivalent" "might not apply" to the regulation of issue advocacy. McConnell, supra, at 206, and n. 88, 124 S.Ct. 619.
In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the "functional equivalent" of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA § 203 is unconstitutional as applied to the advertisements at issue in these cases.
Prior to BCRA, corporations were free under federal law to use independent expenditures to engage in political speech so long as that speech did not expressly advocate the election or defeat of a clearly identified federal candidate. See Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL); Buckley, supra, at 44-45, 96 S.Ct. 612; 2
BCRA significantly cut back on corporations' ability to engage in political speech. BCRA § 203, at issue in these cases, makes it a crime for any labor union or incorporated entity — whether the United Steelworkers, the American Civil Liberties Union, or General Motors — to use its general treasury funds to pay for any "electioneering communication." § 441b(b)(2) (2000 ed., Supp. IV). BCRA's definition of "electioneering communication" is clear and expansive. It encompasses any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office. § 434(f)(3)(A).
Appellee Wisconsin Right to Life, Inc. (WRTL), is a nonprofit, nonstock, ideological advocacy corporation recognized by the Internal Revenue Service as tax exempt under § 501(c)(4) of the Internal Revenue Code. On July 26, 2004, as part of what it calls a "grassroots lobbying campaign," Brief for Appellee 8, WRTL began broadcasting a radio advertisement entitled "Wedding." The transcript of "Wedding" reads as follows:
On the same day, WRTL aired a similar radio ad entitled "Loan."
WRTL planned on running "Wedding," "Waiting," and "Loan" throughout August 2004 and financing the ads with funds from its general treasury. It recognized, however, that as of August 15, 30 days prior to the Wisconsin primary, the ads would be illegal "electioneering communication[s]" under BCRA § 203.
Believing that it nonetheless possessed a First Amendment right to broadcast these ads, WRTL filed suit against the Federal Election Commission (FEC) on July 28, 2004, seeking declaratory and injunctive relief before a three-judge District Court. See note following 2 U.S.C. § 437h (2000 ed., Supp. IV); 28 U.S.C. § 2284. WRTL alleged that BCRA's prohibition on the use of corporate treasury funds for "electioneering communication[s]" as defined in the Act is unconstitutional as applied to "Wedding," "Loan," and "Waiting," as well as any materially similar ads it might seek to run in the future.
Just before the BCRA blackout period was to begin, the District Court denied a preliminary injunction, concluding that "the reasoning of the McConnell Court leaves no room for the kind of `as applied' challenge WRTL propounds before us." App. to Juris. Statement 52a. In response to this ruling, WRTL did not run its ads during the blackout period. The District Court subsequently dismissed WRTL's complaint. See id., at 47a-48a ("WRTL's `as-applied' challenge to BCRA [§ 203] is foreclosed by the Supreme Court's decision in McConnell"). On appeal, we vacated the District Court's judgment, holding that McConnell "did not purport to resolve future as-applied challenges" to BCRA § 203, and remanded "for the District Court to consider the merits of WRTL's as-applied challenge in the first instance." WRTL I, 546 U.S., at 412, 126 S.Ct. 1016.
On remand, after allowing four Members of Congress to intervene as defendants, the three-judge District Court granted summary judgment for WRTL, holding BCRA § 203 unconstitutional as applied to the three advertisements WRTL planned to run during the 2004 blackout period. The District Court first found adjudication of the dispute not barred by mootness because the controversy was "`capable of repetition, yet evading review.'" 466 F.Supp.2d, at 202. Turning to the merits, the court began by noting that under McConnell, BCRA could constitutionally proscribe "express advocacy" — defined as ads that expressly advocate the election or defeat of a candidate for federal office — and the "functional equivalent" of
One judge dissented, contending that the majority's "plain facial analysis of the text in WRTL's 2004 advertisements" ignored "the context in which the text was developed." Id., at 210 (opinion of Roberts, J.). In that judge's view, a contextual analysis of the ads revealed "deep factual rifts between the parties concerning the purpose and intended effects of the ads" such that neither side was entitled to summary judgment. Id., at 210, 211.
The FEC and intervenors filed separate notices of appeal and jurisdictional statements. We consolidated the two appeals and set the matter for briefing and argument, postponing further consideration of jurisdiction to the hearing on the merits. 549 U.S. 1177, 127 S.Ct. 1145, 166 L.Ed.2d 909 (2007).
Article III's "case-or-controversy requirement subsists through all stages of federal judicial proceedings.... [I]t is not enough that a dispute was very much alive when suit was filed." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Based on these principles, the FEC argues (though the intervenors do not) that these cases are moot because the 2004 election has passed and WRTL "does not assert any continuing interest in running [its three] advertisements, nor does it identify any reason to believe that a significant dispute over Senate filibusters of judicial nominees will occur in the foreseeable future." Brief for Appellant FEC 21.
As the District Court concluded, however, these cases fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. See Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 S.Ct. 310 (1911). The exception applies where "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks and brackets omitted). Both circumstances are present here.
As the District Court found, it would be "entirely unreasonable ... to expect that [WRTL] could have obtained complete judicial review of its claims in time for it to air its ads" during the BCRA blackout periods. 466 F.Supp.2d, at 202. The FEC contends that the 2-year window between elections provides ample time for parties to litigate their rights before each BCRA blackout period. But groups like WRTL cannot predict what issues will be matters of public concern during a future blackout period. In these cases, WRTL had no way of knowing well in advance that it would want to run ads on judicial filibusters during the BCRA blackout period. In any event, despite BCRA's command that the cases be expedited "to the greatest possible extent," § 403(a)(4), 116 Stat. 113, note following 2 U.S.C. § 437h (2000 ed., Supp. IV), two BCRA blackout periods have come and gone during the pendency of this action. "[A] decision allowing the desired
The second prong of the "capable of repetition" exception requires a "`reasonable expectation'" or a "`demonstrated probability'" that "the same controversy will recur involving the same complaining party." Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam). Our cases find the same controversy sufficiently likely to recur when a party has a reasonable expectation that it "will again be subjected to the alleged illegality," Lyons, supra, at 109, 103 S.Ct. 1660, or "will be subject to the threat of prosecution" under the challenged law, Bellotti, supra, at 774-775, 98 S.Ct. 1407 (citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam). The FEC argues that in order to prove likely recurrence of the same controversy, WRTL must establish that it will run ads in the future sharing all "the characteristics that the district court deemed legally relevant." Brief for Appellant FEC 23.
The FEC asks for too much. We have recognized that the "`capable of repetition, yet evading review' doctrine, in the context of election cases, is appropriate when there are `as applied' challenges as well as in the more typical case involving only facial attacks." Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Requiring repetition of every "legally relevant" characteristic of an as-applied challenge — down to the last detail — would effectively overrule this statement by making this exception unavailable for virtually all as-applied challenges. History repeats itself, but not at the level of specificity demanded by the FEC. Here, WRTL credibly claimed that it planned on running "`materially similar'" future targeted broadcast ads mentioning a candidate within the blackout period, 466 F.Supp.2d, at 197, and there is no reason to believe that the FEC will "refrain from prosecuting violations" of BCRA, Bellotti, supra, at 775, 98 S.Ct. 1407. Under the circumstances, particularly where WRTL sought another preliminary injunction based on an ad it planned to run during the 2006 blackout period, see 466 F.Supp.2d, at 203, n. 15, we hold that there exists a reasonable expectation that the same controversy involving the same party will recur. We have jurisdiction to decide these cases.
WRTL rightly concedes that its ads are prohibited by BCRA § 203. Each ad clearly identifies Senator Feingold, who was running (unopposed) in the Wisconsin Democratic primary on September 14, 2004, and each ad would have been "targeted to the relevant electorate," see 2 U.S.C. § 434(f)(3)(C) (2000 ed., Supp. IV), during the BCRA blackout period. WRTL further concedes that its ads do not fit under any of BCRA's exceptions to the term "electioneering communication." See § 434(f)(3)(B). The only question, then, is whether it is consistent with the First Amendment for BCRA § 203 to prohibit WRTL from running these three ads.
Appellants contend that WRTL should be required to demonstrate that BCRA is unconstitutional as applied to the ads. Reply Brief for Appellant Sen. John McCain et al. in No. 06-970, p. 5, n. 4; Brief for Appellant FEC 34. After all, appellants reason, McConnell already held that BCRA § 203 was facially valid. These cases, however, present the separate
The strict scrutiny analysis is, of course, informed by our precedents. This Court has already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent. McConnell, supra, at 206, 124 S.Ct. 619. So to the extent the ads in these cases fit this description, the FEC's burden is not onerous; all it need do is point to McConnell and explain why it applies here. If, on the other hand, WRTL's ads are not express advocacy or its equivalent, the Government's task is more formidable. It must then demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling interest. No precedent of this Court has yet reached that conclusion.
