OPINION OF THE COURT CITIZENS UNITED V. FEDERAL ELECTION COMM'N 558 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-205 CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION

															on appeal from the united states district court for
the district of columbia

															[January 21, 2010]

															   Justice Kennedy delivered the
opinion of the Court.

															   Federal law prohibits
corporations and unions from using their general treasury funds to
make independent expenditures for speech defined as an
“electioneering communication” or for speech expressly advocating
the election or defeat of a candidate. 2 U. S. C. §441b.
Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n , 540 U. S. 93 , 203–209
(2003). The holding of McConnell rested to a large extent
on an earlier case, Austin v. Michigan Chamber of
Commerce , 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s
corporate identity.

															   In this case we are asked to reconsider Austin and, in effect, McConnell . It has been
noted that “ Austin was a significant departure from
ancient First Amendment principles,” Federal Election
Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449 , 490
(2007) (WRTL) (Scalia, J., concurring in part and
concurring in judgment). We agree with that conclusion and hold
that stare decisis does not compel the continued
acceptance of Austin . The Government may regulate
corporate political speech through disclaimer and disclosure
requirements, but it may not suppress that speech altogether. We
turn to the case now before us.

															I

															A

															   Citizens United is a nonprofit
corporation. It brought this action in the United States District
Court for the District of Columbia. A three-judge court later
convened to hear the cause. The resulting judgment gives rise to
this appeal.

															   Citizens United has an annual
budget of about $12 million. Most of its funds are from donations
by individuals; but, in addition, it accepts a small portion of its
funds from for-profit corporations.

															   In January 2008, Citizens United released a
film entitled Hillary: The Movie . We refer to the film as Hillary . It is a 90-minute documentary about then-Senator
Hillary Clinton, who was a candidate in the Democratic Party’s 2008
Presidential primary elections. Hillary mentions Senator
Clinton by name and depicts interviews with political commentators
and other persons, most of them quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens
United wanted to increase distribution by making it available
through video-on-demand.

															   Video-on-demand allows digital cable
subscribers to select programming from various menus, including
movies, television shows, sports, news, and music. The viewer can
watch the program at any time and can elect to rewind or pause the
program. In December 2007, a cable company offered, for a payment
of $1.2 million, to make Hillary available on a
video-on-demand channel called “Elections ’08.” App. 255a–257a.
Some video-on-demand services require viewers to pay a small fee to
view a selected program, but here the proposal was to make Hillary available to viewers free of charge.

															   To implement the proposal, Citizens United was
prepared to pay for the video-on-demand; and to promote the film,
it produced two 10-second ads and one 30-second ad for Hillary . Each ad includes a short (and, in our view,
pejorative) statement about Senator Clinton, followed by the name
of the movie and the movie’s Website address. Id. , at
26a–27a. Citizens United desired to promote the video-on-demand
offering by running advertisements on broadcast and cable
television.

															B

															   Before the Bipartisan Campaign
Reform Act of 2002 (BCRA), federal law prohibited—and still does
prohibit—corporations and unions from using general treasury funds
to make direct contributions to candidates or independent
expenditures that expressly advocate the election or defeat of a
candidate, through any form of media, in connection with certain
qualified federal elections. 2 U. S. C. §441b (2000 ed.); see McConnell, supra, at 204, and n. 87; Federal Election
Comm’n v. Massachusetts Citizens for Life, Inc. , 479 U. S. 238 ,
249 (1986) (MCFL) . BCRA §203 amended §441b to prohibit any
“electioneering communication” as well. 2 U. S. C. §441b(b)(2)
(2006 ed.). An electioneering communication is defined as “any
broadcast, cable, or satellite communication” that “refers to a
clearly identified candidate for Federal office” and is made within
30 days of a primary or 60 days of a general election.
§434(f)(3)(A). The Federal Election Commission’s (FEC) regulations
further define an electioneering communication as a communication
that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In
the case of a candidate for nomination for President … publicly
distributed means” that the communication “[c]an be received
by 50,000 or more persons in a State where a primary election . . .
is being held within 30 days.” §100.29(b)(3)(ii). Corporations and
unions are barred from using their general treasury funds for
express advocacy or electioneering communications. They may
establish, however, a “separate segregated fund” (known as a
political action committee, or PAC) for these purposes. 2 U.
S. C. §441b(b)(2). The moneys received by the segregated fund
are limited to donations from stockholders and employees of the
corporation or, in the case of unions, members of the union. Ibid. C Citizens United wanted to
make Hillary available through video-on-demand within 30 days
of the 2008 primary elections. It feared, however, that both the
film and the ads would be covered by §441b’s ban on
corporate-funded independent expenditures, thus subjecting the
corporation to civil and criminal penalties under §437g. In
December 2007, Citizens United sought declaratory and injunctive
relief against the FEC. It argued that (1) §441b is
unconstitutional as applied to Hillary; and (2) BCRA’s
disclaimer and disclosure requirements, BCRA §§201 and 311, are
unconstitutional as applied to Hillary and to the three
ads for the movie.

															   The District Court denied
Citizens United’s motion for a preliminary injunction, 530 F. Supp.
2d 274 (DC 2008) (per curiam) , and then granted the FEC’s
motion for summary judgment, App. 261a–262a. See id. , at
261a (“Based on the reasoning of our prior opinion, we find that
the [FEC] is entitled to judgment as a matter of law. See
Citizen[s] United v. FEC , 530 F. Supp. 2d 274 (D.D.C.
2008) (denying Citizens United’s request for a preliminary
injunction)”). The court held that §441b was facially
constitutional under McConnell , and that §441b was
constitutional as applied to Hillary because it was
“susceptible of no other interpretation than to inform the
electorate that Senator Clinton is unfit for office, that the
United States would be a dangerous place in a President Hillary
Clinton world, and that viewers should vote against her.” 530 F.
Supp. 2d, at 279. The court also rejected Citizens United’s
challenge to BCRA’s disclaimer and disclosure requirements. It
noted that “the Supreme Court has written approvingly of disclosure
provisions triggered by political speech even though the speech
itself was constitutionally protected under the First Amendment.” Id. , at 281.

															   We noted probable jurisdiction. 555 U. S. ___
(2008). The case was reargued in this Court after the Court asked
the parties to file supplemental briefs addressing whether we
should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U.
S. C. §441b. See 557 U. S. ___ (2009).

															II

															   Before considering whether Austin should be overruled, we first address whether
Citizens United’s claim that §441b cannot be applied to Hillary may be resolved on other, narrower grounds.

															A

															   Citizens United contends that
§441b does not cover Hillary , as a matter of statutory
interpretation, because the film does not qualify as an
“electioneering communication.” §441b(b)(2). Citizens United raises
this issue for the first time before us, but we consider the issue
because “it was addressed by the court below.” Lebron v. National Railroad Passenger Corporation , 513 U. S. 374 , 379
(1995); see 530 F. Supp. 2d, at 277, n. 6. Under the
definition of electioneering communication, the video-on-demand
showing of Hillary on cable television would have been a
“cable . . . communication” that “refer[red] to a clearly
identified candidate for Federal office” and that was made within
30 days of a primary election. 2 U. S. C. §434(f)(3)(A)(i).
Citizens United, however, argues that Hillary was not
“publicly distributed,” because a single video-on-demand
transmission is sent only to a requesting cable converter box and
each separate transmission, in most instances, will be seen by just
one household—not 50,000 or more persons. 11 CFR §100.29(a)(2); see
§100.29(b)(3)(ii).

															   This argument ignores the
regulation’s instruction on how to determine whether a cable
transmission “[c]an be received by 50,000 or more persons.”
§100.29(b)(3)(ii). The regulation provides that the number of
people who can receive a cable transmission is determined by the
number of cable subscribers in the relevant area.
§§100.29(b)(7)(i)(G), (ii). Here, Citizens United wanted to use a
cable video-on-demand system that had 34.5 million subscribers
nationwide. App. 256a. Thus, Hillary could have been
received by 50,000 persons or more.

															   One amici brief asks us,
alternatively, to construe the condition that the communication
“[c]an be received by 50,000 or more persons,”
§100.29(b)(3)(ii)(A), to require “a plausible likelihood that the
communication will be viewed by 50,000 or more potential voters”—as
opposed to requiring only that the communication is
“technologically capable” of being seen by that many people, Brief
for Former Officials of the American Civil Liberties Union as Amici Curiae 5. Whether the population and demographic
statistics in a proposed viewing area consisted of 50,000
registered voters—but not “infants, pre-teens, or otherwise
electorally ineligible recipients”—would be a required
determination, subject to judicial challenge and review, in any
case where the issue was in doubt. Id. , at 6.

															   In our view the statute cannot be saved by
limiting the reach of 2 U. S. C. §441b through this suggested
interpretation. In addition to the costs and burdens of litigation,
this result would require a calculation as to the number of people
a particular communication is likely to reach, with an inaccurate
estimate potentially subjecting the speaker to criminal sanctions.
The First Amendment does not permit laws that force speakers to
retain a campaign finance attorney, conduct demographic marketing
research, or seek declaratory rulings before discussing the most
salient political issues of our day. Prolix laws chill speech for
the same reason that vague laws chill speech: People “of common
intelligence must necessarily guess at [the law’s] meaning and
differ as to its application.” Connally v. General
Constr. Co. , 269 U. S. 385 , 391
(1926). The Government may not render a ban on political speech
constitutional by carving out a limited exemption through an
amorphous regulatory interpretation. We must reject the approach
suggested by the amici . Section 441b covers Hillary .

															B

															   Citizens United next argues that
§441b may not be applied to Hillary under the approach
taken in WRTL . McConnell decided that
§441b(b)(2)’s definition of an “electioneering communication” was
facially constitutional insofar as it restricted speech that was
“the functional equivalent of express advocacy” for or against a
specific candidate. 540 U. S., at 206. WRTL then found an
unconstitutional application of §441b where the speech was not
“express advocacy or its functional equivalent.” 551 U. S., at 481
(opinion of Roberts, C. J.). As explained by The Chief
Justice’s controlling opinion in WRTL , the
functional-equivalent test is objective: “a court should find that
[a communication] is the functional equivalent of express advocacy
only if [it] is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.” Id. , at 469–470.

															   Under this test, Hillary is equivalent to express advocacy. The movie, in essence, is a
feature-length negative advertisement that urges viewers to vote
against Senator Clinton for President. In light of historical
footage, interviews with persons critical of her, and voiceover
narration, the film would be understood by most viewers as an
extended criticism of Senator Clinton’s character and her fitness
for the office of the Presidency. The narrative may contain more
suggestions and arguments than facts, but there is little doubt
that the thesis of the film is that she is unfit for the
Presidency. The movie concentrates on alleged wrongdoing during the
Clinton administration, Senator Clinton’s qualifications and
fitness for office, and policies the commentators predict she would
pursue if elected President. It calls Senator Clinton
“Machiavellian,” App. 64a, and asks whether she is “the most
qualified to hit the ground running if elected President,” id. , at 88a. The narrator reminds viewers that “Americans
have never been keen on dynasties” and that “a vote for Hillary is
a vote to continue 20 years of a Bush or a Clinton in the White
House,” id. , at 143a–144a.

															   Citizens United argues that Hillary is just “a documentary film that examines certain historical
events.” Brief for Appellant 35. We disagree. The movie’s
consistent emphasis is on the relevance of these events to Senator
Clinton’s candidacy for President. The narrator begins by asking
“could [Senator Clinton] become the first female President in the
history of the United States?” App. 35a. And the narrator
reiterates the movie’s message in his closing line: “Finally,
before America decides on our next president, voters should need no
reminders of … what’s at stake—the well being and prosperity of our
nation.” Id. , at 144a–145a.

															   As the District Court found, there is no
reasonable interpretation of Hillary other than as an
appeal to vote against Senator Clinton. Under the standard stated
in McConnell and further elaborated in WRTL , the
film qualifies as the functional equivalent of express
advocacy.

															C

															   Citizens United further contends
that §441b should be invalidated as applied to movies shown through
video-on-demand, arguing that this delivery system has a lower risk
of distorting the political process than do television ads. Cf. McConnell, supra , at 207. On what we might call
conventional television, advertising spots reach viewers who have
chosen a channel or a program for reasons unrelated to the
advertising. With video-on-demand, by contrast, the viewer selects
a program after taking “a series of affirmative steps”: subscribing
to cable; navigating through various menus; and selecting the
program. See Reno v. American Civil Liberties
Union , 521 U.
S. 844 , 867 (1997).

															   While some means of communication
may be less effective than others at influencing the public in
different contexts, any effort by the Judiciary to decide which
means of communications are to be preferred for the particular type
of message and speaker would raise questions as to the courts’ own
lawful authority. Substantial questions would arise if courts were
to begin saying what means of speech should be preferred or
disfavored. And in all events, those differentiations might soon
prove to be irrelevant or outdated by technologies that are in
rapid flux. See Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 , 639 (1994).

															   Courts, too, are bound by the First Amendment.
We must decline to draw, and then redraw, constitutional lines
based on the particular media or technology used to disseminate
political speech from a particular speaker. It must be noted,
moreover, that this undertaking would require substantial
litigation over an extended time, all to interpret a law that
beyond doubt discloses serious First Amendment flaws. The
interpretive process itself would create an inevitable, pervasive,
and serious risk of chilling protected speech pending the drawing
of fine distinctions that, in the end, would themselves be
questionable. First Amendment standards, however, “must give the
benefit of any doubt to protecting rather than stifling speech.” WRTL , 551 U. S., at 469 (opinion of Roberts, C. J.)
(citing New York Times Co. v. Sullivan , 376 U. S. 254 , 269–270 (1964)).

															D

															   Citizens United also asks us to
carve out an exception to §441b’s expenditure ban for nonprofit
corporate political speech funded overwhelmingly by individuals. As
an alternative to reconsidering Austin , the Government
also seems to prefer this approach. This line of analysis, however,
would be unavailing.

															   In MCFL , the Court found
unconstitutional §441b’s restrictions on corporate expenditures as
applied to nonprofit corporations that were formed for the sole
purpose of promoting political ideas, did not engage in business
activities, and did not accept contributions from for-profit
corporations or labor unions. 479 U. S., at 263–264; see also 11
CFR §114.10. BCRA’s so-called Wellstone Amendment applied §441b’s
expenditure ban to all nonprofit corporations. See 2 U. S. C.
§441b(c)(6); McConnell , 540 U. S., at 209. McConnell then interpreted the Wellstone Amendment to
retain the MCFL exemption to §441b’s expenditure
prohibition. 540 U. S., at 211. Citizens United does not qualify
for the MCFL exemption, however, since some funds used to
make the movie were donations from for-profit corporations.

															   The Government suggests we could find BCRA’s
Wellstone Amendment unconstitutional, sever it from the statute,
and hold that Citizens United’s speech is exempt from §441b’s ban
under BCRA’s Snowe-Jeffords Amendment, §441b(c)(2). See Tr. of Oral
Arg. 37–38 (Sept. 9, 2009). The Snowe-Jeffords Amendment operates
as a backup provision that only takes effect if the Wellstone
Amendment is invalidated. See McConnell, supra, at 339
(Kennedy, J., concurring in judgment in part and dissenting in
part). The Snowe-Jeffords Amendment would exempt from §441b’s
expenditure ban the political speech of certain nonprofit
corporations if the speech were funded “exclusively” by individual
donors and the funds were maintained in a segregated account.
§441b(c)(2). Citizens United would not qualify for the
Snowe-Jeffords exemption, under its terms as written, because Hillary was funded in part with donations from for-profit
corporations.

															   Consequently, to hold for Citizens United on
this argument, the Court would be required to revise the text of MCFL , sever BCRA’s Wellstone Amendment, §441b(c)(6), and
ignore the plain text of BCRA’s Snowe-Jeffords Amendment,
§441b(c)(2). If the Court decided to create a de minimis exception to MCFL or the Snowe-Jeffords Amendment, the
result would be to allow for-profit corporate general treasury
funds to be spent for independent expenditures that support
candidates. There is no principled basis for doing this without
rewriting Austin ’s holding that the Government can
restrict corporate independent expenditures for political
speech.

															   Though it is true that the Court should
construe statutes as necessary to avoid constitutional questions,
the series of steps suggested would be difficult to take in view of
the language of the statute. In addition to those difficulties the
Government’s suggestion is troubling for still another reason. The
Government does not say that it agrees with the interpretation it
wants us to consider. See Supp. Brief for Appellee 3, n. 1
(“Some courts” have implied a de minimis exception, and
“appellant would appear to be covered by these decisions”).
Presumably it would find textual difficulties in this approach too.
The Government, like any party, can make arguments in the
alternative; but it ought to say if there is merit to an
alternative proposal instead of merely suggesting it. This is
especially true in the context of the First Amendment. As the
Government stated, this case “would require a remand” to apply a de minimis standard. Tr. of Oral Arg. 39 (Sept. 9, 2009).
Applying this standard would thus require case-by-case
determinations. But archetypical political speech would be chilled
in the meantime. “ ‘First Amendment freedoms need breathing
space to survive.’ ” WRTL , supra , at 468–469
(opinion of Roberts, C. J.) (quoting NAACP v. Button , 371
U. S. 415 , 433 (1963)). We decline to adopt an interpretation
that requires intricate case-by-case determinations to verify
whether political speech is banned, especially if we are convinced
that, in the end, this corporation has a constitutional right to
speak on this subject.

															E

															   As the foregoing analysis
confirms, the Court cannot resolve this case on a narrower ground
without chilling political speech, speech that is central to the
meaning and purpose of the First Amendment. See Morse v. Frederick , 551 U. S. 393 , 403
(2007). It is not judicial restraint to accept an unsound, narrow
argument just so the Court can avoid another argument with broader
implications. Indeed, a court would be remiss in performing its
duties were it to accept an unsound principle merely to avoid the
necessity of making a broader ruling. Here, the lack of a valid
basis for an alternative ruling requires full consideration of the
continuing effect of the speech suppression upheld in Austin .

															   Citizens United stipulated to
dismissing count 5 of its complaint, which raised a facial
challenge to §441b, even though count 3 raised an as-applied
challenge. See App. 23a (count 3: “As applied to Hillary ,
[§441b] is unconstitutional under the First Amendment guarantees of
free expression and association”). The Government argues that
Citizens United waived its challenge to Austin by
dismissing count 5. We disagree.

															   First, even if a party could somehow waive a
facial challenge while preserving an as-applied challenge, that
would not prevent the Court from reconsidering Austin or
addressing the facial validity of §441b in this case. “Our practice
‘permit[s] review of an issue not pressed [below] so long as it has
been passed upon . . . .’ ” Lebron , 513 U. S., at 379
(quoting United States v. Williams , 504 U. S. 36 , 41 (1992);
first alteration in original). And here, the District Court
addressed Citizens United’s facial challenge. See 530 F. Supp. 2d,
at 278 (“Citizens wants us to enjoin the operation of BCRA §203 as
a facially unconstitutional burden on the First Amendment right to
freedom of speech”). In rejecting the claim, it noted that it
“would have to overrule McConnell ” for Citizens United to
prevail on its facial challenge and that “[o]nly the Supreme Court
may overrule its decisions.” Ibid. (citing Rodriguez
de Quijas v. Shearson/American Express, Inc. , 490 U. S. 477 ,
484 (1989)). The District Court did not provide much analysis
regarding the facial challenge because it could not ignore the
controlling Supreme Court decisions in Austin or McConnell . Even so, the District Court did “ ‘pas[s]
upon’ ” the issue. Lebron , supra , at 379.
Furthermore, the District Court’s later opinion, which granted the
FEC summary judgment, was “[b]ased on the reasoning of [its] prior
opinion,” which included the discussion of the facial challenge.
App. 261a (citing 530 F. Supp. 2d 274). After the District
Court addressed the facial validity of the statute, Citizens United
raised its challenge to Austin in this Court. See Brief
for Appellant 30 (“ Austin was wrongly decided and should
be overruled”); id. , at 30–32. In these circumstances, it
is necessary to consider Citizens United’s challenge to Austin and the facial validity of §441b’s expenditure
ban.

															   Second, throughout the litigation, Citizens
United has asserted a claim that the FEC has violated its First
Amendment right to free speech. All concede that this claim is
properly before us. And “ ‘[o]nce a federal claim is properly
presented, a party can make any argument in support of that claim;
parties are not limited to the precise arguments they made
below.’ ” Lebron , supra , at 379 (quoting Yee v. Escondido , 503 U. S. 519 , 534
(1992); alteration in original). Citizens United’s argument that Austin should be overruled is “not a new claim.” Lebron, 513 U. S., at 379. Rather, it is—at most—“a new
argument to support what has been [a] consistent claim: that [the
FEC] did not accord [Citizens United] the rights it was obliged to
provide by the First Amendment.” Ibid. Third, the distinction between facial and
as-applied challenges is not so well defined that it has some
automatic effect or that it must always control the pleadings and
disposition in every case involving a constitutional challenge. The
distinction is both instructive and necessary, for it goes to the
breadth of the remedy employed by the Court, not what must be
pleaded in a complaint. See United States v. Treasury
Employees , 513
U. S. 454 , 477–478 (1995) (contrasting “a facial challenge”
with “a narrower remedy”). The parties cannot enter into a
stipulation that prevents the Court from considering certain
remedies if those remedies are necessary to resolve a claim that
has been preserved. Citizens United has preserved its First
Amendment challenge to §441b as applied to the facts of its case;
and given all the circumstances, we cannot easily address that
issue without assuming a premise—the permissibility of restricting
corporate political speech—that is itself in doubt. See Fallon,
As-Applied and Facial Challenges and Third-Party Standing, 113
Harv. L. Rev. 1321, 1339 (2000) (“[O]nce a case is brought, no
general categorical line bars a court from making broader
pronouncements of invalidity in properly ‘as-applied’ cases”); id. , at 1327–1328. As our request for supplemental
briefing implied, Citizens United’s claim implicates the validity
of Austin , which in turn implicates the facial validity of
§441b.

															   When the statute now at issue came before the
Court in McConnell , both the majority and the dissenting
opinions considered the question of its facial validity. The
holding and validity of Austin were essential to the
reasoning of the McConnell majority opinion, which upheld
BCRA’s extension of §441b. See 540 U. S., at 205 (quoting Austin, 494 U. S. , at 660). McConnell permitted federal felony punishment for speech by all corporations,
including nonprofit ones, that speak on prohibited subjects shortly
before federal elections. See 540 U. S. , at 203–209. Four
Members of the McConnell Court would have overruled Austin , including Chief Justice Rehnquist, who had joined
the Court’s opinion in Austin but reconsidered that
conclusion. See 540 U. S., at 256–262 (Scalia, J., concurring in
part, concurring in judgment in part, and dissenting in part); id. , at 273–275 (Thomas, J., concurring in part,
concurring in result in part, concurring in judgment in part, and
dissenting in part); id. , at 322–338 (opinion of Kennedy,
J., joined by Rehnquist, C. J., and Scalia, J.). That inquiry into
the facial validity of the statute was facilitated by the extensive
record, which was “over 100,000 pages” long, made in the
three-judge District Court. McConnell v. Federal
Election Comm’n , 251 F. Supp. 2d 176, 209 (DC 2003) (per curiam) (McConnell I) . It is not the case, then, that
the Court today is premature in interpreting §441b “ ‘on the
basis of [a] factually barebones recor[d].’ ” Washington
State Grange v. Washington State Republican Party , 552 U. S. 442 ,
450 (2008) (quoting Sabri v. United States , 541 U. S. 600 ,
609 (2004)).

															   The McConnell majority considered
whether the statute was facially invalid. An as-applied challenge
was brought in Wisconsin Right to Life, Inc. v. Federal Election Comm’n , 546 U. S. 410 , 411–412
(2006) (per curiam) , and the Court confirmed that the
challenge could be maintained. Then, in WRTL , the
controlling opinion of the Court not only entertained an as-applied
challenge but also sustained it. Three Justices noted that they
would continue to maintain the position that the record in McConnell demonstrated the invalidity of the Act on its
face. 551 U. S., at 485–504 (opinion of Scalia, J.). The
controlling opinion in WRTL , which refrained from holding
the statute invalid except as applied to the facts then before the
Court, was a careful attempt to accept the essential elements of
the Court’s opinion in McConnell , while vindicating the
First Amendment arguments made by the WRTL parties. 551 U.
S. , at 482 (opinion of Roberts, C. J.).

															   As noted above, Citizens United’s narrower
arguments are not sustainable under a fair reading of the statute.
In the exercise of its judicial responsibility, it is necessary
then for the Court to consider the facial validity of §441b. Any
other course of decision would prolong the substantial, nation-wide
chilling effect caused by §441b’s prohibitions on corporate
expenditures. Consideration of the facial validity of §441b is
further supported by the following reasons.

															   First is the uncertainty caused by the
litigating position of the Government. As discussed above, see Part
II–D, supra , the Government suggests, as an alternative
argument, that an as-applied challenge might have merit. This
argument proceeds on the premise that the nonprofit corporation
involved here may have received only de minimis donations
from for-profit corporations and that some nonprofit corporations
may be exempted from the operation of the statute. The Government
also suggests that an as-applied challenge to §441b’s ban on books
may be successful, although it would defend §441b’s ban as applied
to almost every other form of media including pamphlets. See Tr. of
Oral Arg. 65–66 (Sept. 9, 2009). The Government thus, by its own
position, contributes to the uncertainty that §441b causes. When
the Government holds out the possibility of ruling for Citizens
United on a narrow ground yet refrains from adopting that position,
the added uncertainty demonstrates the necessity to address the
question of statutory validity.

															   Second, substantial time would be required to
bring clarity to the application of the statutory provision on
these points in order to avoid any chilling effect caused by some
improper interpretation. See Part II–C, supra . It is well
known that the public begins to concentrate on elections only in
the weeks immediately before they are held. There are short
timeframes in which speech can have influence. The need or
relevance of the speech will often first be apparent at this stage
in the campaign. The decision to speak is made in the heat of
political campaigns, when speakers react to messages conveyed by
others. A speaker’s ability to engage in political speech that
could have a chance of persuading voters is stifled if the speaker
must first commence a protracted lawsuit. By the time the lawsuit
concludes, the election will be over and the litigants in most
cases will have neither the incentive nor, perhaps, the resources
to carry on, even if they could establish that the case is not moot
because the issue is “capable of repetition, yet evading review.” WRTL , supra , at 462 (opinion of Roberts,
C. J.) (citing Los Angeles v. Lyons , 461 U. S. 95 , 109
(1983); Southern Pacific Terminal Co. v. ICC , 219 U. S. 498 ,
515 (1911)). Here, Citizens United decided to litigate its case to
the end. Today, Citizens United finally learns, two years after the
fact, whether it could have spoken during the 2008 Presidential
primary—long after the opportunity to persuade primary voters has
passed.

															   Third is the primary importance of speech
itself to the integrity of the election process. As additional
rules are created for regulating political speech, any speech
arguably within their reach is chilled. See Part II–A, supra . Campaign finance regulations now impose “unique and
complex rules” on “71 distinct entities.” Brief for Seven Former
Chairmen of FEC et al. as Amici Curiae 11–12. These
entities are subject to separate rules for 33 different types of
political speech. Id. , at 14–15, n. 10. The FEC has
adopted 568 pages of regulations, 1,278 pages of explanations and
justifications for those regulations, and 1,771 advisory opinions
since 1975. See id. , at 6, n. 7. In fact, after this
Court in WRTL adopted an objective “appeal to vote” test
for determining whether a communication was the functional
equivalent of express advocacy, 551 U. S., at 470 (opinion of
Roberts, C. J.), the FEC adopted a two-part, 11-factor
balancing test to implement WRTL ’s ruling. See 11 CFR
§114.15; Brief for Wyoming Liberty Group et al. as Amici
Curiae 17–27 (filed Jan. 15, 2009).

															   This regulatory scheme may not be a prior
restraint on speech in the strict sense of that term, for
prospective speakers are not compelled by law to seek an advisory
opinion from the FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson , 283 U. S. 697 , 712–713
(1931). As a practical matter, however, given the complexity of the
regulations and the deference courts show to administrative
determinations, a speaker who wants to avoid threats of criminal
liability and the heavy costs of defending against FEC enforcement
must ask a governmental agency for prior permission to speak. See 2
U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus
function as the equivalent of prior restraint by giving the FEC
power analogous to licensing laws implemented in 16th- and
17th-century England, laws and governmental practices of the sort
that the First Amendment was drawn to prohibit. See Thomas v. Chicago Park Dist. , 534 U. S. 316 , 320
(2002); Lovell v. City of Griffin , 303 U. S. 444 , 451–452
(1938); Near , supra , at 713–714. Because the
FEC’s “business is to censor, there inheres the danger that [it]
may well be less responsive than a court—part of an independent
branch of government—to the constitutionally protected interests in
free expression.” Freedman v. Maryland , 380 U. S. 51 , 57–58
(1965). When the FEC issues advisory opinions that prohibit speech,
“[m]any persons, rather than undertake the considerable burden (and
sometimes risk) of vindicating their rights through case-by-case
litigation, will choose simply to abstain from protected
speech—harming not only themselves but society as a whole, which is
deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks , 539 U. S. 113 , 119
(2003) (citation omitted). Consequently, “the censor’s
determination may in practice be final.” Freedman , supra , at 58.

															   This is precisely what WRTL sought to
avoid. WRTL said that First Amendment standards “must
eschew ‘the open-ended rough-and-tumble of factors,’ which
‘invit[es] complex argument in a trial court and a virtually
inevitable appeal.’ ” 551 U. S., at 469 (opinion of Roberts,
C. J.) (quoting Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co. , 513 U. S. 527 , 547
(1995); alteration in original). Yet, the FEC has created a regime
that allows it to select what political speech is safe for public
consumption by applying ambiguous tests. If parties want to avoid
litigation and the possibility of civil and criminal penalties,
they must either refrain from speaking or ask the FEC to issue an
advisory opinion approving of the political speech in question.
Government officials pore over each word of a text to see if, in
their judgment, it accords with the 11-factor test they have
promulgated. This is an unprecedented governmental intervention
into the realm of speech.

															   The ongoing chill upon speech that is beyond
all doubt protected makes it necessary in this case to invoke the
earlier precedents that a statute which chills speech can and must
be invalidated where its facial invalidity has been demonstrated.
See WRTL , supra , at 482–483 (Alito, J.,
concurring); Thornhill v. Alabama , 310 U. S. 88 , 97–98
(1940). For these reasons we find it necessary to reconsider Austin .

															III

															   The First Amendment provides that
“Congress shall make no law … abridging the freedom of speech.”
Laws enacted to control or suppress speech may operate at different
points in the speech process. The following are just a few examples
of restrictions that have been attempted at different stages of the
speech process—all laws found to be invalid: restrictions requiring
a permit at the outset, Watchtower Bible & Tract Soc. of
N. Y., Inc. v. Village of Stratton , 536 U. S. 150 , 153
(2002); imposing a burden by impounding proceeds on receipts or
royalties, Simon & Schuster , Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105 , 108, 123 (1991);
seeking to exact a cost after the speech occurs, New York Times
Co. v. Sullivan , 376 U. S., at 267; and subjecting
the speaker to criminal penalties, Brandenburg v. Ohio , 395
U. S. 444 , 445 (1969) (per curiam) .

															   The law before us is an outright
ban, backed by criminal sanctions. Section 441b makes it a felony
for all corporations—including nonprofit advocacy
corporations—either to expressly advocate the election or defeat of
candidates or to broadcast electioneering communications within 30
days of a primary election and 60 days of a general election. Thus,
the following acts would all be felonies under §441b: The Sierra
Club runs an ad, within the crucial phase of 60 days before the
general election, that exhorts the public to disapprove of a
Congressman who favors logging in national forests; the National
Rifle Association publishes a book urging the public to vote for
the challenger because the incumbent U. S. Senator supports a
handgun ban; and the American Civil Liberties Union creates a Web
site telling the public to vote for a Presidential candidate in
light of that candidate’s defense of free speech. These
prohibitions are classic examples of censorship.

															   Section 441b is a ban on corporate speech
notwithstanding the fact that a PAC created by a corporation can
still speak. See McConnell , 540 U. S., at 330–333 (opinion
of Kennedy, J.). A PAC is a separate association from the
corporation. So the PAC exemption from §441b’s expenditure ban,
§441b(b)(2), does not allow corporations to speak. Even if a PAC
could somehow allow a corporation to speak—and it does not—the
option to form PACs does not alleviate the First Amendment problems
with §441b. PACs are burdensome alternatives; they are expensive to
administer and subject to extensive regulations. For example, every
PAC must appoint a treasurer, forward donations to the treasurer
promptly, keep detailed records of the identities of the persons
making donations, preserve receipts for three years, and file an
organization statement and report changes to this information
within 10 days. See id. , at 330–332 (quoting MCFL , 479 U. S., at 253–254).

															   And that is just the beginning. PACs must file
detailed monthly reports with the FEC, which are due at different
times depending on the type of election that is about to occur:

															“ ‘These reports must contain information
regarding the amount of cash on hand; the total amount of receipts,
detailed by 10 different categories; the identification of each
political committee and candidate’s authorized or affiliated
committee making contributions, and any persons making loans,
providing rebates, refunds, dividends, or interest or any other
offset to operating expenditures in an aggregate amount over $200;
the total amount of all disbursements, detailed by 12 different
categories; the names of all authorized or affiliated committees to
whom expenditures aggregating over $200 have been made; persons to
whom loan repayments or refunds have been made; the total sum of
all contributions, operating expenses, outstanding debts and
obligations, and the settlement terms of the retirement of any debt
or obligation.’ ” 540 U. S., at 331–332 (quoting MCFL , supra , at 253–254).

															PACs have to comply with these regulations just to
speak. This might explain why fewer than 2,000 of the millions of
corporations in this country have PACs. See Brief for Seven Former
Chairmen of FEC et al. as Amici Curiae 11 (citing
FEC, Summary of PAC Activity 1990–2006, online at
http://www.fec.gov/press/press2007/ 20071009pac/sumhistory.pdf);
IRS, Statistics of Income: 2006, Corporation Income Tax Returns 2
(2009) (hereinafter Statistics of Income) (5.8 million for-profit
corporations filed 2006 tax returns). PACs, furthermore, must exist
before they can speak. Given the onerous restrictions, a
corporation may not be able to establish a PAC in time to make its
views known regarding candidates and issues in a current
campaign.

															   Section 441b’s prohibition on corporate
independent expenditures is thus a ban on speech. As a “restriction
on the amount of money a person or group can spend on political
communication during a campaign,” that statute “necessarily reduces
the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the
audience reached.” Buckley v. Valeo , 424 U. S. 1 , 19 (1976) (per
curiam) . Were the Court to uphold these restrictions, the
Government could repress speech by silencing certain voices at any
of the various points in the speech process. See McConnell , supra , at 251 (opinion of Scalia, J.)
(Government could repress speech by “attacking all levels of the
production and dissemination of ideas,” for “effective public
communication requires the speaker to make use of the services of
others”). If §441b applied to individuals, no one would believe
that it is merely a time, place, or manner restriction on speech.
Its purpose and effect are to silence entities whose voices the
Government deems to be suspect.

															   Speech is an essential mechanism of democracy,
for it is the means to hold officials accountable to the people.
See Buckley , supra , at 14–15 (“In a republic
where the people are sovereign, the ability of the citizenry to
make informed choices among candidates for office is essential”).
The right of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to enlightened
self-government and a necessary means to protect it. The First
Amendment “ ‘has its fullest and most urgent application’ to
speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm. , 489 U. S. 214 , 223
(1989) (quoting Monitor Patriot Co. v. Roy , 401 U. S. 265 ,
272 (1971)); see Buckley , supra , at 14
(“Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of
government established by our Constitution”).

															   For these reasons, political speech must
prevail against laws that would suppress it, whether by design or
inadvertence. Laws that burden political speech are “subject to
strict scrutiny,” which requires the Government to prove that the
restriction “furthers a compelling interest and is narrowly
tailored to achieve that interest.” WRTL, 551 U. S., at
464 (opinion of Roberts, C. J.). While it might be maintained
that political speech simply cannot be banned or restricted as a
categorical matter, see Simon & Schuster , 502 U. S.,
at 124 (Kennedy, J., concurring in judgment), the quoted language
from WRTL provides a sufficient framework for protecting
the relevant First Amendment interests in this case. We shall
employ it here.

															   Premised on mistrust of governmental power,
the First Amendment stands against attempts to disfavor certain
subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803 , 813
(2000) (striking down content-based restriction). Prohibited, too,
are restrictions distinguishing among different speakers, allowing
speech by some but not others. See First Nat. Bank of
Boston v. Bellotti , 435 U. S. 765 , 784 (1978). As
instruments to censor, these categories are interrelated: Speech
restrictions based on the identity of the speaker are all too often
simply a means to control content.

