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Chapter 9

CAMPAIGN FINANCE
A. INTRODUCTION
Perhaps no issue in the field of election law has been so contentious for so long as that of
campaign finance.
In a 1997 interview, former House Minority Leader Richard Gephardt (D-Mo.) stated, “What
we have is two important values in direct conflict: freedom of speech, and our desire for healthy
campaigns in a healthy democracy.” Nancy Gibbs, The Wake Up Call, TIME , Feb. 3, 1997, p.22.
Although Gephardt was often criticized for suggesting that these values were in conflict, in fact
his comment well summed up the debate. There is virtually unanimous agreement that the
purpose of the First Amendment is to “protect the free discussion of governmental affairs.” Mills
v. Alabama, 384 U.S. 214, 218 (1966) [p. XXX]. Yet many Americans are deeply concerned
when politicians must solicit large sums of cash to finance their political campaigns. This system
of campaign funding is perceived to foster political corruption and to create political inequality
inconsistent with the principles reflected in one person, one vote.
As you read through the cases in this Chapter, you should see that the tension between free
speech on the one hand, and anti-corruption and equality concerns on the other, is a constant
theme. The opinions often carry an edge rarely found in judicial writing. Perhaps this is because
campaign finance brings to the surface deep disagreements not only about the proper mode of
constitutional interpretation, but about theories of democratic representation, about the meaning
of political equality, and about our fundamental attitudes towards government.
Further confusing the debate is that the goals Americans set for their campaign-finance
system are often at cross-purposes. For example, caps on campaign spending reduce concerns
created by candidate fundraising, but can also reduce the flow of information needed for a well
informed electorate. Disclosure of campaign contributions provides information to the electorate
but compromises privacy and perhaps even the notion of a secret ballot. And always, partisan
politics hovers in the background, for few areas of law so directly affect partisan prospects. Is it
best, then, to leave balancing of these concerns to the legislature, which, after all, has some
familiarity with campaigns and elections? Or does the unique opportunity to manipulate the law
for partisan or personal advantage suggest a particularly strong need for judicial skepticism of
legislative enactments?

B. BASIC PRINCIPLES
At the core of campaign-finance regulation are restrictions on contributions to political
campaigns. Although a there have been some proposals to address political inequality, and even
corruption, through public-financing plans that do not rely on limitations on contributions and
spending, these are the exception. See Joel Fleishman & Pope McCorkle, Level Up Rather than
Level Down: Towards a New Theory of Campaign Finance, 52 J.L. & POL. 211 (1984); BRUCE
ACKERMAN & IAN AYRES, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002).
Most proposals—and, more importantly, virtually all laws in the United States—have been built
around restrictions on contributions to candidates, parties, campaigns, or other political
organizations, and in some cases, around limits on expenditures.
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For many years, the Supreme Court avoided the First Amendment issues raised by campaign-
finance regulations. In United States v. Newberry, 256 U.S. 232 (1921), a candidate in
Michigan’s Republican primary for the U.S. Senate was convicted of violating the Corrupt
Practices Act by contributing $100,000 (approximately $1.42 million in 2010 dollars) to his
campaign, in violation of limits existing in Michigan state law.a A divided Supreme Court
reversed on the ground that the constitutional authority to regulate the “time, place, and manner”
of elections did not extend to primaries, which it viewed as private affairs. (This holding would
be overruled in United States v. Classic, 313 U.S. 299 (1941), one of the “White Primary Cases.”
See Chapter 6).
In United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948), the lower
court held unconstitutional a provision of the Taft-Hartley Act prohibiting corporations and
unions from any type of spending on political campaigns, insofar as it applied to political
commentary, editorials, and endorsements in a newspaper published by a union for its members’
benefit. The Supreme Court affirmed without reaching the constitutional issue. While four
members of the Court—Justices Rutledge, Black, Douglas, and Murphy—would have found that
the law did cover the publication in question and that it was unconstitutional, the majority, in an
opinion authored by Justice Reed, concluded that the statute did not clearly prohibit “a trade
journal, a house organ, or a newspaper published by a corporation, from expressing views on
candidates or political proposals in the regular course of its publication.”
In the following case, commonly referred to as Auto Workers, the Supreme Court again
avoided ruling on the constitutionality of limitations on contributions and expenditures.
However, the opinion, written by Justice Frankfurter, is important for the extensive history it
presents of campaign-finance law. This history has been relied on by the Supreme Court in
numerous cases since.