The FEC, intervenors, and the dissent below contend that McConnell already established the constitutional test for determining if an ad is the functional equivalent of express advocacy: whether the ad is intended to influence elections and has that effect. See, e.g., 466 F.Supp.2d, at 214 (opinion of Roberts, J.). Here is the relevant portion of our opinion in McConnell:
WRTL and the District Court majority, on the other hand, claim that McConnell did not adopt any test as the standard for future as-applied challenges. We agree. McConnell's analysis was grounded in the evidentiary record before the Court. Two key studies in the McConnell record constituted "the central piece of evidence marshaled by defenders of BCRA's electioneering communication provisions in support of their constitutional validity." McConnell v. FEC, 251 F.Supp.2d 176, 307, 308 (DC 2003) (opinion of Henderson, J.) (internal quotation marks and brackets omitted). Those studies asked "student coders" to separate ads based on whether the students thought the "purpose" of the ad was "to provide information about or urge action on a bill or issue," or "to generate support or opposition for a particular candidate." Id., at 308-309 (internal quotation marks omitted; emphasis deleted); see Brief for Appellee 38. The
When the McConnell Court considered the possible facial overbreadth of § 203, it looked to the studies in the record analyzing ads broadcast during the blackout periods, and those studies had classified the ads in terms of intent and effect. The Court's assessment was accordingly phrased in the same terms, which the Court regarded as sufficient to conclude, on the record before it, that the plaintiffs had not "carried their heavy burden of proving" that § 203 was facially overbroad and could not be enforced in any circumstances. 540 U.S., at 207, 124 S.Ct. 619. The Court did not explain that it was adopting a particular test for determining what constituted the "functional equivalent" of express advocacy. The fact that the student coders who helped develop the evidentiary record before the Court in McConnell looked to intent and effect in doing so, and that the Court dealt with the record on that basis in deciding the facial overbreadth claim, neither compels nor warrants accepting that same standard as the constitutional test for separating, in an as-applied challenge, political speech protected under the First Amendment from that which may be banned.
More importantly, this Court in Buckley had already rejected an intent-and-effect test for distinguishing between discussions of issues and candidates. See 424 U.S., at 43-44, 96 S.Ct. 612. After noting the difficulty of distinguishing between discussion of issues on the one hand and advocacy of election or defeat of candidates on the other, the Buckley Court explained that analyzing the question in terms "`of intent and of effect'" would afford "`no security for free discussion.'" Id., at 43, 96 S.Ct. 612 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 89 S.Ct. 430 (1945)). It therefore rejected such an approach, and McConnell did not purport to overrule Buckley on this point — or even address what Buckley had to say on the subject.
For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied challenges turning on the speaker's intent to affect an election. The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also "reflec[t] our `profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'" Buckley, supra, at 14, 96 S.Ct. 612 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). A test turning on the intent of the speaker does not remotely fit the bill.
Far from serving the values the First Amendment is meant to protect, an intent-based test would chill core political speech
A test focused on the speaker's intent could lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. See M. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001) ("[U]nder well-accepted First Amendment doctrine, a speaker's motivation is entirely irrelevant to the question of constitutional protection"). "First Amendment freedoms need breathing space to survive." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). An intent test provides none.
Buckley also explains the flaws of a test based on the actual effect speech will have on an election or on a particular segment of the target audience. Such a test "`puts the speaker ... wholly at the mercy of the varied understanding of his hearers.'" 424 U.S., at 43, 96 S.Ct. 612. It would also typically lead to a burdensome, expert-driven inquiry, with an indeterminate result. Litigation on such a standard may or may not accurately predict electoral effects, but it will unquestionably chill a substantial amount of political speech.
"The freedom of speech ... guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment." Bellotti, 435 U.S., at 776, 98 S.Ct. 1407 (internal quotation marks omitted). See Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 534, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). To safeguard this liberty, the proper standard for an as-applied challenge to BCRA § 203 must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect. See Buckley, supra, at 43-44, 96 S.Ct. 612. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. See Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). And it must eschew "the open-ended rough-and-tumble of factors," which "invit[es] complex argument in a trial court and a virtually inevitable appeal." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,
In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL's three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate's character, qualifications, or fitness for office.
Despite these characteristics, appellants assert that the content of WRTL's ads alone betrays their electioneering nature. Indeed, the FEC suggests that any ad covered by § 203 that includes "an appeal to citizens to contact their elected representative" is the "functional equivalent" of an ad saying defeat or elect that candidate. Brief for Appellant FEC 31; see Brief for Appellant Sen. John McCain et al. in No. 06-970, pp. 21-23 (hereinafter McCain Brief). We do not agree. To take just one example, during a blackout period the House considered the proposed Universal National Service Act. See App. to Brief for American Center for Law and Justice et al. as Amicus Curiae B-3. There would be no reason to regard an ad supporting or opposing that Act, and urging citizens to contact their Representative about it, as the equivalent of an ad saying vote for or against the Representative. Issue advocacy conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose — uninvited by the ad — to factor it into their voting decisions.
The FEC and intervenors try to turn this difference to their advantage, citing McConnell's statements "that the most effective campaign ads, like the most effective commercials for products ..., avoid the [Buckley] magic words [expressly advocating the election or defeat of a candidate]," 540 U.S., at 127, 124 S.Ct. 619, and that advertisers "would seldom choose to use such words even if permitted," id., at
Looking beyond the content of WRTL's ads, the FEC and intervenors argue that several "contextual" factors prove that the ads are the equivalent of express advocacy. First, appellants cite evidence that during the same election cycle, WRTL and its Political Action Committee (PAC) actively opposed Senator Feingold's reelection and identified filibusters as a campaign issue. This evidence goes to WRTL's subjective intent in running the ads, and we have already explained that WRTL's intent is irrelevant in an as-applied challenge. Evidence of this sort is therefore beside the point, as it should be — WRTL does not forfeit its right to speak on issues simply because in other aspects of its work it also opposes candidates who are involved with those issues.
Next, the FEC and intervenors seize on the timing of WRTL's ads. They observe that the ads were to be aired near elections but not near actual Senate votes on judicial nominees, and that WRTL did not run the ads after the elections. To the extent this evidence goes to WRTL's subjective intent, it is again irrelevant. To the extent it nonetheless suggests that the ads should be interpreted as express advocacy, it falls short. That the ads were run close to an election is unremarkable in a challenge like this. Every ad covered by BCRA § 203 will by definition air just before a primary or general election. If this were enough to prove that an ad is the functional equivalent of express advocacy, then BCRA would be constitutional in all of its applications. This Court unanimously rejected this contention in WRTL I.
That the ads were run shortly after the Senate had recessed is likewise unpersuasive. Members of Congress often return to their districts during recess, precisely to determine the views of their constituents; an ad run at that time may succeed in getting more constituents to contact the Representative while he or she is back home. In any event, a group can certainly choose to run an issue ad to coincide with public interest rather than a floor vote. Finally, WRTL did not resume running its ads after the BCRA blackout period because, as it explains, the debate had changed. Brief for Appellee 16. The focus of the Senate was on whether a majority would vote to change the Senate rules to eliminate the filibuster — not whether individual Senators would continue filibustering. Given this change, WRTL's decision not to continue running its ads after the blackout period does not support an inference that the ads were the functional equivalent of electioneering.
The last piece of contextual evidence the FEC and intervenors highlight is the ads'
Given the standard we have adopted for determining whether an ad is the "functional equivalent" of express advocacy, contextual factors of the sort invoked by appellants should seldom play a significant role in the inquiry. Courts need not ignore basic background information that may be necessary to put an ad in context — such as whether an ad "describes a legislative issue that is either currently the subject of legislative scrutiny or likely to be the subject of such scrutiny in the near future," 466 F.Supp.2d, at 207 — but the need to consider such background should not become an excuse for discovery or a broader inquiry of the sort we have just noted raises First Amendment concerns.
At best, appellants have shown what we have acknowledged at least since Buckley: that "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application." 424 U.S., at 42, 96 S.Ct. 612. Under the test set forth above, that is not enough to establish that the ads can only reasonably be viewed as advocating or opposing a candidate in a federal election. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 S.Ct. 1093 (1940). Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.
Because WRTL's ads may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate, we hold they are not the functional equivalent of express advocacy, and therefore fall outside the scope of McConnell's holding.
BCRA § 203 can be constitutionally applied to WRTL's ads only if it is narrowly tailored to further a compelling interest. McConnell, 540 U.S., at 205, 124 S.Ct. 619; Bellotti, 435 U.S., at 786, 98 S.Ct. 1407; Buckley, supra, at 44-45, 96 S.Ct. 612. This Court has never recognized a compelling interest in regulating ads, like WRTL's, that are neither express advocacy nor its functional equivalent. The District Court below considered interests that might justify regulating WRTL's ads here, and found none sufficiently compelling. 466 F.Supp.2d, at 208-210. We reach the same conclusion.
At the outset, we reject the contention that issue advocacy may be regulated because express election advocacy may be, and "the speech involved in so-called issue advocacy is [not] any more core political speech than are words of express advocacy." McConnell, supra, at 205, 124 S.Ct. 619. This greater-includes-the-lesser approach is not how strict scrutiny works. A corporate ad expressing support for the local football team could not be regulated on the ground that such speech is less "core" than corporate speech about an election, which we have held may be restricted. A court applying strict scrutiny must ensure that a compelling interest supports each application of a statute restricting speech. That a compelling interest justifies restrictions on express advocacy tells us little about whether a compelling interest justifies restrictions on issue advocacy; the McConnell Court itself made just that point. See 540 U.S., at 206, n. 88, 124 S.Ct. 619. Such a greater-includes-the-lesser argument would dictate that virtually all corporate speech can be suppressed, since few kinds of speech can lay claim to being as central to the First Amendment as campaign speech. That conclusion is
This Court has long recognized "the governmental interest in preventing corruption and the appearance of corruption" in election campaigns. Buckley, 424 U.S., at 45, 96 S.Ct. 612. This interest has been invoked as a reason for upholding contribution limits. As Buckley explained, "[t]o the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined." Id., at 26-27, 96 S.Ct. 612. We have suggested that this interest might also justify limits on electioneering expenditures because it may be that, in some circumstances, "large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions." Id., at 45, 96 S.Ct. 612.