															   Quite apart from the purpose or effect of
regulating content, moreover, the Government may commit a
constitutional wrong when by law it identifies certain preferred
speakers. By taking the right to speak from some and giving it to
others, the Government deprives the disadvantaged person or class
of the right to use speech to strive to establish worth, standing,
and respect for the speaker’s voice. The Government may not by
these means deprive the public of the right and privilege to
determine for itself what speech and speakers are worthy of
consideration. The First Amendment protects speech and speaker, and
the ideas that flow from each.

															   The Court has upheld a narrow class of speech
restrictions that operate to the disadvantage of certain persons,
but these rulings were based on an interest in allowing
governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser , 478
U. S. 675 , 683 (1986) (protecting the “function of public
school education”); Jones v. North Carolina Prisoners’
Labor Union, Inc. , 433 U. S. 119 , 129
(1977) (furthering “the legitimate penological objectives of the
corrections system” (internal quotation marks omitted)); Parker v. Levy , 417 U. S. 733 , 759
(1974) (ensuring “the capacity of the Government to discharge its
[military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers , 413 U. S. 548 , 557
(1973) (“[F]ederal service should depend upon meritorious
performance rather than political service”). The corporate
independent expenditures at issue in this case, however, would not
interfere with governmental functions, so these cases are
inapposite. These precedents stand only for the proposition that
there are certain governmental functions that cannot operate
without some restrictions on particular kinds of speech. By
contrast, it is inherent in the nature of the political process
that voters must be free to obtain information from diverse sources
in order to determine how to cast their votes. At least before Austin , the Court had not allowed the exclusion of a class
of speakers from the general public dialogue.

															   We find no basis for the proposition that, in
the context of political speech, the Government may impose
restrictions on certain disfavored speakers. Both history and logic
lead us to this conclusion.

															A

															1

															   The Court has recognized that
First Amendment protection extends to corporations. Bellotti,
supra , at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro , 431 U. S. 85 (1977); Time, Inc. v. Firestone , 424 U. S. 448 (1976); Doran v. Salem Inn, Inc. , 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad , 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn , 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo , 418 U. S. 241 (1974); New York Times Co. v. United States , 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill , 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254 ; Kingsley Int’l
Pictures Corp. v. Regents of Univ. of N. Y. , 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson , 343 U. S. 495 (1952));
see, e.g., Turner Broadcasting System, Inc. v. FCC , 520 U.
S. 180 (1997); Denver Area Ed. Telecommunications
Consortium, Inc. v. FCC , 518 U. S. 727 (1996); Turner , 512 U. S. 622 ; Simon &
Schuster , 502 U. S. 105 ; Sable
Communications of Cal., Inc. v. FCC , 492 U. S. 115 (1989); Florida Star v. B. J. F. , 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps , 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia , 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc. , 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc. , 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler , 398
U. S. 6 (1970).

															   This protection has been extended by explicit
holdings to the context of political speech. See, e.g., Button , 371 U. S., at 428–429; Grosjean v. American Press Co. , 297 U. S. 233 , 244
(1936). Under the rationale of these precedents, political speech
does not lose First Amendment protection “simply because its source
is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of
Cal. , 475 U. S.
1 , 8 (1986) (plurality opinion) (“The identity of the speaker
is not decisive in determining whether speech is protected.
Corporations and other associations, like individuals, contribute
to the ‘discussion, debate, and the dissemination of information
and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)).    The Court
has thus rejected the argument that political speech of
corporations or other associations should be treated differently
under the First Amendment simply because such associations are not
“natural persons.” Id., at 776; see id. , at 780,
n. 16. Cf. id. , at 828 (Rehnquist, J.,
dissenting).

															   At least since the latter part of
the 19th century, the laws of some States and of the United States
imposed a ban on corporate direct contributions to candidates. See
B. Smith, Unfree Speech: The Folly of Campaign Finance Reform 23
(2001). Yet not until 1947 did Congress first prohibit independent
expenditures by corporations and labor unions in §304 of the Labor
Management Relations Act 1947, 61 Stat. 159 (codified at 2 U.
S. C. §251 (1946 ed., Supp. I)). In passing this Act Congress
overrode the veto of President Truman, who warned that the
expenditure ban was a “dangerous intrusion on free speech.” Message
from the President of the United States, H. R. Doc. No. 334,
89th Cong., 1st Sess., 9 (1947).

															   For almost three decades thereafter, the Court
did not reach the question whether restrictions on corporate and
union expenditures are constitutional. See WRTL , 551 U.
S., at 502 (opinion of Scalia, J.). The question was in the
background of United States v. CIO , 335 U. S. 106 (1948).
There, a labor union endorsed a congressional candidate in its
weekly periodical. The Court stated that “the gravest doubt would
arise in our minds as to [the federal expenditure prohibition’s]
constitutionality” if it were construed to suppress that writing. Id. , at 121. The Court engaged in statutory interpretation
and found the statute did not cover the publication. Id. ,
at 121–122, and n. 20. Four Justices, however, said they would
reach the constitutional question and invalidate the Labor
Management Relations Act’s expenditure ban. Id. , at 155
(Rutledge, J., joined by Black, Douglas, and Murphy, JJ.,
concurring in result). The concurrence explained that any
“ ‘undue influence’ ” generated by a speaker’s “large
expenditures” was outweighed “by the loss for democratic processes
resulting from the restrictions upon free and full public
discussion.” Id. , at 143.

															   In United States v. Automobile
Workers , 352 U.
S. 567 (1957), the Court again encountered the independent
expenditure ban, which had been recodified at 18 U. S. C. §610
(1952 ed.). See 62 Stat. 723–724. After holding only that a union
television broadcast that endorsed candidates was covered by the
statute, the Court “[r]efus[ed] to anticipate constitutional
questions” and remanded for the trial to proceed. 352 U. S., at
591. Three Justices dissented, arguing that the Court should have
reached the constitutional question and that the ban on independent
expenditures was unconstitutional:

															   “Under our Constitution it is We
The People who are sovereign. The people have the final say. The
legislators are their spokesmen. The people determine through their
votes the destiny of the nation. It is therefore important—vitally
important—that all channels of communications be open to them
during every election, that no point of view be restrained or
barred, and that the people have access to the views of every group
in the community.” Id. , at 593 (opinion of Douglas, J.,
joined by Warren, C. J., and Black, J.).

															The dissent concluded that deeming a particular
group “too powerful” was not a “justificatio[n] for withholding
First Amendment rights from any group—labor or corporate.” Id. , at 597. The Court did not get another opportunity to
consider the constitutional question in that case; for after a
remand, a jury found the defendants not guilty. See Hayward,
Revisiting the Fable of Reform, 45 Harv. J. Legis. 421, 463
(2008).

															   Later, in Pipefitters v. United
States , 407 U.
S. 385 , 400–401 (1972) , the Court reversed a
conviction for expenditure of union funds for political
speech—again without reaching the constitutional question. The
Court would not resolve that question for another four years.

															2

															   In Buckley, 424 U. S. 1 , the Court addressed various
challenges to the Federal Election Campaign Act of 1971 (FECA) as
amended in 1974. These amendments created 18 U. S. C. §608(e)
(1970 ed., Supp. V), see 88 Stat. 1265, an independent expenditure
ban separate from §610 that applied to individuals as well as
corporations and labor unions, Buckley , 424 U. S., at 23,
39, and n. 45.

															   Before addressing the
constitutionality of §608(e)’s independent expenditure ban, Buckley first upheld §608(b), FECA’s limits on direct
contributions to candidates. The Buckley Court recognized
a “sufficiently important” governmental interest in “the prevention
of corruption and the appearance of corruption.” Id., at
25; see id. , at 26. This followed from the Court’s concern
that large contributions could be given “to secure a political quid pro quo .” Ibid. The Buckley Court explained that the
potential for quid pro quo corruption distinguished direct
contributions to candidates from independent expenditures. The
Court emphasized that “the independent expenditure ceiling … fails
to serve any substantial governmental interest in stemming the
reality or appearance of corruption in the electoral process,” id. , at 47–48, because “[t]he absence of prearrangement
and coordination . . . alleviates the danger that expenditures will
be given as a quid pro quo for improper commitments from
the candidate,” id. , at 47. Buckley invalidated
§608(e)’s restrictions on independent expenditures, with only one
Justice dissenting. See Federal Election Comm’n v. National Conservative Political Action Comm. , 470 U. S. 480 , 491, n. 3
(1985) (NCPAC) . Buckley did not consider §610’s
separate ban on corporate and union independent expenditures, the
prohibition that had also been in the background in CIO , Automobile Workers , and Pipefitters . Had §610
been challenged in the wake of Buckley , however, it could
not have been squared with the reasoning and analysis of that
precedent. See WRTL , supra , at 487 (opinion of
Scalia, J.) (“ Buckley might well have been the last word
on limitations on independent expenditures”); Austin , 494
U. S., at 683 (Scalia, J., dissenting). The expenditure ban
invalidated in Buckley , §608(e), applied to corporations
and unions, 424 U. S., at 23, 39, n. 45; and some of the prevailing
plaintiffs in Buckley were corporations, id. , at
8. The Buckley Court did not invoke the First Amendment’s
overbreadth doctrine, see Broadrick v. Oklahoma , 413 U. S. 601 ,
615 (1973), to suggest that §608(e)’s expenditure ban would have
been constitutional if it had applied only to corporations and not
to individuals, 424 U. S., at 50. Buckley cited with
approval the Automobile Workers dissent, which argued that
§610 was unconstitutional. 424 U. S., at 43 (citing 352 U. S., at
595–596 (opinion of Douglas, J.)).

															   Notwithstanding this precedent, Congress
recodified §610’s corporate and union expenditure ban at 2 U.
S. C. §441b four months after Buckley was decided.
See 90 Stat. 490. Section 441b is the independent expenditure
restriction challenged here.

															   Less than two years after Buckley , Bellotti , 435 U. S. 765 , reaffirmed the First
Amendment principle that the Government cannot restrict political
speech based on the speaker’s corporate identity. Bellotti could not have been clearer when it struck down a state-law
prohibition on corporate independent expenditures related to
referenda issues:

															   “We thus find no support in the
First . . . Amendment, or in the decisions of this Court, for the
proposition that speech that otherwise would be within the
protection of the First Amendment loses that protection simply
because its source is a corporation that cannot prove, to the
satisfaction of a court, a material effect on its business or
property. . . . [That proposition] amounts to an impermissible
legislative prohibition of speech based on the identity of the
interests that spokesmen may represent in public debate over
controversial issues and a requirement that the speaker have a
sufficiently great interest in the subject to justify
communication.

															.     .     .     .     .

															   “In the realm of protected speech, the
legislature is constitutionally disqualified from dictating the
subjects about which persons may speak and the speakers who may
address a public issue.” Id. , at 784–785.

															It is important to note that the reasoning and
holding of Bellotti did not rest on the existence of a
viewpoint-discriminatory statute. It rested on the principle that
the Government lacks the power to ban corporations from
speaking. Bellotti did not address the
constitutionality of the State’s ban on corporate independent
expenditures to support candidates. In our view, however, that
restriction would have been unconstitutional under Bellotti ’s central principle: that the First Amendment
does not allow political speech restrictions based on a speaker’s
corporate identity. See ibid. 3 Thus the law stood until
Austin . Austin “uph[eld] a direct restriction on the
independent expenditure of funds for political speech for the first
time in [this Court’s] history.” 494 U. S., at 695 (Kennedy, J.,
dissenting). There, the Michigan Chamber of Commerce sought to use
general treasury funds to run a newspaper ad supporting a specific
candidate. Michigan law, however, prohibited corporate independent
expenditures that supported or opposed any candidate for state
office. A violation of the law was punishable as a felony. The
Court sustained the speech prohibition.

															   To bypass Buckley and Bellotti , the Austin Court identified a new
governmental interest in limiting political speech: an
antidistortion interest. Austin found a compelling
governmental interest in preventing “the corrosive and distorting
effects of immense aggregations of wealth that are accumulated with
the help of the corporate form and that have little or no
correlation to the public’s support for the corporation’s political
ideas.” 494 U. S., at 660; see id. , at 659 (citing MCFL, 479 U. S., at 257; NCPAC, 470 U. S., at
500–501).

															B

															   The Court is thus confronted with
conflicting lines of precedent: a pre- Austin line that
forbids restrictions on political speech based on the speaker’s
corporate identity and a post- Austin line that permits
them. No case before Austin had held that Congress could
prohibit independent expenditures for political speech based on the
speaker’s corporate identity. Before Austin Congress had
enacted legislation for this purpose, and the Government urged the
same proposition before this Court. See MCFL, supra , at
257 (FEC posited that Congress intended to “curb the political
influence of ‘those who exercise control over large aggregations of
capital’ ” (quoting Automobile Workers , supra , at 585)); California Medical Assn. v. Federal Election Comm’n , 453 U. S. 182 , 201
(1981) (Congress believed that “differing structures and purposes”
of corporations and unions “may require different forms of
regulation in order to protect the integrity of the electoral
process”). In neither of these cases did the Court adopt the
proposition.

															   In its defense of the
corporate-speech restrictions in §441b, the Government notes the
antidistortion rationale on which Austin and its progeny
rest in part, yet it all but abandons reliance upon it. It argues
instead that two other compelling interests support Austin ’s holding that corporate expenditure restrictions
are constitutional: an anticorruption interest, see 494 U. S., at
678 (Stevens, J., concurring), and a shareholder-protection
interest, see id. , at 674–675 (Brennan, J., concurring).
We consider the three points in turn.

															1

															   As for Austin ’s
antidistortion rationale, the Government does little to defend it.
See Tr. of Oral Arg. 45–48 (Sept. 9, 2009). And with good reason,
for the rationale cannot support §441b.

															   If the First Amendment has any
force, it prohibits Congress from fining or jailing citizens, or
associations of citizens, for simply engaging in political speech.
If the antidistortion rationale were to be accepted, however, it
would permit Government to ban political speech simply because the
speaker is an association that has taken on the corporate form. The
Government contends that Austin permits it to ban
corporate expenditures for almost all forms of communication
stemming from a corporation. See Part II–E, supra; Tr. of
Oral Arg. 66 (Sept. 9, 2009); see also id. , at 26–31 (Mar.
24, 2009). If Austin were correct, the Government could
prohibit a corporation from expressing political views in media
beyond those presented here, such as by printing books. The
Government responds “that the FEC has never applied this statute to
a book,” and if it did, “there would be quite [a] good as-applied
challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling
assertion of brooding governmental power cannot be reconciled with
the confidence and stability in civic discourse that the First
Amendment must secure.

															   Political speech is “indispensable to
decisionmaking in a democracy, and this is no less true because the
speech comes from a corporation rather than an individual.” Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (the worth of speech “does not depend upon the
identity of its source, whether corporation, association, union, or
individual”); Buckley , 424 U. S., at 48–49 (“[T]he concept
that government may restrict the speech of some elements of our
society in order to enhance the relative voice of others is wholly
foreign to the First Amendment”); Automobile Workers , 352
U. S., at 597 (Douglas, J., dissenting); CIO , 335 U. S.,
at 154–155 (Rutledge, J., concurring in result). This protection
for speech is inconsistent with Austin ’s antidistortion
rationale. Austin sought to defend the antidistortion
rationale as a means to prevent corporations from obtaining
“ ‘an unfair advantage in the political marketplace’ ” by
using “ ‘resources amassed in the economic
marketplace.’ ” 494 U. S., at 659 (quoting MCFL , supra , at 257). But Buckley rejected the premise
that the Government has an interest “in equalizing the relative
ability of individuals and groups to influence the outcome of
elections.” 424 U. S., at 48; see Bellotti, supra, at 791,
n. 30. Buckley was specific in stating that “the
skyrocketing cost of political campaigns” could not sustain the
governmental prohibition. 424 U. S., at 26. The First Amendment’s
protections do not depend on the speaker’s “financial ability to
engage in public discussion.” Id. , at 49.

															   The Court reaffirmed these conclusions when it
invalidated the BCRA provision that increased the cap on
contributions to one candidate if the opponent made certain
expenditures from personal funds. See Davis v. Federal
Election Comm’n , 554 U. S. ___, ___ (2008) (slip op., at 16)
(“Leveling electoral opportunities means making and implementing
judgments about which strengths should be permitted to contribute
to the outcome of an election. The Constitution, however, confers
upon voters, not Congress, the power to choose the Members of the
House of Representatives, Art. I, §2, and it is a dangerous
business for Congress to use the election laws to influence the
voters’ choices”). The rule that political speech cannot be limited
based on a speaker’s wealth is a necessary consequence of the
premise that the First Amendment generally prohibits the
suppression of political speech based on the speaker’s
identity.

															   Either as support for its antidistortion
rationale or as a further argument, the Austin majority
undertook to distinguish wealthy individuals from corporations on
the ground that “[s]tate law grants corporations special
advantages—such as limited liability, perpetual life, and favorable
treatment of the accumulation and distribution of assets.” 494 U.
S., at 658–659. This does not suffice, however, to allow laws
prohibiting speech. “It is rudimentary that the State cannot exact
as the price of those special advantages the forfeiture of First
Amendment rights.” Id. , at 680 (Scalia, J.,
dissenting).

															   It is irrelevant for purposes of the First
Amendment that corporate funds may “have little or no correlation
to the public’s support for the corporation’s political ideas.” Id. , at 660 (majority opinion). All speakers, including
individuals and the media, use money amassed from the economic
marketplace to fund their speech. The First Amendment protects the
resulting speech, even if it was enabled by economic transactions
with persons or entities who disagree with the speaker’s ideas. See id. , at 707 (Kennedy, J., dissenting) (“Many persons can
trace their funds to corporations, if not in the form of donations,
then in the form of dividends, interest, or salary”). Austin ’s antidistortion rationale
would produce the dangerous, and unacceptable, consequence that
Congress could ban political speech of media corporations. See McConnell , 540 U. S., at 283 (opinion of Thomas, J.) (“The
chilling endpoint of the Court’s reasoning is not difficult to
foresee: outright regulation of the press”). Cf. Tornillo ,
418 U. S., at 250 (alleging the existence of “vast accumulations of
unreviewable power in the modern media empires”). Media
corporations are now exempt from §441b’s ban on corporate
expenditures. See 2 U. S. C. §§431(9)(B)(i), 434(f)(3)(B)(i).
Yet media corporations accumulate wealth with the help of the
corporate form, the largest media corporations have “immense
aggregations of wealth,” and the views expressed by media
corporations often “have little or no correlation to the public’s
support” for those views. Austin , 494 U. S., at 660. Thus,
under the Government’s reasoning, wealthy media corporations could
have their voices diminished to put them on par with other media
entities. There is no precedent for permitting this under the First
Amendment.

															   The media exemption discloses further
difficulties with the law now under consideration. There is no
precedent supporting laws that attempt to distinguish between
corporations which are deemed to be exempt as media corporations
and those which are not. “We have consistently rejected the
proposition that the institutional press has any constitutional
privilege beyond that of other speakers.” Id. , at 691
(Scalia, J., dissenting) (citing Bellotti, 435 U.
S. , at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U. S. 749 , 784
(1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens,
JJ., dissenting); id. , at 773 (White, J., concurring in
judgment). With the advent of the Internet and the decline of print
and broadcast media, moreover, the line between the media and
others who wish to comment on political and social issues becomes
far more blurred.

															   The law’s exception for media corporations is,
on its own terms, all but an admission of the invalidity of the
antidistortion rationale. And the exemption results in a further,
separate reason for finding this law invalid: Again by its own
terms, the law exempts some corporations but covers others, even
though both have the need or the motive to communicate their views.
The exemption applies to media corporations owned or controlled by
corporations that have diverse and substantial investments and
participate in endeavors other than news. So even assuming the most
doubtful proposition that a news organization has a right to speak
when others do not, the exemption would allow a conglomerate that
owns both a media business and an unrelated business to influence
or control the media in order to advance its overall business
interest. At the same time, some other corporation, with an
identical business interest but no media outlet in its ownership
structure, would be forbidden to speak or inform the public about
the same issue. This differential treatment cannot be squared with
the First Amendment.

															   There is simply no support for
the view that the First Amendment, as originally understood, would
permit the suppression of political speech by media corporations.
The Framers may not have anticipated modern business and media
corporations. See McIntyre v. Ohio Elections
Comm’n , 514 U.
S. 334 , 360–361 (1995) (Thomas, J., concurring in judgment).
Yet television networks and major newspapers owned by media
corporations have become the most important means of mass
communication in modern times. The First Amendment was certainly
not understood to condone the suppression of political speech in
society’s most salient media. It was understood as a response to
the repression of speech and the press that had existed in England
and the heavy taxes on the press that were imposed in the colonies.
See McConnell , 540 U. S., at 252–253 (opinion of Scalia,
J.); Grosjean , 297 U. S., at 245–248; Near , 283
U. S., at 713–714. The great debates between the Federalists and
the Anti-Federalists over our founding document were published and
expressed in the most important means of mass communication of that
era—newspapers owned by individuals. See McIntyre , 514 U.
S., at 341–343; id. , at 367 (Thomas, J., concurring in
judgment). At the founding, speech was open, comprehensive, and
vital to society’s definition of itself; there were no limits on
the sources of speech and knowledge. See B. Bailyn, Ideological
Origins of the American Revolution 5 (1967) (“Any number of people
could join in such proliferating polemics, and rebuttals could come
from all sides”); G. Wood, Creation of the American Republic
1776–1787, p. 6 (1969) (“[I]t is not surprising that the
intellectual sources of [the Americans’] Revolutionary thought were
profuse and various”). The Framers may have been unaware of certain
types of speakers or forms of communication, but that does not mean
that those speakers and media are entitled to less First Amendment
protection than those types of speakers and media that provided the
means of communicating political ideas when the Bill of Rights was
adopted. Austin interferes with
the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres , 552 U. S. 196 ,
208 (2008); see ibid. (ideas “may compete” in this
marketplace “without government interference”); McConnell,
supra , at 274 (opinion of Thomas, J.). It permits the
Government to ban the political speech of millions of associations
of citizens. See Statistics of Income 2 (5.8 million for-profit
corporations filed 2006 tax returns). Most of these are small
corporations without large amounts of wealth. See Supp. Brief for
Chamber of Commerce of the United States of America as Amicus
Curiae 1, 3 (96% of the 3 million businesses that belong to
the U. S. Chamber of Commerce have fewer than 100 employees); M.
Keightley, Congressional Research Service Report for Congress,
Business Organizational Choices: Taxation and Responses to
Legislative Changes 10 (2009) (more than 75% of corporations whose
income is taxed under federal law, see 26 U. S. C. §301, have
less than $1 million in receipts per year). This fact belies the
Government’s argument that the statute is justified on the ground
that it prevents the “distorting effects of immense aggregations of
wealth.” Austin , 494 U. S., at 660. It is not even aimed
at amassed wealth.

															   The censorship we now confront is vast in its
reach. The Government has “muffle[d] the voices that best represent
the most significant segments of the economy.” McConnell,
supra, at 257–258 (opinion of Scalia, J.). And “the electorate
[has been] deprived of information, knowledge and opinion vital to
its function.” CIO , 335 U. S., at 144 (Rutledge, J.,
concurring in result). By suppressing the speech of manifold
corporations, both for-profit and nonprofit, the Government
prevents their voices and viewpoints from reaching the public and
advising voters on which persons or entities are hostile to their
interests. Factions will necessarily form in our Republic, but the
remedy of “destroying the liberty” of some factions is “worse than
the disease.” The Federalist No. 10, p. 130 (B. Wright ed. 1961)
(J. Madison). Factions should be checked by permitting them all to
speak, see ibid. , and by entrusting the people to judge
what is true and what is false.

															   The purpose and effect of this law is to
prevent corporations, including small and nonprofit corporations,
from presenting both facts and opinions to the public. This makes Austin ’s antidistortion rationale all the more an
aberration. “[T]he First Amendment protects the right of
corporations to petition legislative and administrative bodies.” Bellotti , 435 U. S., at 792, n. 31 (citing California
Motor Transport Co. v. Trucking Unlimited , 404 U. S. 508 , 510–511
(1972); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. , 365 U. S. 127 , 137–138
(1961)). Corporate executives and employees counsel Members of
Congress and Presidential administrations on many issues, as a
matter of routine and often in private. An amici brief
filed on behalf of Montana and 25 other States notes that lobbying
and corporate communications with elected officials occur on a
regular basis. Brief for State of Montana et al. as Amici
Curiae 19. When that phenomenon is coupled with §441b, the
result is that smaller or nonprofit corporations cannot raise a
voice to object when other corporations, including those with vast
wealth, are cooperating with the Government. That cooperation may
sometimes be voluntary, or it may be at the demand of a Government
official who uses his or her authority, influence, and power to
threaten corporations to support the Government’s policies. Those
kinds of interactions are often unknown and unseen. The speech that
§441b forbids, though, is public, and all can judge its content and
purpose. References to massive corporate treasuries should not mask
the real operation of this law. Rhetoric ought not obscure
reality.

															   Even if §441b’s expenditure ban were
constitutional, wealthy corporations could still lobby elected
officials, although smaller corporations may not have the resources
to do so. And wealthy individuals and unincorporated associations
can spend unlimited amounts on independent expenditures. See, e.g., WRTL , 551 U. S., at 503–504 (opinion of
Scalia, J.) (“In the 2004 election cycle, a mere 24
individuals contributed an astounding total of $142 million to [26
U. S. C. §527 organizations]”). Yet certain disfavored
associations of citizens—those that have taken on the corporate
form—are penalized for engaging in the same political
speech.

															   When Government seeks to use its full power,
including the criminal law, to command where a person may get his
or her information or what distrusted source he or she may not
hear, it uses censorship to control thought. This is unlawful. The
First Amendment confirms the freedom to think for ourselves.

															2

															   What we have said also shows the
invalidity of other arguments made by the Government. For the most
part relinquishing the antidistortion rationale, the Government
falls back on the argument that corporate political speech can be
banned in order to prevent corruption or its appearance. In Buckley , the Court found this interest “sufficiently
important” to allow limits on contributions but did not extend that
reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, it found “that the
governmental interest in preventing corruption and the appearance
of corruption [was] inadequate to justify [the ban] on independent
expenditures.” Id. , at 45.

															   With regard to large direct
contributions, Buckley reasoned that they could be given
“to secure a political quid pro quo ,” id. , at 26,
and that “the scope of such pernicious practices can never be
reliably ascertained,” id. , at 27. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n.
28 (citing Buckley v. Valeo , 519 F. 2d 821,
839–840, and nn. 36–38 (CADC 1975) (en banc) (per
curiam) ). The Court, in consequence, has noted that
restrictions on direct contributions are preventative, because few
if any contributions to candidates will involve quid pro
quo arrangements. MCFL , 479 U. S., at 260; NCPAC , 470 U. S., at 500; Federal Election Comm’n v. National Right to Work Comm. , 459 U. S. 197 , 210
(1982) (NRWC) . The Buckley Court, nevertheless,
sustained limits on direct contributions in order to ensure against
the reality or appearance of corruption. That case did not extend
this rationale to independent expenditures, and the Court does not
do so here.

															   “The absence of prearrangement and
coordination of an expenditure with the candidate or his agent not
only undermines the value of the expenditure to the candidate, but
also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Buckley , 424 U. S., at 47; see ibid. (independent
expenditures have a “substantially diminished potential for
abuse”). Limits on independent expenditures, such as §441b, have a
chilling effect extending well beyond the Government’s interest in
preventing quid pro quo corruption. The anticorruption
interest is not sufficient to displace the speech here in question.
Indeed, 26 States do not restrict independent expenditures by
for-profit corporations. The Government does not claim that these
expenditures have corrupted the political process in those States.
See Supp. Brief for Appellee 18, n. 3; Supp. Brief for Chamber
of Commerce of the United States of America as Amicus
Curiae 8–9, n. 5.

															   A single footnote in Bellotti purported to leave open the possibility that corporate independent
expenditures could be shown to cause corruption. 435 U. S., at 788,
n. 26. For the reasons explained above, we now conclude that
independent expenditures, including those made by corporations, do
not give rise to corruption or the appearance of corruption. Dicta
in Bellotti ’s footnote suggested that “a corporation’s
right to speak on issues of general public interest implies no
comparable right in the quite different context of participation in
a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal
independent expenditure ban, 424 U. S., at 46, and a law review
student comment, Bellotti surmised that “Congress might
well be able to demonstrate the existence of a danger of real or
apparent corruption in independent expenditures by corporations to
influence candidate elections.” 435 U. S., at 788, n. 26. Buckley , however, struck down a ban on independent
expenditures to support candidates that covered corporations, 424
U. S., at 23, 39, n. 45, and explained that “the distinction
between discussion of issues and candidates and advocacy of
election or defeat of candidates may often dissolve in practical
application,” id. , at 42. Bellotti ’s dictum is
thus supported only by a law review student comment, which
misinterpreted Buckley . See Comment, The Regulation of
Union Political Activity: Majority and Minority Rights and
Remedies, 126 U. Pa. L. Rev. 386, 408 (1977) (suggesting
that “corporations and labor unions should be held to different and
more stringent standards than an individual or other associations
under a regulatory scheme for campaign financing”).

															   Seizing on this aside in Bellotti ’s
footnote, the Court in NRWC did say there is a
“sufficient” governmental interest in “ensur[ing] that substantial
aggregations of wealth amassed” by corporations would not “be used
to incur political debts from legislators who are aided by the
contributions.” 459 U. S., at 207–208 (citing Automobile
Workers, 352 U. S., at 579); see 459 U. S., at 210, and
n. 7; NCPAC, supra, at 500–501 ( NRWC suggested a governmental interest in restricting “the influence of
political war chests funneled through the corporate form”). NRWC , however, has little relevance here. NRWC decided no more than that a restriction on a corporation’s ability
to solicit funds for its segregated PAC, which made direct
contributions to candidates, did not violate the First Amendment.
459 U. S., at 206. NRWC thus involved contribution limits,
see NCPAC , supra , at 495–496, which, unlike
limits on independent expenditures, have been an accepted means to
prevent quid pro quo corruption, see McConnell ,
540 U. S., at 136–138, and n. 40; MCFL, supra, at 259–260.
Citizens United has not made direct contributions to candidates,
and it has not suggested that the Court should reconsider whether
contribution limits should be subjected to rigorous First Amendment
scrutiny.

															   When Buckley identified a
sufficiently important governmental interest in preventing
corruption or the appearance of corruption, that interest was
limited to quid pro quo corruption. See McConnell , supra , at 296–298 (opinion of Kennedy,
J.) (citing Buckley, supra, at 26–28, 30, 46–48); NCPAC, 470 U. S. , at 497 (“The hallmark of
corruption is the financial quid pro quo: dollars for
political favors”); id. , at 498. The fact that speakers
may have influence over or access to elected officials does not
mean that these officials are corrupt:

															“Favoritism and influence are not . . . avoidable
in representative politics. It is in the nature of an elected
representative to favor certain policies, and, by necessary
corollary, to favor the voters and contributors who support those
policies. It is well understood that a substantial and legitimate
reason, if not the only reason, to cast a vote for, or to make a
contribution to, one candidate over another is that the candidate
will respond by producing those political outcomes the supporter
favors. Democracy is premised on responsiveness.” McConnell , 540 U. S., at 297 (opinion of Kennedy, J.).

															Reliance on a “generic favoritism or influence
theory . . . is at odds with standard First Amendment analyses
because it is unbounded and susceptible to no limiting principle.” Id. , at 296.

															   The appearance of influence or access,
furthermore, will not cause the electorate to lose faith in our
democracy. By definition, an independent expenditure is political
speech presented to the electorate that is not coordinated with a
candidate. See Buckley , supra , at 46. The fact
that a corporation, or any other speaker, is willing to spend money
to try to persuade voters presupposes that the people have the
ultimate influence over elected officials. This is inconsistent
with any suggestion that the electorate will refuse “ ‘to take
part in democratic governance’ ” because of additional
political speech made by a corporation or any other speaker. McConnell , supra , at 144 (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 390
(2000)). Caperton v. A. T. Massey Coal
Co. , 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself
“when a person with a personal stake in a particular case had a
significant and disproportionate influence in placing the judge on
the case by raising funds or directing the judge’s election
campaign when the case was pending or imminent.” Id. , at
___ (slip op., at 14). The remedy of recusal was based on a
litigant’s due process right to a fair trial before an unbiased
judge. See Withrow v. Larkin , 421 U. S. 35 , 46 (1975). Caperton ’s holding was limited to the rule that the judge
must be recused, not that the litigant’s political speech could be
banned.

															   The McConnell record was “over
100,000 pages” long, McConnell I , 251 F. Supp. 2d, at
209, yet it “does not have any direct examples of votes being
exchanged for . . . expenditures,” id. , at 560 (opinion of
Kollar-Kotelly, J.). This confirms Buckley ’s reasoning
that independent expenditures do not lead to, or create the
appearance of, quid pro quo corruption. In fact, there is
only scant evidence that independent expenditures even ingratiate.
See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly,
J.). Ingratiation and access, in any event, are not corruption. The
BCRA record establishes that certain donations to political
parties, called “soft money,” were made to gain access to elected
officials. McConnell , supra , at 125, 130–131,
146–152; see McConnell I , 251 F. Supp. 2d, at
471–481, 491–506 (opinion of Kollar-Kotelly, J.); id. , at
842–843, 858–859 (opinion of Leon, J.). This case, however, is
about independent expenditures, not soft money. When Congress finds
that a problem exists, we must give that finding due deference; but
Congress may not choose an unconstitutional remedy. If elected
officials succumb to improper influences from independent
expenditures; if they surrender their best judgment; and if they
put expediency before principle, then surely there is cause for
concern. We must give weight to attempts by Congress to seek to
dispel either the appearance or the reality of these influences.
The remedies enacted by law, however, must comply with the First
Amendment; and, it is our law and our tradition that more speech,
not less, is the governing rule. An outright ban on corporate
political speech during the critical preelection period is not a
permissible remedy. Here Congress has created categorical bans on
speech that are asymmetrical to preventing quid pro quo corruption.

															3

															   The Government contends further
that corporate independent expenditures can be limited because of
its interest in protecting dissenting shareholders from being
compelled to fund corporate political speech. This asserted
interest, like Austin ’s antidistortion rationale, would
allow the Government to ban the political speech even of media
corporations. See supra, at 35–37. Assume, for example,
that a shareholder of a corporation that owns a newspaper disagrees
with the political views the newspaper expresses. See Austin , 494 U. S., at 687 (Scalia, J., dissenting). Under
the Government’s view, that potential disagreement could give the
Government the authority to restrict the media corporation’s
political speech. The First Amendment does not allow that power.
There is, furthermore, little evidence of abuse that cannot be
corrected by shareholders “through the procedures of corporate
democracy.” Bellotti , 435 U. S., at 794; see id. ,
at 794, n. 34.

															   Those reasons are sufficient to reject this
shareholder-protection interest; and, moreover, the statute is both
underinclusive and overinclusive. As to the first, if Congress had
been seeking to protect dissenting shareholders, it would not have
banned corporate speech in only certain media within 30 or 60 days
before an election. A dissenting shareholder’s interests would be
implicated by speech in any media at any time. As to the second,
the statute is overinclusive because it covers all corporations,
including nonprofit corporations and for-profit corporations with
only single shareholders. As to other corporations, the remedy is
not to restrict speech but to consider and explore other regulatory
mechanisms. The regulatory mechanism here, based on speech,
contravenes the First Amendment.

															4

															   We need not reach the question
whether the Government has a compelling interest in preventing
foreign individuals or associations from influencing our Nation’s
political process. Cf. 2 U. S. C. §441e (contribution and
expenditure ban applied to “foreign national[s]”). Section 441b is
not limited to corporations or associations that were created in
foreign countries or funded predominately by foreign shareholders.
Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in
limiting foreign influence over our political process. See Broadrick , 413 U. S., at 615.

															C

															   Our precedent is to be respected
unless the most convincing of reasons demonstrates that adherence
to it puts us on a course that is sure error. “Beyond workability,
the relevant factors in deciding whether to adhere to the principle
of stare decisis include the antiquity of the precedent,
the reliance interests at stake, and of course whether the decision
was well reasoned.” Montejo v. Louisiana , 556 U.
S. ___, ___ (2009) (slip op., at 13) (overruling Michigan v. Jackson , 475 U. S. 625 (1986)).
We have also examined whether “experience has pointed up the
precedent’s shortcomings.” Pearson v. Callahan ,
555 U. S. ___, ___ (2009) (slip op., at 8) (overruling Saucier v. Katz , 533 U. S. 194 (2001)).