UNITED STATES v. INTERNATIONAL UNION UNITED

AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
Supreme Court of the United States
352 U.S. 567, 77 S. Ct. 529, 1 L. Ed. 2d 563 (1957)

MR. JUSTICE FRANKFURTER delivered the opinion of the Court [in which MR. JUSTICE BURTON, MR. JUSTICE
CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE BRENNAN join].b
The issues tendered in this case are the construction and, ultimately, the constitutionality of
18 U.S.C. § 610, an Act of Congress that prohibits corporations and labor organizations from
making “a contribution or expenditure in connection with” any election for federal office. * * *
Appreciation of the circumstances that begot this statute is necessary for its understanding,
and understanding of it is necessary for adjudication of the legal problems before us. Speaking
broadly, what is involved here is the integrity of our electoral process, and, not less, the
responsibility of the individual citizen for the successful functioning of that process. This case
a
Truman Newberry, a founder of the Packard Automobile Company, defeated Ford Motor Company founder Henry
Ford for the Republican nomination. Ford, however, also entered and won the Democratic primary, and Newberry
defeated him a second time in the general election. Newberry was represented in the Supreme Court by former
Justice and presidential candidate, and future Chief Justice, Charles Evans Hughes. Ford was a political ally of
President Woodrow Wilson, who had defeated Hughes in the 1916 presidential race.
b
This case was decided on March 11, 1957, before the Senate had confirmed Charles Whittaker to fill the seat
vacated by Stanley Reed. Accordingly, only eight Justices participated. [-Eds.]
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thus raises issues not less than basic to a democratic society.

The concentration of wealth consequent upon the industrial expansion in the post-Civil War
era had profound implications for American life. The impact of the abuses resulting from this
concentration gradually made itself felt by a rising tide of reform protest in the last decade of the
nineteenth century. The Sherman Law was a response to the felt threat to economic freedom
created by enormous industrial combines. The income tax law of 1894 reflected congressional
concern over the growing disparity of income between the many and the few.
No less lively, although slower to evoke federal action, was popular feeling that aggregated
capital unduly influenced politics, an influence not stopping short of corruption. * * * In the
[18]90’s many States passed laws requiring candidates for office and their political committees
to make public the sources and amounts of contributions to their campaign funds and the
recipients and amounts of their campaign expenditures. The theory behind these laws was that
the spotlight of publicity would discourage corporations from making political contributions and
would thereby end their control over party policies. But these state publicity laws either became
dead letters or were found to be futile. As early as 1894, the sober-minded Elihu Root saw the
need for more effective legislation. He urged the Constitutional Convention of the State of New
York to prohibit political contributions by corporations:
“The idea is to prevent . . . the great railroad companies, the great insurance companies, the great
telephone companies, the great aggregations of wealth from using their corporate funds, directly or
indirectly, to send members of the legislature to these halls in order to vote for their protection and the
advancement of their interests as against those of the public. It strikes at a constantly growing evil which
has done more to shake the confidence of the plain people of small means of this country in our political
institutions than any other practice which has ever obtained since the foundation of our Government. And I
believe that the time has come when something ought to be done to put a check to the giving of $50,000 or
$100,000 by a great corporation toward political purposes upon the understanding that a debt is created
from a political party to it.”

Concern over the size and source of campaign funds so actively entered the presidential
campaign of 1904 that it crystallized popular sentiment for federal action to purge national
politics of what was conceived to be the pernicious influence of “big money” campaign
contributions. * * * President Theodore Roosevelt quickly responded to this national mood. In
his annual message to Congress on December 5, 1905, he recommended that:
“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.”