McConnell arguably applied this interest — which this Court had only assumed could justify regulation of express advocacy — to ads that were the "functional equivalent" of express advocacy. See 540 U.S., at 204-206, 124 S.Ct. 619. But to justify regulation of WRTL's ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough. Issue ads like WRTL's are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them. To equate WRTL's ads with contributions is to ignore their value as political speech.
Appellants argue that an expansive definition of "functional equivalent" is needed to ensure that issue advocacy does not circumvent the rule against express advocacy, which in turn helps protect against circumvention of the rule against contributions. Cf. McConnell, supra, at 205, 124 S.Ct. 619 ("[R]ecent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against circumvention of [valid] contribution limits" (internal quotation marks omitted; brackets in original)). But such a prophylaxis-upon-prophylaxis approach to regulating expression is not consistent with strict scrutiny. "[T]he desire for a bright-line rule ... hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom." MCFL, 479 U.S., at 263, 107 S.Ct. 616. See Free Speech Coalition, 535 U.S., at 255, 122 S.Ct. 1389 ("The Government may not suppress lawful speech as the means to suppress unlawful speech"); Buckley, supra, at 44, 96 S.Ct. 612 (expenditure limitations "cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations").
A second possible compelling interest recognized by this Court lies in addressing a "different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin, 494 U.S., at 660, 110 S.Ct. 1391. Austin invoked this interest to uphold a state statute making it a felony for corporations to use treasury funds for independent expenditures on express election advocacy. Id., at 654-655, 110 S.Ct. 1391. McConnell also relied on this interest in upholding regulation not just of express advocacy, but also its "functional equivalent." 540 U.S., at 205-206, 124 S.Ct. 619.
These cases did not suggest, however, that the interest in combating "a different type of corruption" extended beyond campaign speech. Quite the contrary. Two of the Justices who joined the 6-to-3 majority
Accepting the notion that a ban on campaign speech could also embrace issue advocacy would call into question our holding in Bellotti that the corporate identity of a speaker does not strip corporations of all free speech rights. 435 U.S., at 778, 98 S.Ct. 1407. It would be a constitutional "bait and switch" to conclude that corporate campaign speech may be banned in part because corporate issue advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant to the same asserted compelling interest, through a broad conception of what constitutes the functional equivalent of campaign speech, or by relying on the inability to distinguish campaign speech from issue advocacy.
The FEC and intervenors do not argue that the Austin interest justifies regulating genuine issue ads. Instead, they focus on establishing that WRTL's ads are the functional equivalent of express advocacy — a contention we have already rejected. We hold that the interest recognized in Austin as justifying regulation of corporate campaign speech and extended in McConnell to the functional equivalent of such speech has no application to issue advocacy of the sort engaged in by WRTL.
Because WRTL's ads are not express advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL's speech, we hold that BCRA § 203 is unconstitutional as applied to WRTL's "Wedding," "Loan," and "Waiting" ads.
* * *
These cases are about political speech. The importance of the cases to speech and debate on public policy issues is reflected
Yet, as is often the case in this Court's First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself: "Congress shall make no law ... abridging the freedom of speech." The Framers' actual words put these cases in proper perspective. Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but when it comes to drawing difficult lines in the area of pure political speech — between what is protected and what the Government may ban — it is worth recalling the language we are applying. McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. We have no occasion to revisit that determination today. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban — the issue we do have to decide — we give the benefit of the doubt to speech, not censorship. The First Amendment's command that "Congress shall make no law ... abridging the freedom of speech" demands at least that.
The judgment of the United States District Court for the District of Columbia is affirmed.
It is so ordered.
Justice ALITO, concurring.
I join the principal opinion because I conclude (1) that § 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. § 441b(b)(2) (2000 ed., Supp. IV), as applied, cannot constitutionally ban any advertisement that may reasonably be interpreted as anything other than an appeal to vote for or against a candidate, (b) that the ads at issue here may reasonably be interpreted as something other than such an appeal, and (c) that because § 203 is unconstitutional as applied to the advertisements before us, it is unnecessary to go further and decide whether § 203 is unconstitutional on its face. If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech, see post, at 2682-2683 (SCALIA, J., joined by KENNEDY and THOMAS, JJ., concurring in part and concurring in judgment), we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), that § 203 is facially constitutional.
Justice SCALIA, with whom Justice KENNEDY and Justice THOMAS join, concurring in part and concurring in the judgment.
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: "`I'm not a revolutionary, I'm just defending freedom of speech.... I never said we had to change the king — no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?'"
Today's cases originated in the efforts of Wisconsin Right to Life, Inc. (WRTL), a Wisconsin nonprofit, nonstock ideological advocacy corporation, to lobby Wisconsin voters concerning the filibustering of the President's judicial nominees. The problem for WRTL was that, under § 203 of BCRA, it would have been unlawful to air its television and radio ads within 30 days before the September 14, 2004, primary or within 60 days before the November 2, 2004, general election because the ads named Senator Feingold, who was then seeking reelection. Section 203(a) of BCRA amended § 316(b)(2) of the Federal Election Campaign Act Amendments of 1974, which prohibited corporations and unions from "mak[ing] a contribution or expenditure in connection with any election to any political office, or in connection with any primary election ... for any political office." 2 U.S.C. § 441b(a). Prior to BCRA, that section covered only expenditures for communications that expressly advocated the election or defeat of a candidate (in campaign-finance speak, so-called "express advocacy"). McConnell, supra, at 204, 124 S.Ct. 619. As amended, however, that section was broadened to cover "electioneering communication[s]," § 441b(b)(2) (2000 ed., Supp. IV), which include "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and that is aired within 60 days before a general election, or 30 days before a primary election, in the jurisdiction in which the candidate is running. § 434(f)(3) (2000 ed., Supp. IV).
The question in these cases is whether § 203 can be applied to WRTL's ads consistently with the First Amendment. Last Term, this Court unanimously held, in Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U.S. 410, 412, 126 S.Ct. 1016, 163 L.Ed.2d 990 (2006) (per curiam) (WRTL I), that as-applied challenges to § 203 are available. The District Court in these cases subsequently held that § 203 is unconstitutional as applied to the three ads at issue. The Court today affirms the judgment of the District Court. While I agree with that result, I disagree with the principal opinion's reasons.
A proper explanation of my views in these cases requires some discussion of the case law leading up to McConnell. I begin with the seminal case of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), wherein this Court considered the constitutionality of various political contribution and expenditure limitations contained in the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as amended, 88 Stat. 1263. Buckley set forth a now-familiar framework for evaluating the constitutionality of campaign-finance regulations. The Court began with the recognition that contributing money to, and spending money on behalf of, political candidates implicates core First Amendment protections, and that restrictions on such contributions and expenditures "operate in an area of the most fundamental First Amendment activities." 424 U.S., at 14, 96 S.Ct. 612. The Court also recognized, however, that the Government has a compelling interest in "prevention of corruption and the appearance of corruption." Id., at 25, 96 S.Ct. 612. The "corruption" to which the Court repeatedly referred was of the "quid pro quo" variety, whereby an individual or entity makes a contribution or expenditure in exchange for some action by an official. Id., at 26, 27, 45, 47, 96 S.Ct. 612.
The Court then held that FECA's contribution limitations passed constitutional muster because they represented a "marginal restriction upon the contributor's ability to engage in free communication," id., at 20-21, 96 S.Ct. 612, and were thus subject to a lower level of scrutiny, id., at 25, 96 S.Ct. 612. The Court invalidated, however, FECA's limitation on independent expenditures (i.e., expenditures made to express one's own positions and not in coordination with a campaign). Id., at 39-51, 96 S.Ct. 612. In the Court's view, expenditure limitations restrict speech that is "`at the core of our electoral process and of the First Amendment freedoms,'" id., at 39, 96 S.Ct. 612, and require the highest scrutiny, id., at 44-45, 96 S.Ct. 612.
The independent-expenditure restriction at issue in Buckley limited the amount of money that could be spent "`relative to a clearly identified candidate.'" Id., at 41, 96 S.Ct. 612 (quoting 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV) (repealed 1976)). Before striking down the expenditure limitation, the Court narrowly construed § 608(e)(1), in light of vagueness concerns, to cover only express advocacy — that is,
Buckley might well have been the last word on limitations on independent expenditures. Some argued, however, that independent expenditures by corporations should be treated differently. That argument should have been foreclosed by Buckley for several reasons: (1) The particular provision at issue in Buckley, § 608(e)(1) of FECA, was directed to expenditures not just by "individuals," but by "persons," with "`persons'" specifically defined to include "`corporation[s],'" id., at 23, 39, n. 45, 96 S.Ct. 612; (2) the plaintiffs in Buckley included corporations, id., at 8, 96 S.Ct. 612; and (3) Buckley, id., at 50-51, 96 S.Ct. 612, cited a case that involved limitations on corporations in support of its striking down the restriction at issue, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). Moreover, pre-Buckley cases had accorded corporations full First Amendment protection. See, e.g., NAACP v. Button, 371 U.S. 415, 428-429, 431, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (holding that the corporation's activities were "modes of expression and association protected by the First and Fourteenth Amendments"); Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 80 S.Ct. 660 (1936) (holding that corporations are guaranteed the "freedom of speech and of the press ... safeguarded by the due process of law clause of the Fourteenth Amendment"). See also Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 8, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion) ("The identity of the speaker is not decisive in determining whether speech is protected"; "[c]orporations and other associations, like individuals, contribute to the `discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster").