															   These considerations counsel in
favor of rejecting Austin , which itself contravened this
Court’s earlier precedents in Buckley and Bellotti . “This Court has not hesitated to overrule
decisions offensive to the First Amendment.” WRTL , 551 U.
S., at 500 (opinion of Scalia, J.). “ [S]tare decisis is a
principle of policy and not a mechanical formula of adherence to
the latest decision.” Helvering v. Hallock , 309 U. S. 106 ,
119 (1940).

															   For the reasons above, it must be concluded
that Austin was not well reasoned. The Government defends Austin , relying almost entirely on “the quid pro quo
interest, the corruption interest or the shareholder interest,” and
not Austin ’s expressed antidistortion rationale. Tr. of
Oral Arg. 48 (Sept. 9, 2009); see id. , at 45–46. When
neither party defends the reasoning of a precedent, the principle
of adhering to that precedent through stare decisis is
diminished. Austin abandoned First Amendment principles,
furthermore, by relying on language in some of our precedents that
traces back to the Automobile Workers Court’s flawed
historical account of campaign finance laws, see Brief for Campaign
Finance Scholars as Amici Curiae; Hayward, 45 Harv. J.
Legis. 421; R. Mutch, Campaigns, Congress, and Courts 33–35,
153–157 (1988). See Austin , supra , at 659
(quoting MCFL , 479 U. S., at 257–258; NCPAC , 470
U. S., at 500–501); MCFL , supra , at 257 (quoting Automobile Workers , 352 U. S., at 585); NCPAC , supra , at 500 (quoting NRWC , 459 U. S., at 210); id., at 208 (“The history of the movement to regulate the
political contributions and expenditures of corporations and labor
unions is set forth in great detail in [Automobile
Workers] , supra , at 570–584, and we need only
summarize the development here”). Austin is undermined by experience
since its announcement. Political speech is so ingrained in our
culture that speakers find ways to circumvent campaign finance
laws. See, e.g., McConnell, 540 U. S., at 176–177
(“Given BCRA’s tighter restrictions on the raising and spending of
soft money, the incentives . . . to exploit [26 U. S. C. §527]
organizations will only increase”). Our Nation’s speech dynamic is
changing, and informative voices should not have to circumvent
onerous restrictions to exercise their First Amendment rights.
Speakers have become adept at presenting citizens with sound bites,
talking points, and scripted messages that dominate the 24-hour
news cycle. Corporations, like individuals, do not have monolithic
views. On certain topics corporations may possess valuable
expertise, leaving them the best equipped to point out errors or
fallacies in speech of all sorts, including the speech of
candidates and elected officials.

															   Rapid changes in technology—and the creative
dynamic inherent in the concept of free expression—counsel against
upholding a law that restricts political speech in certain media or
by certain speakers. See Part II–C, supra . Today,
30-second television ads may be the most effective way to convey a
political message. See McConnell, supra, at 261 (opinion
of Scalia, J.). Soon, however, it may be that Internet sources,
such as blogs and social networking Web sites, will provide
citizens with significant information about political candidates
and issues. Yet, §441b would seem to ban a blog post expressly
advocating the election or defeat of a candidate if that blog were
created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit
Congress to make these categorical distinctions based on the
corporate identity of the speaker and the content of the political
speech.

															   No serious reliance interests are at stake. As
the Court stated in Payne v. Tennessee , 501 U. S. 808 , 828
(1991), reliance interests are important considerations in property
and contract cases, where parties may have acted in conformance
with existing legal rules in order to conduct transactions. Here,
though, parties have been prevented from acting—corporations have
been banned from making independent expenditures. Legislatures may
have enacted bans on corporate expenditures believing that those
bans were constitutional. This is not a compelling interest for stare decisis . If it were, legislative acts could prevent
us from overruling our own precedents, thereby interfering with our
duty “to say what the law is.” Marbury v. Madison , 1 Cranch 137, 177 (1803).

															   Due consideration leads to this conclusion: Austin , 494 U. S. 652 , should be and now is
overruled. We return to the principle established in Buckley and Bellotti that the Government may not
suppress political speech on the basis of the speaker’s corporate
identity. No sufficient governmental interest justifies limits on
the political speech of nonprofit or for-profit corporations.

															D Austin is overruled, so
it provides no basis for allowing the Government to limit corporate
independent expenditures. As the Government appears to concede,
overruling Austin “effectively invalidate[s] not only BCRA
Section 203, but also 2 U. S. C. 441b’s prohibition on the use
of corporate treasury funds for express advocacy.” Brief for
Appellee 33, n. 12. Section 441b’s restrictions on corporate
independent expenditures are therefore invalid and cannot be
applied to Hillary .

															   Given our conclusion we are
further required to overrule the part of McConnell that
upheld BCRA §203’s extension of §441b’s restrictions on corporate
independent expenditures. See 540 U. S., at 203–209. The McConnell Court relied on the antidistortion interest
recognized in Austin to uphold a greater restriction on
speech than the restriction upheld in Austin , see 540 U.
S., at 205, and we have found this interest unconvincing and
insufficient. This part of McConnell is now overruled.

															IV

															A

															   Citizens United next challenges
BCRA’s disclaimer and disclosure provisions as applied to Hillary and the three advertisements for the movie. Under
BCRA §311, televised electioneering communications funded by anyone
other than a candidate must include a disclaimer that
“ ‘_______ is responsible for the content of this
advertising.’ ” 2 U. S. C. §441d(d)(2). The required statement
must be made in a “clearly spoken manner,” and displayed on the
screen in a “clearly readable manner” for at least four seconds. Ibid. It must state that the communication “is not
authorized by any candidate or candidate’s committee”; it must also
display the name and address (or Web site address) of the person or
group that funded the advertisement. §441d(a)(3). Under BCRA §201,
any person who spends more than $10,000 on electioneering
communications within a calendar year must file a disclosure
statement with the FEC. 2 U. S. C. §434(f)(1). That statement must
identify the person making the expenditure, the amount of the
expenditure, the election to which the communication was directed,
and the names of certain contributors. §434(f)(2).

															   Disclaimer and disclosure
requirements may burden the ability to speak, but they “impose no
ceiling on campaign-related activities,” Buckley, 424 U.
S., at 64, and “do not prevent anyone from speaking,” McConnell, supra , at 201 (internal quotation marks and
brackets omitted). The Court has subjected these requirements to
“exacting scrutiny,” which requires a “substantial relation”
between the disclosure requirement and a “sufficiently important”
governmental interest. Buckley, supra, at 64, 66 (internal
quotation marks omitted); see McConnell, supra, at
231–232.

															   In Buckley , the Court explained that
disclosure could be justified based on a governmental interest in
“provid[ing] the electorate with information” about the sources of
election-related spending. 424 U. S., at 66. The McConnell Court applied this interest in rejecting facial challenges to BCRA
§§201 and 311. 540 U. S., at 196. There was evidence in the record
that independent groups were running election-related
advertisements “ ‘while hiding behind dubious and misleading
names.’ ” Id. , at 197 (quoting McConnell I ,
251 F. Supp. 2d, at 237). The Court therefore upheld BCRA
§§201 and 311 on the ground that they would help citizens
“ ‘make informed choices in the political marketplace.’ ”
540 U. S., at 197 (quoting McConnell I, supra, at 237);
see 540 U. S., at 231.

															   Although both provisions were facially upheld,
the Court acknowledged that as-applied challenges would be
available if a group could show a “ ‘reasonable
probability’ ” that disclosure of its contributors’ names
“ ‘will subject them to threats, harassment, or reprisals from
either Government officials or private parties.’ ” Id. , at 198 (quoting Buckley, supra, at 74).

															   For the reasons stated below, we find the
statute valid as applied to the ads for the movie and to the movie
itself.

															B

															   Citizens United sought to
broadcast one 30-second and two 10-second ads to promote Hillary . Under FEC regulations, a communication that
“[p]roposes a commercial transaction” was not subject to 2 U.
S. C. §441b’s restrictions on corporate or union funding of
electioneering communications. 11 CFR §114.15(b)(3)(ii). The
regulations, however, do not exempt those communications from the
disclaimer and disclosure requirements in BCRA §§201 and 311. See
72 Fed. Reg. 72901 (2007).

															   Citizens United argues that the
disclaimer requirements in §311 are unconstitutional as applied to
its ads. It contends that the governmental interest in providing
information to the electorate does not justify requiring
disclaimers for any commercial advertisements, including the ones
at issue here. We disagree. The ads fall within BCRA’s definition
of an “electioneering communication”: They referred to then-Senator
Clinton by name shortly before a primary and contained pejorative
references to her candidacy. See 530 F. Supp. 2d, at 276, nn. 2–4.
The disclaimers required by §311 “provid[e] the electorate with
information,” McConnell, supra , at 196, and “insure that
the voters are fully informed” about the person or group who is
speaking, Buckley, supra, at 76; see also Bellotti , 435 U. S., at 792, n. 32 (“Identification of the
source of advertising may be required as a means of disclosure, so
that the people will be able to evaluate the arguments to which
they are being subjected”). At the very least, the disclaimers
avoid confusion by making clear that the ads are not funded by a
candidate or political party.

															   Citizens United argues that §311 is
underinclusive because it requires disclaimers for broadcast
advertisements but not for print or Internet advertising. It
asserts that §311 decreases both the quantity and effectiveness of
the group’s speech by forcing it to devote four seconds of each
advertisement to the spoken disclaimer. We rejected these arguments
in McConnell, supra, at 230–231. And we now adhere to that
decision as it pertains to the disclosure provisions.

															   As a final point, Citizens United claims that,
in any event, the disclosure requirements in §201 must be confined
to speech that is the functional equivalent of express advocacy.
The principal opinion in WRTL limited 2 U. S. C.
§441b’s restrictions on independent expenditures to express
advocacy and its functional equivalent. 551 U. S., at 469–476
(opinion of Roberts, C. J.). Citizens United seeks to import a
similar distinction into BCRA’s disclosure requirements. We reject
this contention.

															   The Court has explained that disclosure is a
less restrictive alternative to more comprehensive regulations of
speech. See, e.g., MCFL , 479 U. S., at 262. In Buckley , the Court upheld a disclosure requirement for
independent expenditures even though it invalidated a provision
that imposed a ceiling on those expenditures. 424 U. S., at 75–76.
In McConnell , three Justices who would have found §441b to
be unconstitutional nonetheless voted to uphold BCRA’s disclosure
and disclaimer requirements. 540 U. S., at 321 (opinion of Kennedy,
J., joined by Rehnquist, C. J., and Scalia, J.). And the Court
has upheld registration and disclosure requirements on lobbyists,
even though Congress has no power to ban lobbying itself. United States v. Harriss , 347 U. S. 612 , 625
(1954) (Congress “has merely provided for a modicum of information
from those who for hire attempt to influence legislation or who
collect or spend funds for that purpose”). For these reasons, we
reject Citizens United’s contention that the disclosure
requirements must be limited to speech that is the functional
equivalent of express advocacy.

															   Citizens United also disputes that an
informational interest justifies the application of §201 to its
ads, which only attempt to persuade viewers to see the film. Even
if it disclosed the funding sources for the ads, Citizens United
says, the information would not help viewers make informed choices
in the political marketplace. This is similar to the argument
rejected above with respect to disclaimers. Even if the ads only
pertain to a commercial transaction, the public has an interest in
knowing who is speaking about a candidate shortly before an
election. Because the informational interest alone is sufficient to
justify application of §201 to these ads, it is not necessary to
consider the Government’s other asserted interests.

															   Last, Citizens United argues that disclosure
requirements can chill donations to an organization by exposing
donors to retaliation. Some amici point to recent events
in which donors to certain causes were blacklisted, threatened, or
otherwise targeted for retaliation. See Brief for Institute for
Justice as Amicus Curiae 13–16; Brief for Alliance Defense
Fund as Amicus Curiae 16–22. In McConnell , the
Court recognized that §201 would be unconstitutional as applied to
an organization if there were a reasonable probability that the
group’s members would face threats, harassment, or reprisals if
their names were disclosed. 540 U. S., at 198. The examples cited
by amici are cause for concern. Citizens United, however,
has offered no evidence that its members may face similar threats
or reprisals. To the contrary, Citizens United has been disclosing
its donors for years and has identified no instance of harassment
or retaliation.

															   Shareholder objections raised through the
procedures of corporate democracy, see Bellotti , supra , at 794, and n. 34, can be more effective today
because modern technology makes disclosures rapid and informative.
A campaign finance system that pairs corporate independent
expenditures with effective disclosure has not existed before
today. It must be noted, furthermore, that many of Congress’
findings in passing BCRA were premised on a system without adequate
disclosure. See McConnell , 540 U. S., at 128 (“[T]he
public may not have been fully informed about the sponsorship of
so-called issue ads”); id. , at 196–197 (quoting McConnell I , 251 F. Supp. 2d, at 237). With the
advent of the Internet, prompt disclosure of expenditures can
provide shareholders and citizens with the information needed to
hold corporations and elected officials accountable for their
positions and supporters. Shareholders can determine whether their
corporation’s political speech advances the corporation’s interest
in making profits, and citizens can see whether elected officials
are “ ‘in the pocket’ of so-called moneyed interests.” 540 U.
S., at 259 (opinion of Scalia, J.); see MCFL , supra , at 261. The First Amendment protects political
speech; and disclosure permits citizens and shareholders to react
to the speech of corporate entities in a proper way. This
transparency enables the electorate to make informed decisions and
give proper weight to different speakers and messages.

															C

															   For the same reasons we uphold
the application of BCRA §§201 and 311 to the ads, we affirm their
application to Hillary . We find no constitutional
impediment to the application of BCRA’s disclaimer and disclosure
requirements to a movie broadcast via video-on-demand. And there
has been no showing that, as applied in this case, these
requirements would impose a chill on speech or expression.

															V

															   When word concerning the plot of
the movie Mr. Smith Goes to Washington reached the circles
of Government, some officials sought, by persuasion, to discourage
its distribution. See Smoodin, “Compulsory” Viewing for Every
Citizen: Mr. Smith and the Rhetoric of Reception, 35
Cinema Journal 3, 19, and n. 52 (Winter 1996) (citing Mr. Smith
Riles Washington, Time, Oct. 30, 1939, p. 49); Nugent, Capra’s
Capitol Offense, N. Y. Times, Oct. 29, 1939, p. X5. Under Austin , though, officials could have done more than
discourage its distribution—they could have banned the film. After
all, it, like Hillary, was speech funded by a corporation
that was critical of Members of Congress. Mr. Smith Goes to
Washington may be fiction and caricature; but fiction and
caricature can be a powerful force.

															   Modern day movies, television
comedies, or skits on Youtube.com might portray public officials or
public policies in unflattering ways. Yet if a covered transmission
during the blackout period creates the background for candidate
endorsement or opposition, a felony occurs solely because a
corporation, other than an exempt media corporation, has made the
“purchase, payment, distribution, loan, advance, deposit, or gift
of money or anything of value” in order to engage in political
speech. 2 U. S. C. §431(9)(A)(i). Speech would be suppressed
in the realm where its necessity is most evident: in the public
dialogue preceding a real election. Governments are often hostile
to speech, but under our law and our tradition it seems stranger
than fiction for our Government to make this political speech a
crime. Yet this is the statute’s purpose and design.

															   Some members of the public might consider Hillary to be insightful and instructive; some might find
it to be neither high art nor a fair discussion on how to set the
Nation’s course; still others simply might suspend judgment on
these points but decide to think more about issues and candidates.
Those choices and assessments, however, are not for the Government
to make. “The First Amendment underwrites the freedom to experiment
and to create in the realm of thought and speech. Citizens must be
free to use new forms, and new forums, for the expression of ideas.
The civic discourse belongs to the people, and the Government may
not prescribe the means used to conduct it.” McConnell , supra , at 341 (opinion of Kennedy,
J.).

															   The judgment of the District Court is reversed
with respect to the constitutionality of 2 U. S. C. §441b’s
restrictions on corporate independent expenditures. The judgment is
affirmed with respect to BCRA’s disclaimer and disclosure
requirements. The case is remanded for further proceedings
consistent with this opinion.

															It is so ordered. SCALIA, J., CONCURRING CITIZENS UNITED V. FEDERAL ELECTION COMM'N 558 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-205 CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION

															on appeal from the united states district court for
the district of columbia

															[January 21, 2010]

															   Justice Scalia, with whom Justice
Alito joins, and with whom Justice Thomas joins in part,
concurring.

															   I join the opinion of the
Court.[ Footnote 1 ]

															   I write separately to address Justice Stevens’
discussion of “ Original Understandings ,” post , at
34 (opinion concurring in part and dissenting in part) (hereinafter
referred to as the dissent). This section of the dissent purports
to show that today’s decision is not supported by the original
understanding of the First Amendment. The dissent attempts this
demonstration, however, in splendid isolation from the text of the
First Amendment. It never shows why “the freedom of speech” that
was the right of Englishmen did not include the freedom to speak in
association with other individuals, including association in the
corporate form. To be sure, in 1791 (as now) corporations could
pursue only the objectives set forth in their charters; but the
dissent provides no evidence that their speech in the pursuit of
those objectives could be censored.

															   Instead of taking this straightforward
approach to determining the Amendment’s meaning, the dissent
embarks on a detailed exploration of the Framers’ views about the
“role of corporations in society.” Post, at 35. The
Framers didn’t like corporations, the dissent concludes, and
therefore it follows (as night the day) that corporations had no
rights of free speech. Of course the Framers’ personal affection or
disaffection for corporations is relevant only insofar as it can be
thought to be reflected in the understood meaning of the text they
enacted—not, as the dissent suggests, as a freestanding substitute
for that text. But the dissent’s distortion of proper analysis is
even worse than that. Though faced with a constitutional text that
makes no distinction between types of speakers, the dissent feels
no necessity to provide even an isolated statement from the
founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward
statements showing that they are (“there is not a
scintilla of evidence to support the notion that anyone believed
[the First Amendment] would preclude regulatory distinctions based
on the corporate form,” post, at 34–35).

															   Despite the corporation-hating quotations the
dissent has dredged up, it is far from clear that by the end of the
18th century corporations were despised. If so, how came there to
be so many of them? The dissent’s statement that there were few
business corporations during the eighteenth century—“only a few
hundred during all of the 18th century”—is misleading. Post, at 35, n. 53. There were approximately 335 charters
issued to business corporations in the United States by the end of
the 18th century.[ Footnote 2 ]
See 2 J. Davis, Essays in the Earlier History of American
Corporations 24 (1917) (reprint 2006) (hereinafter Davis). This was
a “considerable extension of corporate enterprise in the field of
business,” Davis 8, and represented “unprecedented growth,” id. , at 309. Moreover, what seems like a small number by
today’s standards surely does not indicate the relative importance
of corporations when the Nation was considerably smaller. As I have
previously noted, “[b]y the end of the eighteenth century the
corporation was a familiar figure in American economic life.” McConnell v. Federal Election Comm’n , 540 U. S. 93 , 256 (2003)
(Scalia, J., concurring in part, concurring in judgment in part,
and dissenting in part) (quoting C. Cooke, Corporation Trust and
Company 92 (1951) (hereinafter Cooke)).

															   Even if we thought it proper to apply the
dissent’s approach of excluding from First Amendment coverage what
the Founders disliked, and even if we agreed that the Founders
disliked founding-era corporations; modern corporations might not
qualify for exclusion. Most of the Founders’ resentment towards
corporations was directed at the state-granted monopoly privileges
that individually chartered corporations enjoyed.[ Footnote 3 ] Modern corporations do not have
such privileges, and would probably have been favored by most of
our enterprising Founders—excluding, perhaps, Thomas Jefferson and
others favoring perpetuation of an agrarian society. Moreover, if
the Founders’ specific intent with respect to corporations is what
matters, why does the dissent ignore the Founders’ views about
other legal entities that have more in common with modern business
corporations than the founding-era corporations? At the time of the
founding, religious, educational, and literary corporations were
incorporated under general incorporation statutes, much as business
corporations are today.[ Footnote
4 ] See Davis 16–17; R. Seavoy, Origins of the American Business
Corporation, 1784–1855, p. 5 (1982); Cooke 94. There were also
small unincorporated business associations, which some have argued
were the “ ‘true progenitors’ ” of today’s business
corporations. Friedman 200 (quoting S. Livermore, Early American
Land Companies: Their Influence on Corporate Development 216
(1939)); see also Davis 33. Were all of these silently excluded
from the protections of the First Amendment?

															   The lack of a textual exception for speech by
corporations cannot be explained on the ground that such
organizations did not exist or did not speak. To the contrary,
colleges, towns and cities, religious institutions, and guilds had
long been organized as corporations at common law and under the
King’s charter, see 1 W. Blackstone, Commentaries on the Laws of
England 455–473 (1765); 1 S. Kyd, A Treatise on the Law of
Corporations 1–32, 63 (1793) (reprinted 2006), and as I have
discussed, the practice of incorporation only expanded in the
United States. Both corporations and voluntary associations
actively petitioned the Government and expressed their views in
newspapers and pamphlets. For example: An antislavery Quaker
corporation petitioned the First Congress, distributed pamphlets,
and communicated through the press in 1790. W. diGiacomantonio,
“For the Gratification of a Volunteering Society”: Antislavery and
Pressure Group Politics in the First Federal Congress, 15 J. Early
Republic 169 (1995). The New York Sons of Liberty sent a circular
to colonies farther south in 1766. P. Maier, From Resistance to
Revolution 79–80 (1972). And the Society for the Relief and
Instruction of Poor Germans circulated a biweekly paper from 1755
to 1757. Adams, The Colonial German-language Press and the American
Revolution, in The Press & the American Revolution 151, 161–162
(B. Bailyn & J. Hench eds. 1980). The dissent offers no
evidence—none whatever—that the First Amendment’s unqualified text
was originally understood to exclude such associational speech from
its protection.[ Footnote 5 ]

															   Historical evidence relating to the textually
similar clause “the freedom of . . . the press” also provides no
support for the proposition that the First Amendment excludes
conduct of artificial legal entities from the scope of its
protection. The freedom of “the press” was widely understood to
protect the publishing activities of individual editors and
printers. See McIntyre v. Ohio Elections Comm’n , 514 U. S. 334 ,
360 (1995) (Thomas, J., concurring in judgment); see also McConnell, 540 U. S. , at 252–253 (opinion of
Scalia, J.). But these individuals often acted through newspapers,
which (much like corporations) had their own names, outlived the
individuals who had founded them, could be bought and sold, were
sometimes owned by more than one person, and were operated for
profit. See generally F. Mott, American Journalism: A History of
Newspapers in the United States Through 250 Years 3–164 (1941); J.
Smith, Freedom’s Fetters (1956). Their activities were not stripped
of First Amendment protection simply because they were carried out
under the banner of an artificial legal entity. And the notion
which follows from the dissent’s view, that modern newspapers,
since they are incorporated, have free-speech rights only at the
sufferance of Congress, boggles the mind.[ Footnote 6 ]

															   In passing, the dissent also claims that the
Court’s conception of corruption is unhistorical. The Framers
“would have been appalled,” it says, by the evidence of corruption
in the congressional findings supporting the Bipartisan Campaign
Reform Act of 2002. Post , at 61. For this proposition, the
dissent cites a law review article arguing that “corruption” was
originally understood to include “moral decay” and even actions
taken by citizens in pursuit of private rather than public ends.
Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev.
341, 373, 378 (2009). It is hard to see how this has anything to do
with what sort of corruption can be combated by restrictions on
political speech. Moreover, if speech can be prohibited because, in
the view of the Government, it leads to “moral decay” or does not
serve “public ends,” then there is no limit to the Government’s
censorship power.

															   The dissent says that when the Framers
“constitutionalized the right to free speech in the First
Amendment, it was the free speech of individual Americans that they
had in mind.” Post, at 37. That is no doubt true. All the
provisions of the Bill of Rights set forth the rights of individual
men and women—not, for example, of trees or polar bears. But the
individual person’s right to speak includes the right to speak in association with other individual persons . Surely the
dissent does not believe that speech by the Republican Party or the
Democratic Party can be censored because it is not the speech of
“an individual American.” It is the speech of many individual
Americans, who have associated in a common cause, giving the
leadership of the party the right to speak on their behalf. The
association of individuals in a business corporation is no
different—or at least it cannot be denied the right to speak on the
simplistic ground that it is not “an individual American.”[ Footnote 7 ]

															   But to return to, and summarize, my principal
point, which is the conformity of today’s opinion with the original
meaning of the First Amendment. The Amendment is written in terms
of “speech,” not speakers. Its text offers no foothold for
excluding any category of speaker, from single individuals to
partnerships of individuals, to unincorporated associations of
individuals, to incorporated associations of individuals—and the
dissent offers no evidence about the original meaning of the text
to support any such exclusion. We are therefore simply left with
the question whether the speech at issue in this case is “speech”
covered by the First Amendment. No one says otherwise. A
documentary film critical of a potential Presidential candidate is
core political speech, and its nature as such does not change
simply because it was funded by a corporation. Nor does the
character of that funding produce any reduction whatever in the
“inherent worth of the speech” and “its capacity for informing the
public,” First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , 777 (1978). Indeed, to
exclude or impede corporate speech is to muzzle the principal
agents of the modern free economy. We should celebrate rather than
condemn the addition of this speech to the public debate. Footnote 1 Justice Thomas does not join Part IV of the
Court’s opinion. Footnote 2 The dissent protests that 1791 rather than
1800 should be the relevant date, and that “[m]ore than half of the
century’s total business charters were issued between 1796 and
1800.” Post , at 35, n. 53. I used 1800 only because the
dissent did. But in any case, it is surely fanciful to think that a
consensus of hostility towards corporations was transformed into
general favor at some magical moment between 1791 and 1796. Footnote 3 “[P]eople in 1800 identified corporations
with franchised monopolies.” L. Friedman, A History of American Law
194 (2d ed. 1985) (hereinafter Friedman). “The chief cause for the
changed popular attitude towards business corporations that marked
the opening of the nineteenth century was the elimination of their
inherent monopolistic character. This was accomplished primarily by
an extension of the principle of free incorporation under general
laws.” 1 W. Fletcher, Cyclopedia of the Law of Corporations §2,
p. 8 (rev. ed. 2006). Footnote 4 At times (though not always) the dissent
seems to exclude such non-“business corporations” from its denial
of free speech rights. See post , at 37. Finding in a
seemingly categorical text a distinction between the rights of
business corporations and the rights of non-business corporations
is even more imaginative than finding a distinction between the
rights of all corporations and the rights of other
associations. Footnote 5 The best the dissent can come up with is that
“[p]ostratification practice” supports its reading of the First
Amendment. Post , at 40, n. 56. For this proposition,
the dissent cites Justice White’s statement (in dissent) that
“[t]he common law was generally interpreted as prohibiting
corporate political participation,” First Nat. Bank of
Boston v. Bellotti , 435 U. S. 765 , 819 (1978). The sole
authority Justice White cited for this proposition, id. ,
at 819, n. 14, was a law-review note that made no such claim.
To the contrary, it stated that the cases dealing with the
propriety of corporate political expenditures were “few.” Note,
Corporate Political Affairs Programs, 70 Yale L. J. 821, 852
(1961). More specifically, the note cites only two holdings to that
effect, one by a Federal District Court, and one by the Supreme
Court of Montana. Id. , at 852, n. 197. Of course even if
the common law was “generally interpreted” to prohibit corporate
political expenditures as ultra vires, that would have nothing to
do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be
suppressed.

															As additional “[p]ostratification practice,” the dissent notes
that the Court “did not recognize any First Amendment
protections for corporations until the middle part of the 20th
century.” Post , at 40, n. 56. But it did that in Grosjean v. American Press Co. , 297 U. S. 233 (1936), a
case involving freedom of the press—which the dissent acknowledges did cover corporations from the outset. The relative
recency of that first case is unsurprising. All of our First
Amendment jurisprudence was slow to develop. We did not consider
application of the First Amendment to speech restrictions other
than prior restraints until 1919, see Schenck v. United States , 249 U. S. 47 (1919); we
did not invalidate a state law on First Amendment grounds until
1931, see Stromberg v. California , 283 U. S. 359 (1931),
and a federal law until 1965, see Lamont v. Postmaster
General , 381 U.
S. 301 (1965). Footnote 6 The dissent seeks to avoid this conclusion
(and to turn a liability into an asset) by interpreting the Freedom
of the Press Clause to refer to the institutional press (thus
demonstrating, according to the dissent, that the Founders “did
draw distinctions—explicit distinctions—between types of
‘speakers,’ or speech outlets or forms ”). Post , at
40 and n. 57. It is passing strange to interpret the phrase “the
freedom of speech, or of the press” to mean, not everyone’s right
to speak or publish, but rather everyone’s right to speak or the
institutional press’s right to publish. No one thought that is what
it meant. Patriot Noah Webster’s 1828 dictionary contains, under
the word “press,” the following entry:

															   “ Liberty of the press , in civil
policy, is the free right of publishing books, pamphlets, or papers
without previous restraint; or the unrestrained right which every
citizen enjoys of publishing his thoughts and opinions, subject
only to punishment for publishing what is pernicious to morals or
to the peace of the state.” 2 American Dictionary of the English
Language (1828) (reprinted 1970).

															   As the Court’s opinion describes, ante , at 36, our jurisprudence agrees with Noah Webster
and contradicts the dissent.

															   “The liberty of the press is not confined to
newspapers and periodicals. It necessarily embraces pamphlets and
leaflets. . . . The press in its historical connotation comprehends
every sort of publication which affords a vehicle of information
and opinion.” Lovell v. City of Griffin , 303 U. S. 444 , 452
(1938). Footnote 7 The dissent says that “ ‘speech’ ”
refers to oral communications of human beings, and since
corporations are not human beings they cannot speak. Post ,
at 37, n. 55. This is sophistry. The authorized spokesman of a
corporation is a human being, who speaks on behalf of the human
beings who have formed that association—just as the spokesman of an
unincorporated association speaks on behalf of its members. The
power to publish thoughts, no less than the power to speak
thoughts, belongs only to human beings, but the dissent sees no
problem with a corporation’s enjoying the freedom of the press.

															   The same footnote asserts that “it has been
‘claimed that the notion of institutional speech . . . did not
exist in post-revolutionary America.’ ” This is quoted from a
law-review article by a Bigelow Fellow at the University of Chicago
(Fagundes, State Actors as First Amendment Speakers, 100 Nw. U.
L. Rev. 1637, 1654 (2006)), which offers as the sole support
for its statement a treatise dealing with government speech, M.
Yudof, When Government Speaks 42–50 (1983). The cited pages of that
treatise provide no support whatever for the statement—unless, as
seems overwhelmingly likely, the “institutional speech” referred to
was speech by the subject of the law-review article, governmental
institutions.

															   The other authority cited in the footnote, a
law-review article by a professor at Washington and Lee Law School,
Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775
(1995), in fact contradicts the dissent, in that it would accord
free-speech protection to associations. ROBERTS, C. J., CONCURRING CITIZENS UNITED V. FEDERAL ELECTION COMM'N 558 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-205 CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION

															on appeal from the united states district court for
the district of columbia

															[January 21, 2010]

															   Chief Justice Roberts, with whom
Justice Alito joins, concurring.

															   The Government urges us in this
case to uphold a direct prohibition on political speech. It asks us
to embrace a theory of the First Amendment that would allow
censorship not only of television and radio broadcasts, but of
pamphlets, posters, the Internet, and virtually any other medium
that corporations and unions might find useful in expressing their
views on matters of public concern. Its theory, if accepted, would
empower the Government to prohibit newspapers from running
editorials or opinion pieces supporting or opposing candidates for
office, so long as the newspapers were owned by corporations—as the
major ones are. First Amendment rights could be confined to
individuals, subverting the vibrant public discourse that is at the
foundation of our democracy.