Grist was added to the reformers’ mill by the investigation of the great life insurance
companies conducted by the Joint Committee of the New York Legislature, the Armstrong
Committee, under the guidance of Charles Evans Hughes. The Committee’s report, filed early in
1906, revealed that one insurance company alone had contributed almost $50,000 to a national
campaign committee in 1904 and had given substantial amounts in preceding presidential
campaigns. The Committee concluded:
“Contributions by insurance corporations for political purposes should be strictly forbidden. Neither
executive officers nor directors should be allowed to use the moneys paid for purposes of insurance in
support of political candidates or platforms. . . . Whether made for the purpose of supporting political views
or with the desire to obtain protection for the corporation, these contributions have been wholly
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unjustifiable. * * * The frank admission that moneys have been obtained for use in State campaigns upon
the expectation that candidates thus aided in their election would support the interests of the companies, has
exposed both those who solicited the contributions and those who made them to severe and just
condemnation.”

Less than a month later the Committee on Elections of the House of Representatives began
considering a number of proposals designed to cleanse the political process. Some bills
prohibited political contributions by certain classes of corporations; some merely required
disclosure of contributions; and others made bribery at elections a federal crime. The feeling of
articulate reform groups was reflected at a public hearing held by the Committee. Perry Belmont,
leader of a nation-wide organization advocating a federal publicity bill, stated:
“. . . this thing has come to the breaking point. We have had enough of it. We don’t want any more
secret purchase of organizations, which nullifies platforms, nullifies political utterances and the pledges
made by political leaders in and out of Congress.”

This view found strong support in the testimony of Samuel Gompers, President of the American
Federation of Labor, who said, with respect to the publicity bill:
“* * * It is doubtful to my mind if the contributions and expenditures of vast sums of money in the
nominations and elections for our public offices can continue to increase without endangering the
endurance of our Republic in its purity and in its essence.
“. . . If the interests of any people are threatened by corruption in our public life or corruption in
elections, surely it must of necessity be those, that large class of people, whom we for convenience term the
wageworkers.
“[O]ne of the reasons for the absence of legislation of a liberal or sympathetic or just character, so far
as it affects the interest of the wage-earners of America, can be fairly well traced with the growth of the
corruption funds and the influences that are in operation during elections and campaigns . . . . I am under
the impression that the patience of the American workingmen is about exhausted—
“. . . [If] we are really determined that our elections shall be free from the power of money and its
lavish use and expenditure without an accounting to the conscience and the judgment of the people of
America, we will have to pass some measure of this kind.”

President Roosevelt’s annual message of 1906 listed as the first item of congressional
business a law prohibiting political contributions by corporations. Shortly thereafter, in 1907,
Congress provided:
“That it shall be unlawful for any national bank, or any corporation organized by authority of any laws of
Congress, to make a money contribution in connection with any election to any political office. It shall also
be unlawful for any corporation whatever to make a money contribution in connection with any election at
which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any
election by any State legislature of a United States Senator.”