Indeed, one would have thought the coup de grâce to the argument that corporations can be treated differently for these purposes was dealt by First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), decided just two years after Buckley. In that case, the Court struck down a Massachusetts statute that prohibited corporations from spending money in connection with a referendum unless the referendum materially affected the corporation's property, business, or assets. As the Court explained: The principle that such advocacy is "at the heart of the First Amendment's protection" and is "indispensable to decisionmaking in a democracy" is "no less true because the speech comes from a corporation rather than an individual." 435 U.S., at 776-777, 98 S.Ct. 1407. And the Court rejected the arguments that corporate participation
The Court strayed far from these principles, however, in one post-Buckley case: Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). This was the only pre-McConnell case in which this Court had ever permitted the government to restrict political speech based on the corporate identity of the speaker. Austin upheld state restrictions on corporate independent expenditures in support of, or in opposition to, any candidate in elections for state office. 494 U.S., at 654-655, 110 S.Ct. 1391. The statute had been modeled after the federal statute that BCRA § 203 amended, which had been construed to reach only express advocacy, id., at 655, n. 1, 110 S.Ct. 1391. And the ad at issue in Austin used the magical and forbidden words of express advocacy: "Elect Richard Bandstra." Id., at 714, 110 S.Ct. 1391 (Appendix to opinion of KENNEDY, J., dissenting). How did the Court manage to reach this result without overruling Bellotti? It purported to recognize a different class of corruption: "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin, supra, at 660, 110 S.Ct. 1391.
Among the many problems with this "new" theory of corruption was that it actually constituted "the same `corrosive and distorting effects of immense aggregations of wealth,' found insufficient to sustain a similar prohibition just a decade earlier," in Bellotti. McConnell, 540 U.S., at 325, 124 S.Ct. 619 (opinion of KENNEDY, J.) (quoting Austin, supra, at 660, 110 S.Ct. 1391; citation omitted). Indeed, Buckley itself had cautioned that "[t]he First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion." 424 U.S., at 49, 96 S.Ct. 612. However, two Members of Austin's 6-to-3 majority appear to have thought it significant that Austin involved express advocacy whereas Bellotti involved issue advocacy. 494 U.S., at 675-676, 110 S.Ct. 1391 (Brennan, J., concurring); id., at 678, 110 S.Ct. 1391 (STEVENS, J., concurring).
Three Terms ago the Court extended Austin's flawed rationale to cover an even broader class of speech. In McConnell, the Court rejected a facial overbreadth challenge to BCRA § 203's restrictions on corporate and union advertising, which were not limited to express advocacy but covered vast amounts of nonexpress advocacy (embraced within the term "electioneering communications"). 540 U.S., at 203-209, 124 S.Ct. 619. The Court held that, at least in light of the availability of the political action committee (PAC) option, the compelling governmental interest that supported restrictions on corporate expenditures for express advocacy also justified the extension of those restrictions to "electioneering communications," the "vast majority" of which were intended to influence elections. Id., at 206, 124 S.Ct. 619. Of course, the compelling interest to which the Court referred was "`the corrosive and distorting effects of immense aggregations of [corporate] wealth,'" id., at 205, 124 S.Ct. 619 (quoting Austin, supra, at 660, 110 S.Ct. 1391). "The justifications for the regulation of express advocacy," the Court explained, "apply equally" to ads run during the BCRA blackout period "to the extent ... [those ads] are the functional equivalent of express advocacy." 540 U.S., at 206, 124 S.Ct. 619 (emphasis added). The Court found that the "vast majority" of ads aired during the 30-and 60-day periods before elections fit that description. Finally, the Court concluded that, "[e]ven ... assum[ing] that BCRA will inhibit some constitutionally protected corporate and union speech" (i.e., "pure issue ads," id., at 207, 124 S.Ct. 619, or "genuine issue ads," id., at 206, and n. 88, 124 S.Ct. 619), its application to such ads was insubstantial, and thus the statute was not overbroad, id., at 207, 124 S.Ct. 619. But McConnell did not foreclose as-applied challenges to § 203, WRTL I, 546 U.S., at 412, 126 S.Ct. 1016, which brings me back to the present cases.
The question is whether WRTL meets the standard for prevailing in an as-applied challenge to BCRA § 203. Answering that question obviously requires the Court to articulate the standard. The most obvious one, and the one suggested by the Federal Election Commission (FEC) and intervenors, is the standard set forth in McConnell itself: whether the advertisement is the "functional equivalent of express advocacy." 540 U.S., at 206, 124 S.Ct. 619. See also Brief for Appellant FEC 18 (arguing that WRTL's "advertisements are the functional equivalent of the sort of express advocacy that this Court has long recognized may be constitutionally regulated"); Reply Brief for Appellant Sen. John McCain et al. in No. 06-970, p.
There is a fundamental and inescapable problem with all of these various tests. Each of them (and every other test that is tied to the public perception, or a court's perception, of the import, the intent, or the effect of the ad) is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights of the large segment of society to which § 203 applies. Consider the application of these tests to WRTL's ads: There is not the slightest doubt that these ads had an issue-advocacy component. They explicitly urged lobbying on the pending legislative issue of appellate-judge filibusters. The question before us is whether something about them caused them to be the "functional equivalent" of express advocacy, and thus constitutionally subject to BCRA's criminal penalty. Do any of the tests suggested above answer this question with the degree of clarity necessary to avoid the chilling of fundamental political discourse? I think not.
The "functional equivalent" test does nothing more than restate the question (and make clear that the electoral advocacy need not be express). The test which asks how the ad's audience "would reasonably understand the ad" provides ample room for debate and uncertainty. The District Court's five-factor test does not (and could not possibly) specify how much weight is to be given to each factor — and includes the inherently vague factor of whether the ad "promotes, attacks, supports, or opposes the named candidate." (Does attacking the king's position attack the king?) The tests which look to whether the ad is "susceptible of no plausible meaning" or "susceptible of no reasonable interpretation" other than an exhortation to vote for or against a specific candidate seem tighter. They ultimately depend, however, upon a judicial judgment (or is it — worse still — a jury judgment?) concerning "reasonable" or "plausible" import that is far from certain, that rests upon consideration of innumerable surrounding
It will not do to say that this burden must be accepted — that WRTL's antifilibustering, constitutionally protected speech can be constrained — in the necessary pursuit of electoral "corruption." We have rejected the "can't-make-an-omelet-without-breaking-eggs" approach to the First Amendment, even for the infinitely less important (and less protected) speech category of virtual child pornography. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), the Government argued:
Buckley itself compels the conclusion that these tests fall short of the clarity that the First Amendment demands. Recall that Buckley narrowed the ambiguous phrase "any expenditure ... relative to a clearly identified candidate" to mean any expenditure "advocating the election or defeat of a candidate." 424 U.S., at 42, 96 S.Ct. 612 (internal quotation marks omitted). But that construction alone did not eliminate the vagueness problem because "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application." Ibid. Any effort to distinguish between the two based on intent of the speaker or effect of the speech on the listener would "`pu[t] the speaker ... wholly at the mercy of the varied understanding of his hearers,'" would "`offe[r] no security for free discussion,'" and would "`compe[l] the speaker to hedge and trim.'" Id., at 43, 96 S.Ct. 612 (quoting Thomas v. Collins, 323 U.S. 516, 535, 65 S.Ct. 315, 89 S.Ct. 430 (1945)). In order to avoid these "constitutional deficiencies," the Court was compelled to narrow the statutory language even further to cover only advertising that used the magic words of express advocacy. 424 U.S., at 43-44, 96 S.Ct. 612.
Though the principal opinion purports to recognize the "imperative for clarity" in this area of First Amendment law, its attempt to distinguish its test from the test found to be vague in Buckley falls far short. It claims to be "not so sure" that Buckley rejected its test because Buckley's holding did not concern "what the constitutional standard for clarity was in the abstract, divorced from specific statutory language." Ante, at 2670, n. 7. Forget about abstractions: The specific statutory language at issue in Buckley was interpreted to mean "`advocating the election or defeat of a candidate,'" and that is materially identical to the operative language in the principal opinion's test. The principal opinion's protestation that Buckley's vagueness holding "d[id] not dictate a constitutional test," ante, at 2670, n. 7, is utterly compromised by the fact that the principal opinion itself relies on the very same vagueness holding to reject an intent-and-effect test in these cases. See ante, at 2665-2666 (citing Buckley, supra, at 43-44, 96 S.Ct. 612). It is the same vagueness holding, and the principal opinion cannot invoke it on page 13 of its opinion and disclaim it on page 22. Finally, the principal opinion quotes McConnell for the proposition that "[t]he Buckley Court's `express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law.'" Ante, at 2670, n. 7 (quoting McConnell, supra, at 190, 124 S.Ct. 619). I am not sure why this cryptic statement is at all relevant, since we are discussing here the principle of constitutional law that underlay Buckley's express-advocacy restriction. In any case, the statement is assuredly not a repudiation of Buckley's vagueness holding, since overbreadth and not vagueness was the issue in McConnell.