															   The Court properly rejects that theory, and I
join its opinion in full. The First Amendment protects more than
just the individual on a soapbox and the lonely pamphleteer. I write separately to address the important principles
of judicial restraint and stare decisis implicated in this
case. I Judging the
constitutionality of an Act of Congress is “the gravest and most
delicate duty that this Court is called upon to perform.” Blodgett v. Holden , 275 U. S. 142 , 147–148
(1927) (Holmes, J., concurring). Because the stakes are so high,
our standard practice is to refrain from addressing constitutional
questions except when necessary to rule on particular claims before
us. See Ashwander v. TVA , 297 U. S. 288 , 346–348
(1936) (Brandeis, J., concurring). This policy underlies both our
willingness to construe ambiguous statutes to avoid constitutional
problems and our practice “ ‘never to formulate a rule of
constitutional law broader than is required by the precise facts to
which it is to be applied.’ ” United States v. Raines , 362
U. S. 17 , 21 (1960) (quoting Liverpool, New York &
Philadelphia S. S. Co. v. Commissioners of
Emigration , 113
U. S. 33 , 39 (1885)). The majority and
dissent are united in expressing allegiance to these principles. Ante , at 12; post , at 14 (Stevens, J.,
concurring in part and dissenting in part). But I cannot agree with
my dissenting colleagues on how these principles apply in this
case. The majority’s step-by-step
analysis accords with our standard practice of avoiding broad
constitutional questions except when necessary to decide the case
before us. The majority begins by addressing—and quite properly
rejecting—Citizens United’s statutory claim that 2 U. S. C.
§441b does not actually cover its production and distribution of Hillary: The Movie (hereinafter Hillary ). If
there were a valid basis for deciding this statutory claim in
Citizens United’s favor (and thereby avoiding constitutional
adjudication), it would be proper to do so. Indeed, that is
precisely the approach the Court took just last Term in Northwest Austin Municipal Util. Dist. No. One v. Holder , 557 U. S. ___ (2009), when eight Members of the
Court agreed to decide the case on statutory grounds instead of
reaching the appellant’s broader argument that the Voting Rights
Act is unconstitutional. It is only because the majority
rejects Citizens United’s statutory claim that it proceeds to
consider the group’s various constitutional arguments, beginning
with its narrowest claim (that Hillary is not the
functional equivalent of express advocacy) and proceeding to its
broadest claim (that Austin v. Michigan Chamber of
Commerce , 494
U. S. 652 (1990) should be overruled). This is the same order
of operations followed by the controlling opinion in Federal
Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449 (2007) ( WRTL ). There the appellant was able to prevail on
its narrowest constitutional argument because its broadcast ads did
not qualify as the functional equivalent of express advocacy; there
was thus no need to go on to address the broader claim that McConnell v. Federal Election Comm’n , 540 U. S. 93 (2003),
should be overruled. WRTL , 551 U. S., at 482; id ., at 482–483 (Alito, J., concurring). This case is
different—not, as the dissent suggests, because the approach taken
in WRTL has been deemed a “failure,” post , at 11,
but because, in the absence of any valid narrower ground of
decision, there is no way to avoid Citizens United’s broader
constitutional argument. The dissent advocates an approach
to addressing Citizens United’s claims that I find quite
perplexing. It presumably agrees with the majority that Citizens
United’s narrower statutory and constitutional arguments lack
merit—otherwise its conclusion that the group should lose this case
would make no sense. Despite agreeing that these narrower arguments
fail, however, the dissent argues that the majority should
nonetheless latch on to one of them in order to avoid reaching the
broader constitutional question of whether Austin remains
good law. It even suggests that the Court’s failure to adopt one of
these concededly meritless arguments is a sign that the majority is
not “serious about judicial restraint.” Post , at
16. This approach is based on a false
premise: that our practice of avoiding unnecessary (and
unnecessarily broad) constitutional holdings somehow trumps our
obligation faithfully to interpret the law. It should go without
saying, however, that we cannot embrace a narrow ground of decision
simply because it is narrow; it must also be right. Thus while it
is true that “[i]f it is not necessary to decide more, it is
necessary not to decide more,” post , at 14 (internal
quotation marks omitted), sometimes it is necessary to
decide more. There is a difference between judicial restraint and
judicial abdication. When constitutional questions are
“indispensably necessary” to resolving the case at hand, “the court
must meet and decide them.” Ex parte Randolph , 20
F. Cas. 242, 254 (No. 11, 558) (CC Va. 1833) (Marshall,
C. J.). Because it is necessary to reach
Citizens United’s broader argument that Austin should be
overruled, the debate over whether to consider this claim on an
as-applied or facial basis strikes me as largely beside the point.
Citizens United has standing—it is being injured by the
Government’s enforcement of the Act. Citizens United has a
constitutional claim—the Act violates the First Amendment, because
it prohibits political speech. The Government has a defense—the Act
may be enforced, consistent with the First Amendment, against
corporations. Whether the claim or the defense prevails is the
question before us. Given the nature of that claim and
defense, it makes no difference of any substance whether this case
is resolved by invalidating the statute on its face or only as
applied to Citizens United. Even if considered in as-applied terms,
a holding in this case that the Act may not be applied to Citizens
United—because corporations as well as individuals enjoy the
pertinent First Amendment rights—would mean that any other
corporation raising the same challenge would also win. Likewise, a
conclusion that the Act may be applied to Citizens United—because
it is constitutional to prohibit corporate political speech—would
similarly govern future cases. Regardless whether we label Citizens
United’s claim a “facial” or “as-applied” challenge, the
consequences of the Court’s decision are the same.[ Footnote 1 ] II The text and purpose
of the First Amendment point in the same direction: Congress may
not prohibit political speech, even if the speaker is a corporation
or union. What makes this case difficult is the need to confront
our prior decision in Austin . This is the first
case in which we have been asked to overrule Austin , and
thus it is also the first in which we have had reason to consider
how much weight to give stare decisis in assessing its
continued validity. The dissent erroneously declares that the Court
“reaffirmed” Austin ’s holding in subsequent cases—namely, Federal Election Comm’n v. Beaumont , 539 U. S. 146 (2003); McConnell ; and WRTL . Post , at 48–50. Not
so. Not a single party in any of those cases asked us to overrule Austin , and as the dissent points out, post , at
4–6, the Court generally does not consider constitutional arguments
that have not properly been raised. Austin ’s validity was
therefore not directly at issue in the cases the dissent cites. The
Court’s unwillingness to overturn Austin in those cases
cannot be understood as a reaffirmation of that
decision. A Fidelity to
precedent—the policy of stare decisis —is vital to the
proper exercise of the judicial function. “ Stare decisis is the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process.” Payne v. Tennessee , 501 U. S. 808 , 827
(1991). For these reasons, we have long recognized that departures
from precedent are inappropriate in the absence of a “special
justification.” Arizona v. Rumsey , 467 U. S. 203 , 212
(1984). At the same time, stare decisis is neither an “inexorable command,” Lawrence v. Texas , 539 U. S. 558 , 577
(2003), nor “a mechanical formula of adherence to the latest
decision,” Helvering v. Hallock , 309 U. S. 106 , 119
(1940), especially in constitutional cases, see United
States v. Scott , 437 U. S. 82 , 101 (1978).
If it were, segregation would be legal, minimum wage laws would be
unconstitutional, and the Government could wiretap ordinary
criminal suspects without first obtaining warrants. See Plessy v. Ferguson , 163 U. S. 537 (1896),
overruled by Brown v. Board of Education , 347 U. S. 483 (1954); Adkins v. Children’s Hospital of D. C. , 261 U. S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish , 300 U. S. 379 (1937); Olmstead v. United States , 277 U. S. 438 (1928),
overruled by Katz v. United States , 389 U. S. 347 (1967). As
the dissent properly notes, none of us has viewed stare
decisis in such absolute terms. Post , at 17; see
also, e.g. , Randall v. Sorrell , 548 U. S. 230 , 274–281
(2006) (Stevens, J., dissenting) (urging the Court to overrule its
invalidation of limits on independent expenditures on political
speech in Buckley v. Valeo , 424 U. S. 1 (1976)
( per curiam )). Stare decisis is instead
a “principle of policy.” Helvering , supra , at
119. When considering whether to reexamine a prior erroneous
holding, we must balance the importance of having constitutional
questions decided against the importance of having them decided right . As Justice Jackson explained, this requires
a “sober appraisal of the disadvantages of the innovation as well
as those of the questioned case, a weighing of practical effects of
one against the other.” Jackson, Decisional Law and Stare
Decisis , 30 A. B. A. J. 334 (1944). In conducting this balancing, we
must keep in mind that stare decisis is not an end in
itself. It is instead “the means by which we ensure that the law
will not merely change erratically, but will develop in a
principled and intelligible fashion.” Vasquez v. Hillery , 474 U. S. 254 , 265
(1986). Its greatest purpose is to serve a constitutional ideal—the
rule of law. It follows that in the unusual circumstance when
fidelity to any particular precedent does more to damage this
constitutional ideal than to advance it, we must be more willing to
depart from that precedent. Thus, for example, if the
precedent under consideration itself departed from the Court’s
jurisprudence, returning to the “ ‘intrinsically sounder’ doctrine
established in prior cases” may “better serv[e] the values of stare decisis than would following [the] more recently
decided case inconsistent with the decisions that came before it.” Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 ,
231 (1995); see also Helvering , supra , at 119; Randall , supra , at 274 (Stevens, J., dissenting).
Abrogating the errant precedent, rather than reaffirming or
extending it, might better preserve the law’s coherence and curtail
the precedent’s disruptive effects. Likewise, if adherence to a
precedent actually impedes the stable and orderly adjudication of
future cases, its stare decisis effect is also diminished.
This can happen in a number of circumstances, such as when the
precedent’s validity is so hotly contested that it cannot reliably
function as a basis for decision in future cases, when its
rationale threatens to upend our settled jurisprudence in related
areas of law, and when the precedent’s underlying reasoning has
become so discredited that the Court cannot keep the precedent
alive without jury-rigging new and different justifications to
shore up the original mistake. See, e.g., Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 10); Montejo v. Louisiana, 556 U. S. ___, ___ (2009)
(slip op., at 13) ( stare decisis does not control when
adherence to the prior decision requires “fundamentally revising
its theoretical basis”). B These considerations
weigh against retaining our decision in Austin . First, as
the majority explains, that decision was an “aberration” insofar as
it departed from the robust protections we had granted political
speech in our earlier cases. Ante , at 39; see also Buckley , supra ; First Nat. Bank of
Boston v. Bellotti , 435 U. S. 765 (1978). Austin undermined the careful line that Buckley drew to distinguish limits on contributions to candidates from
limits on independent expenditures on speech. Buckley rejected the asserted government interest in regulating independent
expenditures, concluding that “restrict[ing] the speech of some
elements of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment.” 424 U. S., at
48–49; see also Bellotti , supra , at 790–791; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley , 454 U. S. 290 , 295
(1981). Austin , however, allowed the Government to
prohibit these same expenditures out of concern for “the corrosive
and distorting effects of immense aggregations of wealth” in the
marketplace of ideas. 494 U. S., at 660. Austin ’s
reasoning was—and remains—inconsistent with Buckley ’s
explicit repudiation of any government interest in “equalizing the
relative ability of individuals and groups to influence the outcome
of elections.” 424 U. S., at 48–49. Austin was
also inconsistent with Bellotti ’s clear rejection of the
idea that “speech that otherwise would be within the protection of
the First Amendment loses that protection simply because its source
is a corporation.” 435 U. S., at 784. The dissent correctly points
out that Bellotti involved a referendum rather than a
candidate election, and that Bellotti itself noted this
factual distinction, id ., at 788, n. 26; post , at
52. But this distinction does not explain why corporations may be
subject to prohibitions on speech in candidate elections when
individuals may not. Second, the validity of Austin ’s rationale—itself adopted over two “spirited
dissents,” Payne , 501 U. S. , at 829—has proved to
be the consistent subject of dispute among Members of this Court
ever since. See, e.g. , WRTL, 551 U. S., at 483
(Scalia, J., joined by Kennedy and Thomas, JJ., concurring in part
and concurring in judgment); McConnell, 540 U. S., at 247,
264, 286 (opinions of Scalia, Thomas, and Kennedy, JJ.); Beaumont , 539 U. S., at 163, 164 (opinions of Kennedy and
Thomas, JJ.). The simple fact that one of our decisions remains
controversial is, of course, insufficient to justify overruling it.
But it does undermine the precedent’s ability to contribute to the
stable and orderly development of the law. In such circumstances,
it is entirely appropriate for the Court—which in this case is
squarely asked to reconsider Austin ’s validity for the
first time—to address the matter with a greater willingness to
consider new approaches capable of restoring our doctrine to
sounder footing. Third, the Austin decision is uniquely destabilizing because it threatens to subvert
our Court’s decisions even outside the particular context of
corporate express advocacy. The First Amendment theory underlying Austin ’s holding is extraordinarily broad. Austin ’s logic would authorize government prohibition of
political speech by a category of speakers in the name of
equality—a point that most scholars acknowledge (and many
celebrate), but that the dissent denies. Compare, e.g. ,
Garrett, New Voices in Politics: Justice Marshall’s Jurisprudence
on Law and Politics, 52 Howard L. J. 655, 669 (2009)
( Austin “has been understood by most commentators to be an
opinion driven by equality considerations, albeit disguised in the
language of ‘political corruption’ ”) with post , at 74
( Austin ’s rationale “is manifestly not just an
‘equalizing’ ideal in disguise”).[ Footnote 2 ] It should not be surprising, then,
that Members of the Court have relied on Austin ’s
expansive logic to justify greater incursions on the First
Amendment, even outside the original context of corporate advocacy
on behalf of candidates running for office. See, e.g. , Davis v. Federal Election Comm’n , 554 U. S. ___,
___ (2008) (slip op., at 7–8) (Stevens, J., concurring in part and
dissenting in part) (relying on Austin and other cases to
justify restrictions on campaign spending by individual candidates,
explaining that “there is no reason that their logic—specifically,
their concerns about the corrosive and distorting effects of wealth
on our political process—is not equally applicable in the context
of individual wealth”); McConnell , supra , at
203–209 (extending Austin beyond its original context to
cover not only the “functional equivalent” of express advocacy by
corporations, but also electioneering speech conducted by labor
unions). The dissent in this case succumbs to the same temptation,
suggesting that Austin justifies prohibiting corporate
speech because such speech might unduly influence “the market for
legislation.” Post , at 82. The dissent reads Austin to permit restrictions on corporate speech based on
nothing more than the fact that the corporate form may help
individuals coordinate and present their views more effectively. Post, at 82. A speaker’s ability to persuade, however,
provides no basis for government regulation of free and open public
debate on what the laws should be. If taken seriously, Austin ’s logic would apply most directly to newspapers and
other media corporations. They have a more profound impact on
public discourse than most other speakers. These corporate entities
are, for the time being, not subject to §441b’s otherwise generally
applicable prohibitions on corporate political speech. But this is
simply a matter of legislative grace. The fact that the law
currently grants a favored position to media corporations is no
reason to overlook the danger inherent in accepting a theory that
would allow government restrictions on their political speech. See
generally McConnell , supra, at 283–286 (Thomas,
J., concurring in part, concurring in judgment in part, and
dissenting in part). These readings of Austin do no more than carry that decision’s reasoning to its logical
endpoint. In doing so, they highlight the threat Austin poses to First Amendment rights generally, even outside its
specific factual context of corporate express advocacy. Because Austin is so difficult to confine to its facts—and because
its logic threatens to undermine our First Amendment jurisprudence
and the nature of public discourse more broadly—the costs of giving
it stare decisis effect are unusually high. Finally and most importantly, the
Government’s own effort to defend Austin —or, more
accurately, to defend something that is not quite Austin —underscores its weakness as a precedent of the
Court. The Government concedes that Austin “is not the
most lucid opinion,” yet asks us to reaffirm its holding. Tr. of
Oral Arg. 62 (Sept. 9, 2009). But while invoking stare
decisis to support this position, the Government never once
even mentions the compelling interest that Austin relied upon in the first place: the need to diminish “the corrosive
and distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have
little or no correlation to the public’s support for the
corporation’s political ideas.” 494 U. S., at 660. Instead of endorsing Austin on its own terms, the Government urges us to
reaffirm Austin ’s specific holding on the basis of two new
and potentially expansive interests—the need to prevent actual or
apparent quid pro quo corruption, and the need to protect
corporate shareholders. See Supp. Brief for Appellee 8–10, 12–13.
Those interests may or may not support the result in Austin , but they were plainly not part of the reasoning on which Austin relied. To its credit, the Government
forthrightly concedes that Austin did not embrace either
of the new rationales it now urges upon us. See, e.g. ,
Supp. Brief for Appellee 11 (“The Court did not decide in Austin … whether the compelling interest in preventing
actual or apparent corruption provides a constitutionally
sufficient justification for prohibiting the use of corporate
treasury funds for independent electioneering”); Tr. of Oral Arg.
45 (Sept. 9, 2009) (“ Austin did not articulate what we
believe to be the strongest compelling interest”); id ., at
61 (“[The Court:] I take it we have never accepted your shareholder
protection interest. This is a new argument. [The Government:] I
think that that’s fair”); id ., at 64 (“[The Court:] In
other words, you are asking us to uphold Austin on the
basis of two arguments, two principles, two compelling interests we
have never accepted in [the context of limits on political
expenditures]. [The Government:] [I]n this particular context, fair
enough”). To be clear: The Court in Austin nowhere relied upon the only arguments the
Government now raises to support that decision. In fact, the only
opinion in Austin endorsing the Government’s argument
based on the threat of quid pro quo corruption was Justice
Stevens’s concurrence. 494 U. S., at 678. The Court itself did not
do so, despite the fact that the concurrence highlighted the
argument. Moreover, the Court’s only discussion of shareholder
protection in Austin appeared in a section of the opinion
that sought merely to distinguish Austin ’s facts from
those of Federal Election Comm’n v. Massachusetts
Citizens for Life, Inc. , 479 U. S. 238 (1986). Austin , supra , at 663. Nowhere did Austin suggest that the goal of protecting shareholders is
itself a compelling interest authorizing restrictions on First
Amendment rights. To the extent that the
Government’s case for reaffirming Austin depends on
radically reconceptualizing its reasoning, that argument is at odds
with itself. Stare decisis is a doctrine of preservation,
not transformation. It counsels deference to past mistakes, but
provides no justification for making new ones. There is therefore
no basis for the Court to give precedential sway to reasoning that
it has never accepted, simply because that reasoning happens to
support a conclusion reached on different grounds that have since
been abandoned or discredited. Doing so would undermine the
rule-of-law values that justify stare decisis in the first
place. It would effectively license the Court to invent and adopt
new principles of constitutional law solely for the purpose of
rationalizing its past errors, without a proper analysis of whether
those principles have merit on their own. This approach would allow
the Court’s past missteps to spawn future mistakes, undercutting
the very rule-of-law values that stare decisis is designed
to protect. None of this is to say that the
Government is barred from making new arguments to support the
outcome in Austin . On the contrary, it is free to do so.
And of course the Court is free to accept them. But the
Government’s new arguments must stand or fall on their own; they
are not entitled to receive the special deference we accord to
precedent. They are, as grounds to support Austin ,
literally un precedented. Moreover, to the extent the
Government relies on new arguments—and declines to defend Austin on its own terms—we may reasonably infer that it
lacks confidence in that decision’s original
justification. Because continued adherence to Austin threatens to subvert the “principled and
intelligible” development of our First Amendment jurisprudence, Vasquez , 474 U. S., at 265, I support the Court’s
determination to overrule that decision. *  *  * We have had two
rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to
decide the necessary constitutional questions according to law. We
have also had the benefit of a comprehensive dissent that has
helped ensure that the Court has considered all the relevant
issues. This careful consideration convinces me that Congress
violates the First Amendment when it decrees that some speakers may
not engage in political speech at election time, when it matters
most. Footnote 1 The dissent suggests that I am
“much too quick” to reach this conclusion because I “ignore”
Citizens United’s narrower arguments. Post , at 13,
n. 12. But in fact I do not ignore those arguments; on the
contrary, I (and my colleagues in the majority) appropriately
consider and reject them on their merits, before addressing
Citizens United’s broader claims. Supra , at 2–3; ante , at 5–12. Footnote 2 See also, e.g. , R.
Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore 114 (2003) (“ Austin represents the first and only case
[before McConnell ] in which a majority of the Court
accepted, in deed if not in word, the equality rationale as a
permissible state interest”); Strauss, Corruption, Equality, and
Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1369, and
n. 1 (1994) (noting that Austin ’s rationale was based
on equalizing political speech); Ashdown, Controlling Campaign
Spending and the “New Corruption”: Waiting for the Court, 44 Vand.
L. Rev. 767, 781 (1991); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting , 1990 S. Ct. Rev.
105, 108–111. OPINION OF STEVENS, J. CITIZENS UNITED V. FEDERAL ELECTION COMM'N 558 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-205 CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION

															on appeal from the united states district court for
the district of columbia

															[January 21, 2010]

															   Justice Stevens, with whom
Justice Ginsburg, Justice Breyer, and Justice Sotomayor join,
concurring in part and dissenting in part.