As the historical background of this statute indicates, its aim was not merely to prevent the
subversion of the integrity of the electoral process. Its underlying philosophy was to sustain the
active, alert responsibility of the individual citizen in a democracy for the wise conduct of
government.
This Act of 1907 was merely the first concrete manifestation of a continuing congressional
concern for elections “free from the power of money.” The 1909 Congress witnessed
unsuccessful attempts to amend the Act to proscribe the contribution of anything of value and to
extend its application to the election of state legislatures. The Congress of 1910 translated
popular demand for further curbs upon the political power of wealth into a publicity law that
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required committees operating to influence the results of congressional elections in two or more
States to report all contributions and disbursements and to identify contributors and recipients of
substantial sums. That law also required persons who spent more than $50 annually for the
purpose of influencing congressional elections in more than one State to report those
expenditures if they were not made through a political committee. At the next session that Act
was extended to require all candidates for the Senate and the House of Representatives to make
detailed reports with respect to both nominating and election campaigns. The amendment also
placed maximum limits on the amounts that congressional candidates could spend in seeking
nomination and election, and forbade them from promising employment for the purpose of
obtaining support. And in 1918 Congress made it unlawful either to offer or to solicit anything of
value to influence voting.
This Court’s decision in Newberry v. United States, 256 U.S. 232 [(1921)], invalidating
federal regulation of Senate primary elections, led to the Federal Corrupt Practices Act of 1925, a
comprehensive revision of existing legislation. The debates preceding that Act’s passage reveal
an attitude important to an understanding of the course of this legislation. Thus, Senator
Robinson, one of the leaders of the Senate, said:
“We all know . . . that one of the great political evils of the time is the apparent hold on political parties
which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign
contributions. Many believe that when an individual or association of individuals makes large contributions
for the purpose of aiding candidates of political parties in winning the elections, they expect, and
sometimes demand, and occasionally, at least, receive, consideration by the beneficiaries of their
contributions which not infrequently is harmful to the general public interest. It is unquestionably an evil
which ought to be dealt with, and dealt with intelligently and effectively.”

One of the means chosen by Congress to deal with this evil was § 313 of the 1925 Act, which
strengthened the 1907 statute (1) by changing the phrase “money contribution” to “contribution”
* * *; (2) by extending the prohibition on corporate contributions to the election to Congress of
Delegates and Resident Commissioners; and (3) by penalizing the recipient of any forbidden
contribution as well as the contributor.
When, in 1940, Congress moved to extend the Hatch Act, which was designed to free the
political process of the abuses deemed to accompany the operation of a vast civil administration,
its reforming zeal also led Congress to place further restrictions upon the political potentialities
of wealth. Section 20 of the law amending the Hatch Act made it unlawful for any “political
committee,” as defined in the Act of 1925, to receive contributions of more than $3,000,000 or to
make expenditures of more than that amount in any calendar year. And § 13 made it unlawful
“for any person, directly or indirectly, to make contributions in an aggregate amount in excess of
$5,000, during any calendar year, or in connection with any campaign for nomination or election,
to or on behalf of any candidate for an elective Federal office” or any committee supporting such
a candidate. The term “person” was defined to include any committee, association, organization
or other group of persons. In offering § 13 from the Senate floor Senator Bankhead said:
“We all know that money is the chief source of corruption. We all know that large contributions to
political campaigns not only put the political party under obligation to the large contributors, who demand
pay in the way of legislation, but we also know that large sums of money are used for the purpose of
conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts
of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the
country to spread propaganda, both true and untrue.”
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The need for unprecedented economic mobilization propelled by World War II enormously
stimulated the power of organized labor and soon aroused consciousness of its power outside its
ranks. Wartime strikes gave rise to fears of the new concentration of power represented by the
gains of trade unionism. And so the belief grew that, just as the great corporations had made
huge political contributions to influence governmental action or inaction, whether consciously or
unconsciously, the powerful unions were pursuing a similar course, and with the same untoward
consequences for the democratic process. Thus, in 1943, when Congress passed the Smith-
Connally Act to secure defense production against work stoppages, contained therein was a
provision extending to labor organizations, for the duration of the war, § 313 of the Corrupt
Practices Act. * * *
Despite § 313’s wartime application to labor organizations, Congress was advised of
enormous financial outlays said to have been made by some unions in connection with the
national elections of 1944. The Senate’s Special Committee on Campaign Expenditures
investigated, inter alia, the role of the Political Action Committee of the Congress of Industrial
Organizations. The Committee found “no clear-cut violation of the Corrupt Practices Act on the
part of the Political Action Committee” on the ground that it had made direct contributions only
to candidates and political committees involved in state and local elections and federal primaries,
to which the Act did not apply, and had limited its participation in federal elections to political
“expenditures,” as distinguished from “contributions” to candidates or committees. The
Committee also investigated, on complaint of Senator Taft, the Ohio C.I.O. Council’s
distribution to the public at large of 200,000 copies of a pamphlet opposing the re-election of
Senator Taft and supporting his rival. In response to the C.I.O.’s assertion that this was not a
proscribed “contribution” but merely an “expenditure of its own funds to state its position to the
world, exercising its right of free speech,” the Committee requested the Department of Justice to
bring a test case on these facts. It also recommended extension of § 313 to cover primary
campaigns and nominating conventions. A minority of the Committee, Senators Ball and
Ferguson, advocated further amendment of § 313 to proscribe “expenditures” as well as
“contributions” in order to avoid the possibility of emasculation of the statutory policy through a
narrow judicial construction of “contributions.”
The 1945 Report of the House Special Committee to Investigate Campaign Expenditures
expressed concern over the vast amounts that some labor organizations were devoting to politics:
“The scale of operations of some of these organizations is impressive. Without exception, they operate
on a Nation-wide basis; and many of them have affiliated local organizations. One was found to have an
annual budget for ‘educational’ work approximating $1,500,000, and among other things regularly supplies
over 500 radio stations with ‘briefs for broadcasters.’ Another, with an annual budget of over $300,000 for
political ‘education,’ has distributed some 80,000,000 pieces of literature, including a quarter million
copies of one article. Another, representing an organized labor membership of 5,000,000, has raised
$700,000 for its national organizations in union contributions for political ‘education’ in a few months, and
a great deal more has been raised for the same purpose and expended by its local organizations.”