Like the Buckley Court and the parties to these cases, I recognize the practical reality that corporations can evade the express-advocacy standard. I share the instinct that "[w]hat separates issue advocacy and political advocacy is a line in the sand drawn on a windy day." See McConnell, supra, at 126, n. 16, 124 S.Ct. 619 (internal quotation marks omitted); Brief for Appellant FEC 30; Brief for Appellant Sen. John McCain et al. in No. 06-970, p. 35. But the way to indulge that instinct consistently with the First Amendment is either to eliminate restrictions on independent expenditures altogether or to confine them to one side of the traditional line — the express-advocacy line, set in concrete on a calm day by Buckley, several decades ago. Section 203's line is bright, but it bans vast amounts of political advocacy indistinguishable from hitherto protected speech.
The foregoing analysis shows that McConnell was mistaken in its belief that as-applied challenges could eliminate the unconstitutional applications of § 203. They can do so only if a test is adopted which contradicts the holding of McConnell — that § 203 is facially valid because the vast majority of pre-election issue ads can constitutionally be proscribed. In light of the weakness in Austin's rationale, and in light of the longstanding acceptance of the clarity of Buckley's express-advocacy line, it was adventurous for McConnell to extend Austin beyond corporate speech constituting express advocacy. Today's cases make it apparent that the adventure is a flop, and that McConnell's holding concerning § 203 was wrong.
Which brings me to the question of stare decisis. "Stare decisis is not an inexorable command" or "`a mechanical formula of adherence to the latest decision.'" Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (quoting Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 S.Ct. 604 (1940)). It is instead "`a principle of policy,'" Payne, supra, at 828, 111 S.Ct. 2597, and this Court has a "considered practice" not to apply that principle of policy "as rigidly in constitutional as in nonconstitutional cases." Glidden Co. v. Zdanok, 370 U.S. 530, 543, 82 S.Ct. 1459, 8 L.Ed.2d 671
Of particular relevance to the stare decisis question in these cases is the impracticability of the regime created by McConnell. Stare decisis considerations carry little weight when an erroneous "governing decisio[n]" has created an "unworkable" legal regime. Payne, supra, at 827, 111 S.Ct. 2597. As described above, the McConnell regime is unworkable because of the inability of any acceptable as-applied test to validate the facial constitutionality of § 203 — that is, its inability to sustain proscription of the vast majority of issue ads. We could render the regime workable only by effectively overruling McConnell without saying so — adopting a clear as-applied rule protective of speech in the "heartland" of what Congress prohibited. The promise of an administrable as-applied rule that is both effective in the vindication of First Amendment rights and consistent with McConnell's holding is illusory.
It is not as though McConnell produced a settled body of law. Indeed, it is far more accurate to say that McConnell unsettled a body of law. Not until 1947, with the enactment of the Taft-Hartley amendments to the Federal Corrupt Practices Act, 1925, did Congress even purport to regulate campaign-related expenditures of corporations and unions. See United States v. CIO, 335 U.S. 106, 107, 113-115, 68 S.Ct. 1349, 92 S.Ct. 1849 (1948). In the three decades following, this Court
Neither do any of the other considerations relevant to stare decisis suggest adherence to McConnell. These cases do not involve property or contract rights, where reliance interests are involved. Payne, supra, at 828, 111 S.Ct. 2597. And McConnell's § 203 holding has assuredly not become "embedded" in our "national culture." Dickerson v. United States, 530 U.S. 428, 443-444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (declining to overrule Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in part because it had become embedded in our national culture). If § 203 has had any cultural impact, it has been to undermine the traditional and important role of grassroots advocacy in American politics by burdening the "budget-strapped nonprofit entities upon which many of our citizens rely for political commentary and advocacy." McConnell, 540 U.S., at 340, 124 S.Ct. 619 (opinion of KENNEDY, J.).
Perhaps overruling this one part of McConnell with respect to one part of BCRA would not "ai[d] the legislative effort to combat real or apparent corruption." Id., at 194, 124 S.Ct. 619. But the First Amendment was not designed to facilitate legislation, even wise legislation. Indeed, the assessment of former House Minority Leader Richard Gephardt, a proponent of campaign-finance reform, may well be correct. He said that "`[w]hat we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy,'" and "`[y]ou can't have both.'" Gibbs, The Wake-Up Call, Time, Feb. 3, 1997, pp. 22, 25. (He was referring, presumably, to incumbents' notions of healthy campaigns.) If he was wrong, however, and the two values can coexist, it is pretty clear which side of the equation this institution is primarily responsible for. It is perhaps our most important constitutional task to ensure freedom of political speech. And when a statute creates a regime as unworkable and unconstitutional as today's effort at as-applied review proves § 203 to be, it is our responsibility to decline enforcement.
* * *
There is wondrous irony to be found in both the genesis and the consequences of BCRA. In the fact that the institutions it was designed to muzzle — unions and nearly all manner of corporations — for all the "corrosive and distorting effects" of their "immense aggregations of wealth," were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates (including incumbents). In the fact that the effect of BCRA has been to concentrate more political power in the hands of the country's wealthiest individuals and their so-called 527 organizations, unregulated by § 203. (In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to 527s. S. Weissman & R. Hassan, BCRA and the 527 Groups, in The Election After Reform 79, 92-96 (M. Malbin ed.2006).)
I would overrule that part of the Court's decision in McConnell upholding § 203(a) of BCRA. Accordingly, I join Parts I and II of today's principal opinion and otherwise concur only in the judgment.
Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.
The significance and effect of today's judgment, from which I respectfully dissent, turn on three things: the demand for campaign money in huge amounts from large contributors, whose power has produced a cynical electorate; the congressional recognition of the ensuing threat to democratic integrity as reflected in a century of legislation restricting the electoral leverage of concentrations of money in corporate and union treasuries; and McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), declaring the facial validity of the most recent Act of Congress in that tradition, a decision that is effectively, and unjustifiably, overruled today.
The indispensable ingredient of a political candidacy is money for advertising. In the 2004 campaign, more than half of the combined expenditures by the two principal Presidential candidates (excluding fundraising) went for media time and space. See The Costliest Campaign, Washington Post, Dec. 30, 2004, p. A7.
The indispensability of these huge sums has two significant consequences for American government that are particularly on point here. The enormous demands, first, assign power to deep pockets. See Balz, supra, at A6 ("For all the interest in Internet fundraising, big donors still ruled in the first quarter, with roughly 80 percent of donations coming in amounts of $1,000 or more"). Candidates occasionally boast about the number of contributors they have, but the headlines speaking in dollars reflect political reality. See, e.g., Mullins, supra, at A8 (headlined "Clinton Leads the Money Race").
Some major contributors get satisfaction from pitching in for their candidates, but political preference fails to account for the frequency of giving "substantial sums to both major national parties," McConnell, supra, at 148, 124 S.Ct. 619, a practice driven "by stark political pragmatism, not by ideological support for either party or their candidates," Brief for Committee for Economic Development et al. as Amici Curiae in McConnell, O.T.2003, No. 02-1674, p. 3 (hereinafter CED Brief). What the high-dollar pragmatists of either variety get is special access to the officials they help elect, and with it a disproportionate influence on those in power. See McConnell, supra, at 130-131, 124 S.Ct. 619. As the erstwhile officer of a large American corporation put it, "`[b]usiness leaders believe — based on experience and with good reason — that ... access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties.'" CED Brief 9. At a critical level, contributions that underwrite elections are leverage for enormous political influence.
Voters know this. Hence, the second important consequence of the demand for big money to finance publicity: pervasive public cynicism. A 2002 poll found that 71 percent of Americans think Members of Congress cast votes based on the views of their big contributors, even when those views differ from the Member's own beliefs about what is best for the country. Mellman & Wirthlin 267; see also id., at 266, 124 S.Ct. 619 ("In public opinion research it is uncommon to have 70 percent or more of the public see an issue the same way. When they do, it indicates an unusually strong agreement on that issue"). The same percentage believes that the will of contributors tempts Members to vote against the majority view of their constituents. Id., at 267, 124 S.Ct. 619. Almost half of Americans believe that Members often decide how to vote based on what big contributors to their party want, while only a quarter think Members often base
Devoting concentrations of money in self-interested hands to the support of political campaigning therefore threatens the capacity of this democracy to represent its constituents and the confidence of its citizens in their capacity to govern themselves. These are the elements summed up in the notion of political integrity, giving it a value second to none in a free society.
If the threat to this value flowing from concentrations of money in politics has reached an unprecedented enormity, it has been gathering force for generations. Before the turn of the last century, as now, it was obvious that the purchase of influence and the cynicism of voters threaten the integrity and stability of democratic government, each derived from the responsiveness of its law to the interests of citizens and their confidence in that focus. The danger has traditionally seemed at its apex when no reasonable limits constrain the campaign activities of organizations whose "unique legal and economic characteristics" are tailored to "facilitat[e] the amassing of large treasuries," Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658, 660, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). Corporations were the earliest subjects of concern; the same characteristics that have made them engines of the Nation's extraordinary prosperity have given them the financial muscle to gain "advantage in the political marketplace" when they turn from core corporate activity to electioneering, Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257-258, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL), and in "Congress' judgment" the same concern extends to labor unions as to corporations, Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982); see also Austin, supra, at 661, 110 S.Ct. 1391.