															   The real issue in this case
concerns how, not if, the appellant may finance its electioneering.
Citizens United is a wealthy nonprofit corporation that runs a
political action committee (PAC) with millions of dollars in
assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it
could have used those assets to televise and promote Hillary:
The Movie wherever and whenever it wanted to. It also could
have spent unrestricted sums to broadcast Hillary at any
time other than the 30 days before the last primary election.
Neither Citizens United’s nor any other corporation’s speech has
been “banned,” ante , at 1. All that the parties dispute is
whether Citizens United had a right to use the funds in its general
treasury to pay for broadcasts during the 30-day
period. The notion that the First Amendment dictates an affirmative
answer to that question is, in my judgment, profoundly misguided.
Even more misguided is the notion that the Court must rewrite the
law relating to campaign expenditures by for-profit corporations and unions to decide this case. The basic premise
underlying the Court’s ruling is its iteration, and constant
reiteration, of the proposition that the First Amendment bars
regulatory distinctions based on a speaker’s identity, including
its “identity” as a corporation. While that glittering generality
has rhetorical appeal, it is not a correct statement of the law.
Nor does it tell us when a corporation may engage in electioneering
that some of its shareholders oppose. It does not even resolve the
specific question whether Citizens United may be required to
finance some of its messages with the money in its PAC. The conceit
that corporations must be treated identically to natural persons in
the political sphere is not only inaccurate but also inadequate to
justify the Court’s disposition of this case. In the context of election to
public office, the distinction between corporate and human speakers
is significant. Although they make enormous contributions to our
society, corporations are not actually members of it. They cannot
vote or run for office. Because they may be managed and controlled
by nonresidents, their interests may conflict in fundamental
respects with the interests of eligible voters. The financial
resources, legal structure, and instrumental orientation of
corporations raise legitimate concerns about their role in the
electoral process. Our lawmakers have a compelling constitutional
basis, if not also a democratic duty, to take measures designed to
guard against the potentially deleterious effects of corporate
spending in local and national races. The majority’s approach to
corporate electioneering marks a dramatic break from our past.
Congress has placed special limitations on campaign spending by
corporations ever since the passage of the Tillman Act in 1907, ch.
420, 34 Stat. 864. We have unanimously concluded that this
“reflects a permissible assessment of the dangers posed by those
entities to the electoral process,” FEC v. National
Right to Work Comm. , 459 U. S. 197 , 209 (1982) (NRWC) , and have accepted the “legislative judgment that
the special characteristics of the corporate structure require
particularly careful regulation,” id. , at 209–210. The
Court today rejects a century of history when it treats the
distinction between corporate and individual campaign spending as
an invidious novelty born of Austin v. Michigan
Chamber of Commerce , 494
U. S. 652 (1990). Relying largely on individual dissenting
opinions, the majority blazes through our precedents, overruling or
disavowing a body of case law including FEC v. Wisconsin Right to Life , Inc., 551
U. S. 449 (2007) (WRTL) , McConnell v. FEC , 540 U.
S. 93 (2003), FEC v. Beaumont , 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life , Inc., 479
U. S. 238 (1986) (MCFL) , NRWC , 459 U. S. 197 , and California
Medical Assn. v. FEC , 453 U. S. 182 (1981). In his landmark concurrence in Ashwander v. TVA , 297 U. S. 288 , 346
(1936), Justice Brandeis stressed the importance of adhering to
rules the Court has “developed … for its own governance” when
deciding constitutional questions. Because departures from those
rules always enhance the risk of error, I shall review the
background of this case in some detail before explaining why the
Court’s analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence
more generally   .[ Footnote 1 ] I regret the length of what follows, but the
importance and novelty of the Court’s opinion require a full
response. Although I concur in the Court’s decision to sustain
BCRA’s disclosure provisions and join Part IV of its opinion, I
emphatically dissent from its principal holding. I The Court’s ruling
threatens to undermine the integrity of elected institutions across
the Nation. The path it has taken to reach its outcome will, I
fear, do damage to this institution. Before turning to the question
whether to overrule Austin and part of McConnell ,
it is important to explain why the Court should
not be deciding that question. Scope of the
Case The first reason is that the question was
not properly brought before us. In declaring §203 of BCRA facially
unconstitutional on the ground that corporations’ electoral
expenditures may not be regulated any more stringently than those
of individuals, the majority decides this case on a basis
relinquished below, not included in the questions presented to us
by the litigants, and argued here only in response to the Court’s
invitation. This procedure is unusual and inadvisable for a
court.[ Footnote 2 ] Our
colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell ,” ante , at 1, would be
more accurate if rephrased to state that “we have asked ourselves”
to reconsider those cases. In
the District Court, Citizens United initially raised a facial
challenge to the constitutionality of §203. App. 23a–24a. In its
motion for summary judgment, however, Citizens United expressly
abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry
No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the
dismissal of that claim, id. , Nos. 53 (May 22, 2008), 54
(May 23, 2008), App. 6a. The District Court therefore resolved the
case on alternative grounds,[ Footnote 3 ] and in its jurisdictional statement to this
Court, Citizens United properly advised us that it was raising only
“an as-applied challenge to the constitutionality of … BCRA §203.”
Juris. Statement 5. The jurisdictional statement never so much as
cited Austin , the key case the majority today overrules.
And not one of the questions presented suggested that Citizens
United was surreptitiously raising the facial challenge to §203
that it previously agreed to dismiss. In fact, not one of those
questions raised an issue based on Citizens United’s corporate
status. Juris. Statement (i). Moreover, even in its merits
briefing, when Citizens United injected its request to overrule Austin , it never sought a declaration that §203 was
facially unconstitutional as to all corporations and unions;
instead it argued only that the statute could not be applied to it
because it was “funded overwhelmingly by individuals.” Brief for
Appellant 29; see also id., at 10, 12, 16, 28 (affirming
“as applied” character of challenge to §203); Tr. of Oral Arg. 4–9
(Mar. 24, 2009) (counsel for Citizens United conceding that §203
could be applied to General Motors); id., at 55 (counsel
for Citizens United stating that “we accept the Court’s decision in Wisconsin Right to Life ”). “ ‘It is
only in exceptional cases coming here from the federal courts that
questions not pressed or passed upon below are reviewed,’ ” Youakim v. Miller , 425 U. S. 231 , 234
(1976) (per curiam) (quoting Duignan v. United States , 274 U. S. 195 , 200
(1927)), and it is “only in the most exceptional cases” that we
will consider issues outside the questions presented, Stone v. Powell , 428 U. S. 465 , 481, n.
15 (1976). The appellant in this case did not so much as assert an
exceptional circumstance, and one searches the majority opinion in
vain for the mention of any. That is unsurprising, for none
exists. Setting the case
for reargument was a constructive step, but it did not cure this
fundamental problem. Essentially, five Justices were unhappy with
the limited nature of the case before us, so they changed the case
to give themselves an opportunity to change the
law. As-Applied and
Facial Challenges This Court has repeatedly emphasized in
recent years that “[f]acial challenges are disfavored.” Washington
State Grange v. Washington State Republican Party , 552 U. S. 442 , 450 (2008); see also Ayotte v. Planned Parenthood of Northern New
Eng. , 546 U. S.
320 , 329 (2006) (“[T]he ‘normal rule’ is that ‘partial, rather
than facial, invalidation is the required course,’ such that a
‘statute may … be declared invalid to the extent that it reaches
too far, but otherwise left intact’ ” (quoting Brockett v. Spokane Arcades, Inc. , 472 U. S. 491 , 504
(1985); alteration in original)). By declaring §203 facially
unconstitutional, our colleagues have turned an as-applied
challenge into a facial challenge, in defiance of this
principle. This is not merely a technical defect in the
Court’s decision. The unnecessary resort to a facial inquiry
“run[s] contrary to the fundamental principle of judicial restraint
that courts should neither anticipate a question of constitutional
law in advance of the necessity of deciding it nor formulate a rule
of constitutional law broader than is required by the precise facts
to which it is to be applied.” Washington State Grange ,
552 U. S., at 450 (internal quotation marks omitted). Scanting that
principle “threaten[s] to short circuit the democratic process by
preventing laws embodying the will of the people from being
implemented in a manner consistent with the Constitution.” Id., at 451. These concerns are heightened when judges
overrule settled doctrine upon which the legislature has relied.
The Court operates with a sledge hammer rather than a scalpel when
it strikes down one of Congress’ most significant efforts to
regulate the role that corporations and unions play in electoral
politics. It compounds the offense by implicitly striking down a
great many state laws as well. The problem goes
still deeper, for the Court does all of this on the basis of pure
speculation. Had Citizens United maintained a facial challenge, and
thus argued that there are virtually no circumstances in which BCRA
§203 can be applied constitutionally, the parties could have
developed, through the normal process of litigation, a record about
the actual effects of §203, its actual burdens and its
actual benefits, on all manner of corporations and
unions.[ Footnote 4 ] “Claims of
facial invalidity often rest on speculation,” and consequently
“raise the risk of premature interpretation of statutes on the
basis of factually barebones records.” Id., at 450
(internal quotation marks omitted). In this case, the record is not
simply incomplete or unsatisfactory; it is nonexistent. Congress
crafted BCRA in response to a virtual mountain of research on the
corruption that previous legislation had failed to avert. The Court
now negates Congress’ efforts without a shred of evidence on how
§203 or its state-law counterparts have been affecting any entity
other than Citizens United.[ Footnote 5 ] Faced with this
gaping empirical hole, the majority throws up its hands. Were we to
confine our inquiry to Citizens United’s as-applied challenge, it
protests, we would commence an “extended” process of “draw[ing],
and then redraw[ing], constitutional lines based on the particular
media or technology used to disseminate political speech from a
particular speaker.” Ante , at 9. While tacitly
acknowledging that some applications of §203 might be found
constitutional, the majority thus posits a future in which novel
First Amendment standards must be devised on an ad hoc basis,
and then leaps from this unfounded prediction to the unfounded
conclusion that such complexity counsels the abandonment of all
normal restraint. Yet it is a pervasive feature of regulatory
systems that unanticipated events, such as new technologies, may
raise some unanticipated difficulties at the margins. The fluid
nature of electioneering communications does not make this case
special. The fact that a Court can hypothesize situations in which
a statute might, at some point down the line, pose some unforeseen
as-applied problems, does not come close to meeting the standard
for a facial challenge.[ Footnote
6 ] The
majority proposes several other justifications for the sweep of its
ruling. It suggests that a facial ruling is necessary because, if
the Court were to continue on its normal course of resolving
as-applied challenges as they present themselves, that process
would itself run afoul of the First Amendment. See, e.g., ante , at 9 (as-applied review process “would raise
questions as to the courts’ own lawful authority”); ibid. (“Courts, too, are bound by the First Amendment”). This suggestion
is perplexing. Our colleagues elsewhere trumpet “our duty ‘to say
what the law is,’ ” even when our predecessors on the bench
and our counterparts in Congress have interpreted the law
differently. Ante , at 49 (quoting Marbury v. Madison , 1 Cranch 137, 177 (1803)). We do not typically
say what the law is not as a hedge against future judicial
error. The possibility that later courts will misapply a
constitutional provision does not give us a basis for pretermitting
litigation relating to that provision.[ Footnote 7 ] The majority
suggests that a facial ruling is necessary because anything less
would chill too much protected speech. See ante , at 9–10,
12, 16–20. In addition to begging the question what types of
corporate spending are constitutionally protected and to what
extent, this claim rests on the assertion that some significant
number of corporations have been cowed into quiescence by FEC
“ ‘censor[ship].’ ” Ante , at 18–19. That
assertion is unsubstantiated, and it is hard to square with
practical experience. It is particularly hard to square with the
legal landscape following WRTL , which held that a
corporate communication could be regulated under §203 only if it
was “susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.” 551
U. S., at 470 (opinion of Roberts, C. J.) (emphasis added).
The whole point of this test was to make §203 as simple and
speech-protective as possible. The Court does not explain how, in
the span of a single election cycle, it has determined The Chief
Justice’s project to be a failure. In this respect, too, the
majority’s critique of line-drawing collapses into a critique of
the as-applied review method generally.[ Footnote 8 ] The majority
suggests that, even though it expressly dismissed its facial
challenge, Citizens United nevertheless preserved it—not as a
freestanding “claim,” but as a potential argument in support of “a
claim that the FEC has violated its First Amendment right to free
speech.” Ante , at 13; see also ante , at 4
(Roberts, C. J., concurring) (describing Citizens United’s
claim as: “[T]he Act violates the First Amendment”). By this novel
logic, virtually any submission could be reconceptualized as “a
claim that the Government has violated my rights,” and it would
then be available to the Court to entertain any conceivable issue
that might be relevant to that claim’s disposition. Not only the
as-applied/facial distinction, but the basic relationship between
litigants and courts, would be upended if the latter had free rein
to construe the former’s claims at such high levels of generality.
There would be no need for plaintiffs to argue their case; they
could just cite the constitutional provisions they think relevant,
and leave the rest to us.[ Footnote
9 ] Finally, the
majority suggests that though the scope of Citizens United’s claim
may be narrow, a facial ruling is necessary as a matter of remedy.
Relying on a law review article, it asserts that Citizens United’s
dismissal of the facial challenge does not prevent us “ ‘from
making broader pronouncements of invalidity in properly
“as-applied” cases.’ ” Ante , at 14 (quoting Fallon,
As-Applied and Facial Challenges and Third-Party Standing, 113
Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon)); accord, ante , at 5 (opinion of Roberts, C. J.) (“Regardless
whether we label Citizens United’s claim a ‘facial’ or ‘as-applied’
challenge, the consequences of the Court’s decision are the same”).
The majority is on firmer conceptual ground here. Yet even if one
accepts this part of Professor Fallon’s thesis, one must proceed to
ask which as-applied challenges, if successful, will
“properly” invite or entail invalidation of the underlying
statute.[ Footnote 10 ] The
paradigmatic case is a judicial determination that the legislature
acted with an impermissible purpose in enacting a provision, as
this carries the necessary implication that all future as-applied
challenges to the provision must prevail. See Fallon
1339–1340. Citizens United’s as-applied challenge was
not of this sort. Until this Court ordered reargument, its
contention was that BCRA §203 could not lawfully be applied to a
feature-length video-on-demand film (such as Hillary ) or
to a nonprofit corporation exempt from taxation under 26 U.
S. C. §501(c)(4)[ Footnote
11 ] and funded overwhelmingly by individuals (such as itself).
See Brief for Appellant 16–41. Success on either of these claims
would not necessarily carry any implications for the validity of
§203 as applied to other types of broadcasts, other types of
corporations, or unions. It certainly would not invalidate the
statute as applied to a large for-profit corporation. See Tr. of
Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens United
emphasizing that appellant is “a small, nonprofit organization,
which is very much like [an MCFL corporation],” and
affirming that its argument “definitely would not be the same” if Hillary were distributed by General Motors).[ Footnote 12 ] There is no legitimate basis
for resurrecting a facial challenge that dropped out of this case
20 months ago. Narrower
Grounds It is all the more distressing that our
colleagues have manufactured a facial challenge, because the
parties have advanced numerous ways to resolve the case that would
facilitate electioneering by nonprofit advocacy corporations such
as Citizens United, without toppling statutes and precedents. Which
is to say, the majority has transgressed yet another “cardinal”
principle of the judicial process: “[I]f it is not necessary to
decide more, it is necessary not to decide more,” PDK Labs.,
Inc. v. Drug Enforcement Admin. , 362 F. 3d 786,
799 (CADC 2004) (Roberts, J., concurring in part and concurring in
judgment). Consider just three of the narrower grounds
of decision that the majority has bypassed. First, the Court could
have ruled, on statutory grounds, that a feature-length film
distributed through video-on-demand does not qualify as an
“electioneering communication” under §203 of BCRA, 2 U. S. C.
§441b. BCRA defines that term to encompass certain communications
transmitted by “broadcast, cable, or satellite.” §434(f)(3)(A).
When Congress was developing BCRA, the video-on-demand medium was
still in its infancy, and legislators were focused on a very
different sort of programming: short advertisements run on
television or radio. See McConnell , 540 U. S., at 207. The
sponsors of BCRA acknowledge that the FEC’s implementing
regulations do not clearly apply to video-on-demand transmissions.
See Brief for Senator John McCain et al. as Amici
Curiae 17–19. In light of this ambiguity, the distinctive
characteristics of video-on-demand, and “[t]he elementary rule …
that every reasonable construction must be resorted to, in order to
save a statute from unconstitutionality,” Hooper v. California , 155 U. S. 648 , 657
(1895), the Court could have reasonably ruled that §203 does not
apply to Hillary .[ Footnote 13 ] Second, the
Court could have expanded the MCFL exemption to cover
§501(c)(4) nonprofits that accept only a de minimis amount
of money from for-profit corporations. Citizens United professes to
be such a group: Its brief says it “is funded predominantly by
donations from individuals who support [its] ideological message.”
Brief for Appellant 5. Numerous Courts of Appeal have held that de minimis business support does not, in itself, remove an
otherwise qualifying organization from the ambit of MCFL .[ Footnote 14 ]
This Court could have simply followed their lead.[ Footnote 15 ] Finally, let us
not forget Citizens United’s as-applied constitutional challenge.
Precisely because Citizens United looks so much like the MCFL organizations we have exempted from regulation, while
a feature-length video-on-demand film looks so unlike the types of
electoral advocacy Congress has found deserving of regulation, this
challenge is a substantial one. As the appellant’s own arguments
show, the Court could have easily limited the breadth of its
constitutional holding had it declined to adopt the novel notion
that speakers and speech acts must always be treated
identically—and always spared expenditures restrictions—in the
political realm. Yet the Court nonetheless turns its back on the
as-applied review process that has been a staple of campaign
finance litigation since Buckley v. Valeo , 424 U. S.
1 (1976) (per curiam) , and that was affirmed and
expanded just two Terms ago in WRTL , 551
U. S. 449 . This brief tour
of alternative grounds on which the case could have been decided is
not meant to show that any of these grounds is ideal, though each
is perfectly “valid,” ante , at 12 (majority
opinion).[ Footnote 16 ] It is
meant to show that there were principled, narrower paths that a
Court that was serious about judicial restraint could have taken.
There was also the straightforward path: applying Austin and McConnell , just as the District Court did in holding
that the funding of Citizens United’s film can be regulated under
them. The only thing preventing the majority from affirming the
District Court, or adopting a narrower ground that would retain Austin , is its disdain for Austin . II The
final principle of judicial process that the majority violates is
the most transparent: stare decisis . I am not an
absolutist when it comes to stare decisis , in the campaign
finance area or in any other. No one is. But if this principle is
to do any meaningful work in supporting the rule of law, it must at
least demand a significant justification, beyond the preferences of
five Justices, for overturning settled doctrine. “[A] decision to
overrule should rest on some special reason over and above the
belief that a prior case was wrongly decided.” Planned
Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 864
(1992). No such justification exists in this case, and to the
contrary there are powerful prudential reasons to keep faith with
our precedents.[ Footnote
17 ] The Court’s
central argument for why stare decisis ought to be trumped
is that it does not like Austin . The opinion “was not well
reasoned,” our colleagues assert, and it conflicts with First
Amendment principles. Ante , at 47–48. This, of course, is
the Court’s merits argument, the many defects in which we will soon
consider. I am perfectly willing to concede that if one of our
precedents were dead wrong in its reasoning or irreconcilable with
the rest of our doctrine, there would be a compelling basis for
revisiting it. But neither is true of Austin , as I explain
at length in Parts III and IV, infra , at 23–89, and
restating a merits argument with additional vigor does not give it
extra weight in the stare decisis calculus. Perhaps in recognition of this point, the
Court supplements its merits case with a smattering of assertions.
The Court proclaims that “ Austin is undermined by
experience since its announcement.” Ante , at 48. This is a
curious claim to make in a case that lacks a developed record. The
majority has no empirical evidence with which to substantiate the
claim; we just have its ipse dixit that the real world has
not been kind to Austin . Nor does the majority bother to
specify in what sense Austin has been “undermined.”
Instead it treats the reader to a string of non sequiturs: “Our
Nation’s speech dynamic is changing,” ante , at 48;
“[s]peakers have become adept at presenting citizens with sound
bites, talking points, and scripted messages,” ibid.; “[c]orporations … do not have monolithic views,” ibid. How
any of these ruminations weakens the force of stare
decisis , escapes my comprehension.[ Footnote 18 ] The majority
also contends that the Government’s hesitation to rely on Austin ’s antidistortion rationale “diminishe[s]” “the
principle of adhering to that precedent.” Ante , at 48; see
also ante , at 11 (opinion of Roberts, C. J.)
(Government’s litigating position is “most importan[t]” factor
undermining Austin ). Why it diminishes the value of stare decisis is left unexplained. We have never thought
fit to overrule a precedent because a litigant has taken any
particular tack. Nor should we. Our decisions can often be defended
on multiple grounds, and a litigant may have strategic or
case-specific reasons for emphasizing only a subset of them.
Members of the public, moreover, often rely on our bottom-line
holdings far more than our precise legal arguments; surely this is
true for the legislatures that have been regulating corporate
electioneering since Austin . The task of evaluating the
continued viability of precedents falls to this Court, not to the
parties.[ Footnote
19 ] Although the majority opinion spends several
pages making these surprising arguments, it says almost nothing
about the standard considerations we have used to determine stare decisis value, such as the antiquity of the
precedent, the workability of its legal rule, and the reliance
interests at stake. It is also conspicuously silent about McConnell , even though the McConnell Court’s
decision to uphold BCRA §203 relied not only on the antidistortion
logic of Austin but also on the statute’s historical
pedigree, see, e.g., 540 U. S., at 115–132, 223–224, and
the need to preserve the integrity of federal campaigns, see id., at 126–129, 205–208, and
n. 88. We
have recognized that “ [s]tare decisis has special force
when legislators or citizens ‘have acted in reliance on a previous
decision, for in this instance overruling the decision would
dislodge settled rights and expectations or require an extensive
legislative response.’ ” Hubbard v. United
States , 514 U.
S. 695 , 714 (1995) (quoting Hilton v. South
Carolina Public Railways Comm’n , 502 U. S. 197 , 202
(1991)). Stare decisis protects not only personal rights
involving property or contract but also the ability of the elected
branches to shape their laws in an effective and coherent fashion.
Today’s decision takes away a power that we have long permitted
these branches to exercise. State legislatures have relied on their
authority to regulate corporate electioneering, confirmed in Austin , for more than a century.[ Footnote 20 ] The Federal Congress has relied on this
authority for a comparable stretch of time, and it specifically
relied on Austin throughout the years it spent developing
and debating BCRA. The total record it compiled was 100,000
pages long.[ Footnote
21 ] Pulling out the rug beneath Congress after affirming the
constitutionality of §203 six years ago shows great disrespect for
a coequal branch. By removing one
of its central components, today’s ruling makes a hash out of
BCRA’s “delicate and interconnected regulatory scheme.” McConnell , 540 U. S., at 172. Consider just one example of
the distortions that will follow: Political parties are barred
under BCRA from soliciting or spending “soft money,” funds that are
not subject to the statute’s disclosure requirements or its source
and amount limitations. 2 U. S. C. §441i; McConnell ,
540 U. S., at 122–126. Going forward, corporations and unions will
be free to spend as much general treasury money as they wish on ads
that support or attack specific candidates, whereas national
parties will not be able to spend a dime of soft money on ads of
any kind. The Court’s ruling thus dramatically enhances the role of
corporations and unions—and the narrow interests they
represent—vis-À-vis the role of political parties—and the broad
coalitions they represent—in determining who will hold public
office.[ Footnote
22 ] Beyond the reliance interests at stake, the
other stare decisis factors also cut against the Court. Considerations of antiquity are significant for similar
reasons. McConnell is only six years old, but Austin has been on the books for two decades, and many of
the statutes called into question by today’s opinion have been on
the books for a half-century or more. The Court points to no
intervening change in circumstances that warrants revisiting Austin . Certainly nothing relevant has changed since we
decided WRTL two Terms ago. And the Court gives no reason
to think that Austin and McConnell are
unworkable. In fact, no one has argued to us that Austin ’s rule has proved impracticable, and not a single
for-profit corporation, union, or State has asked us to overrule
it. Quite to the contrary, leading groups representing the business
community,[ Footnote 23 ]
organized labor,[ Footnote
24 ] and the nonprofit sector,[ Footnote 25 ] together with more than half of the
States,[ Footnote 26 ] urge
that we preserve Austin . As for McConnell , the
portions of BCRA it upheld may be prolix, but all three branches of
Government have worked to make §203 as user-friendly as possible.
For instance, Congress established a special mechanism for
expedited review of constitutional challenges, see note following 2
U. S. C. §437h; the FEC has established a standardized
process, with clearly defined safe harbors, for corporations to
claim that a particular electioneering communication is permissible
under WRTL , see 11 CFR §114.15 (2009);[ Footnote 27 ] and, as noted above, The Chief
Justice crafted his controlling opinion in WRTL with the
express goal of maximizing clarity and administrability, 551 U. S.,
at 469–470, 473–474. The case for stare decisis may be
bolstered, we have said, when subsequent rulings “have reduced the
impact” of a precedent “while reaffirming the decision’s core
ruling.” Dickerson v. United States , 530 U. S. 428 , 443
(2000).[ Footnote
28 ] In the end, the Court’s rejection of Austin and McConnell comes down to nothing more
than its disagreement with their results. Virtually every one of
its arguments was made and rejected in those cases, and the
majority opinion is essentially an amalgamation of resuscitated
dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this
Court. Today’s ruling thus strikes at the vitals of stare
decisis , “the means by which we ensure that the law will not
merely change erratically, but will develop in a principled and
intelligible fashion” that “permits society to presume that bedrock
principles are founded in the law rather than in the proclivities
of individuals.” Vasquez v. Hillery , 474 U. S. 254 , 265
(1986). III The novelty of the Court’s procedural
dereliction and its approach to stare decisis is matched
by the novelty of its ruling on the merits. The ruling rests on
several premises. First, the Court claims that Austin and McConnell have “banned” corporate speech. Second, it
claims that the First Amendment precludes regulatory distinctions
based on speaker identity, including the speaker’s identity as a
corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment
tradition and our campaign finance jurisprudence. Each of these
claims is wrong. The So-Called “Ban” Pervading the Court’s analysis is the
ominous image of a “categorical ba[n]” on corporate speech.
Ante , at 45. Indeed, the majority invokes the specter of a
“ban” on nearly every page of its opinion. Ante, at 1, 4,
7, 10, 11, 12, 13, 16, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 33,
35, 38, 40, 42, 45, 46, 47, 49, 54, 56. This characterization is
highly misleading, and needs to be
corrected. In fact it already has been. Our cases have
repeatedly pointed out that, “[c]ontrary to the [majority’s]
critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all
forms of corporate political spending.” Austin , 494 U. S.,
at 660; see also McConnell , 540 U. S., at 203–204; Beaumont , 539 U. S., at 162–163. For starters, both
statutes provide exemptions for PACs, separate segregated funds
established by a corporation for political purposes. See 2 U.
S. C. §441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West
2005). “The ability to form and administer separate segregated
funds,” we observed in McConnell , “has provided
corporations and unions with a constitutionally sufficient
opportunity to engage in express advocacy. That has been this
Court’s unanimous view.” 540 U. S., at
203. Under BCRA, any corporation’s “stockholders
and their families and its executive or administrative personnel
and their families” can pool their resources to finance
electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A
significant and growing number of corporations avail themselves of
this option;[ Footnote 29 ]
during the most recent election cycle, corporate and union PACs
raised nearly a billion dollars.[ Footnote 30 ] Administering a PAC entails some
administrative burden, but so does complying with the disclaimer, disclosure, and reporting requirements that the Court
today upholds, see ante , at 51, and no one has suggested
that the burden is severe for a sophisticated for-profit
corporation. To the extent the majority is worried about this
issue, it is important to keep in mind that we have no record to
show how substantial the burden really is, just the majority’s own
unsupported factfinding, see ante , at 21–22. Like all
other natural persons, every shareholder of every corporation
remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the
corporate form. The owners of a “mom & pop” store can simply
place ads in their own names, rather than the store’s. If
ideologically aligned individuals wish to make unlimited
expenditures through the corporate form, they may utilize an MCFL organization that has policies in place to avoid
becoming a conduit for business or union interests. See MCFL , 479 U. S., at
263–264. The laws upheld in Austin and McConnell leave open many additional avenues for
corporations’ political speech. Consider the statutory provision we
are ostensibly evaluating in this case, BCRA §203. It has no
application to genuine issue advertising—a category of corporate
speech Congress found to be far more substantial than
election-related advertising, see McConnell , 540 U. S., at
207—or to Internet, telephone, and print advocacy.[ Footnote 31 ] Like numerous statutes, it
exempts media companies’ news stories, commentaries, and editorials
from its electioneering restrictions, in recognition of the unique
role played by the institutional press in sustaining public
debate.[ Footnote 32 ] See 2
U. S. C. §434(f)(3)(B)(i); McConnell , 540 U. S., at
208–209; see also Austin , 494 U. S., at 666–668. It also
allows corporations to spend unlimited sums on political
communications with their executives and shareholders,
§441b(b)(2)(A); 11 CFR §114.3(a)(1), to fund additional PAC
activity through trade associations, 2 U. S. C.
§441b(b)(4)(D), to distribute voting guides and voting records, 11
CFR §§114.4(c)(4)–(5), to underwrite voter registration and voter
turnout activities, §114.3(c)(4); §114.4(c)(2), to host fundraising
events for candidates within certain limits, §114.4(c);
§114.2(f)(2), and to publicly endorse candidates through a press
release and press conference,
§114.4(c)(6). At the time Citizens United brought this
lawsuit, the only types of speech that could be regulated under
§203 were: (1) broadcast, cable, or satellite
communications;[ Footnote 33 ]
(2) capable of reaching at least 50,000 persons in the relevant
electorate;[ Footnote 34 ] (3)
made within 30 days of a primary or 60 days of a general federal
election;[ Footnote 35 ] (4)
by a labor union or a non- MCFL , nonmedia
corporation;[ Footnote 36 ]
(5) paid for with general treasury funds;[ Footnote 37 ] and (6) “susceptible of no reasonable
interpretation other than as an appeal to vote for or against a
specific candidate.”[ Footnote
38 ] The category of communications meeting all of these
criteria is not trivial, but the notion that corporate political
speech has been “suppress[ed] … altogether,” ante , at 2,
that corporations have been “exclu[ded] … from the general public
dialogue,” ante , at 25, or that a work of fiction such as Mr. Smith Goes to Washington might be covered, ante , at 56–57, is nonsense.[ Footnote 39 ] Even the plaintiffs in McConnell ,
who had every incentive to depict BCRA as negatively as possible,
declined to argue that §203’s prohibition on certain uses of
general treasury funds amounts to a complete ban. See 540 U. S., at
204. In many ways, then, §203 functions as a
source restriction or a time, place, and manner restriction. It
applies in a viewpoint-neutral fashion to a narrow subset of
advocacy messages about clearly identified candidates for federal
office, made during discrete time periods through discrete
channels. In the case at hand, all Citizens United needed to do to
broadcast Hillary right before the primary was to abjure
business contributions or use the funds in its PAC, which by its
own account is “one of the most active conservative PACs in
America,” Citizens United Political Victory Fund,
http://www.cupvf.org/.[ Footnote
40 ] So let us be clear: Neither Austin nor McConnell held or implied that corporations may be
silenced; the FEC is not a “censor”; and in the years since these
cases were decided, corporations have continued to play a major
role in the national dialogue. Laws such as §203 target a class of
communications that is especially likely to corrupt the political
process, that is at least one degree removed from the views of
individual citizens, and that may not even reflect the views of
those who pay for it. Such laws burden political speech, and that
is always a serious matter, demanding careful scrutiny. But the
majority’s incessant talk of a “ban” aims at a straw
man. Identity-Based
Distinctions The second pillar of the
Court’s opinion is its assertion that “the Government cannot
restrict political speech based on the speaker’s … identity.”
Ante , at 30; accord, ante, at 1, 24, 26, 30, 31, 32,
33, 34, 49, 50. The case on which it relies for this proposition is First Nat. Bank of Boston v. Bellotti , 435
U. S. 765 (1978). As I shall explain, infra , at 52–55,
the holding in that case was far narrower than the Court implies.
Like its paeans to unfettered discourse, the Court’s denunciation
of identity-based distinctions may have rhetorical appeal but it
obscures reality. “Our jurisprudence over the past
216 years has rejected an absolutist interpretation” of the First
Amendment. WRTL , 551 U. S., at 482 (opinion of Roberts,
C. J.). The First Amendment provides that “Congress shall make
no law … abridging the freedom of speech, or of the press.” Apart
perhaps from measures designed to protect the press, that text
might seem to permit no distinctions of any kind. Yet in a variety
of contexts, we have held that speech can be regulated
differentially on account of the speaker’s identity, when identity
is understood in categorical or institutional terms. The Government
routinely places special restrictions on the speech rights of
students,[ Footnote 41 ]
prisoners,[ Footnote 42 ]
members of the Armed Forces,[ Footnote 43 ] foreigners,[ Footnote 44 ] and its own employees.[ Footnote 45 ] When such restrictions are
justified by a legitimate governmental interest, they do not
necessarily raise constitutional problems.[ Footnote 46 ] In contrast to the blanket rule
that the majority espouses, our cases recognize that the
Government’s interests may be more or less compelling with respect
to different classes of speakers,[ Footnote 47 ] cf. Minneapolis Star & Tribune
Co. v. Minnesota Comm’r of Revenue , 460 U. S. 575 , 585
(1983) (“[D]ifferential treatment” is constitutionally suspect
“ unless justified by some special characteristic” of the
regulated class of speakers (emphasis added)), and that the
constitutional rights of certain categories of speakers, in certain
contexts, “ ‘are not automatically coextensive with the
rights’ ” that are normally accorded to members of our
society, Morse v. Frederick , 551 U. S. 393 , 396–397,
404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675 , 682
(1986)). The free speech guarantee thus
does not render every other public interest an illegitimate basis
for qualifying a speaker’s autonomy; society could scarcely
function if it did. It is fair to say that our First Amendment
doctrine has “frowned on” certain identity-based distinctions, Los Angeles Police Dept. v. United Reporting
Publishing Corp. , 528 U. S. 32 , 47,
n. 4 (1999) (Stevens, J., dissenting), particularly those that
may reflect invidious discrimination or preferential treatment of a
politically powerful group. But it is simply incorrect to suggest
that we have prohibited all legislative distinctions based on
identity or content. Not even
close. The election context is
distinctive in many ways, and the Court, of course, is right that
the First Amendment closely guards political speech. But in this
context, too, the authority of legislatures to enact
viewpoint-neutral regulations based on content and identity is well
settled. We have, for example, allowed state-run broadcasters to
exclude independent candidates from televised debates. Arkansas
Ed. Television Comm’n v. Forbes , 523 U. S. 666 (1998).[ Footnote 48 ] We have
upheld statutes that prohibit the distribution or display of
campaign materials near a polling place. Burson v. Freeman , 504 U. S. 191 (1992).[ Footnote 49 ]
Although we have not reviewed them directly, we have never cast
doubt on laws that place special restrictions on campaign spending
by foreign nationals. See, e.g., 2 U. S. C.
§441e(a)(1). And we have consistently approved laws that bar
Government employees, but not others, from contributing to or
participating in political activities. See n. 45, supra . These statutes burden the political expression of
one class of speakers, namely, civil servants. Yet we have
sustained them on the basis of longstanding practice and Congress’
reasoned judgment that certain regulations which leave “untouched
full participation … in political decisions at the ballot box,” Civil Service Comm’n v. Letter Carriers , 413 U. S. 548 , 556 (1973) (internal
quotation marks omitted), help ensure that public officials are
“sufficiently free from improper influences,” id., at 564,
and that “confidence in the system of representative Government is
not … eroded to a disastrous extent,” id., at
565. The same logic applies to this case with
additional force because it is the identity of corporations, rather
than individuals, that the Legislature has taken into account. As
we have unanimously observed, legislatures are entitled to decide
“that the special characteristics of the corporate structure
require particularly careful regulation” in an electoral context. NRWC , 459 U. S., at 209–210.[ Footnote 50 ] Not only has the distinctive potential of
corporations to corrupt the electoral process long been recognized,
but within the area of campaign finance, corporate spending is also
“furthest from the core of political expression, since
corporations’ First Amendment speech and association interests are
derived largely from those of their members and of the public in
receiving information,” Beaumont , 539 U. S., at 161,
n. 8 (citation omitted). Campaign finance distinctions based
on corporate identity tend to be less worrisome, in other words,
because the “speakers” are not natural persons, much less members
of our political community, and the governmental interests are of
the highest order. Furthermore, when corporations, as a class, are
distinguished from noncorporations, as a class, there is a lesser
risk that regulatory distinctions will reflect invidious
discrimination or political
favoritism. If taken seriously, our colleagues’
assumption that the identity of a speaker has no relevance
to the Government’s ability to regulate political speech would lead
to some remarkable conclusions. Such an assumption would have
accorded the propaganda broadcasts to our troops by “Tokyo Rose”
during World War II the same protection as speech by Allied
commanders. More pertinently, it would appear to afford the same
protection to multinational corporations controlled by foreigners
as to individual Americans: To do otherwise, after all, could
“ ‘enhance the relative voice’ ” of some ( i.e. ,
humans) over others ( i.e. , nonhumans). Ante , at
33 (quoting Buckley , 424 U. S., at 49).[ Footnote 51 ] Under the majority’s view, I
suppose it may be a First Amendment problem that corporations are
not permitted to vote, given that voting is, among other things, a
form of speech.[ Footnote
52 ] In short, the Court dramatically overstates
its critique of identity-based distinctions, without ever
explaining why corporate identity demands the same treatment as
individual identity. Only the most wooden approach to the First
Amendment could justify the unprecedented line it seeks to
draw. Our First Amendment
Tradition A third fulcrum of the
Court’s opinion is the idea that Austin and McConnell are radical outliers, “aberration[s],” in our First Amendment
tradition. Ante , at 39; see also ante , at 45, 56
(professing fidelity to “our law and our tradition”). The Court has
it exactly backwards. It is today’s holding that is the radical
departure from what had been settled First Amendment law. To see
why, it is useful to take a long
view. 1. Original
Understandings Let us start from the
beginning. The Court invokes “ancient First Amendment principles,”
ante , at 1 (internal quotation marks omitted), and original
understandings, ante , at 37–38, to defend today’s ruling,
yet it makes only a perfunctory attempt to ground its analysis in
the principles or understandings of those who drafted and ratified
the Amendment. Perhaps this is because there is not a scintilla of
evidence to support the notion that anyone believed it would
preclude regulatory distinctions based on the corporate form. To
the extent that the Framers’ views are discernible and relevant to
the disposition of this case, they would appear to cut strongly
against the majority’s
position. This is not only because the
Framers and their contemporaries conceived of speech more narrowly
than we now think of it, see Bork, Neutral Principles and Some
First Amendment Problems, 47 Ind. L. J. 1, 22 (1971), but also
because they held very different views about the nature of the
First Amendment right and the role of corporations in society.
Those few corporations that existed at the founding were authorized
by grant of a special legislative charter.[ Footnote 53 ] Corporate sponsors would petition
the legislature, and the legislature, if amenable, would issue a
charter that specified the corporation’s powers and purposes and
“authoritatively fixed the scope and content of corporate
organization,” including “the internal structure of the
corporation.” J. Hurst, The Legitimacy of the Business Corporation
in the Law of the United States 1780–1970, pp. 15–16 (1970)
(reprint 2004). Corporations were created, supervised, and
conceptualized as quasi-public entities, “designed to serve a
social function for the state.” Handlin & Handlin, Origin of
the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945).
It was “assumed that [they] were legally privileged organizations
that had to be closely scrutinized by the legislature because their
purposes had to be made consistent with public welfare.” R. Seavoy,
Origins of the American Business Corporation, 1784–1855, p. 5
(1982). The individualized charter mode of
incorporation reflected the “cloud of disfavor under which
corporations labored” in the early years of this Nation. 1 W.
Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev.
ed. 2006); see also Louis K. Liggett Co. v. Lee , 288 U. S. 517 ,
548–549 (1933) (Brandeis, J., dissenting) (discussing fears of the
“evils” of business corporations); L. Friedman, A History of
American Law 194 (2d ed. 1985) (“The word ‘soulless’ constantly
recurs in debates over corporations… . Corporations, it was
feared, could concentrate the worst urges of whole groups of men”).
Thomas Jefferson famously fretted that corporations would subvert
the Republic.[ Footnote 54 ]
General incorporation statutes, and widespread acceptance of
business corporations as socially useful actors, did not emerge
until the 1800’s. See Hansmann & Kraakman, The End of History
for Corporate Law, 89 Geo. L. J. 439, 440 (2001) (hereinafter
Hansmann & Kraakman) (“[A]ll general business corporation
statutes appear to date from well after
1800”). The Framers thus took it as a given that
corporations could be comprehensively regulated in the service of
the public welfare. Unlike our colleagues, they had little trouble
distinguishing corporations from human beings, and when they
constitutionalized the right to free speech in the First Amendment,
it was the free speech of individual Americans that they had in
mind.[ Footnote 55 ] While
individuals might join together to exercise their speech rights,
business corporations, at least, were plainly not seen as
facilitating such associational or expressive ends. Even “the
notion that business corporations could invoke the First Amendment
would probably have been quite a novelty,” given that “at the time,
the legitimacy of every corporate activity was thought to rest
entirely in a concession of the sovereign.” Shelledy, Autonomy,
Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541,
578 (1991); cf. Trustees of Dartmouth College v. Woodward , 4 Wheat. 518, 636 (1819) (Marshall, C. J.)
(“A corporation is an artificial being, invisible, intangible, and
existing only in contemplation of law. Being the mere creature of
law, it possesses only those properties which the charter of its
creation confers upon it”); Eule, Promoting Speaker Diversity:
Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129 (“The
framers of the First Amendment could scarcely have anticipated its
application to the corporation form. That, of course, ought not to
be dispositive. What is compelling, however, is an understanding of
who was supposed to be the beneficiary of the free speech
guaranty—the individual”). In light of these background practices
and understandings, it seems to me implausible that the Framers
believed “the freedom of speech” would extend equally to all
corporate speakers, much less that it would preclude legislatures
from taking limited measures to guard against corporate capture of
elections. The Court observes that the Framers drew on
diverse intellectual sources, communicated through newspapers, and
aimed to provide greater freedom of speech than had existed in
England. Ante , at 37. From these (accurate) observations,
the Court concludes that “[t]he First Amendment was certainly not
understood to condone the suppression of political speech in
society’s most salient media.” Ibid. This conclusion is
far from certain, given that many historians believe the Framers
were focused on prior restraints on publication and did not
understand the First Amendment to “prevent the subsequent
punishment of such [publications] as may be deemed contrary to the
public welfare.” Near v. Minnesota ex rel. Olson , 283 U. S. 697 ,
714 (1931). Yet, even if the majority’s conclusion were correct, it
would tell us only that the First Amendment was understood to
protect political speech in certain media. It would tell
us little about whether the Amendment was understood to protect
general treasury electioneering expenditures by corporations, and to what
extent . As a matter of original expectations, then,
it seems absurd to think that the First Amendment prohibits
legislatures from taking into account the corporate identity of a
sponsor of electoral advocacy. As a matter of original meaning, it
likewise seems baseless—unless one evaluates the First Amendment’s
“principles,” ante, at 1, 48, or its “purpose,” ante , at 5 (opinion of Roberts, C. J.), at such a
high level of generality that the historical understandings of the
Amendment cease to be a meaningful constraint on the judicial task.
This case sheds a revelatory light on the assumption of some that
an impartial judge’s application of an originalist methodology is
likely to yield more determinate answers, or to play a more
decisive role in the decisional process, than his or her views
about sound policy. Justice Scalia criticizes the foregoing
discussion for failing to adduce statements from the founding era
showing that corporations were understood to be excluded from the
First Amendment’s free speech guarantee. Ante , at 1–2, 9.
Of course, Justice Scalia adduces no statements to suggest the
contrary proposition, or even to suggest that the contrary
proposition better reflects the kind of right that the drafters and
ratifiers of the Free Speech Clause thought they were enshrining.
Although Justice Scalia makes a perfectly sensible argument that an
individual’s right to speak entails a right to speak with others
for a common cause, cf. MCFL , 479
U. S. 238 , he does not explain why those two rights must be
precisely identical, or why that principle applies to
electioneering by corporations that serve no “common cause.” Ante , at 8. Nothing in his account dislodges my basic
point that members of the founding generation held a cautious view
of corporate power and a narrow view of corporate rights (not that
they “despised” corporations, ante , at 2), and that they
conceptualized speech in individualistic terms. If no prominent
Framer bothered to articulate that corporate speech would have
lesser status than individual speech, that may well be because the
contrary proposition—if not also the very notion of “corporate
speech”—was inconceivable.[ Footnote 56 ] Justice Scalia also emphasizes the
unqualified nature of the First Amendment text. Ante , at
2, 8. Yet he would seemingly read out the Free Press Clause: How
else could he claim that my purported views on newspapers must
track my views on corporations generally? Ante , at
6.[ Footnote 57 ] Like
virtually all modern lawyers, Justice Scalia presumably believes
that the First Amendment restricts the Executive, even though its
language refers to Congress alone. In any event, the text only
leads us back to the questions who or what is guaranteed “the
freedom of speech,” and, just as critically, what that freedom
consists of and under what circumstances it may be limited. Justice
Scalia appears to believe that because corporations are created and
utilized by individuals, it follows (as night the day) that their
electioneering must be equally protected by the First Amendment and
equally immunized from expenditure limits. See ante , at
7–8. That conclusion certainly does not follow as a logical matter,
and Justice Scalia fails to explain why the original public meaning
leads it to follow as a matter of
interpretation. The truth is we cannot be certain how a law
such as BCRA §203 meshes with the original meaning of the First
Amendment.[ Footnote 58 ] I
have given several reasons why I believe the Constitution would
have been understood then, and ought to be understood now, to
permit reasonable restrictions on corporate electioneering, and I
will give many more reasons in the pages to come. The Court enlists
the Framers in its defense without seriously grappling with their
understandings of corporations or the free speech right, or with
the republican principles that underlay those
understandings. In fairness, our campaign finance
jurisprudence has never attended very closely to the views of the
Framers, see Randall v. Sorrell , 548 U. S. 230 , 280 (2006) (Stevens,
J., dissenting), whose political universe differed profoundly from
that of today. We have long since held that corporations are
covered by the First Amendment, and many legal scholars have long
since rejected the concession theory of the corporation. But
“historical context is usually relevant,” ibid. (internal
quotation marks omitted), and in light of the Court’s effort to
cast itself as guardian of ancient values, it pays to remember that
nothing in our constitutional history dictates today’s outcome. To
the contrary, this history helps illuminate just how
extraordinarily dissonant the decision
is. 2. Legislative and Judicial
Interpretation A century of more recent
history puts to rest any notion that today’s ruling is faithful to
our First Amendment tradition. At the federal level, the express
distinction between corporate and individual political spending on
elections stretches back to 1907, when Congress passed the Tillman
Act, ch. 420, 34 Stat. 864, banning all corporate contributions to
candidates. The Senate Report on the legislation observed that
“[t]he evils of the use of [corporate] money in connection with
political elections are so generally recognized that the committee
deems it unnecessary to make any argument in favor of the general
purpose of this measure. It is in the interest of good government
and calculated to promote purity in the selection of public
officials.” S. Rep. No. 3056, 59th Cong., 1st Sess., 2 (1906).
President Roosevelt, in his 1905 annual message to Congress,
declared: “ ‘All contributions by corporations to
any political committee or for any political purpose should be
forbidden by law; directors should not be permitted to use
stockholders’ money for such purposes; and, moreover, a prohibition
of this kind would be, as far as it went, an effective method of
stopping the evils aimed at in corrupt practices acts.’ ”
United States v. Automobile Workers , 352 U. S. 567 , 572 (1957) (quoting 40
Cong. Rec. 96). The Court has surveyed the
history leading up to the Tillman Act several times, see WRTL , 551 U. S., at 508–510 (Souter, J., dissenting); McConnell , 540 U. S., at 115; Automobile Workers ,
352 U. S., at 570–575, and I will refrain from doing so again. It
is enough to say that the Act was primarily driven by two pressing
concerns: first, the enormous power corporations had come to wield
in federal elections, with the accompanying threat of both actual
corruption and a public perception of corruption; and second, a
respect for the interest of shareholders and members in preventing
the use of their money to support candidates they opposed. See ibid.; United States v. CIO , 335 U. S. 106 , 113 (1948); Winkler,
“Other People’s Money”: Corporations, Agency Costs, and Campaign
Finance Law, 92 Geo. L. J. 871
(2004). Over the years, the limitations on corporate
political spending have been modified in a number of ways, as
Congress responded to changes in the American economy and political
practices that threatened to displace the commonweal. Justice
Souter recently traced these developments at length.[ Footnote 59 ] WRTL , 551 U. S., at
507–519 (dissenting opinion); see also McConnell , 540 U.
S., at 115–133; McConnell , 251 F. Supp. 2d, at
188–205. The Taft-Hartley Act of 1947 is of special significance
for this case. In that Act passed more than 60 years ago, Congress
extended the prohibition on corporate support of candidates to
cover not only direct contributions, but independent expenditures
as well. Labor Management Relations Act, 1947, §304, 61 Stat. 159.
The bar on contributions “was being so narrowly construed” that
corporations were easily able to defeat the purposes of the Act by
supporting candidates through other means. WRTL , 551 U.
S., at 511 (Souter, J., dissenting) (citing S. Rep. No. 1,
80th Cong., 1st Sess., 38–39
(1947)). Our colleagues emphasize that in two cases
from the middle of the 20th century, several Justices wrote
separately to criticize the expenditure restriction as applied to
unions, even though the Court declined to pass on its
constitutionality. Ante , at 27–28. Two features of these
cases are of far greater relevance. First, those Justices were
writing separately; which is to say, their position failed to
command a majority. Prior to today, this was a fact we found
significant in evaluating precedents. Second, each case in this
line expressed support for the principle that corporate and union
political speech financed with PAC funds, collected voluntarily
from the organization’s stockholders or members, receives greater
protection than speech financed with general treasury
funds.[ Footnote
60 ] This principle was carried forward when
Congress enacted comprehensive campaign finance reform in the
Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, which
retained the restriction on using general treasury funds for
contributions and expenditures, 2 U. S. C. §441b(a). FECA
codified the option for corporations and unions to create PACs to
finance contributions and expenditures forbidden to the corporation
or union itself. §441b(b). By the time Congress passed FECA in 1971, the
bar on corporate contributions and expenditures had become such an
accepted part of federal campaign finance regulation that when a
large number of plaintiffs, including several nonprofit
corporations, challenged virtually every aspect of the Act in Buckley , 424 U. S.
1 , no one even bothered to argue that the bar as such was
unconstitutional. Buckley famously (or infamously)
distinguished direct contributions from independent expenditures, id., at 58–59, but its silence on corporations only
reinforced the understanding that corporate expenditures could be
treated differently from individual expenditures. “Since our
decision in Buckley , Congress’ power to prohibit
corporations and unions from using funds in their treasuries to
finance advertisements expressly advocating the election or defeat
of candidates in federal elections has been firmly embedded in our
law.” McConnell , 540 U. S., at
203. Thus, it was unremarkable, in a 1982 case
holding that Congress could bar nonprofit corporations from
soliciting nonmembers for PAC funds, that then-Justice Rehnquist
wrote for a unanimous Court that Congress’ “careful legislative
adjustment of the federal electoral laws, in a cautious advance,
step by step, to account for the particular legal and economic
attributes of corporations … warrants considerable deference,” and
“reflects a permissible assessment of the dangers posed by those