Like the Senate Committee, it advocated extension of § 313 to primaries and nominating
conventions, and noted the existence of a controversy over the scope of “contribution.” The
following year the House Committee made a further study of the activities of organizations
attempting to influence the outcome of federal elections. It found that the Brotherhood of
Railway Trainmen and other groups employed professional political organizers, sponsored
partisan radio programs and distributed campaign literature. It concluded that:
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“The intent and purpose of the provision of the act prohibiting any corporation or labor organization
making any contribution in connection with any election would be wholly defeated if it were assumed that
the term ‘making any contribution’ related only to the donating of money directly to a candidate, and
excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of
what avail would a law be to prohibit the contributing direct to a candidate and yet permit the expenditure
of large sums in his behalf?
“The committee is firmly convinced, after a thorough study of the provisions of the act, the legislative
history of the same, and the debates on the said provisions when it was pending before the House, that the
act was intended to prohibit such expenditures.”

Accordingly, to prevent further evasion of the statutory policy, the Committee attached to its
recommendation that the prohibition of contributions by labor organizations be made permanent
the additional proposal that the statute
“be clarified so as to specifically provide that expenditures of money for salaries to organizers, purchase of
radio time, and other expenditures by the prohibited organizations in connection with elections, constitute
violations of the provisions of said section, whether or not said expenditures are with or without the
knowledge or consent of the candidates.”

Early in 1947 the Special Committee to Investigate Senatorial Campaign Expenditures in the
1946 elections, the Ellender Committee, urged similar action to “plug the existing loophole.”
***
Shortly thereafter, Congress again acted to protect the political process from what it deemed
to be the corroding effect of money employed in elections by aggregated power. Section 304 of
the labor bill introduced into the House by Representative Hartley in 1947, like the Ellender bill,
embodied the changes recommended in the reports of the Senate and House Committees on
Campaign Expenditures. It sought to amend § 313 of the Corrupt Practices Act to proscribe any
“expenditure” as well as “any contribution,” to make permanent § 313’s application to labor
organizations and to extend its coverage to federal primaries and nominating conventions. * * *
In explaining § 304 to his colleagues, Senator Taft * * * said:
“* * * In this instance the words of the Smith-Connally Act have been somewhat changed in effect so
as to plug up a loophole which obviously developed, and which, if the courts had permitted advantage to be
taken of it, as a matter of fact, would absolutely have destroyed the prohibition against political advertising
by corporations. If ‘contribution’ does not mean ‘expenditure,’ then a candidate for office could have his
corporation friends publish an advertisement for him in the newspapers every day for a month before
election. I do not think the law contemplated such a thing, but it was claimed that it did, at least when it
applied to labor organizations. So, all we are doing here is plugging up the hole which developed,
following the recommendation by our own Elections Committee, in the Ellender bill.”