In the wake of the industrial expansion after the Civil War there developed a momentum for civic reform that led to the enactment of the Pendleton Civil Service Act of 1883, ch. 27, 22 Stat. 403, which stopped political parties from raising money through compulsory assessments on federal employees. Not unnaturally, corporations filled the vacuum, see R. Mutch, Campaigns, Congress, and Courts xvi-xvii (1988) (hereinafter Mutch), and in due course demonstrated what concentrated capital could do. The resulting political leverage disturbed "the confidence of the plain people of small means in our political institutions," E. Root, The Political Use of Money (delivered Sept. 3, 1894), in Addresses on Government and Citizenship 141, 143-144 (R. Bacon & J. Scott eds. 1916) (cited in United States v. Automobile Workers, 352 U.S. 567, 571, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957)), and the 1904 Presidential campaign eventually "crystallized popular sentiment" on the subject of money and politics, id., at 572, 77 S.Ct. 529. In his next message to Congress, President Theodore Roosevelt invoked the power "to protect the integrity of the elections of its own officials [as] inherent" in government, and called for "vigorous measures to eradicate" perceived political corruption, for he found "no enemy of free government more dangerous and none so insidious."
The aim was "not merely to prevent the subversion of the integrity of the electoral process," but "to sustain the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government." Automobile Workers, supra, at 575, 77 S.Ct. 529.
Thirty years later, new questions about the electoral influence of accumulated wealth surfaced as organized labor expanded during the New Deal. In the 1936 election, labor unions contributed "unprecedented" sums, S.Rep. No. 151, 75th Cong., 1st Sess., 127 (1937), the greater part of them by the United Mine Workers, see Campaign Finance Sourcebook 17. And in due course reaction began to build: "[w]artime strikes gave rise to fears of the new concentration of power represented by the gains of trade unionism. And so the belief grew that, just as the great corporations had made huge political contributions to influence governmental action..., the powerful unions were pursuing a similar course, and with the same untoward consequences for the democratic process." Automobile Workers, supra, at 578, 77 S.Ct. 529. Congress responded with the War Labor Disputes Act of 1943, which extended the ban on corporate donations to labor organizations, ch. 144, § 9, 57 Stat. 167-168, an extension that was made permanent in the Labor Management Relations Act, 1947, better known as Taft-Hartley, § 304, 61 Stat. 159-160.
At the same time, Congress had another worry that foreshadows our cases today. It was concerned that the statutory prohibition on corporate "contribution[s]" was being so narrowly construed as to open a "loophole whereby corporations, national banks, and labor organizations are enabled
The new law left open, however, the right of a union to spend money on electioneering from a segregated fund raised specifically for that purpose from members, but not drawn from the general treasury. Segregated funding entities, the now-familiar political action committees or PACs, had been established prior to Taft-Hartley, and we concluded in Pipefitters v. United States, 407 U.S. 385, 409, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972), that Taft-Hartley did not prohibit "union contributions and expenditures from political funds financed in some sense by the voluntary donations of employees."
This balance of authorized and restricted financing methods for corporate and union electioneering was made explicit in the Federal Election Campaign Act of 1971 (FECA). See § 205, 86 Stat. 10 ("[T]he phrase `contribution or expenditure'... shall not include ... the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization"). "[T]he underlying theory [of the statute was] that substantial general purpose treasuries should not be diverted to political purposes, both because of the effect on the political process of such aggregated wealth and out of concern for the dissenting member or stockholder." 117 Cong. Rec. 43381 (1971) (statement of Rep. Hansen). But the PAC exception maintained "`the proper balance in regulating corporate and union political activity required by sound policy and the Constitution.'" Pipefitters, supra, at 431, 92 S.Ct. 2247 (quoting 117 Cong. Rec. 43381 (statement of Rep. Hansen)).
In 1986, in MCFL, we reexamined the longstanding ban on spending corporate and union treasury funds "in connection with" federal elections, 2 U.S.C. § 441b, and drew two conclusions implicated in the present cases. First, we construed the "in connection with" phrase in much the same way we had interpreted comparable FECA language challenged in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). We held that to avoid vagueness, the product of prohibited corporate and union expenditures "must constitute `express advocacy' in order to be subject to the prohibition." MCFL, 479 U.S., at 249, 107 S.Ct. 616.
We thus held that the prohibition applied "only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S., at 44, 96 S.Ct. 612. "[E]xpress terms," in turn, meant what had already become known as "magic words," such as "`vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'" Id., at 44, n. 52, 96 S.Ct. 612. The consequence of this construction was obvious: it pulled the teeth out of the statute, as we had understood when we announced it in its earlier application in Buckley:
Nor was the statute, even as thus narrowed, enforceable against the particular advocacy corporation challenging the limit in MCFL. This was the second holding of MCFL relevant here; we explained that the congressional effort to limit the political influence of corporate money "has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes," 479 U.S., at 259, 107 S.Ct. 616. We held that this "legitima[te]" concern could not reasonably extend to electioneering expenditures by the corporation at issue in MCFL, which neither "engage[d] in business activities" nor accepted donations from business corporations and unions (and thus could not serve as a "condui[t]" for political spending by those entities). Id., at 263-264, 107 S.Ct. 616.
As was expectable, narrowing the corporate-union electioneering limitation to magic words soon reduced it to futility. "[P]olitical money ... is a moving target," Issacharoff & Karlan, The Hydraulics of Campaign Finance Reform, 77 Texas L.Rev. 1705, 1707 (1999), and the "ingenuity and resourcefulness" of political financiers revealed the massive regulatory gap left by the "magic words" test, Buckley, supra, at 45, 96 S.Ct. 612. It proved to be the door through which so-called "issue ads" of current practice entered American politics.
An issue ad is an advertisement on a political subject urging the reader or listener to let a politician know what he thinks, but containing no magic words telling the recipient to vote for or against anyone. By the 1996 election cycle, between $135 and $150 million was being devoted to these ads, see McConnell, 540 U.S., at 127, n. 20, 124 S.Ct. 619, and because they had no magic words, they failed to trigger the limitation on union or corporate expenditures for electioneering. Experience showed, however, just what we foresaw in Buckley, that the line between "issue" broadcasts and outright electioneering was a patent fiction, as in the example of a television "issue ad" that ran during a Montana congressional race between Republican Rick Hill and Democrat Bill Yellowtail in 1996:
There was nothing unusual about the Yellowtail issue ad in 1996, and an enquiry into campaign practices by the Senate Committee on Governmental Affairs found as a general matter that "the distinction between issue and express advocacy ... appeared to be meaningless in the 1996 elections." S.Rep. No. 105-167, p. 3994 (1998). "`"What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day."'" McConnell, supra, at 126, n. 16, 124 S.Ct. 619
Nor was it surprising that the Senate Committee heard testimony that "`[w]ithout taming'" the vast sums flowing into issue ads, "`campaign finance reform — no matter how thoroughly it addresses ... perceived problems — will come to naught.'" S.Rep. No. 105-167, at 4480 (quoting testimony of Professor Daniel R. Ortiz). The Committee predicted that "if the course of non-action is followed, ... Congress would be encouraging further growth of union, corporate nonprofit and individual independent expenditures." Id., at 4481.
They were worth the money of those who ultimately paid for them. According to one former Senator, "`Members will ... be favorably disposed to those who finance'" interest groups that run "`issue ads'" when those financiers "`later seek access to discuss pending legislation.'" McConnell v. Federal Election Comm'n, 251 F.Supp.2d 176, 556 (DC 2003) (Kollar-Kotelly, J.) (quoting the declaration of Dale Bumpers).
The congressional response was § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 91, which redefined prohibited "expenditure" so as to restrict corporations and unions from funding "electioneering communication[s]" out of their general treasuries. 2 U.S.C. § 441b(b)(2) (2000 ed., Supp. IV). The new phrase "electioneering communication" was narrowly defined in BCRA's § 201 as "any broadcast, cable, or satellite communication" that
In McConnell, we found this definition to be "easily understood and objectiv[e]," raising "none of the vagueness concerns that drove our analysis" of the statutory language at issue in Buckley and MCFL, 540 U.S., at 194, 124 S.Ct. 619, and we held that the resulting line separating regulated election speech from general political discourse does not, on its face, violate the First Amendment. We rejected any suggestion "that Buckley drew a constitutionally mandated line between express advocacy [with magic words] and so-called issue advocacy [without them], and that speakers possess an inviolable First Amendment right to engage in the latter category of speech." Id., at 190, 124 S.Ct. 619. To the contrary, we held that "our decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech." Id., at 192-193, 124 S.Ct. 619. "[T]he presence or absence of magic words cannot meaningfully distinguish electioneering speech," which is prohibitable,
We understood that Congress had a compelling interest in limiting this sort of electioneering by corporations and unions, for § 203 exemplified a tradition of "repeatedly sustained legislation aimed at `the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.'" Id., at 205, 124 S.Ct. 619 (quoting Austin, 494 U.S., at 660, 110 S.Ct. 1391). Nor did we see any plausible claim of substantial overbreadth from incidentally prohibiting ads genuinely focused on issues rather than elections, given the limitation of "electioneering communication" by time, geographical coverage, and clear reference to candidate. "Far from establishing that BCRA's application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion." 540 U.S., at 207, 124 S.Ct. 619. Finally, we underscored the reasonableness of the § 203 line by emphasizing that it defined a category of limited, but not prohibited, corporate and union speech: "Because corporations can still fund electioneering communications with PAC money, it is `simply wrong' to view [§ 203] as a `complete ban' on expression rather than a regulation." Id., at 204, 124 S.Ct. 619 (quoting Federal Election Comm'n v. Beaumont, 539 U.S. 146, 162, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003)). Thus "corporations and unions may finance genuine issue ads [in the run-up period] by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated [PAC] fund." 540 U.S., at 206, 124 S.Ct. 619.