entities to the electoral process.” NRWC , 459 U. S., at
209 (internal quotation marks and citation omitted). “The
governmental interest in preventing both actual corruption and the
appearance of corruption of elected representatives has long been
recognized,” the unanimous Court observed, “and there is no reason
why it may not … be accomplished by treating … corporations …
differently from individuals.” Id. , at
210–211. The corporate/individual distinction was not
questioned by the Court’s disposition, in 1986, of a challenge to
the expenditure restriction as applied to a distinctive type of
nonprofit corporation. In MCFL , 479
U. S. 238 , we stated again “that ‘the special characteristics
of the corporate structure require particularly careful
regulation,’ ” id. , at 256 (quoting NRWC ,
459 U. S., at 209–210), and again we acknowledged that the
Government has a legitimate interest in “regulat[ing] the
substantial aggregations of wealth amassed by the special
advantages which go with the corporate form,” 479 U. S., at 257
(internal quotation marks omitted). Those aggregations can distort
the “free trade in ideas” crucial to candidate elections, ibid. , at the expense of members or shareholders who may
disagree with the object of the expenditures, id. , at 260
(internal quotation marks omitted). What the Court held by a 5-to-4
vote was that a limited class of corporations must be allowed to
use their general treasury funds for independent expenditures,
because Congress’ interests in protecting shareholders and
“restrict[ing] ‘the influence of political war chests funneled
through the corporate form,’ ” id. , at 257 (quoting FEC v. National Conservative Political Action
Comm. , 470 U.
S. 480 , 501 (1985) (NCPAC) ), did not apply to
corporations that were structurally insulated from those
concerns.[ Footnote
61 ] It is worth remembering for present purposes
that the four MCFL dissenters, led by Chief Justice
Rehnquist, thought the Court was carrying the First Amendment too far . They would have recognized congressional
authority to bar general treasury electioneering expenditures even
by this class of nonprofits; they acknowledged that “the threat
from corporate political activity will vary depending on the
particular characteristics of a given corporation,” but believed
these “distinctions among corporations” were “distinctions in
degree,” not “in kind,” and thus “more properly drawn by the
Legislature than by the Judiciary.” 479 U. S., at 268 (opinion of
Rehnquist, C. J.) (internal quotation marks omitted). Not a
single Justice suggested that regulation of corporate political
speech could be no more stringent than of speech by an
individual. Four years later, in Austin , 494
U. S. 652 , we considered whether corporations falling outside
the MCFL exception could be barred from using general
treasury funds to make independent expenditures in support of, or
in opposition to, candidates. We held they could be. Once again
recognizing the importance of “the integrity of the marketplace of
political ideas” in candidate elections, MCFL , 479 U. S.,
at 257, we noted that corporations have “special advantages—such as
limited liability, perpetual life, and favorable treatment of the
accumulation and distribution of assets,” 494 U. S., at
658–659—that allow them to spend prodigious general treasury sums
on campaign messages that have “little or no correlation” with the
beliefs held by actual persons, id., at 660. In light of
the corrupting effects such spending might have on the political
process, ibid. , we permitted the State of Michigan to
limit corporate expenditures on candidate elections to
corporations’ PACs, which rely on voluntary contributions and thus
“reflect actual public support for the political ideals espoused by
corporations,” ibid. Notwithstanding our colleagues’
insinuations that Austin deprived the public of general
“ideas,” “facts,” and “knowledge,” ante , at 38–39, the
decision addressed only candidate-focused expenditures and gave the
State no license to regulate corporate spending on other
matters. In the 20 years since Austin , we
have reaffirmed its holding and rationale a number of times, see, e.g., Beaumont , 539 U. S., at 153–156, most
importantly in McConnell , 540 U.
S. 93 , where we upheld the provision challenged here, §203 of
BCRA.[ Footnote 62 ] Congress
crafted §203 in response to a problem created by Buckley .
The Buckley Court had construed FECA’s definition of
prohibited “expenditures” narrowly to avoid any problems of
constitutional vagueness, holding it applicable only to
“communications that expressly advocate the election or defeat of a
clearly identified candidate,” 424 U. S., at 80, i.e. ,
statements containing so-called “magic words” like “ ‘vote
for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for
Congress,’ ‘vote against,’ ‘defeat,’ [or] ‘reject,’ ” id. , at 43–44, and n. 52. After Buckley ,
corporations and unions figured out how to circumvent the limits on
express advocacy by using sham “issue ads” that “eschewed the use
of magic words” but nonetheless “advocate[d] the election or defeat
of clearly identified federal candidates.” McConnell , 540
U. S., at 126. “Corporations and unions spent hundreds of millions
of dollars of their general funds to pay for these ads.” Id. , at 127. Congress passed §203 to address this
circumvention, prohibiting corporations and unions from using
general treasury funds for electioneering communications that
“refe[r] to a clearly identified candidate,” whether or not those
communications use the magic words. 2 U. S. C.
§434(f)(3)(A)(i)(I). When we asked in McConnell “whether
a compelling governmental interest justifie[d]” §203, we found the
question “easily answered”: “We have repeatedly sustained
legislation aimed at ‘the corrosive and distorting effects of
immense aggregations of wealth that are accumulated with the help
of the corporate form and that have little or no correlation to the
public’s support for the corporation’s political ideas.’ ” 540
U. S., at 205 (quoting Austin , 494 U. S., at 660). These
precedents “represent respect for the legislative judgment that the
special characteristics of the corporate structure require
particularly careful regulation.” 540 U. S., at 205 (internal
quotation marks omitted). “Moreover, recent cases have recognized
that certain restrictions on corporate electoral involvement
permissibly hedge against ‘ “circumvention of [valid]
contribution limits.” ’ ” Ibid. (quoting Beaumont , 539 U. S., at 155, in turn quoting FEC v. Colorado Republican Federal Campaign Comm. , 533 U. S. 431 , 456, and
n. 18 (2001) (Colorado II); alteration in original).
BCRA, we found, is faithful to the compelling governmental
interests in “ ‘preserving the integrity of the electoral
process, preventing corruption, … sustaining the active, alert
responsibility of the individual citizen in a democracy for the
wise conduct of the government,’ ” and maintaining “ ‘the
individual citizen’s confidence in government.’ ” 540 U. S.,
at 206–207, n. 88 (quoting Bellotti , 435 U. S., at
788–789; some internal quotation marks and brackets omitted). What
made the answer even easier than it might have been otherwise was
the option to form PACs, which give corporations, at the least, “a
constitutionally sufficient opportunity to engage in” independent
expenditures. 540 U. S., at
203. 3. Buckley and
Bellotti Against this extensive
background of congressional regulation of corporate campaign
spending, and our repeated affirmation of this regulation as
constitutionally sound, the majority dismisses Austin as “a
significant departure from ancient First Amendment principles,” ante , at 1 (internal quotation marks omitted). How does
the majority attempt to justify this claim? Selected passages from
two cases, Buckley , 424 U. S.
1 , and Bellotti , 435
U. S. 765 , do all of the work. In the Court’s view, Buckley and Bellotti decisively rejected the
possibility of distinguishing corporations from natural persons in
the 1970’s; it just so happens that in every single case in which
the Court has reviewed campaign finance legislation in the decades
since, the majority failed to grasp this truth. The Federal
Congress and dozens of state legislatures, we now know, have been
similarly deluded. The majority emphasizes Buckley ’s statement that “ ‘[t]he concept that
government may restrict the speech of some elements of our society
in order to enhance the relative voice of others is wholly foreign
to the First Amendment.’ ” Ante , at 33 (quoting 424
U. S., at 48–49); ante , at 8 (opinion of Roberts,
C. J.). But this elegant phrase cannot bear the weight that
our colleagues have placed on it. For one thing, the Constitution
does, in fact, permit numerous “restrictions on the speech of some
in order to prevent a few from drowning out the many”: for example,
restrictions on ballot access and on legislators’ floor time. Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402 (2000) (Breyer, J.,
concurring). For another, the Buckley Court used this line
in evaluating “the ancillary governmental interest in equalizing
the relative ability of individuals and groups to influence the
outcome of elections.” 424 U. S., at 48. It is not apparent why
this is relevant to the case before us. The majority suggests that Austin rests on the foreign concept of speech
equalization, ante , at 34; ante , at 8–10 (opinion
of Roberts, C. J.), but we made it clear in Austin (as in several cases before and since) that a restriction on the
way corporations spend their money is no mere exercise in
disfavoring the voice of some elements of our society in preference
to others. Indeed, we expressly ruled that the compelling
interest supporting Michigan’s statute was not one of
“ ‘equaliz[ing] the relative influence of speakers on
elections,’ ” Austin , 494 U. S., at 660 (quoting id. , at 705 (Kennedy, J., dissenting)), but rather the
need to confront the distinctive corrupting potential of corporate
electoral advocacy financed by general treasury dollars, id., at 659–660. For that matter, it should go without saying
that when we made this statement in Buckley , we could not
have been casting doubt on the restriction on corporate
expenditures in candidate elections, which had not been challenged
as “foreign to the First Amendment,” ante , at 33 (quoting Buckley , 424 U. S., at 49), or for any other reason. Buckley ’s independent expenditure analysis was focused on
a very different statutory provision, 18 U. S. C. §608(e)(1)
(1970 ed., Supp. V). It is implausible to think, as the majority
suggests, ante , at 29–30, that Buckley covertly
invalidated FECA’s separate corporate and union campaign
expenditure restriction, §610 (now codified at 2 U. S. C.
§441b), even though that restriction had been on the books for
decades before Buckley and would remain on the books,
undisturbed, for decades
after. The case on which the majority places even
greater weight than Buckley , however, is Bellotti , 435
U. S. 765 , claiming it “could not have been clearer” that Bellotti ’s holding forbade distinctions between corporate
and individual expenditures like the one at issue here, ante , at 30. The Court’s reliance is odd. The only thing
about Bellotti that could not be clearer is that it
declined to adopt the majority’s position. Bellotti ruled,
in an explicit limitation on the scope of its holding, that “our
consideration of a corporation’s right to speak on issues of
general public interest implies no comparable right in the quite
different context of participation in a political campaign for
election to public office.” 435 U. S., at 788, n. 26; see also id., at 787–788 (acknowledging that the interests in
preserving public confidence in Government and protecting
dissenting shareholders may be “weighty … in the context of
partisan candidate elections”). Bellotti , in other words,
did not touch the question presented in Austin and McConnell , and the opinion squarely disavowed the
proposition for which the majority cites
it. The majority attempts to explain away the
distinction Bellotti drew—between general corporate speech
and campaign speech intended to promote or prevent the election of
specific candidates for office—as inconsistent with the rest of the
opinion and with Buckley . Ante , at 31, 42–44. Yet
the basis for this distinction is perfectly coherent: The
anticorruption interests that animate regulations of corporate
participation in candidate elections, the “importance” of which
“has never been doubted,” 435 U. S., at 788, n. 26, do not
apply equally to regulations of corporate participation in
referenda. A referendum cannot owe a political debt to a
corporation, seek to curry favor with a corporation, or fear the
corporation’s retaliation. Cf. Austin , 494 U. S., at 678
(Stevens, J., concurring); Citizens Against Rent
Control/Coalition for Fair Housing v. Berkeley , 454 U. S. 290 ,
299 (1981). The majority likewise overlooks the fact that, over the
past 30 years, our cases have repeatedly recognized the
candidate/issue distinction. See, e.g., Austin ,
494 U. S., at 659; NCPAC , 470 U. S., at 495–496; FCC v. League of Women Voters of Cal. , 468 U. S. 364 , 371,
n. 9 (1984); NRWC , 459 U. S., at 210, n. 7. The
Court’s critique of Bellotti ’s footnote 26 puts it in the
strange position of trying to elevate Bellotti to
canonical status, while simultaneously disparaging a critical piece
of its analysis as unsupported and irreconcilable with Buckley . Bellotti , apparently, is both the font
of all wisdom and internally
incoherent. The Bellotti Court confronted a
dramatically different factual situation from the one that
confronts us in this case: a state statute that barred business
corporations’ expenditures on some referenda but not others.
Specifically, the statute barred a business corporation “from
making contributions or expenditures ‘for the purpose of …
influencing or affecting the vote on any question submitted to the
voters, other than one materially affecting any of the property,
business or assets of the corporation,’ ” 435 U. S., at 768
(quoting Mass. Gen. Laws Ann., ch. 55, §8 (West Supp. 1977);
alteration in original), and it went so far as to provide that
referenda related to income taxation would not “ ‘be deemed
materially to affect the property, business or assets of the
corporation,’ ” 435 U. S., at 768. As might be guessed, the
legislature had enacted this statute in order to limit corporate
speech on a proposed state constitutional amendment to authorize a
graduated income tax. The statute was a transparent attempt to
prevent corporations from spending money to defeat this amendment,
which was favored by a majority of legislators but had been
repeatedly rejected by the voters. See id., at 769–770,
and n. 3. We said that “where, as here, the legislature’s
suppression of speech suggests an attempt to give one side of a
debatable public question an advantage in expressing its views to
the people, the First Amendment is plainly offended.” Id. ,
at 785–786 (footnote
omitted). Bellotti thus involved a viewpoint-discriminatory statute, created to effect a
particular policy outcome. Even Justice Rehnquist, in dissent, had
to acknowledge that “a very persuasive argument could be made that
the [Massachusetts Legislature], desiring to impose a personal
income tax but more than once defeated in that desire by the
combination of the Commonwealth’s referendum provision and
corporate expenditures in opposition to such a tax, simply decided
to muzzle corporations on this sort of issue so that it could
succeed in its desire.” Id., at 827, n. 6. To make
matters worse, the law at issue did not make any allowance for
corporations to spend money through PACs. Id., at 768,
n. 2 (opinion of the Court). This really was a complete ban on
a specific, preidentified subject. See MCFL , 479 U. S., at
259, n. 12 (stating that 2 U. S. C. §441b’s expenditure
restriction “is of course distinguishable from the
complete foreclosure of any opportunity for political speech that
we invalidated in the state referendum context in … Bellotti ” (emphasis
added)). The majority grasps a quotational straw from Bellotti , that speech does not fall entirely outside the
protection of the First Amendment merely because it comes from a
corporation. Ante , at 30–31. Of course not, but no one
suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the
expenditures at issue were subject to First Amendment scrutiny, the
restrictions on those expenditures were justified by a compelling
state interest. See McConnell , 540 U. S., at 205; Austin , 494 U. S., at 658, 660. We acknowledged in Bellotti that numerous “interests of the highest
importance” can justify campaign finance regulation. 435 U. S., at
788–789. But we found no evidence that these interests were served
by the Massachusetts law. Id. , at 789. We left open the
possibility that our decision might have been different if there
had been “record or legislative findings that corporate advocacy
threatened imminently to undermine democratic processes, thereby
denigrating rather than serving First Amendment interests.” Ibid. Austin and McConnell , then,
sit perfectly well with Bellotti . Indeed, all six Members
of the Austin majority had been on the Court at the time
of Bellotti , and none so much as hinted in Austin that they saw any tension between the decisions. The difference
between the cases is not that Austin and McConnell rejected First Amendment protection for
corporations whereas Bellotti accepted it. The difference
is that the statute at issue in Bellotti smacked of
viewpoint discrimination, targeted one class of corporations, and
provided no PAC option; and the State has a greater interest in
regulating independent corporate expenditures on candidate
elections than on referenda, because in a functioning democracy the
public must have faith that its representatives owe their positions
to the people, not to the corporations with the deepest
pockets. *  *  * In sum, over the course of the
past century Congress has demonstrated a recurrent need to regulate
corporate participation in candidate elections to
“ ‘[p]reserv[e] the integrity of the electoral process,
preven[t] corruption, … sustai[n] the active, alert responsibility
of the individual citizen,’ ” protect the expressive interests
of shareholders, and “ ‘[p]reserv[e] … the individual
citizen’s confidence in government.’ ” McConnell , 540
U. S., at 206–207, n. 88 (quoting Bellotti , 435 U.
S., at 788–789; first alteration in original). These understandings
provided the combined impetus behind the Tillman Act in 1907, see Automobile Workers , 352 U. S., at 570–575, the
Taft-Hartley Act in 1947, see WRTL , 551 U. S., at 511
(Souter, J., dissenting), FECA in 1971, see NRWC , 459 U.
S., at 209–210, and BCRA in 2002, see McConnell , 540 U.
S., at 126–132. Continuously for over 100 years, this line of
“[c]ampaign finance reform has been a series of reactions to
documented threats to electoral integrity obvious to any voter,
posed by large sums of money from corporate or union treasuries.” WRTL , 551 U. S., at 522 (Souter, J., dissenting). Time and
again, we have recognized these realities in approving measures
that Congress and the States have taken. None of the cases the
majority cites is to the contrary. The only thing new about Austin was the dissent, with its stunning failure to
appreciate the legitimacy of interests recognized in the name of
democratic integrity since the days of the
Progressives. IV Having explained why this is not
an appropriate case in which to revisit Austin and McConnell and why these decisions sit perfectly well with
“First Amendment principles,” ante , at 1, 48, I come at
last to the interests that are at stake. The majority recognizes
that Austin and McConnell may be defended on
anticorruption, antidistortion, and shareholder protection
rationales. Ante , at 32–46. It badly errs both in
explaining the nature of these rationales, which overlap and
complement each other, and in applying them to the case at
hand. The Anticorruption
Interest Undergirding the majority’s
approach to the merits is the claim that the only “sufficiently
important governmental interest in preventing corruption or the
appearance of corruption” is one that is “limited to quid pro
quo corruption.” Ante , at 43. This is the same
“crabbed view of corruption” that was espoused by Justice Kennedy
in McConnell and squarely rejected by the Court in that
case. 540 U. S., at 152. While it is true that we have not always
spoken about corruption in a clear or consistent voice, the
approach taken by the majority cannot be right, in my judgment. It
disregards our constitutional history and the fundamental demands
of a democratic society. On numerous occasions we have recognized
Congress’ legitimate interest in preventing the money that is spent
on elections from exerting an “ ‘undue influence on an
officeholder’s judgment’ ” and from creating “ ‘the
appearance of such influence,’ ” beyond the sphere of quid
pro quo relationships. Id., at 150; see also, e.g., id., at 143–144, 152–154; Colorado
II , 533 U. S., at 441; Shrink Missouri , 528 U. S., at
389. Corruption can take many forms. Bribery may be the paradigm
case. But the difference between selling a vote and selling access
is a matter of degree, not kind. And selling access is not
qualitatively different from giving special preference to those who
spent money on one’s behalf. Corruption operates along a spectrum,
and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper
influences does not accord with the theory or reality of politics.
It certainly does not accord with the record Congress developed in
passing BCRA, a record that stands as a remarkable testament to the
energy and ingenuity with which corporations, unions, lobbyists,
and politicians may go about scratching each other’s backs—and
which amply supported Congress’ determination to target a limited
set of especially destructive
practices. The District Court that adjudicated the
initial challenge to BCRA pored over this record. In a careful
analysis, Judge Kollar-Kotelly made numerous findings about the
corrupting consequences of corporate and union independent
expenditures in the years preceding BCRA’s passage. See McConnell , 251 F. Supp. 2d, at 555–560, 622–625; see
also id., at 804–805, 813, n. 143 (Leon, J.)
(indicating agreement). As summarized in her own
words: “The factual findings of the
Court illustrate that corporations and labor unions routinely
notify Members of Congress as soon as they air electioneering
communications relevant to the Members’ elections. The record also
indicates that Members express appreciation to organizations for
the airing of these election-related advertisements. Indeed,
Members of Congress are particularly grateful when negative issue
advertisements are run by these organizations, leaving the
candidates free to run positive advertisements and be seen as
‘above the fray.’ Political consultants testify that campaigns are
quite aware of who is running advertisements on the candidate’s
behalf, when they are being run, and where they are being run.
Likewise, a prominent lobbyist testifies that these organizations
use issue advocacy as a means to influence various Members of
Congress. “The Findings also demonstrate that Members
of Congress seek to have corporations and unions run these
advertisements on their behalf. The Findings show that Members
suggest that corporations or individuals make donations to interest
groups with the understanding that the money contributed to these
groups will assist the Member in a campaign. After the election,
these organizations often seek credit for their support… .
Finally, a large majority of Americans (80%) are of the view that
corporations and other organizations that engage in electioneering
communications, which benefit specific elected officials, receive
special consideration from those officials when matters arise that
affect these corporations and organizations.” Id., at
623–624 (citations and footnote
omitted). Many of the relationships of
dependency found by Judge Kollar-Kotelly seemed to have a quid
pro quo basis, but other arrangements were more subtle. Her
analysis shows the great difficulty in delimiting the precise scope
of the quid pro quo category, as well as the adverse
consequences that all such arrangements may have. There
are threats of corruption that are far more destructive to a
democratic society than the odd bribe. Yet the majority’s
understanding of corruption would leave lawmakers impotent to
address all but the most discrete
abuses. Our “undue influence” cases have allowed the
American people to cast a wider net through legislative experiments
designed to ensure, to some minimal extent, “that officeholders
will decide issues … on the merits or the desires of their
constituencies,” and not “according to the wishes of those who have
made large financial contributions”—or expenditures—“valued by the
officeholder.” McConnell , 540 U. S., at 153.[ Footnote 63 ] When private interests are
seen to exert outsized control over officeholders solely on account
of the money spent on (or withheld from) their campaigns, the
result can depart so thoroughly “from what is pure or correct” in
the conduct of Government, Webster’s Third New International
Dictionary 512 (1966) (defining “corruption”), that it amounts to a
“subversion … of the electoral process,” Automobile
Workers , 352 U. S., at 575. At stake in the legislative
efforts to address this threat is therefore not only the legitimacy
and quality of Government but also the public’s faith therein, not
only “the capacity of this democracy to represent its constituents
[but also] the confidence of its citizens in their capacity to
govern themselves,” WRTL , 551 U. S., at 507 (Souter, J.,
dissenting). “Take away Congress’ authority to regulate the
appearance of undue influence and ‘the cynical assumption that
large donors call the tune could jeopardize the willingness of
voters to take part in democratic governance.’ ” McConnell , 540 U. S., at 144 (quoting Shrink
Missouri , 528 U. S., at 390).[ Footnote 64 ] The cluster of interrelated interests
threatened by such undue influence and its appearance has been well
captured under the rubric of “democratic integrity.” WRTL ,
551 U. S., at 522 (Souter, J., dissenting). This value has
underlined a century of state and federal efforts to regulate the
role of corporations in the electoral process.[ Footnote
65 ] Unlike the majority’s myopic focus on quid pro quo scenarios and the free-floating “First
Amendment principles” on which it rests so much weight, ante , at 1, 48, this broader understanding of corruption
has deep roots in the Nation’s history. “During debates on the
earliest [campaign finance] reform acts, the terms ‘corruption’ and
‘undue influence’ were used nearly interchangeably.” Pasquale,
Reclaiming Egalitarianism in the Political Theory of Campaign
Finance Reform, 2008 U. Ill. L. Rev. 599, 601. Long before Buckley , we appreciated that “[t]o say that Congress is
without power to pass appropriate legislation to safeguard … an
election from the improper use of money to influence the result is
to deny to the nation in a vital particular the power of self
protection.” Burroughs v. United States , 290 U. S. 534 , 545
(1934). And whereas we have no evidence to support the notion that
the Framers would have wanted corporations to have the same rights
as natural persons in the electoral context, we have ample evidence
to suggest that they would have been appalled by the evidence of
corruption that Congress unearthed in developing BCRA and that the
Court today discounts to irrelevance. It is fair to say that “[t]he
Framers were obsessed with corruption,” Teachout 348, which they
understood to encompass the dependency of public officeholders on
private interests, see id., at 373–374; see also Randall , 548 U. S., at 280 (Stevens, J., dissenting). They
discussed corruption “more often in the Constitutional Convention
than factions, violence, or instability.” Teachout 352. When they
brought our constitutional order into being, the Framers had their
minds trained on a threat to republican self-government that this
Court has lost sight of. Quid Pro Quo Corruption There is no need to take my
side in the debate over the scope of the anticorruption interest to
see that the Court’s merits holding is wrong. Even under the
majority’s “crabbed view of corruption,” McConnell , 540 U. S.,
at 152, the Government should not lose this
case. “The importance of the
governmental interest in preventing [corruption through the
creation of political debts] has never been doubted.” Bellotti , 435 U. S., at 788, n. 26. Even in the cases
that have construed the anticorruption interest most narrowly, we
have never suggested that such quid pro quo debts must
take the form of outright vote buying or bribes, which have long
been distinct crimes. Rather, they encompass the myriad ways in
which outside parties may induce an officeholder to confer a
legislative benefit in direct response to, or anticipation of, some
outlay of money the parties have made or will make on behalf of the
officeholder. See McConnell , 540 U. S., at 143 (“We have
not limited [the anticorruption] interest to the elimination of
cash-for-votes exchanges. In Buckley , we expressly
rejected the argument that antibribery laws provided a less
restrictive alternative to FECA’s contribution limits, noting that
such laws ‘deal[t] with only the most blatant and specific attempts
of those with money to influence governmental action’ ”
(quoting 424 U. S., at 28; alteration in original)). It has
likewise never been doubted that “[o]f almost equal concern as the
danger of actual quid pro quo arrangements is the impact
of the appearance of corruption.” Id. , at 27. Congress may
“legitimately conclude that the avoidance of the appearance of
improper influence is also critical … if confidence in the system
of representative Government is not to be eroded to a disastrous
extent.” Ibid. (internal quotation marks omitted;
alteration in original). A democracy cannot function effectively
when its constituent members believe laws are being bought and
sold. In theory, our colleagues accept this much.
As applied to BCRA §203, however, they conclude “[t]he
anticorruption interest is not sufficient to displace the speech
here in question.” Ante , at
41. Although the Court suggests that Buckley compels its conclusion, ante , at 40–44, Buckley cannot sustain this reading. It is true that, in
evaluating FECA’s ceiling on independent expenditures by all
persons, the Buckley Court found the governmental interest
in preventing corruption “inadequate.” 424 U. S., at 45. But Buckley did not evaluate corporate expenditures
specifically, nor did it rule out the possibility that a future
Court might find otherwise. The opinion reasoned that an
expenditure limitation covering only express advocacy
( i.e. , magic words) would likely be ineffectual, ibid. , a problem that Congress tackled in BCRA, and it
concluded that “the independent advocacy restricted by [FECA
§608(e)(1)] does not presently appear to pose dangers of
real or apparent corruption comparable to those identified with
large campaign contributions,” id., at 46 (emphasis
added). Buckley expressly contemplated that an
anticorruption rationale might justify restrictions on independent
expenditures at a later date, “because it may be that, in some
circumstances, ‘large independent expenditures pose the same
dangers of actual or apparent quid pro quo arrangements as
do large contributions.’ ” WRTL , 551 U. S., at 478
(opinion of Roberts, C. J.) (quoting Buckley , 424 U.
S., at 45). Certainly Buckley did not foreclose this
possibility with respect to electioneering communications made with
corporate general treasury funds, an issue the Court had no
occasion to consider. The Austin Court did not rest its
holding on quid pro quo corruption, as it found the
broader corruption implicated by the antidistortion and shareholder
protection rationales a sufficient basis for Michigan’s restriction
on corporate electioneering. 494 U. S., at 658–660. Concurring in
that opinion, I took the position that “the danger of either the
fact, or the appearance, of quid pro quo relationships
[also] provides an adequate justification for state regulation” of
these independent expenditures. Id., at 678. I did not see
this position as inconsistent with Buckley ’s analysis of
individual expenditures. Corporations, as a class, tend to be more
attuned to the complexities of the legislative process and more
directly affected by tax and appropriations measures that receive
little public scrutiny; they also have vastly more money with which
to try to buy access and votes. See Supp. Brief for Appellee 17
(stating that the Fortune 100 companies earned revenues of $13.1
trillion during the last election cycle). Business corporations
must engage the political process in instrumental terms if they are
to maximize shareholder value. The unparalleled resources,
professional lobbyists, and single-minded focus they bring to this
effort, I believed, make quid pro quo corruption and its
appearance inherently more likely when they (or their conduits or
trade groups) spend unrestricted sums on
elections. It is with regret rather than satisfaction
that I can now say that time has borne out my concerns. The
legislative and judicial proceedings relating to BCRA generated a
substantial body of evidence suggesting that, as corporations grew
more and more adept at crafting “issue ads” to help or harm a
particular candidate, these nominally independent expenditures
began to corrupt the political process in a very direct sense. The
sponsors of these ads were routinely granted special access after
the campaign was over; “candidates and officials knew who their
friends were,” McConnell , 540 U. S., at 129. Many
corporate independent expenditures, it seemed, had become
essentially interchangeable with direct contributions in their
capacity to generate quid pro quo arrangements. In an age
in which money and television ads are the coin of the campaign
realm, it is hardly surprising that corporations deployed these ads
to curry favor with, and to gain influence over, public
officials. The majority appears to think it decisive
that the BCRA record does not contain “direct examples of votes
being exchanged for … expenditures.” Ante , at 45 (internal
quotation marks omitted). It would have been quite remarkable if
Congress had created a record detailing such behavior by its own
Members. Proving that a specific vote was exchanged for a specific
expenditure has always been next to impossible: Elected officials
have diverse motivations, and no one will acknowledge that he sold
a vote. Yet, even if “[i]ngratiation and access … are not
corruption” themselves, ibid. , they are necessary
prerequisites to it; they can create both the opportunity for, and
the appearance of, quid pro quo arrangements. The influx
of unlimited corporate money into the electoral realm also creates
new opportunities for the mirror image of quid pro quo deals: threats, both explicit and implicit. Starting today,
corporations with large war chests to deploy on electioneering may
find democratically elected bodies becoming much more attuned to
their interests. The majority both misreads the facts and draws the
wrong conclusions when it suggests that the BCRA record provides
“only scant evidence that independent expenditures … ingratiate,”
and that, “in any event,” none of it matters. Ibid. In her analysis of the record, Judge
Kollar-Kotelly documented the pervasiveness of this ingratiation
and explained its significance under the majority’s own touchstone
for defining the scope of the anticorruption rationale, Buckley . See McConnell, 251 F. Supp. 2d, at
555–560, 622–625. Witnesses explained how political parties and
candidates used corporate independent expenditures to circumvent
FECA’s “hard-money” limitations. See, e.g., id., at
478–479. One former Senator candidly admitted to the District Court
that “ ‘[c]andidates whose campaigns benefit from [phony
“issue ads”] greatly appreciate the help of these groups. In fact,
Members will also be favorably disposed to those who finance these
groups when they later seek access to discuss pending
legislation.’ ” Id., at 556 (quoting declaration of
Sen. Dale Bumpers). One prominent lobbyist went so far as to state,
in uncontroverted testimony, that “ ‘unregulated
expenditures—whether soft money donations to the parties or issue
ad campaigns—can sometimes generate far more influence
than direct campaign contributions.’ ” Ibid. (quoting
declaration of Wright Andrews; emphasis added). In sum, Judge
Kollar-Kotelly found, “[t]he record powerfully demonstrates that
electioneering communications paid for with the general treasury
funds of labor unions and corporations endears those entities to
elected officials in a way that could be perceived by the public as
corrupting.” Id., at 622–623. She concluded that the
Government’s interest in preventing the appearance of corruption,
as that concept was defined in Buckley , was itself
sufficient to uphold BCRA §203. 251 F. Supp. 2d, at 622–625.
Judge Leon agreed. See id., at 804–805 (dissenting only
with re- spect to the Wellstone Amendment’s coverage of MCFL corporations). When the McConnell Court affirmed
the judgment of the District Court regarding §203, we did not rest
our holding on a narrow notion of quid pro quo corruption.
Instead we relied on the governmental interest in combating the
unique forms of corruption threatened by corporations, as
recognized in Austin ’s antidistortion and shareholder
protection rationales, 540 U. S., at 205 (citing Austin, 494 U. S., at 660), as well as the interest in preventing
circumvention of contribution limits, 540 U. S., at 128–129, 205,
206, n. 88. Had we felt constrained by the view of today’s
Court that quid pro quo corruption and its appearance are
the only interests that count in this field, ante , at
32–46, we of course would have looked closely at that issue. And as
the analysis by Judge Kollar-Kotelly reflects, it is a very real
possibility that we would have found one or both of those interests
satisfied and §203 appropriately tailored to
them. The majority’s rejection of the Buckley anticorruption rationale on the ground that
independent corporate expenditures “do not give rise to [ quid
pro quo ] corruption or the appearance of corruption,” ante, at 42, is thus unfair as well as unreasonable.
Congress and outside experts have generated significant evidence
corroborating this rationale, and the only reason we do not have
any of the relevant materials before us is that the Government had
no reason to develop a record at trial for a facial challenge the
plaintiff had abandoned. The Court cannot both sU. S.onte choose to relitigate McConnell on appeal and then complain
that the Government has failed to substantiate its case. If our
colleagues were really serious about the interest in preventing quid pro quo corruption, they would remand to the District
Court with instructions to commence evidentiary
proceedings.[ Footnote
66 ] The insight that even technically independent
expenditures can be corrupting in much the same way as direct
contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___
(2009). In that case, Don Blankenship, the chief executive officer
of a corporation with a lawsuit pending before the West Virginia
high court, spent large sums on behalf of a particular candidate,
Brent Benjamin, running for a seat on that court. “In addition to
contributing the $1,000 statutory maximum to Benjamin’s campaign
committee, Blankenship donated almost $2.5 million to ‘And For The
Sake Of The Kids,’ ” a §527 corporation that ran ads targeting
Benjamin’s opponent. Id., at ___ (slip op., at 2). “This
was not all. Blankenship spent, in addition, just over $500,000 on
independent expenditures … ‘ “to support … Brent
Benjamin.” ’ ” Id., at ___ (slip op., at 2–3)
(second alteration in original). Applying its common sense, this
Court accepted petitioners’ argument that Blankenship’s “pivotal
role in getting Justice Benjamin elected created a constitutionally
intolerable probability of actual bias” when Benjamin later
declined to recuse himself from the appeal by Blankenship’s
corporation. Id., at ___ (slip op., at 11). “Though n[o] …
bribe or criminal influence” was involved, we recognized that
“Justice Benjamin would nevertheless feel a debt of gratitude to
Blankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we
further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce
turn on the appearance of bias rather than its actual
existence. In Caperton , then, we accepted the
premise that, at least in some circumstances, independent
expenditures on candidate elections will raise an intolerable
specter of quid pro quo corruption. Indeed, this premise
struck the Court as so intuitive that it repeatedly referred to
Blankenship’s spending on behalf of Benjamin—spending that
consisted of 99.97% independent expenditures ($3 million) and 0.03%
direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis
for the [recusal] motion was that the justice had received campaign
contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s
$3 million in contributions”); id., at ___ (slip op., at
14) (“Blankenship contributed some $3 million to unseat the
incumbent and replace him with Benjamin”); id., at ___
(slip op., at 15) (“Blankenship’s campaign contributions … had a
significant and disproportionate influence on the electoral
outcome”). The reason the Court so thoroughly conflated
expenditures and contributions, one assumes, is that it realized
that some expenditures may be functionally equivalent to
contributions in the way they influence the outcome of a race, the
way they are interpreted by the candidates and the public, and the
way they taint the decisions that the officeholder thereafter
takes. Caperton is illuminating in several
additional respects. It underscores the old insight that, on
account of the extreme difficulty of proving corruption,
“prophylactic measures, reaching some [campaign spending] not
corrupt in purpose or effect, [may be] nonetheless required to
guard against corruption.” Buckley , 424 U. S., at 30; see
also Shrink Missouri , 528 U. S., at 392, n. 5. It
underscores that “certain restrictions on corporate electoral
involvement” may likewise be needed to “hedge against circumvention
of valid contribution limits.” McConnell , 540 U. S., at
205 (internal quotation marks and brackets omitted); see also Colorado II , 533 U. S., at 456 (“[A]ll Members of the
Court agree that circumvention is a valid theory of corruption”).
It underscores that for-profit corporations associated with
electioneering communications will often prefer to use nonprofit
conduits with “misleading names,” such as And For The Sake Of The
Kids, “to conceal their identity” as the sponsor of those
communications, thereby frustrating the utility of disclosure laws. McConnell , 540 U. S., at 128; see also id., at
196–197. And it underscores that the consequences of
today’s holding will not be limited to the legislative or executive
context. The majority of the States select their judges through
popular elections. At a time when concerns about the conduct of
judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p.
A25; Brief for Justice at Stake et al. as Amici
Curiae 2, the Court today unleashes the floodgates of
corporate and union general treasury spending in these races.
Perhaps “ Caperton motions” will catch some of the worst
abuses. This will be small comfort to those States that, after
today, may no longer have the ability to place modest limits on
corporate electioneering even if they believe such limits to be
critical to maintaining the integrity of their judicial
systems. Deference and Incumbent
Self-Protection Rather than show any
deference to a coordinate branch of Government, the majority thus
rejects the anticorruption rationale without serious
analysis.[ Footnote 67 ]
Today’s opinion provides no clear rationale for being so dismissive
of Congress, but the prior individual opinions on which it relies
have offered one: the incentives of the legislators who passed
BCRA. Section 203, our colleagues have suggested, may be little
more than “an incumbency protection plan,” McConnell , 540 U.
S., at 306 (Kennedy, J., concurring in judgment in part and
dissenting in part); see also id., at 249–250, 260–263
(Scalia, J., concurring in part, concurring in judgment in part,
and dissenting in part), a disreputable attempt at legislative
self-dealing rather than an earnest effort to facilitate First
Amendment values and safeguard the legitimacy of our political
system. This possibility, the Court apparently believes, licenses
it to run roughshod over Congress’
handiwork. In my view, we should instead
start by acknowledging that “Congress surely has both wisdom and
experience in these matters that is far superior to ours.” Colorado Republican Federal Campaign Comm. v. FEC , 518 U.
S. 604 , 650 (1996) (Stevens, J., dissenting). Many of our
campaign finance precedents explicitly and forcefully affirm the
propriety of such presumptive deference. See, e.g., McConnell , 540 U. S., at 158; Beaumont , 539 U.
S., at 155–156; NRWC , 459 U. S., at 209–210. Moreover,
“[j]udicial deference is particularly warranted where, as here, we
deal with a congressional judgment that has remained essentially
unchanged throughout a century of careful legislative adjustment.” Beaumont , 539 U. S., at 162, n. 9 (internal quotation
marks omitted); cf. Shrink Missouri, 528 U. S., at 391
(“The quantum of empirical evidence needed to satisfy heightened
judicial scrutiny of legislative judgments will vary up or down
with the novelty and plausibility of the justification raised”). In
America, incumbent legislators pass the laws that govern campaign
finance, just like all other laws. To apply a level of scrutiny
that effectively bars them from regulating electioneering whenever
there is the faintest whiff of self-interest, is to deprive them of
the ability to regulate
electioneering. This is not to say that deference
would be appropriate if there were a solid basis for believing that
a legislative action was motivated by the desire to protect
incumbents or that it will degrade the competitiveness of the
electoral process.[ Footnote
68 ] See League of United Latin American Citizens v. Perry , 548
U. S. 399 , 447 (2006) (Stevens, J., concurring in part and
dissenting in part); Vieth v. Jubelirer , 541 U. S. 267 , 317 (2004) (Stevens,
J., dissenting). Along with our duty to balance competing
constitutional concerns, we have a vital role to play in ensuring
that elections remain at least minimally open, fair, and
competitive. But it is the height of recklessness to dismiss
Congress’ years of bipartisan deliberation and its reasoned
judgment on this basis, without first confirming that the statute
in question was intended to be, or will function as, a restraint on
electoral competition. “Absent record evidence of invidious
discrimination against challengers as a class, a court should
generally be hesitant to invalidate legislation which on its face
imposes evenhanded restrictions.” Buckley , 424 U. S., at
31. We have no record evidence from which to
conclude that BCRA §203, or any of the dozens of state laws that
the Court today calls into question, reflects or fosters such
invidious discrimination. Our colleagues have opined that
“ ‘ any restriction upon a type of campaign speech
that is equally available to challengers and incumbents tends to
favor incumbents.’ ” McConnell , 540 U. S., at 249
(opinion of Scalia, J.). This kind of airy speculation could easily
be turned on its head. The electioneering prohibited by §203 might
well tend to favor incumbents, because incumbents have pre-existing
relationships with corporations and unions, and groups that wish to
procure legislative benefits may tend to support the candidate who,
as a sitting officeholder, is already in a position to dispense
benefits and is statistically likely to retain office. If a
corporation’s goal is to induce officeholders to do its bidding,
the corporation would do well to cultivate stable, long-term
relationships of dependency. So we do not have a solid theoretical basis
for condemning §203 as a front for incumbent self-protection, and
it seems equally if not more plausible that restrictions on
corporate electioneering will be self-denying. Nor do we have a
good empirical case for skepticism, as the Court’s failure to cite
any empirical research attests. Nor does the legislative history
give reason for concern. Congress devoted years of careful study to
the issues underlying BCRA; “[f]ew legislative proposals in recent
years have received as much sustained public commentary or news
coverage”; “[p]olitical scientists and academic experts … with no
self-interest in incumbent protectio[n] were central figures in
pressing the case for BCRA”; and the legislation commanded
bipartisan support from the outset. Pildes, The Supreme Court 2003
Term Foreword: The Constitutionalization of Democratic Politics,
118 Harv. L. Rev. 28, 137 (2004). Finally, it is important to
remember just how incumbent-friendly congressional races were prior
to BCRA’s passage. As the Solicitor General aptly remarked at the
time, “the evidence supports overwhelmingly that incumbents were
able to get re-elected under the old system just fine.” Tr. of Oral
Arg. in McConnell v. FEC , O. T. 2003, No.
02–1674, p. 61. “It would be hard to develop a scheme that could be
better for incumbents.” Id., at
63. In this case, then, “there is no convincing
evidence that th[e] important interests favoring expenditure limits
are fronts for incumbency protection.” Randall , 548 U. S.,
at 279 (Stevens, J., dissenting). “In the meantime, a legislative
judgment that ‘enough is enough’ should command the greatest
possible deference from judges interpreting a constitutional
provision that, at best, has an indirect relationship to activity
that affects the quantity … of repetitive speech in the marketplace
of ideas.” Id., at 279–280. The majority cavalierly
ignores Congress’ factual findings and its constitutional judgment:
It acknowledges the validity of the interest in preventing
corruption, but it effectively discounts the value of that interest
to zero. This is quite different from conscientious policing for
impermissibly anticompetitive motive or effect in a sensitive First
Amendment context. It is the denial of Congress’ authority to
regulate corporate spending on
elections. Austin and Corporate
Expenditures Just as the majority gives
short shrift to the general societal interests at stake in campaign
finance regulation, it also overlooks the distinctive
considerations raised by the regulation of corporate expenditures. The majority fails to appreciate that Austin ’s antidistortion rationale is itself an
anticorruption rationale, see 494 U. S., at 660 (describing “a
different type of corruption”), tied to the special concerns raised
by corporations. Understood properly, “antidistortion” is simply a
variant on the classic governmental interest in protecting against
improper influences on officeholders that debilitate the democratic
process. It is manifestly not just an “ ‘equalizing’ ”
ideal in disguise. Ante , at 34 (quoting Buckley ,
424 U. S., at 48).[ Footnote
69 ] 1. Antidistortion The fact that corporations
are different from human beings might seem to need no elaboration,
except that the majority opinion almost completely elides it.
Austin set forth some of the basic differences. Unlike natural
persons, corporations have “limited liability” for their owners and
managers, “perpetual life,” separation of ownership and control,
“and favorable treatment of the accumulation and distribution of
assets … that enhance their ability to attract capital and to
deploy their resources in ways that maximize the return on their
shareholders’ investments.” 494 U. S., at 658–659. Unlike voters in
U. S. elections, corporations may be foreign controlled.[ Footnote 70 ] Unlike other interest
groups, business corporations have been “effectively delegated
responsibility for ensuring society’s economic welfare”;[ Footnote 71 ] they inescapably
structure the life of every citizen. “ ‘[T]he resources in the
treasury of a business corporation,’ ” furthermore,
“ ‘are not an indication of popular support for the
corporation’s political ideas.’ ” Id., at 659
(quoting MCFL , 479 U. S., at 258). “ ‘They reflect
instead the economically motivated decisions of investors and
customers. The availability of these resources may make a
corporation a formidable political presence, even though the power
of the corporation may be no reflection of the power of its
ideas.’ ” 494 U. S., at 659 (quoting MCFL , 479 U. S.,
at 258).[ Footnote
72 ] It might also be added that
corporations have no consciences, no beliefs, no feelings, no
thoughts, no desires. Corporations help structure and facilitate
the activities of human beings, to be sure, and their “personhood”
often serves as a useful legal fiction. But they are not themselves
members of “We the People” by whom and for whom our Constitution
was established. These basic points help explain why corporate
electioneering is not only more likely to impair compelling
governmental interests, but also why restrictions on that
electioneering are less likely to encroach upon First Amendment
freedoms. One fundamental concern of the First Amendment is to
“protec[t] the individual’s interest in self-expression.” Consolidated Edison Co. of N. Y. v. Public Serv.
Comm’n of N. Y. , 447 U. S. 530 , 534,
n. 2 (1980); see also Bellotti , 435 U. S., at 777,
n. 12. Freedom of speech helps “make men free to develop their
faculties,” Whitney v. California , 274 U. S. 357 , 375
(1927) (Brandeis, J., concurring), it respects their “dignity and
choice,” Cohen v. California , 403 U. S. 15 , 24 (1971),
and it facilitates the value of “individual self-realization,”
Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591,
594 (1982). Corporate speech, however, is derivative speech, speech
by proxy. A regulation such as BCRA §203 may affect the way in
which individuals disseminate certain messages through the
corporate form, but it does not prevent anyone from speaking in his
or her own voice. “Within the realm of [campaign spending]
generally,” corporate spending is “furthest from the core of
political expression.” Beaumont , 539 U. S., at 161,
n. 8. It is an interesting question “who” is even
speaking when a business corporation places an advertisement that
endorses or attacks a particular candidate. Presumably it is not
the customers or employees, who typically have no say in such
matters. It cannot realistically be said to be the shareholders,
who tend to be far removed from the day-to-day decisions of the
firm and whose political preferences may be opaque to management.
Perhaps the officers or directors of the corporation have the best
claim to be the ones speaking, except their fiduciary duties
generally prohibit them from using corporate funds for personal
ends. Some individuals associated with the corporation must make
the decision to place the ad, but the idea that these individuals
are thereby fostering their self-expression or cultivating their
critical faculties is fanciful. It is entirely possible that the
corporation’s electoral message will conflict with their
personal convictions. Take away the ability to use general treasury
funds for some of those ads, and no one’s autonomy, dignity, or
political equality has been impinged upon in the
least. Corporate expenditures are distinguishable
from individual expenditures in this respect. I have taken the view
that a legislature may place reasonable restrictions on
individuals’ electioneering expenditures in the service of the
governmental interests explained above, and in recognition of the
fact that such restrictions are not direct restraints on speech but
rather on its financing. See, e.g., Randall , 548
U. S., at 273 (dissenting opinion). But those restrictions
concededly present a tougher case, because the primary conduct of
actual, flesh-and-blood persons is involved. Some of those
individuals might feel that they need to spend large sums of money
on behalf of a particular candidate to vindicate the intensity of
their electoral preferences. This is obviously not the situation
with business corporations, as their routine practice of giving
“substantial sums to both major national parties” makes
pellucidly clear. McConnell , 540 U. S., at 148.
“[C]orporate participation” in elections, any business executive
will tell you, “is more transactional than ideological.” Supp.
Brief for Committee for Economic Development as Amicus
Curiae 10. In this transactional spirit, some
corporations have affirmatively urged Congress to place limits on
their electioneering communications. These corporations fear that
officeholders will shake them down for supportive ads, that they
will have to spend increasing sums on elections in an
ever-escalating arms race with their competitors, and that public
trust in business will be eroded. See id., at 10–19. A
system that effectively forces corporations to use their
shareholders’ money both to maintain access to, and to avoid
retribution from, elected officials may ultimately prove more
harmful than beneficial to many corporations. It can impose a kind
of implicit tax.[ Footnote
73 ] In short, regulations such as
§203 and the statute upheld in Austin impose only a
limited burden on First Amendment freedoms not only because they
target a narrow subset of expenditures and leave untouched the
broader “public dialogue,” ante , at 25, but also because
they leave untouched the speech of natural persons. Recognizing the
weakness of a speaker-based critique of Austin , the Court
places primary emphasis not on the corporation’s right to
electioneer, but rather on the listener’s interest in hearing what
every possible speaker may have to say. The Court’s central
argument is that laws such as §203 have “ ‘deprived [the
electorate] of information, knowledge and opinion vital to its
function,’ ” ante , at 38 (quoting CIO , 335
U. S., at 144 (Rutledge, J., concurring in judgment)), and this, in
turn, “interferes with the ‘open marketplace’ of ideas protected by
the First Amendment,” ante , at 38 (quoting New York
State Bd. of Elections v. Lopez Torres , 552 U. S. 196 , 208
(2008)). There are many flaws in this
argument. If the overriding concern depends on the interests of the
audience, surely the public’s perception of the value of corporate
speech should be given important weight. That perception today is
the same as it was a century ago when Theodore Roosevelt delivered
the speeches to Congress that, in time, led to the limited
prohibition on corporate campaign expenditures that is overruled
today. See WRTL , 551 U. S., at 509–510 (Souter, J.,
dissenting) (summarizing President Roosevelt’s remarks). The
distinctive threat to democratic integrity posed by corporate
domination of politics was recognized at “the inception of the
republic” and “has been a persistent theme in American political
life” ever since. Regan 302. It is only certain Members of this
Court, not the listeners themselves, who have agitated for more
corporate
electioneering. Austin recognized that
there are substantial reasons why a legislature might conclude that
unregulated general treasury expenditures will give corporations
“unfai[r] influence” in the electoral process, 494 U. S., at 660,
and distort public debate in ways that undermine rather than
advance the interests of listeners. The legal structure of
corporations allows them to amass and deploy financial resources on
a scale few natural persons can match. The structure of a business
corporation, furthermore, draws a line between the corporation’s
economic interests and the political preferences of the individuals
associated with the corporation; the corporation must engage the
electoral process with the aim “to enhance the profitability of the
company, no matter how persuasive the arguments for a broader or
conflicting set of priorities,” Brief for American Independent
Business Alliance as Amicus Curiae 11; see also ALI,
Principles of Corporate Governance: Analysis and Recommendations
§2.01(a), p. 55 (1992) (“[A] corporation … should have as its
objective the conduct of business activities with a view to
enhancing corporate profit and shareholder gain”). In a state
election such as the one at issue in Austin , the interests
of nonresident corporations may be fundamentally adverse to the
interests of local voters. Consequently, when corporations grab up
the prime broadcasting slots on the eve of an election, they can
flood the market with advocacy that bears “little or no
correlation” to the ideas of natural persons or to any broader
notion of the public good, 494 U. S., at 660. The opinions of real
people may be marginalized. “The expenditure restrictions of [2 U.
S. C.] §441b are thus meant to ensure that competition among
actors in the political arena is truly competition among ideas.” MCFL , 479 U. S., at
259. In addition to this immediate
drowning out of noncorporate voices, there may be deleterious
effects that follow soon thereafter. Corporate “domination” of
electioneering, Austin , 494 U. S., at 659, can generate
the impression that corporations dominate our democracy. When
citizens turn on their televisions and radios before an election
and hear only corporate electioneering, they may lose faith in
their capacity, as citizens, to influence public policy. A
Government captured by corporate interests, they may come to
believe, will be neither responsive to their needs nor willing to
give their views a fair hearing. The predictable result is cynicism
and disenchantment: an increased perception that large spenders
“ ‘call the tune’ ” and a reduced “ ‘willingness of
voters to take part in democratic governance.’ ” McConnell , 540 U. S., at 144 (quoting Shrink
Missouri , 528 U. S., at 390). To the extent that corporations
are allowed to exert undue influence in electoral races, the speech
of the eventual winners of those races may also be chilled.
Politicians who fear that a certain corporation can make or break
their reelection chances may be cowed into silence about that
corporation. On a variety of levels, unregulated corporate
electioneering might diminish the ability of citizens to “hold