[T]he bill subsequently became law despite the President’s veto. It is this section of the statute
that the District Court held did not reach the activities alleged in the indictment. * * *
[T]he indictment charged appellee with having used union dues to sponsor commercial
television broadcasts designed to influence the electorate to select certain candidates for
Congress in connection with the 1954 elections.
To deny that such activity, either on the part of a corporation or a labor organization,
constituted an “expenditure in connection with any [federal] election” is to deny the long series
of congressional efforts calculated to avoid the deleterious influences on federal elections
resulting from the use of money by those who exercise control over large aggregations of capital.
More particularly, this Court would have to ignore the history of the statute from the time it was
first made applicable to labor organizations. As indicated by the reports of the Congressional
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Committees that investigated campaign expenditures, it was to embrace precisely the kind of
indirect contribution alleged in the indictment that Congress amended § 313 to proscribe
“expenditures.” It is open to the Government to prove under this indictment activity by appellee
that, except for an irrelevant difference in the medium of communication employed, is virtually
indistinguishable from the Brotherhood of Railway Trainmen’s purchase of radio time to sponsor
candidates or the Ohio C.I.O.’s general distribution of pamphlets to oppose Senator Taft.
Because such conduct was claimed to be merely “an expenditure [by the union] of its own funds
to state its position to the world,” the Senate and House Committees recommended and Congress
enacted, as we have seen, the prohibition of “expenditures” as well as “contributions” to “plug
the existing loophole.” * * *
Appellee urges that if, as we hold, 18 U.S.C. § 610 embraces the activity alleged in the
indictment, it offends several rights guaranteed by the Constitution.2 The Government replies
that the actual restraint upon union political activity imposed by the statute is so narrowly limited
that Congress did not exceed its powers to protect the political process from undue influence of
large aggregations of capital and to promote individual responsibility for democratic
government. * * *
The wisdom of refraining from avoidable constitutional pronouncements * * * is peculiarly
appropriate in the circumstances of this case. First of all, these questions come to us unillumined
by the consideration of a single judge—we are asked to decide them in the first instance. [O]nly
an adjudication on the merits can provide the concrete factual setting that sharpens the
deliberative process especially demanded for constitutional decision. Finally, by remanding the
case for trial it may well be that the Court will not be called upon to pass on the questions now
raised. * * *
Allegations of the indictment hypothetically framed to elicit a ruling from this Court or based
upon misunderstanding of the facts may not survive the test of proof. For example, was the
broadcast paid for out of the general dues of the union membership or may the funds be fairly
said to have been obtained on a voluntary basis? Did the broadcast reach the public at large or
only those affiliated with appellee? Did it constitute active electioneering or simply state the
record of particular candidates on economic issues? Did the union sponsor the broadcast with the
intent to affect the results of the election? * * * We suggest the possibility of such questions, not
to imply answers to problems of statutory construction, but merely to indicate the covert issues
that may be involved in this case. * * *
Because the District Court’s erroneous interpretation of the statute led it to stop the
prosecution prematurely, its judgment must be reversed and the case must be remanded to it for
further proceedings not inconsistent with this opinion.
Reversed and remanded.

MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE [WARREN] and MR. JUSTICE BLACK join,
dissenting.
We deal here with a problem that is fundamental to the electoral process and to the operation
of our democratic society. It is whether a union can express its views on the issues of an election
2
“. . . if such an expenditure is prohibited by 18 U.S.C. 610, * * * the statute (i) abridges freedom of speech and of
the press and the right peaceably to assemble and to petition; (ii) abridges the right to choose senators and
representatives guaranteed by Article I, § 2 and the Seventeenth Amendment; (iii) creates an arbitrary and unlawful
classification and discriminates against labor organizations in violation of the Fifth Amendment, and (iv) is vague
and indefinite and fails to provide a reasonably ascertainable standard of guilt in violation of the Fifth and Sixth
Amendments.” Brief for appellee, pp. 2-3.
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and on the merits of the candidates, unrestrained and unfettered by the Congress. The principle at
stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and
wholesale trade groups, consumers’ leagues, farmers’ unions, religious groups and every other
association representing a segment of American life and taking an active part in our political
campaigns and discussions. It is as important an issue as has come before the Court, for it
reaches the very vitals of our system of government.
Under our Constitution it is We The People who are sovereign. The people have the final say.
The legislators are their spokesmen. The people determine through their votes the destiny of the
nation. It is therefore important—vitally important—that all channels of communication be open
to them during every election, that no point of view be restrained or barred, and that the people
have access to the views of every group in the community.
In United States v. C.I.O., 335 U.S. 106, 144 [(1948)], Mr. Justice Rutledge spoke of the
importance of the First Amendment rights—freedom of expression and freedom of assembly—to
the integrity of our elections. “The most complete exercise of those rights,” he said, “is essential
to the full, fair and untrammeled operation of the electoral process. To the extent they are
curtailed the electorate is deprived of information, knowledge and opinion vital to its function.”
What the Court does today greatly impairs those rights. It sustains an indictment charging no
more than the use of union funds for broadcasting television programs that urge and endorse the
selection of certain candidates for the Congress of the United States. The opinion of the Court
places that advocacy in the setting of corrupt practices. The opinion generates an environment of
evil-doing and points to the oppressions and misdeeds that have haunted elections in this
country.
Making a speech endorsing a candidate for office does not, however, deserve to be identified
with antisocial conduct. Until today political speech has never been considered a crime. The
making of a political speech up to now has always been one of the preferred rights protected by
the First Amendment. It usually costs money to communicate an idea to a large audience. But no
one would seriously contend that the expenditure of money to print a newspaper deprives the
publisher of freedom of the press. Nor can the fact that it costs money to make a speech—
whether it be hiring a hall or purchasing time on the air—make the speech any the less an
exercise of First Amendment rights. Yet this statute, as construed and applied in this indictment,
makes criminal any “expenditure” by a union for the purpose of expressing its views on the
issues of an election and the candidates. * * *
I would affirm the judgment dismissing the indictment.

Notes and Questions

1. In recent years, scholars engaging in significant historical research have challenged
Justice Frankfurter’s account of the development of campaign-finance law. The most direct
analysis of Frankfurter’s opinion has come from Professor Allison Hayward, who has argued that
Justice Frankfurter’s opinion “avoided political context and truncated political and legislative
history. What emerges from a more complete account is a messy, complicated record, dictated by
political opportunism. At each step, reform was a way to capitalize on public sentiment and
restrict political rivals’ access to financial resources, using little debated legislative vehicles and
parliamentary skill.” Allison R. Hayward, Revisiting the Fable of Reform, 45 HARV. J. ON LEGIS .
421, 422 (2008). In Citizens United v. Federal Election Commission, 558 U.S. __, __, 175 L. Ed.
2d 753, 797 (2010) [p. XXX], the Supreme Court, relying on Hayward’s work, declared the
United Auto Workers’ history “flawed.” Id. (slip op. at 90).
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Others have similarly argued that most reform is best explained by efforts to gain partisan or
ideological advantage and to protect incumbent legislators. See JOHN SAMPLES, THE FALLACY OF
CAMPAIGN FINANCE REFORM 189-232 (2006); RAYMOND J. LA RAJA, SMALL CHANGE: MONEY,
POLITICAL PARTIES, AND CAMPAIGN FINANCE REFORM 43-80 (2008). Professor Adam Winkler has
argued that the primary motivation for the Tillman Act and early publicity acts had little to do
with battling political corruption or inequality, but rather with protecting the rights of corporate
shareholders and the reserves of insurance companies. Adam Winkler, Other People’s Money:
Corporations, Agency Costs, and Campaign Finance Law, 92 GEO. L.J. 871 (2004).
Do the motivations of legislators matter when determining the constitutionality of campaign-
finance laws? Should it matter if the history of the law in question demonstrated concern for the
“wise conduct of government” (Frankfurter), or the absence of “any exercise of reasoned policy
judgment” (Hayward, supra, at 454)? Does this affect your attitude toward legislation in this
area?
2. At the close of Auto Workers, Justice Frankfurter raised several issues that, he suggested,
might be clarified by allowing the prosecution to continue. Do you agree that these issues could
make a difference in determining the law’s constitutionality? Why or why not?
3. Was Justice Frankfurter’s cautious approach of avoiding constitutional adjudication the
right choice? Auto Workers did not return to the Supreme Court. On November 6, 1957, a federal
jury found the defendants not guilty on all counts. Hayward, supra, at 463. The failure of the
prosecution in Auto Workers was, in fact, not atypical—in fact, between 1925 and 1971, there
was not a single successful prosecution under the Federal Corrupt Practices Act. FRANK SORAUF,
INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 6 (1992).