We may add that a nonprofit corporation, no matter what its source of funding, is free to pelt a federal candidate like Jane Doe with criticism or shower her with praise, by name and within days of an election, if it speaks through a newspaper ad or on a Web site, rather than a "broadcast, cable, or satellite communication," 2 U.S.C. § 434(f)(3)(A)(i) (2000 ed., Supp. IV). And a nonprofit may use its general treasury to pay for clearly "electioneering communication[s]" so long as it declines to serve as a conduit for money from business corporations and unions (and thus qualifies for the MCFL exception).
* * *
In sum, Congress in 1907 prohibited corporate contributions to candidates and in 1943 applied the same ban to unions. In 1947, Congress extended the complete ban from contributions to expenditures "in connection with" an election, a phrase so vague that in 1986 we held it must be confined to instances of express advocacy using magic words. Congress determined, in 2002, that corporate and union expenditures for fake issue ads devoid of magic words should be regulated using a narrow
This century-long tradition of legislation and judicial precedent rests on facing undeniable facts and testifies to an equally undeniable value. Campaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries, with no redolence of "grassroots" about them. Neither Congress's decisions nor our own have understood the corrupting influence of money in politics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consistently focused on the more pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions. From early in the 20th century through the decision in McConnell, we have acknowledged that the value of democratic integrity justifies a realistic response when corporations and labor organizations commit the concentrated moneys in their treasuries to electioneering.
The corporate appellee in these cases, Wisconsin Right to Life (WRTL), is a non-profit corporation funded to a significant extent by contributions from other corporations.
WRTL also runs a PAC, funded by individual donations, which has been active over the years in making independent campaign expenditures, as in the previous two elections involving Senator Feingold. Id., at 15. During the 1998 campaign, for example, WRTL's PAC spent $60,000 to oppose him. Ibid. In 2004, however, despite a sharp nationwide increase in PAC receipts, WRTL focused its fundraising on its corporate treasury, not the PAC, id., at 41-43, and took in only $17,000 in PAC contributions, as against over $150,000 during 2000, id., at 41-42.
Throughout the 2004 senatorial campaign, WRTL made no secret of its views about who should win the election and explicitly tied its position to the filibuster issue. Its PAC issued at least two press releases saying that its "Top Election Priorities" were to "Re-elect George W. Bush" and "Send Feingold Packing!" Id., at 78-80, 82-84. In one of these, the Chair of WRTL's PAC was quoted as saying, "`We do not want Russ Feingold to continue to have the ability to thwart President Bush's judicial nominees.'" Id., at 82-83. The Spring 2004 issue of the WRTL PAC's quarterly magazine ran an article headlined "Radically Pro-Abortion Feingold Must Go!," which reported that "Feingold has been active in his opposition to Bush's judicial nominees" and said that "the defeat of Feingold must be uppermost in the minds of Wisconsin's pro-life community in the 2004 elections." Id., at 101-103.
It was under these circumstances that WRTL ran the three television and radio
WRTL's planned airing of the ads had no apparent relation to any Senate filibuster vote but was keyed to the timing of the senatorial election. WRTL began broadcasting the ads on July 26, 2004, four days after the Senate recessed for the summer, and although the filibuster controversy raged on through 2005, WRTL did not resume running the ads after the election. Id., at 29, 32. During the campaign period that the ads did cover, Senator Feingold's support of the filibusters was a prominent issue. His position was well known,
In sum, any Wisconsin voter who paid attention would have known that Democratic Senator Feingold supported filibusters against Republican presidential judicial nominees, that the propriety of the filibusters was a major issue in the senatorial campaign, and that WRTL along with the Senator's Republican challengers opposed his reelection because of his position on filibusters. Any alert voters who heard or saw WRTL's ads would have understood that WRTL was telling them that the Senator's position on the filibusters should be grounds to vote against him.
Given these facts, it is beyond all reasonable debate that the ads are constitutionally subject to regulation under McConnell. There, we noted that BCRA was meant to remedy the problem of "[s]o-called issue ads" being used "to advocate the election or defeat of clearly identified federal candidates." 540 U.S., at 126, 124 S.Ct. 619. We then gave a paradigmatic example of these electioneering ads subject to regulation, saying that "[l]ittle difference existed ... between an ad that urged viewers to `vote against Jane Doe'
The WRTL ads were indistinguishable from the Jane Doe ad; they "condemned [Senator Feingold's] record on a particular issue" and exhorted the public to contact him and "tell [him] what you think."
McConnell's holding that § 203 is facially constitutional is overruled. By what steps does the principal opinion reach this unacknowledged result less than four years after McConnell was decided?
First, it lays down a new test to identify a severely limited class of ads that may constitutionally be regulated as electioneering communications, a test that is flatly contrary to McConnell. An ad is the equivalent of express advocacy and subject to regulation, the opinion says, only if it is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Ante, at 2655. Since the Feingold ads could, in isolation, be read as at least including calls to communicate views on filibusters to the two Senators, those ads cannot be treated as the functional equivalent of express advocacy to elect or defeat anyone, and therefore may not constitutionally be regulated at all.
But the same could have been said of the hypothetical Jane Doe ad. Its spoken message ended with the instruction to tell Doe what the voter thinks. The same could also have been said of the actual Yellowtail ad. Yet in McConnell, we gave the Jane Doe ad as the paradigm of a broadcast message that could be constitutionally regulated as election conduct, and we explicitly described the Yellowtail ad as a "striking example" of one that was "clearly intended to influence the election," 540 U.S., at 193, and n. 78, 124 S.Ct. 619.
The principal opinion, in other words, simply inverts what we said in McConnell. While we left open the possibility of a "genuine" or "pure" issue ad that might not be open to regulation under § 203, id., at 206-207, and n. 88, 124 S.Ct. 619, we meant that an issue ad without campaign advocacy could escape the restriction. The implication of the adjectives "genuine" and "pure" is unmistakable: if an ad is reasonably understood as going beyond a discussion of issues (that is, if it can be understood as electoral advocacy), then by definition it is not "genuine" or "pure." But the principal opinion inexplicably wrings the opposite conclusion from those words: if an ad is susceptible to any "reasonable interpretation other than as an appeal to vote for or against a specific candidate," then it must be a "pure" or "genuine" issue ad. Ante, at 2655. This stands McConnell on its head, and on this reasoning it is possible that even some
Second, the principal opinion seems to defend this inversion of McConnell as a necessary alternative to an unadministrable subjective test for the equivalence of express (and regulable) electioneering advocacy. The principal opinion acknowledges, of course, that in McConnell we said that "[t]he justifications for the regulation of express advocacy apply equally to ads aired during [the period shortly before an election] if the ads are intended to influence the voters' decisions and have that effect." 540 U.S., at 206, 124 S.Ct. 619. But THE CHIEF JUSTICE says that statement in McConnell cannot be accepted at face value because we could not, consistent with precedent, have focused our First Amendment enquiry on whether "the speaker actually intended to affect an election." Ante, at 2665.
For that matter, if the studies to which THE CHIEF JUSTICE refers were now to inform our reading of McConnell, they would merely underscore the objective character of the proper way to determine whether § 203 is constitutional as applied to a given ad. The authors of those studies did not conduct discovery of the "actua[l] inten[tions]," ante, at 2666, behind any ads; nor, to my knowledge, were the sponsors of campaign ads summoned before researchers to explain their motivations. The studies merely confirmed that "reasonable people are ... able to discern between ads whose primary purpose is to support a candidate and those intended to provide information about a policy issue." J. Krasno & D. Seltz, Buying Time: Television Advertising in the 1998 Congressional Elections 9 (2000). To be clear, I am not endorsing the precise methodology of those studies (and THE CHIEF JUSTICE is correct that we did not do so in McConnell, ante, at 2665, n. 4); the point is only that the studies relied on a "reasonable" person's understanding of the ads' apparent purpose, and thus were no less objective than THE CHIEF JUSTICE's own approach.
A similarly mistaken fear of an unadministrable and speech-chilling subjective regime seems to underlie THE CHIEF JUSTICE's unwillingness to acknowledge the part that consideration of an ad's context necessarily plays in any realistic assessment of its meaning. A reasonable Wisconsinite watching or listening to WRTL's ads would likely ask and answer some obvious questions about their circumstances. Is the group that sponsors these ads the same one publicly campaigning against Senator Feingold's reelection? THE CHIEF JUSTICE says that this information is "beside the point," because WRTL's history of overt electioneering only "goes to [its] subjective intent." Ante, at 2668. Did these "issue" ads begin appearing on the air during the election season, rather than at the time the filibuster "issue" was in fact being debated in the Senate? This, too, is said to be irrelevant.
This refusal to see and hear what any listener to WRTL's ads would actually consider produces a rule no different in practice from the one adopted by the District Court, which declined to look beyond the "four corners" of the ads themselves. 466 F.Supp.2d 195, 207 (DC 2006). Although THE CHIEF JUSTICE ostensibly stops short of categorically foreclosing consideration of context, see ante, at 2669, the application of his test here makes it difficult to see how relevant contextual evidence could ever be taken into account the way it was in McConnell,
Third, it may be that the principal opinion rejects McConnell on the erroneous assumption that § 203 flatly bans independent electioneering communications by a corporation. THE CHIEF JUSTICE argues that corporations must receive "the benefit of any doubt," ante, at 2667, whenever we undertake the task of "separating ... political speech protected under the First Amendment from that which may be banned," ante, at 2665. But this is a fundamental misconception of the task at hand: we have already held that it is "`simply wrong' to view [§ 203] as a `complete ban' on expression," because PAC financing provides corporations "with a constitutionally sufficient opportunity to engage in express advocacy."