officials accountable to the people,” ante , at 23, and
disserve the goal of a public debate that is “uninhibited, robust,
and wide-open,” New York Times Co. v. Sullivan , 376 U. S. 254 ,
270 (1964). At the least, I stress again, a legislature is entitled
to credit these concerns and to take tailored measures in
response. The majority’s unwillingness to
distinguish between corporations and humans similarly blinds it to
the possibility that corporations’ “war chests” and their special
“advantages” in the legal realm, Austin, 494 U. S., at
659, may translate into special advantages in the market for
legislation. When large numbers of citizens have a common stake in
a measure that is under consideration, it may be very difficult for
them to coordinate resources on behalf of their position. The
corporate form, by contrast, “provides a simple way to channel
rents to only those who have paid their dues, as it were. If you do
not own stock, you do not benefit from the larger dividends or
appreciation in the stock price caused by the passage of private
interest legislation.” Sitkoff, Corporate Political Speech,
Political Extortion, and the Competition for Corporate Charters, 69
U. Chi. L. Rev. 1103, 1113 (2002). Corporations, that is, are
uniquely equipped to seek laws that favor their owners, not simply
because they have a lot of money but because of their legal and
organizational structure. Remove all restrictions on their
electioneering, and the door may be opened to a type of rent
seeking that is “far more destructive” than what noncorporations
are capable of. Ibid. It is for reasons such as these that
our campaign finance jurisprudence has long appreciated that “the
‘differing structures and purposes’ of different entities ‘may
require different forms of regulation in order to protect the
integrity of the electoral process.’ ” NRWC , 459 U.
S., at 210 (quoting California Medical Assn. , 453 U. S.,
at 201). The Court’s facile depiction of
corporate electioneering assumes away all of these complexities.
Our colleagues ridicule the idea of regulating expenditures based
on “nothing more” than a fear that corporations have a special
“ability to persuade,” ante , at 11 (opinion of Roberts,
C. J.), as if corporations were our society’s ablest debaters
and viewpoint-neutral laws such as §203 were created to suppress
their best arguments. In their haste to knock down yet another
straw man, our colleagues simply ignore the fundamental concerns of
the Austin Court and the legislatures that have passed
laws like §203: to safeguard the integrity, competitiveness, and
democratic responsiveness of the electoral process. All of the
majority’s theoretical arguments turn on a proposition with
undeniable surface appeal but little grounding in evidence or
experience, “that there is no such thing as too much speech,” Austin , 494 U. S., at 695 (Scalia, J.,
dissenting)).[ Footnote 74 ]
If individuals in our society had infinite free time to listen to
and contemplate every last bit of speech uttered by anyone,
anywhere; and if broadcast advertisements had no special ability to
influence elections apart from the merits of their arguments (to
the extent they make any); and if legislators always operated with
nothing less than perfect virtue; then I suppose the majority’s
premise would be sound. In the real world, we have seen, corporate
domination of the airwaves prior to an election may decrease the
average listener’s exposure to relevant viewpoints, and it may
diminish citizens’ willingness and capacity to participate in the
democratic process. None of this is to suggest that
corporations can or should be denied an opportunity to participate
in election campaigns or in any other public forum (much less that
a work of art such as Mr. Smith Goes to Washington may be
banned), or to deny that some corporate speech may contribute
significantly to public debate. What it shows, however, is that Austin ’s “concern about corporate domination of the
political process,” 494 U. S., at 659, reflects more than a concern
to protect governmental interests outside of the First Amendment.
It also reflects a concern to facilitate First Amendment
values by preserving some breathing room around the electoral
“marketplace” of ideas, ante , at 19, 34, 38, 52, 54, the
marketplace in which the actual people of this Nation determine how
they will govern themselves. The majority seems oblivious to the
simple truth that laws such as §203 do not merely pit the
anticorruption interest against the First Amendment, but also pit
competing First Amendment values against each other. There are, to
be sure, serious concerns with any effort to balance the First
Amendment rights of speakers against the First Amendment rights of
listeners. But when the speakers in question are not real people
and when the appeal to “First Amendment principles” depends almost
entirely on the listeners’ perspective, ante , at 1, 48, it
becomes necessary to consider how listeners will actually be
affected. In critiquing Austin ’s
antidistortion rationale and campaign finance regulation more
generally, our colleagues place tremendous weight on the example of
media corporations. See ante , at 35–38, 46; ante ,
at 1, 11 (opinion of Roberts, C. J.); ante , at 6
(opinion of Scalia, J.). Yet it is not at all clear that Austin would permit §203 to be applied to them. The press
plays a unique role not only in the text, history, and structure of
the First Amendment but also in facilitating public discourse; as
the Austin Court explained, “media corporations differ
significantly from other corporations in that their resources are
devoted to the collection of information and its dissemination to
the public,” 494 U. S., at 667. Our colleagues have raised some
interesting and difficult questions about Congress’ authority to
regulate electioneering by the press, and about how to define what
constitutes the press. But that is not the case before us. Section 203 does not apply to media corporations, and even if it
did, Citizens United is not a media corporation. There would be
absolutely no reason to consider the issue of media corporations if
the majority did not, first, transform Citizens United’s as-applied
challenge into a facial challenge and, second, invent the theory
that legislatures must eschew all “identity”-based distinctions and
treat a local nonprofit news outlet exactly the same as General
Motors.[ Footnote 75 ] This
calls to mind George Berkeley’s description of philosophers: “[W]e
have first raised a dust and then complain we cannot see.”
Principles of Human Knowledge/Three Dialogues 38, ¶3 (R. Woolhouse
ed. 1988). It would be perfectly
understandable if our colleagues feared that a campaign finance
regulation such as §203 may be counterproductive or
self-interested, and therefore attended carefully to the choices
the Legislature has made. But the majority does not bother to
consider such practical matters, or even to consult a record; it
simply stipulates that “enlightened self-government” can arise only
in the absence of regulation. Ante , at 23. In light of the
distinctive features of corporations identified in Austin ,
there is no valid basis for this assumption. The marketplace of
ideas is not actually a place where items—or laws—are meant to be
bought and sold, and when we move from the realm of economics to
the realm of corporate electioneering, there may be no “reason to
think the market ordering is intrinsically good at all,” Strauss
1386. The Court’s blinkered and
aphoristic approach to the First Amendment may well promote
corporate power at the cost of the individual and collective
self-expression the Amendment was meant to serve. It will
undoubtedly cripple the ability of ordinary citizens, Congress, and
the States to adopt even limited measures to protect against
corporate domination of the electoral process. Americans may be
forgiven if they do not feel the Court has advanced the cause of
self-government
today. 2. Shareholder
Protection There is yet
another way in which laws such as §203 can serve First Amendment
values. Interwoven with Austin ’s concern to protect the
integrity of the electoral process is a concern to protect the
rights of shareholders from a kind of coerced speech:
electioneering expenditures that do not “reflec[t] [their]
support.” 494 U. S., at 660–661. When corporations use general
treasury funds to praise or attack a particular candidate for
office, it is the shareholders, as the residual claimants, who are
effectively footing the bill. Those shareholders who disagree with
the corporation’s electoral message may find their financial
investments being used to undermine their political
convictions. The PAC mechanism, by
contrast, helps assure that those who pay for an electioneering
communication actually support its content and that managers do not
use general treasuries to advance personal agendas. Ibid. It “ ‘allows corporate political participation without the
temptation to use corporate funds for political influence, quite
possibly at odds with the sentiments of some shareholders or
members.’ ” McConnell , 540 U. S., at 204 (quoting Beaumont , 539 U. S., at 163). A rule that privileges the
use of PACs thus does more than facilitate the political speech of
like-minded shareholders; it also curbs the rent seeking behavior
of executives and respects the views of dissenters. Austin ’s acceptance of restrictions on general treasury
spending “simply allows people who have invested in the business
corporation for purely economic reasons”—the vast majority of
investors, one assumes—“to avoid being taken advantage of, without
sacrificing their economic objectives.” Winkler, Beyond Bellotti , 32 Loyola (LA) L. Rev. 133, 201
(1998). The concern to protect dissenting
shareholders and union members has a long history in campaign
finance reform. It provided a central motivation for the Tillman
Act in 1907 and subsequent legislation, see Pipefitters v. United States , 407 U. S. 385 , 414–415 (1972);
Winkler, 92 Geo. L. J., at 887–900, and it has been endorsed
in a long line of our cases, see, e.g., McConnell , 540 U. S., at 204–205; Beaumont , 539
U. S., at 152–154; MCFL , 479 U. S., at 258; NRWC ,
459 U. S., at 207–208; Pipefitters , 407 U. S., at 414–416;
see also n. 60, supra . Indeed, we have unanimously
recognized the governmental interest in “protect[ing] the
individuals who have paid money into a corporation or union for
purposes other than the support of candidates from having that
money used to support political candidates to whom they may be
opposed.” NRWC , 459 U. S., at
207–208. The Court dismisses this interest
on the ground that abuses of shareholder money can be corrected
“through the procedures of corporate democracy,” ante , at
46 (internal quotation marks omitted), and, it seems, through
Internet-based disclosures, ante , at 55.[ Footnote 76 ] I fail to understand how this
addresses the concerns of dissenting union members, who will also
be affected by today’s ruling, and I fail to understand why the
Court is so confident in these mechanisms. By “corporate
democracy,” presumably the Court means the rights of shareholders
to vote and to bring derivative suits for breach of fiduciary duty.
In practice, however, many corporate lawyers will tell you that
“these rights are so limited as to be almost nonexistent,” given
the internal authority wielded by boards and managers and the
expansive protections afforded by the business judgment rule. Blair
& Stout 320; see also id., at 298–315; Winkler, 32
Loyola (LA) L. Rev., at 165–166, 199–200. Modern technology
may help make it easier to track corporate activity, including
electoral advocacy, but it is utopian to believe that it solves the
problem. Most American households that own stock do so through
intermediaries such as mutual funds and pension plans, see Evans, A
Requiem for the Retail Investor? 95 Va. L. Rev. 1105 (2009),
which makes it more difficult both to monitor and to alter
particular holdings. Studies show that a majority of individual
investors make no trades at all during a given year. Id., at 1117. Moreover, if the corporation in question operates a PAC,
an investor who sees the company’s ads may not know whether they
are being funded through the PAC or through the general
treasury. If and when shareholders learn
that a corporation has been spending general treasury money on
objectionable electioneering, they can divest. Even assuming that
they reliably learn as much, however, this solution is only
partial. The injury to the shareholders’ expressive rights has
already occurred; they might have preferred to keep that
corporation’s stock in their portfolio for any number of economic
reasons; and they may incur a capital gains tax or other penalty
from selling their shares, changing their pension plan, or the
like. The shareholder protection rationale has been criticized as
underinclusive, in that corporations also spend money on lobbying
and charitable contributions in ways that any particular
shareholder might disapprove. But those expenditures do not
implicate the selection of public officials, an area in which “the
interests of unwilling … corporate shareholders [in not being]
forced to subsidize that speech” “are at their zenith.” Austin , 494 U. S., at 677 (Brennan, J., concurring). And
in any event, the question is whether shareholder protection
provides a basis for regulating expenditures in the weeks before an
election, not whether additional types of corporate communications
might similarly be conditioned on
voluntariness. Recognizing the limits of the
shareholder protection rationale, the Austin Court did not
hold it out as an adequate and independent ground for sustaining
the statute in question. Rather, the Court applied it to reinforce
the antidistortion rationale, in two main ways. First, the problem
of dissenting shareholders shows that even if electioneering
expenditures can advance the political views of some members of a
corporation, they will often compromise the views of others. See, e.g., id., at 663 (discussing risk that
corporation’s “members may be … reluctant to withdraw as members
even if they disagree with [its] political expression”). Second, it
provides an additional reason, beyond the distinctive legal
attributes of the corporate form, for doubting that these
“expenditures reflect actual public support for the political ideas
espoused,” id., at 660. The shareholder protection
rationale, in other words, bolsters the conclusion that
restrictions on corporate electioneering can serve both speakers’
and listeners’ interests, as well as the anticorruption interest.
And it supplies yet another reason why corporate expenditures merit
less protection than individual
expenditures. V Today’s decision is
backwards in many senses. It elevates the majority’s agenda over
the litigants’ submissions, facial attacks over as-applied claims,
broad constitutional theories over narrow statutory grounds,
individual dissenting opinions over precedential holdings,
assertion over tradition, absolutism over empiricism, rhetoric over
reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially
unconstitutional only after mischaracterizing both the reach and
rationale of those authorities, and after bypassing or ignoring
rules of judicial restraint used to cabin the Court’s lawmaking
power. Their conclusion that the societal interest in avoiding
corruption and the appearance of corruption does not provide an
adequate justification for regulating corporate expenditures on
candidate elections relies on an incorrect description of that
interest, along with a failure to acknowledge the relevance of
established facts and the considered judgments of state and federal
legislatures over many
decades. In a democratic
society, the longstanding consensus on the need to limit corporate
campaign spending should outweigh the wooden application of
judge-made rules. The majority’s rejection of this principle
“elevate[s] corporations to a level of deference which has not been
seen at least since the days when substantive due process was
regularly used to invalidate regulatory legislation thought to
unfairly impinge upon established economic interests.” Bellotti , 435 U. S., at 817, n. 13 (White, J.,
dissenting). At bottom, the Court’s opinion is thus a rejection of
the common sense of the American people, who have recognized a need
to prevent corporations from undermining self-government since the
founding, and who have fought against the distinctive corrupting
potential of corporate electioneering since the days of Theodore
Roosevelt. It is a strange time to repudiate that common sense.
While American democracy is imperfect, few outside the majority of
this Court would have thought its flaws included a dearth of
corporate money in
politics. I would affirm the judgment of
the District Court. Footnote
1 Specifically, Part I, infra , at 4–17, addresses the procedural history of the
case and the narrower grounds of decision the majority has
bypassed. Part II, infra , at 17–23, addresses stare
decisis . Part III, infra , at 23–56, addresses the
Court’s assumptions that BCRA “bans” corporate speech, that
identity-based distinctions may not be drawn in the political
realm, and that Austin and McConnell were
outliers in our First Amendment tradition. Part IV, infra ,
at 56–89, addresses the Court’s treatment of the anticorruption,
antidistortion, and shareholder protection rationales for
regulating corporate
electioneering. Footnote
2 See Yee v. Escondido , 503 U. S. 519 , 535
(1992) (“[U]nder this Court’s Rule 14.1(a), only questions set
forth in the petition, or fairly included therein, will be
considered by the Court” (internal quotation marks and alteration
omitted)); Wood v. Allen , ante , at __
(slip op., at 13) (“[T]he fact that petitioner discussed [an] issue
in the text of his petition for certiorari does not bring it before
us. Rule 14.1(a) requires that a subsidiary question be fairly
included in the question presented for our review”
(internal quotation marks and brackets omitted)); Cooper
Industries, Inc. v. Aviall Services, Inc. , 543 U. S. 157 , 168–169
(2004) (“We ordinarily do not decide in the first instance issues
not decided below” (internal quotation marks
omitted)). Footnote
3 The majority states that, in
denying Citizens United’s motion for a preliminary injunction, the
District Court “addressed” the facial validity of BCRA §203. Ante , at 13. That is true, in the narrow sense that the
court observed the issue was foreclosed by McConnell v. FEC , 540 U.
S. 93 (2003). See 530 F. Supp. 2d 274, 278 (DC 2008) (per curiam) . Yet as explained above, Citizens United
subsequently dismissed its facial challenge, so that by the time
the District Court granted the Federal Election Commission’s (FEC)
motion for summary judgment, App. 261a–262a, any question about
statutory validity had dropped out of the case. That latter ruling
by the District Court was the “final decision” from which Citizens
United appealed to this Court under BCRA §403(a)(3). As regards the
lower court decision that has come before us, the claim that §203
is facially unconstitutional was neither pressed nor passed upon in
any form. Footnote
4 Shortly before Citizens United
mooted the issue by abandoning its facial challenge, the Government
advised the District Court that it “require[d] time to develop a
factual record regarding [the] facial challenge.”
1:07–cv–2240–RCL–RWR, Docket Entry No. 47, p. 4 (Mar. 26, 2008). By
reinstating a claim that Citizens United abandoned, the Court gives
it a perverse litigating advantage over its adversary, which was
deprived of the opportunity to gather and present information
necessary to its
rebuttal. Footnote
5 In fact, we do not even have a
good evidentiary record of how §203 has been affecting Citizens
United, which never submitted to the District Court the details of Hillary ’s funding or its own finances. We likewise have no
evidence of how §203 and comparable state laws were expected to
affect corporations and unions in the
future. It is true, as the majority points out, that the McConnell Court evaluated the facial validity of §203 in
light of an extensive record. See ante , at 15. But that
record is not before us in this case. And in any event, the
majority’s argument for striking down §203 depends on its
contention that the statute has proved too “chilling” in
practice—and in particular on the contention that the controlling
opinion in WRTL , 551
U. S. 449 (2007), failed to bring sufficient clarity and
“breathing space” to this area of law. See ante , at 12,
16–20. We have no record with which to assess that claim. The Court
complains at length about the burdens of complying with §203, but
we have no meaningful evidence to show how regulated corporations
and unions have experienced its
restrictions. Footnote
6 Our cases recognize a “type of
facial challenge in the First Amendment context under which a law
may be overturned as impermissibly overbroad because a substantial
number of its applications are unconstitutional.” Washington
State Grange v. Washington State Republican Party , 552 U. S. 442 , 449, n. 6 (2008)
(internal quotation marks omitted). Citizens United has not made an
overbreadth argument, and “[w]e generally do not apply the strong
medicine of overbreadth analysis where the parties fail to describe
the instances of arguable overbreadth of the contested law,” ibid. (internal quotation marks omitted). If our
colleagues nonetheless concluded that §203’s fatal flaw is that it
affects too much protected speech, they should have invalidated it
for overbreadth and given guidance as to which applications are
permissible, so that Congress could go about repairing the
error. Footnote
7 Also perplexing is the majority’s
attempt to pass blame to the Government for its litigating
position. By “hold[ing] out the possibility of ruling for Citizens
United on a narrow ground yet refrain[ing] from adopting that
position,” the majority says, the Government has caused “added
uncertainty [that] demonstrates the necessity to address the
question of statutory validity.” Ante , at 17. Our
colleagues have apparently never heard of an alternative argument.
Like every litigant, the Government would prefer to win its case
outright; failing that, it would prefer to lose on a narrow ground.
The fact that there are numerous different ways this case could be
decided, and that the Government acknowledges as much, does not
demonstrate anything about the propriety of a facial
ruling. Footnote
8 The majority’s “chilling”
argument is particularly inapposite with respect to 2 U. S. C.
§441b’s longstanding restriction on the use of corporate general
treasury funds for express advocacy. If there was ever any
significant uncertainty about what counts as the functional
equivalent of express advocacy, there has been little doubt about
what counts as express advocacy since the “magic words” test of Buckley v. Valeo , 424 U. S.
1 , 44, n. 52 (1976) (per curiam) . Yet even though
Citizens United’s briefs never once mention §441b’s restriction on
express advocacy; even though this restriction does not generate
chilling concerns; and even though no one has suggested that Hillary counts as express advocacy; the majority
nonetheless reaches out to opine that this statutory provision is
“invalid” as well. Ante , at
50. Footnote
9 The majority adds that the
distinction between facial and as-applied challenges does not have
“some automatic effect” that mechanically controls the judicial
task. Ante , at 14. I agree, but it does not follow that in
any given case we should ignore the distinction, much less invert
it. Footnote
10 Professor Fallon proposes an
intricate answer to this question that the majority ignores. Fallon
1327–1359. It bears mention that our colleagues have previously
cited Professor Fallon’s article for the exact opposite point from
the one they wish to make today. In Gonzales v. Carhart , 550 U. S. 124 (2007),
the Court explained that “[i]t is neither our obligation nor within
our traditional institutional role to resolve questions of
constitutionality with respect to each potential situation that
might develop,” and “[f]or this reason, ‘[a]s-applied challenges
are the basic building blocks of constitutional
adjudication.’ ” Id. , at 168 (opinion for the Court
by Kennedy, J.) (quoting Fallon 1328 (second alteration in
original)). Footnote
11 Internal Revenue Code section
501(c)(4) applies, inter alia , to nonprofit organizations
“operated exclusively for the promotion of social welfare, … the
net earnings of which are devoted exclusively to charitable,
educational, or recreational
purposes.” Footnote
12 The Chief Justice is therefore
much too quick when he suggests that, “[e]ven if considered in
as-applied terms, a holding in this case that the Act may not be
applied to Citizens United—because corporations as well as
individuals enjoy the pertinent First Amendment rights—would mean
that any other corporation raising the same challenge would also
win.” Ante , at 4 (concurring opinion). That conclusion
would only follow if the Court were to ignore Citizens United’s
plausible as-applied arguments and instead take the implausible
position that all corporations and all types of
expenditures enjoy the same First Amendment protections, which always trump the interests in regulation. At times, the
majority appears to endorse this extreme view. At other times,
however, it appears to suggest that nonprofit corporations have a
better claim to First Amendment protection than for-profit
corporations, see ante , at 20, 39, “advocacy”
organizations have a better claim than other nonprofits, ante , at 20, domestic corporations have a better claim
than foreign corporations, ante , at 46–47, small
corporations have a better claim than large corporations, ante , at 38–40, and printed matter has a better claim than
broadcast communications, ante , at 33. The majority never
uses a multinational business corporation in its
hypotheticals. Footnote
13 The Court entirely ignores this
statutory argument. It concludes that §203 applies to Hillary on the basis of the film’s content, ante ,
at 7–8, without considering the possibility that §203 does not
apply to video-on-demand transmissions
generally. Footnote
14 See Colorado Right to Life
Comm., Inc. v. Coffman , 498 F. 3d 1137, 1148
(CA10 2007) (adopting this rule and noting that “every other
circuit to have addressed this issue” has done likewise); Brief for
Independent Sector as Amicus Curiae 10–11 (collecting
cases). The Court rejects this solution in part because the
Government “merely suggest[s] it” and “does not say that it agrees
with the interpretation.” Ante , at 11. Our colleagues
would thus punish a defendant for showing insufficient excitement
about a ground it has advanced, at the same time that they decide
the case on a ground the plaintiff expressly abandoned. The Court
also protests that a de minimis standard would “requir[e]
intricate case-by-case determinations.” Ante , at 12. But de minimis tests need not be intricate at all. A test that
granted MCFL status to §501(c)(4) organizations if they
received less than a fixed dollar amount of business donations in
the previous year, or if such donations represent less than a fixed
percentage of their total assets, would be perfectly easy to
understand and
administer. Footnote
15 Another bypassed ground, not
briefed by the parties, would have been to revive the
Snowe-Jeffords Amendment in BCRA §203(c), allowing certain
nonprofit corporations to pay for electioneering communications
with general treasury funds, to the extent they can trace the
payments to individual contributions. See Brief for National Rifle
Association as Amicus Curiae 5–15 (arguing forcefully that
Congress intended this
result). Footnote
16 The Chief Justice finds our
discussion of these narrower solutions “quite perplexing” because
we suggest that the Court should “latch on to one of them in order
to avoid reaching the broader constitutional question,” without
doing the same ourselves. Ante , at 3. There is nothing
perplexing about the matter, because we are not similarly situated
to our colleagues in the majority. We do not share their view of
the First Amendment. Our reading of the Constitution would not lead
us to strike down any statutes or overturn any precedents in this
case, and we therefore have no occasion to practice constitutional
avoidance or to vindicate Citizens United’s as-applied challenge.
Each of the arguments made above is surely at least as strong as
the statutory argument the Court accepted in last year’s Voting
Rights Act case, Northwest Austin Municipal Util. Dist. No.
One v. Holder , 557 U. S. __
(2009). Footnote
17 I will have more to say shortly
about the merits—about why Austin and McConnell are not doctrinal outliers, as the Court contends, and why their
logic is not only defensible but also compelling. For present
purposes, I limit the discussion to stare - decisis -specific
considerations. Footnote
18 The Chief Justice suggests that Austin has been undermined by subsequent dissenting
opinions. Ante , at 9. Under this view, it appears that the
more times the Court stands by a precedent in the face of requests
to overrule it, the weaker that precedent becomes. The Chief
Justice further suggests that Austin “is uniquely
destabilizing because it threatens to subvert our Court’s decisions
even outside” its particular facts, as when we applied its
reasoning in McConnell . Ante , at 9. Once again,
the theory seems to be that the more we utilize a precedent, the
more we call it into question. For those who believe Austin was correctly decided—as the Federal Government and
the States have long believed, as the majority of Justices to have
served on the Court since Austin have believed, and as we
continue to believe—there is nothing “destabilizing” about the
prospect of its continued application. It is gutting campaign
finance laws across the country, as the Court does today, that will
be destabilizing. Footnote
19 Additionally, the majority cites
some recent scholarship challenging the historical account of
campaign finance law given in United States v. Automobile Workers , 352 U. S. 567 (1957). Ante ,
at 48. Austin did not so much as allude to this historical
account, much less rely on it. Even if the scholarship cited by the
majority is correct that certain campaign finance reforms were less
deliberate or less benignly motivated than Automobile
Workers suggested, the point remains that this body of law has
played a significant and broadly accepted role in American
political life for decades upon
decades. Footnote
20 See Brief for State of Montana
et al. as Amici Curiae 5–13; see also Supp. Brief for
Senator John McCain et al. as Amici Curiae 1a–8a
(listing 24 States that presently limit or prohibit independent
electioneering expenditures from corporate general
treasuries). Footnote
21 Magleby, The Importance of the
Record in McConnell v. FEC , 3 Election L. J. 285
(2004). Footnote
22 To be sure, the majority may
respond that Congress can correct the imbalance by removing BCRA’s
soft-money limits. Cf. Tr. of Oral Arg. 24 (Sept. 9, 2009) (query
of Kennedy, J.). But this is no response to any legislature that
takes campaign finance regulation seriously. It merely illustrates
the breadth of the majority’s deregulatory
vision. Footnote
23 See Brief for Committee for
Economic Development as Amicus Curiae; Brief for American
Independent Business Alliance as Amicus Curiae . But see
Supp. Brief for Chamber of Commerce of the United States of America
as Amicus
Curiae . Footnote
24 See Brief for American Federation
of Labor and Congress of Industrial Organizations as Amicus
Curiae 3, 9. Footnote
25 See Brief for Independent Sector
as Amicus Curiae 16–20. Footnote
26 See Brief for State of Montana
et al. as Amici
Curiae . Footnote
27 The FEC established this process
following the Court’s June 2007 decision in that case, 551
U. S. 449 . In the brief interval between the establishment of
this process and the 2008 election, corporations and unions used it
to make $108.5 million in electioneering communications. Supp.
Brief for Appellee 22–23; FEC, Electioneering Communication
Summary, online at
http://fec.gov/finance/disclosure/ECSummary.shtml (all Internet
materials as visited Jan. 18, 2010, and available in Clerk of
Court’s case file). Footnote
28 Concedely, Austin and McConnell were constitutional decisions, and we have often
said that “claims of stare decisis are at the weakest in
that field, where our mistakes cannot be corrected by Congress.” Vieth v. Jubelirer , 541 U. S. 267 , 305 (2004) (plurality
opinion). As a general matter, this principle is a sound one. But
the principle only takes on real force when an earlier ruling has
obstructed the normal democratic process; it is the fear of making
“mistakes [that] cannot be corrected by Congress,” ibid. ,
that motivates us to review constitutional precedents with a more
critical eye. Austin and McConnell did not
obstruct state or congressional legislative power in any way.
Although it is unclear how high a bar today’s decision will pose to
future attempts to regulate corporate electioneering, it will
clearly restrain much legislative
action. Footnote
29 See FEC, Number of Federal PAC’s
Increases, http://fec.gov/press/
press2008/20080812paccount.shtml. Footnote
30 See Supp. Brief for Appellee 16
(citing FEC statistics placing this figure at $840 million). The
majority finds the PAC option inadequate in part because “[a] PAC
is a separate association from the corporation.” Ante , at
21. The formal “separateness” of PACs from their host
corporations—which administer and control the PACs but which cannot
funnel general treasury funds into them or force members to support
them—is, of course, the whole point of the PAC
mechanism. Footnote
31 Roaming far afield from the case
at hand, the majority worries that the Government will use §203 to
ban books, pamphlets, and blogs. Ante , at 20, 33, 49. Yet
by its plain terms, §203 does not apply to printed material. See 2
U. S. C. §434(f)(3)(A)(i); see also 11 CFR §100.29(c)(1)
(“[E]lectioneering communication does not include communications
appearing in print media”). And in light of the ordinary
understanding of the terms “broadcast, cable, [and] satellite,”
§434(f)(3)(A)(i), coupled with Congress’ clear aim of targeting “a
virtual torrent of televised election-related ads,” McConnell , 540 U. S., at 207, we highly doubt that §203
could be interpreted to apply to a Web site or book that happens to
be transmitted at some stage over airwaves or cable lines, or that
the FEC would ever try to do so. See 11 CFR §100.26 (exempting most
Internet communications from regulation as advertising); §100.155
(exempting uncompensated Internet activity from regulation as an
expenditure); Supp. Brief for Center for Independent Media
et al. as Amici Curiae 14 (explaining that “the FEC
has consistently construed [BCRA’s] media exemption to apply to a
variety of non-traditional media”). If it should, the Government
acknowledges “there would be quite [a] good as-applied challenge.”
Tr. of Oral Arg. 65 (Sept. 9,
2009). Footnote
32 As the Government points out,
with a media corporation there is also a lesser risk that investors
will not understand, learn about, or support the advocacy messages
that the corporation disseminates. Supp. Reply Brief for Appellee
10. Everyone knows and expects that media outlets may seek to
influence elections in this
way. Footnote
33 2 U. S. C.
§434(f)(3)(A)(i). Footnote
34 §434(f)(3)(C). Footnote
35 §434(f)(3)(A)(i)(II). Footnote
36 §441b(b); McConnell , 540
U. S., at 211. Footnote
37 §441b(b)(2)(C). Footnote
38 WRTL , 551
U. S. 449 , 470 (2007) (opinion of Roberts,
C. J.). Footnote
39 It is likewise nonsense to
suggest that the FEC’s “ ‘business is to censor.’ ” Ante , at 18 (quoting Freedman v. Maryland , 380 U. S. 51 , 57 (1965)).
The FEC’s business is to administer and enforce the campaign
finance laws. The regulatory body at issue in Freedman was
a state Board of Censors that had virtually unfettered
discretion to bar distribution of motion picture films it deemed
not to be “moral and proper.” See id., at 52–53, and
n. 2. No movie could be shown in the State of Maryland that
was not first approved and licensed by the Board of Censors. Id., at 52, n. 1. It is an understatement to say that Freedman is not on point, and the majority’s
characterization of the FEC is deeply
disconcerting. Footnote
40 Citizens United has administered
this PAC for over a decade. See Defendant FEC’s Memorandum in
Opposition to Plaintiff’s Second Motion for Preliminary Injunction
in No. 07–2240 (ARR, RCL, RWR) (DC), p. 20. Citizens United also
operates multiple “527” organizations that engage in partisan
political activity. See Defendant FEC’s Statement of Material Facts
as to Which There Is No Genuine Dispute in No. 07–2240 (DC), ¶¶
22–24. Footnote
41 See, e.g., Bethel
School Dist. No. 403 v. Fraser , 478 U. S. 675 , 682 (1986) (“[T]he
constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other
settings”). Footnote
42 See, e.g., Jones v. North Carolina Prisoners’ Labor Union,
Inc. , 433 U. S.
119 , 129 (1977) (“In a prison context, an inmate does not
retain those First Amendment rights that are inconsistent with his
status as a prisoner or with the legitimate penological objectives
of the corrections system” (internal quotation marks
omitted)). Footnote
43 See, e.g., Parker v. Levy , 417 U. S. 733 , 758
(1974) (“While the members of the military are not excluded from
the protection granted by the First Amendment, the different
character of the military community and of the military mission
requires a different application of those
protections”). Footnote
44 See, e.g., 2 U.
S. C. §441e(a)(1) (foreign nationals may not directly or
indirectly make contributions or independent expenditures in
connection with a U. S.
election). Footnote
45 See, e.g., Civil
Service Comm’n v. Letter Carriers , 413 U. S. 548 (1973) (upholding
statute prohibiting Executive Branch employees from taking “any
active part in political management or in political campaigns”
(internal quotation marks omitted)); Public Workers v. Mitchell , 330 U. S. 75 (1947)
(same); United States v. Wurzbach , 280 U. S. 396 (1930)
(upholding statute prohibiting federal employees from making
contributions to Members of Congress for “any political purpose
whatever” (internal quotation marks omitted)); Ex parte
Curtis , 106 U.
S. 371 (1882) (upholding statute prohibiting certain federal
employees from giving money to other employees for political
purposes). Footnote
46 The majority states that the
cases just cited are “inapposite” because they “stand only for the
proposition that there are certain governmental functions that
cannot operate without some restrictions on particular kinds of
speech.” Ante , at 25. The majority’s creative suggestion
that these cases stand only for that one proposition is quite
implausible. In any event, the proposition lies at the heart of
this case, as Congress and half the state legislatures have
concluded, over many decades, that their core functions of
administering elections and passing legislation cannot operate
effectively without some narrow restrictions on corporate
electioneering paid for by general treasury
funds. Footnote
47 Outside of the law, of course, it
is a commonplace that the identity and incentives of the speaker
might be relevant to an assessment of his speech. See Aristotle,
Poetics 43–44 (M. Heath transl. 1996) (“In evaluating any utterance
or action, one must take into account not just the moral qualities
of what is actually done or said, but also the identity of the
agent or speaker, the addressee, the occasion, the means, and the
motive”). The insight that the identity of speakers is a proper
subject of regulatory concern, it bears noting, motivates the
disclaimer and disclosure provisions that the Court today
upholds. Footnote
48 I dissented in Forbes because the broadcaster’s decision to exclude the respondent from
its debate was done “on the basis of entirely subjective,
ad hoc judgments,” 523 U. S., at 690, that suggested
anticompetitive viewpoint discrimination, id., at 693–694,
and lacked a compelling justification. Needless to say, my concerns
do not apply to the instant
case. Footnote
49 The law at issue in Burson was far from unusual. “[A]ll 50 States,” the Court
observed, “limit access to the areas in or around polling places.”
504 U. S., at 206; see also Note, 91 Ky. L. J. 715, 729,
n. 89, 747–769 (2003) (collecting statutes). I dissented in Burson because the evidence adduced to justify Tennessee’s
law was “exceptionally thin,” 504 U. S., at 219, and “the reason
for [the] restriction [had] disappear[ed]” over time, id., at 223. “In short,” I concluded, “Tennessee ha[d] failed to point
to any legitimate interest that would justify its selective
regulation of campaign-related expression.” Id., at 225.
These criticisms are inapplicable to the case before
us. Footnote
50 They are likewise entitled to
regulate media corporations differently from other corporations “to
ensure that the law ‘does not hinder or prevent the institutional
press from reporting on, and publishing editorials about,
newsworthy events.’ ” McConnell , 540 U. S., at 208
(quoting Austin v. Michigan Chamber of Commerce , 494
U. S. 652 , 668
(1990)). Footnote
51 The Court all but confesses that
a categorical approach to speaker identity is untenable when it
acknowledges that Congress might be allowed to take measures aimed
at “preventing foreign individuals or associations from influencing
our Nation’s political process.” Ante , at 46–47. Such
measures have been a part of U. S. campaign finance law for many
years. The notion that Congress might lack the authority to
distinguish foreigners from citizens in the regulation of
electioneering would certainly have surprised the Framers, whose
“obsession with foreign influence derived from a fear that foreign
powers and individuals had no basic investment in the well-being of
the country.” Teachout, The Anti-Corruption Principle, 94 Cornell
L. Rev. 341, 393, n. 245 (2009) (hereinafter Teachout);
see also U. S. Const., Art. I, §9, cl. 8 (“[N]o Person holding any
Office of Profit or Trust … shall, without the Consent of the
Congress, accept of any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince, or foreign State”).
Professor Teachout observes that a corporation might be analogized
to a foreign power in this respect, “inasmuch as its legal
loyalties necessarily exclude patriotism.” Teachout 393,
n. 245. Footnote
52 See A. Bickel, The Supreme Court
and the Idea of Progress 59–60 (1978); A. Meiklejohn, Political
Freedom: The Constitutional Powers of the People 39–40 (1965);
Tokaji, First Amendment Equal Protection: On Discretion,
Inequality, and Participation, 101 Mich. L. Rev. 2409, 2508–2509
(2003). Of course, voting is not speech in a pure or formal sense,
but then again neither is a campaign expenditure; both are
nevertheless communicative acts aimed at influencing electoral
outcomes. Cf. Strauss, Corruption, Equality, and Campaign Finance
Reform, 94 Colum. L. Rev. 1369, 1383–1384 (1994) (hereinafter
Strauss). Footnote
53 Scholars have found that only a
handful of business corporations were issued charters during the
colonial period, and only a few hundred during all of the 18th
century. See E. Dodd, American Business Corporations Until 1860,
p. 197 (1954); L. Friedman, A History of American Law 188–189
(2d ed. 1985); Baldwin, American Business Corporations Before 1789,
8 Am. Hist. Rev. 449, 450–459 (1903). Justice Scalia quibbles with
these figures; whereas we say that “a few hundred” charters were
issued to business corporations during the 18th century, he says
that the number is “approximately 335.” Ante , at 2
(concurring opinion). Justice Scalia also raises the more serious
point that it is improper to assess these figures by today’s
standards, ante , at 3, though I believe he fails to
substantiate his claim that “the corporation was a familiar figure
in American economic life” by the century’s end, ibid. (internal quotation marks omitted). His formulation of that claim
is also misleading, because the relevant reference point is not
1800 but the date of the First Amendment’s ratification, in 1791.
And at that time, the number of business charters must have been
significantly smaller than 335, because the pace of chartering only
began to pick up steam in the last decade of the 18th century. More
than half of the century’s total business charters were issued
between 1796 and 1800. Friedman, History of American Law, at
189. Footnote
54 See Letter from Thomas Jefferson
to Tom Logan (Nov. 12, 1816), in 12 The Works of Thomas Jefferson
42, 44 (P. Ford ed. 1905) (“I hope we shall … crush in [its] birth
the aristocracy of our monied corporations which dare already to
challenge our government to a trial of strength and bid defiance to
the laws of our
country”). Footnote
55 In normal usage then, as now, the
term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language
1853–1854 (4th ed. 1773) (reprinted 1978) (listing as primary
definition of “speech”: “The power of articulate utterance; the
power of expressing thoughts by vocal words”); 2 N. Webster,
American Dictionary of the English Language (1828) (reprinted 1970)
(listing as primary definition of “speech”: “The faculty of
uttering articulate sounds or words, as in human beings; the
faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest
purposes”). Indeed, it has been “claimed that the notion of
institutional speech … did not exist in post-revolutionary
America.” Fagundes, State Actors as First Amendment Speakers, 100
Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson,
Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) (“In the
intellectual heritage of the eighteenth century, the idea that free
speech was individual and personal was deeply rooted and clearly
manifest in the writings of Locke, Milton, and others on whom the
framers of the Constitution and the Bill of Rights drew”). Given
that corporations were conceived of as artificial entities and do
not have the technical capacity to “speak,” the burden of
establishing that the Framers and ratifiers understood “the freedom
of speech” to encompass corporate speech is, I believe, far heavier
than the majority
acknowledges. Footnote
56 Postratification practice
bolsters the conclusion that the First Amendment, “as originally
understood,” ante , at 37, did not give corporations
political speech rights on a par with the rights of individuals.
Well into the modern era of general incorporation statutes, “[t]he
common law was generally interpreted as prohibiting corporate
political participation,” First Nat. Bank of Boston v. Bellotti , 435
U. S. 765 , 819 (1978) (White, J., dissenting), and this Court
did not recognize any First Amendment protections for
corporations until the middle part of the 20th century, see ante , at 25–26 (listing
cases). Footnote
57 In fact, the Free Press Clause
might be turned against Justice Scalia, for two reasons. First, we
learn from it that the drafters of the First Amendment did draw
distinctions—explicit distinctions—between types of “speakers,” or
speech outlets or forms. Second, the Court’s strongest historical
evidence all relates to the Framers’ views on the press, see ante , at 37–38; ante , at 4–6 (Scalia, J.,
concurring), yet while the Court tries to sweep this evidence into
the Free Speech Clause, the Free Press Clause provides a more
natural textual home. The text and history highlighted by our
colleagues suggests why one type of corporation, those that are
part of the press, might be able to claim special First Amendment
status, and therefore why some kinds of “identity”-based
distinctions might be permissible after all. Once one accepts that
much, the intellectual edifice of the majority opinion
crumbles. Footnote
58 Cf. L. Levy, Legacy of
Suppression: Freedom of Speech and Press in Early American History
4 (1960) (“The meaning of no other clause of the Bill of Rights at
the time of its framing and ratification has been so obscure to us”
as the Free Speech and Press
Clause). Footnote
59 As the majority notes, there is
some academic debate about the precise origins of these
developments. Ante , at 48; see also n. 19, supra . There is always some academic debate about
such developments; the motives of legislatures are never entirely
clear or unitary. Yet the basic shape and trajectory of
20th-century campaign finance reform are clear, and one need not
take a nave or triumphalist view of this history to find it highly
relevant. The Court’s skepticism does nothing to mitigate the
absurdity of its claim that Austin and McConnell were outliers. Nor does it alter the fact that five Justices today
destroy a longstanding American
practice. Footnote
60 See Pipefitters v. United States , 407 U. S. 385 , 409, 414–415 (1972)
(reading the statutory bar on corporate and union campaign spending
not to apply to “the voluntary donations of employees,” when
maintained in a separate account, because “[t]he dominant
[legislative] concern in requiring that contributions be voluntary
was, after all, to protect the dissenting stockholder or union
member”); Automobile Workers , 352 U. S., at 592 (advising
the District Court to consider on remand whether the broadcast in
question was “paid for out of the general dues of the union
membership or [whether] the funds [could] be fairly said to have
obtained on a voluntary basis”); United States v. CIO , 335 U. S. 106 , 123 (1948) (observing
that “funds voluntarily contributed [by union members or corporate
stockholders] for election purposes” might not be covered by the
expenditure bar). Both the Pipefitters and the Automobile Workers Court approvingly referenced Congress’
goal of reducing “the effect of aggregated wealth on federal
elections,” understood as wealth drawn from a corporate or union
general treasury without the stockholders’ or members’ “free and
knowing choice.” Pipefitters , 407 U. S., at 416; see Automobile Workers , 352 U. S., at
582. The two dissenters in Pipefitters would not have read the statutory provision in
question, a successor to §304 of the Taft-Hartley Act, to allow
such robust use of corporate and union funds to finance otherwise
prohibited electioneering. “This opening of the door to extensive
corporate and union influence on the elective and legislative
processes,” Justice Powell wrote, “must be viewed with genuine
concern. This seems to me to be a regressive step as contrasted
with the numerous legislative and judicial actions in recent years
designed to assure that elections are indeed free and
representative.” 407 U. S., at 450 (opinion of Powell, J., joined
by Burger,
C. J.). Footnote
61 Specifically, these corporations
had to meet three conditions. First, they had to be formed “for the
express purpose of promoting political ideas,” so that their
resources reflected political support rather than commercial
success. MCFL , 479 U. S., at 264. Next, they had to have
no shareholders, so that “persons connected with the organization
will have no economic disincentive for disassociating with it if
they disagree with its political activity.” Ibid. Finally,
they could not be “established by a business corporation or a labor
union,” nor “accept contributions from such entities,” lest they
“serv[e] as conduits for the type of direct spending that creates a
threat to the political marketplace.” Ibid. Footnote
62 According to The Chief
Justice, we are “erroneou[s]” in claiming that McConnell and Beaumont “ ‘reaffirmed’ ” Austin . Ante , at 5. In both cases, the Court
explicitly relied on Austin and quoted from it at length.
See 540 U. S., at 204–205; 539 U. S., at 153–155, 158, 160, 163;
see also ante , at 15 (“The holding and validity of Austin were essential to the reasoning of the McConnell majority opinion”); Brief for Appellants
National Rifle Association et al., O. T. 2003, No.
02–1675, p. 21 (“ Beaumont reaffirmed … the Austin rationale for restricting expenditures”). The McConnell Court did so in the teeth of vigorous protests by Justices in
today’s majority that Austin should be overruled. See ante , at 15 (citing relevant passages); see also Beaumont , 539 U. S., at 163–164 (Kennedy, J., concurring
in judgment). Both Courts also heard criticisms of Austin from parties or amici . See Brief for Appellants Chamber of
Commerce of the United States et al., O. T. 2003, No.
02–1756, p. 35, n. 22; Reply Brief for
Appellants/Cross-Appellees Senator Mitch McConnell et al.,
O. T. 2003, No. 02–1674, pp. 13–14; Brief for Pacific
Legal Foundation as Amicus Curiae in FEC v. Beaumont , O. T. 2002, No. 02–403, passim . If
this does not qualify as reaffirmation of a precedent, then I do
not know what would. Footnote
63 Cf. Nixon v. Shrink
Missouri Government PAC , 528 U. S. 377 , 389 (2000) (recognizing
“the broader threat from politicians too compliant with the wishes
of large contributors”). Though discrete in scope, these
experiments must impose some meaningful limits if they are to have
a chance at functioning effectively and preserving the public’s
trust. “Even if it occurs only occasionally, the potential for such
undue influence is manifest. And unlike straight cash-for-votes
transactions, such corruption is neither easily detected nor
practical to criminalize.” McConnell , 540 U. S., at 153.
There should be nothing controversial about the proposition that
the influence being targeted is “undue.” In a democracy,
officeholders should not make public decisions with the aim of
placating a financial benefactor, except to the extent that the
benefactor is seen as representative of a larger constituency or
its arguments are seen as especially
persuasive. Footnote
64 The majority declares by fiat
that the appearance of undue influence by high-spending
corporations “will not cause the electorate to lose faith in our
democracy.” Ante , at 44. The electorate itself has
consistently indicated otherwise, both in opinion polls, see McConnell v. FEC , 251 F. Supp. 2d 176,
557–558, 623–624 (DC 2003) (opinion of Kollar-Kotelly, J.), and in
the laws its representatives have passed, and our colleagues have
no basis for elevating their own optimism into a tenet of
constitutional law. Footnote
65 Quite distinct from the interest
in preventing improper influences on the electoral process, I have
long believed that “a number of [other] purposes, both legitimate
and substantial, may justify the imposition of reasonable
limitations on the expenditures permitted during the course of any
single campaign.” Davis v. FEC , 554 U. S. ___,
___ (2008) (slip op., at 3) (opinion concurring in part and
dissenting in part). In my judgment, such limitations may be
justified to the extent they are tailored to “improving the quality
of the exposition of ideas” that voters receive, ibid. ,
“free[ing] candidates and their staffs from the interminable burden
of fundraising,” ibid. (internal quotation marks omitted),
and “protect[ing] equal access to the political arena,” Randall v. Sorrell , 548 U. S. 230 , 278 (2006) (Stevens,
J., dissenting) (internal quotation marks omitted). I continue to
adhere to these beliefs, but they have not been briefed by the
parties or amici in this case, and their soundness is
immaterial to its proper
disposition. Footnote
66 In fact, the notion that the
“electioneering communications” covered by §203 can breed quid
pro quo corruption or the appearance of such corruption has
only become more plausible since we decided McConnell .
Recall that The Chief Justice’s controlling opinion in WRTL subsequently limited BCRA’s definition of
“electioneering communications” to those that are “susceptible of
no reasonable interpretation other than as an appeal to vote for or
against a specific candidate.” 551 U. S., at 470. The upshot was
that after WRTL , a corporate or union expenditure could be
regulated under §203 only if everyone would understand it as an
endorsement of or attack on a particular candidate for office. It
does not take much imagination to perceive why this type of
advocacy might be especially apt to look like or amount to a deal
or a threat. Footnote
67 “We must give weight” and “due
deference” to Congress’ efforts to dispel corruption, the Court
states at one point. Ante , at 45. It is unclear to me what
these maxims mean, but as applied by the Court they clearly do not
entail “deference” in any normal sense of that
term. Footnote
68 Justice Breyer has suggested that
we strike the balance as follows: “We should defer to [the
legislature’s] political judgment that unlimited spending threatens
the integrity of the electoral process. But we should not defer in
respect to whether its solution … insulates legislators from
effective electoral challenge.” Shrink Missouri , 528 U.
S., at 403–404 (concurring
opinion). Footnote
69 The Chief Justice denies this, ante , at 9–10, citing scholarship that has interpreted Austin to endorse an equality rationale, along with an
article by Justice Thurgood Marshall’s former law clerk that states
that Marshall, the author of Austin , accepted “equality of
opportunity” and “equalizing access to the political process” as
bases for campaign finance regulation, Garrett, New Voices in
Politics: Justice Marshall’s Jurisprudence on Law and Politics, 52
Howard L. J. 655, 667–668 (2009) (internal quotation marks
omitted). It is fair to say that Austin can bear an
egalitarian reading, and I have no reason to doubt this
characterization of Justice Marshall’s beliefs. But the fact that Austin can be read a certain way hardly proves The Chief
Justice’s charge that there is nothing more to it. Many of our
precedents can bear multiple readings, and many of our doctrines
have some “equalizing” implications but do not rest on an
equalizing theory: for example, our takings jurisprudence and
numerous rules of criminal procedure. More important, the Austin Court expressly declined to rely on a
speech-equalization rationale, see 494 U. S., at 660, and we have
never understood Austin to stand for such a rationale.
Whatever his personal views, Justice Marshall simply did not write
the opinion that The Chief Justice suggests he did; indeed, he
“would have viewed it as irresponsible to write an opinion that
boldly staked out a rationale based on equality that no one other
than perhaps Justice White would have even considered joining,”
Garrett, 52 Howard L. J., at
674. Footnote
70 In state elections, even domestic
corporations may be “foreign”-controlled in the sense that they are
incorporated in another jurisdiction and primarily owned and
operated by out-of-state
residents. Footnote
71 Regan, Corporate Speech and Civic
Virtue, in Debating Democracy’s Discontent 289, 302 (A. Allen &
M. Regan eds. 1998) (hereinafter
Regan). Footnote
72 Nothing in this analysis turns on
whether the corporation is conceptualized as a grantee of a state
concession, see, e.g., Trustees of Dartmouth
College v. Woodward , 4 Wheat. 518, 636 (1819)
(Marshall, C. J.), a nexus of explicit and implicit contracts,
see, e.g., F. Easterbrook & D. Fischel, The Economic
Structure of Corporate Law 12 (1991), a mediated hierarchy of
stakeholders, see, e.g., Blair & Stout, A Team
Production Theory of Corporate Law, 85 Va. L. Rev. 247 (1999)
(hereinafter Blair & Stout), or any other recognized model. Austin referred to the structure and the advantages of
corporations as “state-conferred” in several places, 494 U. S., at
660, 665, 667, but its antidistortion argument relied only on the
basic descriptive features of corporations, as sketched above. It
is not necessary to agree on a precise theory of the corporation to
agree that corporations differ from natural persons in fundamental
ways, and that a legislature might therefore need to regulate them
differently if it is human welfare that is the object of its
concern. Cf. Hansmann & Kraakman 441,
n. 5. Footnote
73 Not all corporations support BCRA
§203, of course, and not all corporations are large business
entities or their tax-exempt adjuncts. Some nonprofit corporations
are created for an ideological purpose. Some closely held
corporations are strongly identified with a particular owner or
founder. The fact that §203, like the statute at issue in Austin , regulates some of these corporations’ expenditures
does not disturb the analysis above. See 494 U. S., at 661–665.
Small-business owners may speak in their own names, rather than the
business’, if they wish to evade §203 altogether. Nonprofit
corporations that want to make unrestricted electioneering
expenditures may do so if they refuse donations from businesses and
unions and permit members to disassociate without economic penalty.
See MCFL , 479
U. S. 238 , 264 (1986). Making it plain that their decision is
not motivated by a concern about BCRA’s coverage of nonprofits that
have ideological missions but lack MCFL status, our
colleagues refuse to apply the Snowe-Jeffords Amendment or the
lower courts’ de minimis exception to MCFL . See ante , at
10–12. Footnote
74 Of course, no presiding person in
a courtroom, legislature, classroom, polling place, or family
dinner would take this hyperbole
literally. Footnote
75 Under the majority’s view, the
legislature is thus damned if it does and damned if it doesn’t. If
the legislature gives media corporations an exemption from
electioneering regulations that apply to other corporations, it
violates the newly minted First Amendment rule against
identity-based distinctions. If the legislature does not give media
corporations an exemption, it violates the First Amendment rights
of the press. The only way out of this invented bind: no
regulations
whatsoever. Footnote
76 I note that, among the many other
regulatory possibilities it has left open, ranging from new
versions of §203 supported by additional evidence of quid pro
quo corruption or its appearance to any number of tax
incentive or public financing schemes, today’s decision does not
require that a legislature rely solely on these mechanisms to
protect shareholders. Legislatures remain free in their
incorporation and tax laws to condition the types of activity in
which corporations may engage, including electioneering activity,
on specific disclosure requirements or on prior express approval by
shareholders or
members. 558 U. S. ____ (2010) 558 U. S. ____ (2010) 558 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-205 CITIZENS UNITED, APPELLANT v. FEDERAL
ELECTION COMMISSION

															on appeal from the united states district court for
the district of columbia

															[January 21, 2010]

															   Justice Thomas, concurring in
part and dissenting in part.

															   I join all but Part IV of the
Court’s opinion.

															   Political speech is entitled to robust
protection under the First Amendment. Section 203 of the Bipartisan
Campaign Reform Act of 2002 (BCRA) has never been reconcilable with
that protection. By striking down §203, the Court takes an
important first step toward restoring full constitutional
protection to speech that is “indispensable to the effective and
intelligent use of the processes of popular government.” McConnell v. Federal Election Comm’n , 540 U. S. 93 , 265 (2003)
(Thomas, J., concurring in part, concurring in judgment in part,
and dissenting in part) (internal quotation marks omitted). I
dissent from Part IV of the Court’s opinion, however, because the
Court’s constitutional analysis does not go far enough. The
disclosure, disclaimer, and reporting requirements in BCRA §§201
and 311 are also unconstitutional. See id., at 275–277,
and n. 10.

															   Congress may not abridge the “right to
anonymous speech” based on the “ ‘simple interest in providing
voters with additional relevant information,’ ” id. ,
at 276 (quoting McIntyre v. Ohio Elections
Comm’n , 514 U.
S. 334 , 348 (1995)). In continuing to hold otherwise, the Court
misapprehends the import of “recent events” that some amici describe “in which donors to certain causes were
blacklisted, threatened, or otherwise targeted for retaliation.” Ante , at 54. The Court properly recognizes these events as
“cause for concern,” ibid ., but fails to acknowledge their
constitutional significance. In my view, amici ’s
submissions show why the Court’s insistence on upholding §§201 and
311 will ultimately prove as misguided (and ill fated) as was its
prior approval of §203. Amici ’s examples relate principally
to Proposition 8, a state ballot proposition that California voters
narrowly passed in the 2008 general election. Proposition 8 amended
California’s constitution to provide that “[o]nly marriage between
a man and a woman is valid or recognized in California.” Cal.
Const., Art. I, §7.5. Any donor who gave more than $100 to any
committee supporting or opposing Proposition 8 was required to
disclose his full name, street address, occupation, employer’s name
(or business name, if self-employed), and the total amount of his
contributions.[ Footnote 1 ] See
Cal. Govt. Code Ann. §84211(f) (West 2005). The California
Secretary of State was then required to post this information on
the Internet. See §§84600–84601; §§84602–84602.1 (West Supp. 2010);
§§84602.5–84604 (West 2005); §85605 (West Supp. 2010);
§§84606–84609 (West 2005).

															   Some opponents of Proposition 8 compiled this
information and created Web sites with maps showing the locations
of homes or businesses of Proposition 8 supporters. Many supporters
(or their customers) suffered property damage, or threats of
physical violence or death, as a result. They cited these incidents
in a complaint they filed after the 2008 election, seeking to
invalidate California’s mandatory disclosure laws. Supporters
recounted being told: “Consider yourself lucky. If I had a gun I
would have gunned you down along with each and every other
supporter,” or, “we have plans for you and your friends.” Complaint
in ProtectMarriage.com—Yes on 8 v. Bowen , Case
No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents
also allegedly harassed the measure’s supporters by defacing or
damaging their property. Id. , ¶32. Two religious
organizations supporting Proposition 8 reportedly received through
the mail envelopes containing a white powdery substance. Id. , ¶33.

															   Those accounts are consistent with media
reports describing Proposition 8-related retaliation. The director
of the nonprofit California Musical Theater gave $1,000 to support
the initiative; he was forced to resign after artists complained to
his employer. Lott & Smith, Donor Disclosure Has Its Downsides,
Wall Street Journal, Dec. 26, 2008, p. A13. The director of the Los
Angeles Film Festival was forced to resign after giving $1,500
because opponents threatened to boycott and picket the next
festival. Ibid. And a woman who had managed her popular,
family-owned restaurant for 26 years was forced to resign after she
gave $100, because “throngs of [angry] protesters” repeatedly
arrived at the restaurant and “shout[ed] ‘shame on you’ at
customers.” Lopez, Prop. 8 Stance Upends Her Life, Los Angeles
Times, Dec. 14, 2008, p. B1. The police even had to “arriv[e] in
riot gear one night to quell the angry mob” at the restaurant. Ibid. Some supporters of Proposition 8 engaged in similar
tactics; one real estate businessman in San Diego who had donated
to a group opposing Proposition 8 “received a letter from the Prop.
8 Executive Committee threatening to publish his company’s name if
he didn’t also donate to the ‘Yes on 8’ campaign.” Donor
Disclosure, supra, at A13.

															   The success of such intimidation tactics has
apparently spawned a cottage industry that uses forcibly disclosed
donor information to pre-empt citizens’ exercise of their
First Amendment rights. Before the 2008 Presidential election, a
“newly formed nonprofit group … plann[ed] to confront donors to
conservative groups, hoping to create a chilling effect that will
dry up contributions.” Luo, Group Plans Campaign Against G.O.P.
Donors, N. Y. Times, Aug. 8, 2008, p. A15. Its leader, “who
described his effort as ‘going for the jugular,’ ” detailed
the group’s plan to send a “warning letter … alerting donors who
might be considering giving to right-wing groups to a variety of
potential dangers, including legal trouble, public exposure and
watchdog groups digging through their lives.” Ibid. These instances of retaliation sufficiently
demonstrate why this Court should invalidate mandatory disclosure
and reporting requirements. But amici present evidence of
yet another reason to do so—the threat of retaliation from elected officials . As amici’ s submissions make
clear, this threat extends far beyond a single ballot proposition
in California. For example, a candidate challenging an incumbent
state attorney general reported that some members of the State’s
business community feared donating to his campaign because they did
not want to cross the incumbent; in his words, “ ‘I go to so
many people and hear the same thing: “I sure hope you beat [the
incumbent], but I can’t afford to have my name on your records. He
might come after me next.” ’ ” Strassel, Challenging
Spitzerism at the Polls, Wall Street Journal, Aug. 1, 2008, p. A11.
The incumbent won reelection in 2008.

															   My point is not to express any view on the
merits of the political controversies I describe. Rather, it is to
demonstrate—using real-world, recent examples—the fallacy in the
Court’s conclusion that “[d]isclaimer and disclosure requirements …
impose no ceiling on campaign-related activities, and do not
prevent anyone from speaking.” Ante , at 51 (internal
quotation marks and citations omitted). Of course they do.
Disclaimer and disclosure requirements enable private citizens and
elected officials to implement political strategies specifically calculated to curtail campaign-related
activity and prevent the lawful, peaceful exercise of First
Amendment rights.

															   The Court nevertheless insists that as-applied
challenges to disclosure requirements will suffice to vindicate
those speech rights, as long as potential plaintiffs can “show a
reasonable probability that disclosure … will subject them to
threats, harassment, or reprisals from either Government officials
or private parties.” Ante , at 52 (internal quotation marks
omitted). But the Court’s opinion itself proves the irony in this
compromise. In correctly explaining why it must address the facial
constitutionality of §203, see ante , at 5–20, the Court
recognizes that “[t]he First Amendment does not permit laws that
force speakers to … seek declaratory rulings before discussing the
most salient political issues of our day,” ante , at 7;
that as-applied challenges to §203 “would require substantial
litigation over an extended time” and result in an “interpretive
process [that] itself would create an inevitable, pervasive, and
serious risk of chilling protected speech pending the drawing of
fine distinctions that, in the end, would themselves be
questionable,” ante , at 9–10; that “a court would be
remiss in performing its duties were it to accept an unsound
principle merely to avoid the necessity of making a broader
ruling,” ante , at 12; and that avoiding a facial challenge
to §203 “would prolong the substantial, nation-wide chilling
effect” that §203 causes, ante , at 16. This logic, of
course, applies equally to as-applied challenges to §§201 and
311.

															   Irony aside, the Court’s promise that
as-applied challenges will adequately protect speech is a hollow
assurance. Now more than ever, §§201 and 311 will chill protected
speech because—as California voters can attest—“the advent of the
Internet” enables “prompt disclosure of expenditures,” which
“provide[s]” political opponents “with the information needed” to
intimidate and retaliate against their foes. Ante , at 55.
Thus, “disclosure permits citizens … to react to the speech of
[their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an
as-applied challenge.[ Footnote
2 ] Ibid. I cannot endorse a view of the First Amendment
that subjects citizens of this Nation to death threats, ruined
careers, damaged or defaced property, or pre-emptive and
threatening warning letters as the price for engaging in “core
political speech, the ‘primary object of First Amendment
protection.’ ” McConnell , 540 U. S., at 264 (Thomas,
J., concurring in part, concurring in judgment in part, and
dissenting in part) (quoting Nixon v. Shrink Missouri
Government PAC , 528 U. S. 377 , 410–411
(2000) (Thomas, J., dissenting)). Accordingly, I respectfully
dissent from the Court’s judgment upholding BCRA §§201 and 311. Footnote 1 BCRA imposes similar disclosure requirements.
See, e.g., 2 U. S. C. §434(f)(2)(F) (“Every person
who makes a disbursement for the direct costs of producing and
airing electioneering communications in an aggregate amount in
excess of $10,000 during any calendar year” must disclose “the
names and addresses of all contributors who contributed an
aggregate amount of $1,000 or more to the person making the
disbursement”). Footnote 2 But cf. Hill v. Colorado , 530 U. S. 703 ,
707–710 (2000) (approving a statute restricting speech “within 100
feet” of abortion clinics because it protected women seeking an
abortion from “ ‘sidewalk counseling,’ ” which “consists
of efforts ‘to educate, counsel, persuade, or inform passersby
about abortion and abortion alternatives by means of verbal or
written speech,’ ” and which “sometimes” involved “strong and
abusive language in face-to-face encounters”).