For that matter, even without the PAC alternative, it would be untrue that § 203 "banned" WRTL from saying anything a genuine issue ad would say, for WRTL could have availed itself of either or both of the following additional options. It is undisputed that WRTL's ads could have been broadcast lawfully in the runup to the election (and bankrolled from WRTL's general treasury) if Senator Feingold's name had been omitted and the Senator not otherwise singled out. Since members of today's majority apparently view WRTL's broadcasts either as "genuine issue ad[s]," ante, at 2667 (opinion of THE CHIEF JUSTICE), or as "lobby[ing] Wisconsin voters concerning the filibustering of the President's judicial nominees," ante, at 2675 (SCALIA, J., concurring in part and concurring in judgment), a claim that omitting Senator Feingold's name would "ban" WRTL's message is specious. Yet one searches my Brothers' opinions in vain for any persuasive reason why substituting the phrase "Contact your Senators" for the phrase "Contact Senators Feingold and Kohl" would have denied WRTL a constitutionally sufficient (and clearly lawful) alternative way to send its message. If WRTL is to be believed when it claims that the issue was the point of the ads, it would have lost nothing by referring simply to the "Senators."
Finally, the suggestion that § 203 is a ban on political speech is belied by MCFL's safe harbor for nonprofit advocacy corporations: under that rule, WRTL would have been free to attack Senator Feingold by name at any time with ads funded from its corporate treasury, if it had not also chosen to serve as a funnel for hundreds of thousands of dollars from other corporations. Thus, what is called a "ban" on speech is a limit on the financing of electioneering broadcasts by entities that refuse to take advantage of the PAC structure but insist on acting as conduits from the campaign war chests of business corporations.
In sum, McConnell does not graft a subjective standard onto campaign regulation, the context of campaign advertising cannot sensibly be ignored, and § 203 is not a ban on speech. What cannot be gainsaid, in any event, is that in treating these subjects as it does, the operative opinion produces the result of overruling McConnell's holding on § 203, less than four years in the Reports. Anyone who doubts that need merely ask what the law would have been if, back in 2003, this Court had held § 203 facially unconstitutional.
BCRA's definition of "electioneering communication," which identifies the communications regulable under § 203, includes a backup to be used if the primary definition "is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein." 2
This backup sounds familiar because it is essentially identical to THE CHIEF JUSTICE's test for evaluating an as-applied challenge to the original definition of "electioneering communication": regulation is permissible only if the communication is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," ante, at 2667. Thus does the principal opinion institute the very standard that would have prevailed if the Court formally overruled McConnell. There is neither a theoretical nor a practical basis to claim that McConnell's treatment of § 203 survives.
The price of McConnell's demise as authority on § 203 seems to me to be a high one. The Court (and, I think, the country) loses when important precedent is overruled without good reason, and there is no justification for departing from our usual rule of stare decisis here. The same combination of alternatives that was available to corporations affected by McConnell in 2003 is available today: WRTL could have run a newspaper ad, could have paid for the broadcast ads through its PAC, could have established itself as an MCFL organization free of corporate money, and could have said "call your Senators" instead of naming Senator Feingold in its ads broadcasted just before the election. Nothing in the related law surrounding § 203 has changed in any way, let alone in any way that undermines McConnell's rationale. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
Nor can any serious argument be made that McConnell's holding has been "unworkable in practice." Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 783, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992) (internal quotation marks omitted). McConnell validated a clear rule resting on mostly bright-line conditions, and there is no indication that the statute has been difficult to apply.
Finally, it goes without saying that nothing has changed about the facts. In Justice Frankfurter's words, they demonstrate a threat to "the integrity of our
After today, the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear. The ban on contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running "issue ads" without express advocacy, or by funneling the money through an independent corporation like WRTL.
But the understanding of the voters and the Congress that this kind of corporate and union spending seriously jeopardizes the integrity of democratic government will remain. The facts are too powerful to be ignored, and further efforts at campaign finance reform will come. It is only the legal landscape that now is altered, and it may be that today's departure from precedent will drive further reexamination of the constitutional analysis: of the distinction between contributions and expenditures, or the relation between spending and speech, which have given structure to our thinking since Buckley itself was decided.
I cannot tell what the future will force upon us, but I respectfully dissent from this judgment today.
The remainder of the script is identical to "Wedding."
"`VOICE-OVER: There are a lot of judicial nominees out there who can't go to work. Their careers are put on hold because a group of Senators is filibustering — blocking qualified nominees from a simple "yes" or "no" vote.
"`It's politics at work and it's causing gridlock....'" Ibid.
The remainder of the script is virtually identical to "Wedding."
Justice SCALIA also asserts that our test conflicts with Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Post, at 2681-2683. The Buckley Court confronted a statute restricting "any expenditure ... relative to a clearly identified candidate." 424 U.S., at 42, 96 S.Ct. 612 (internal quotation marks omitted). To avoid vagueness concerns, this Court first narrowed the statute to cover only expenditures expressly "advocating the election or defeat of a candidate" — using the so-called "magic words" of express advocacy. Ibid. (internal quotation marks omitted). The Court then proceeded to strike down the newly narrowed statute under strict scrutiny on the ground that its reach was not broad enough. Id., at 44, 96 S.Ct. 612. From this, Justice SCALIA concludes that "[i]f a permissible test short of the magic-words test existed, Buckley would surely have adopted it." Post, at 2682. We are not so sure. The question in Buckley was how a particular statutory provision could be construed to avoid vagueness concerns, not what the constitutional standard for clarity was in the abstract, divorced from specific statutory language. Buckley's intermediate step of statutory construction on the way to its constitutional holding does not dictate a constitutional test. The Buckley Court's "express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law." McConnell, 540 U.S., at 190, 124 S.Ct. 619. And despite Justice SCALIA's claim to the contrary, our citation of Buckley along with other decisions in rejecting an intent-and-effect test does not force us to adopt (or reject) Buckley's statutory construction as a constitutional test.
The "vast majority" language, moreover, is beside the point. The McConnell Court did not find that a "vast majority" of the issue ads considered were the functional equivalent of direct advocacy. Rather, it found that such ads had an "electioneering purpose." For the reasons we have explained, "purpose" is not the appropriate test for distinguishing between genuine issue ads and the functional equivalent of express campaign advocacy. See supra, at 2665-2666. In addition, the "vast majority" statement was not necessary to the Court's facial holding in McConnell. The standard required for a statute to survive an overbreadth challenge is not that the "vast majority" of a statute's applications be legitimate. "[B]road language ... unnecessary to the Court's decision ... cannot be considered binding authority." Kastigar v. United States, 406 U.S. 441, 454-455, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
The dissent asserts, post, at 2703, that there is no reason "why substituting the phrase `Contact your Senators' for the phrase `Contact Senators Feingold and Kohl' would have denied WRTL a constitutionally sufficient ... alternative." Surely that is not so. The purpose of the ad was to put political pressure upon Senator Feingold to change his position on the filibuster — not only through the constituents who accepted the invitation to contact him, but also through the very existence of an ad bringing to the public's attention that he, Senator Feingold, stood athwart the allowance of a vote on judicial nominees. (Unlike the principal opinion, I think that the fair import of the ad in context.)
Eight years before Austin, we unanimously reaffirmed that Bellotti "specifically pointed out that in elections of candidates to public office, unlike in referenda on issues of general public interest, there may well be a threat of real or apparent corruption." Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, n. 7, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982). Then, four years later, in MCFL, we also noted that an expenditure limit offering corporations a PAC alternative is "distinguishable from the complete foreclosure of any opportunity for political speech" that we addressed in Bellotti. 479 U.S., at 259, n. 12, 107 S.Ct. 616. So Austin did not "stra[y]" from Bellotti, ante, at 2678 (opinion of SCALIA, J.); the reasons Bellotti was not controlling in Austin had been clearly foreshadowed in Bellotti itself and confirmed repeatedly in our decisions leading up to Austin.
THE CHIEF JUSTICE implies that considering the intent and effect of corporate advertising during as-applied challenges to § 203 would put corporations in precisely the same bind; thus, he wonders how McConnell could use the language of intent and effect without "even address[ing] what Buckley" (and by extension, Thomas) "had to say on the subject." Ante, at 2665. But one need not look far in our McConnell opinion to understand why we thought that corporations have more than the constrained set of options available to the union leader in Thomas. Just a few sentences after holding that ads with electioneering intent and effect are regulable, we gave this explanation: "in the future corporations and unions may finance genuine issue ads [shortly before an election] by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund." 540 U.S., at 206, 124 S.Ct. 619. In other words, corporations can find refuge in constitutionally sufficient and clearly delineated safe harbors by modifying the content of their ads (by omitting a candidate's name) or by altering the sources of their ads' financing (from general treasuries to PACs). THE CHIEF JUSTICE thus wrongly jettisons our conclusions about the constitutionality of regulating ads with electioneering purpose; we meant what we said in McConnell, and we did not overlook First Amendment jurisprudence when we said it. Whereas THE CHIEF JUSTICE says that BCRA "should provide a safe harbor for those who wish to exercise First Amendment rights," ante, at 2665, we already held in McConnell that the campaign finance law accomplishes precisely that.