In 1972c Congress completely revamped federal campaign-finance law with the passage of
the Federal Election Campaign Act (FECA). In its original form, FECA relied primarily on
disclosure rather than on contribution limits. However, the law had scarcely taken effect before
the Watergate scandal broke. Although the new disclosure requirements of FECA actually
helped to break key parts of the Watergate scandal, see HERBERT E. ALEXANDER, FINANCING
POLITICS: MONEY, ELECTIONS AND POLITICAL REFORM 30-32 (1992), the scandal provided the
impetus for a more far-reaching law. The 1974 amendments to FECA effectively re-wrote the
law from the ground up, including new limits on contributions and expenditures, new disclosure
requirements, public financing of presidential campaigns, and the creation of a new, independent
federal agency, the Federal Election Commission, to oversee enforcement.
The law was immediately challenged by a conglomeration of plaintiffs from across the
political spectrum, including former Democratic presidential candidate Eugene McCarthy,
Conservative Party U.S. Senator James Buckley, the Libertarian Party, the Mississippi
Republican Party, the New York branch of the American Civil Liberties Union, the American
Conservative Union, and many others. The Court of Appeals upheld all major parts of the Act.
519 F.2d 821 (D.C. Cir. 1975). The ambitious scope of the law and the creation of a new
enforcement commission made it difficult, if not impossible, for the Supreme Court to avoid the
issues it had sidestepped in Newberry, CIO, and Auto Workers. The resulting decision, Buckley
v. Valeo, is by some measures the longest Supreme Court opinion ever, and certainly its longest
per curiam opinion. More than thirty years later, it remains the touchstone of campaign-finance
law, and the starting point for virtually every Supreme Court or lower-court opinion on campaign
finance. Below are substantial portions of the Buckley opinion dealing with contribution and
c
FECA was passed in February 1972, even though it is referred to as the Federal Election Campaign Act of 1971.
 11

expenditure limits. Later, we will look at portions of Buckley dealing with public financing of
campaigns and disclosure of contributions and expenditures.

BUCKLEY v. VALEO
Supreme Court of the United States
424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)

PER CURIAM. [MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE POWELL join this
opinion in full, and MR. JUSTICE REHNQUIST joins all portions of the opinion excerpted here. MR.
JUSTICE MARSHALL joins in all but Part I-C-2. MR. JUSTICE BLACKMUN joins in all but Part I-B. MR.
CHIEF JUSTICE BURGER joins in Part I-C.]
These appeals present constitutional challenges to the key provisions of the Federal Election
Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as
amended in 1974. * * *

I. CONTRIBUTION AND EXPENDITURE LIMITATIONS

The intricate statutory scheme adopted by Congress to regulate federal election campaigns
includes restrictions on political contributions and expenditures that apply broadly to all phases
of and all participants in the election process. The major contribution and expenditure limitations
in the Act prohibit individuals from contributing more than $25,000 in a single year or more than
$1,000 to any single candidate for an election campaign and from spending more than $1,000 a
year “relative to a clearly identified candidate.” Other provisions restrict a candidate’s use of
personal and family resources in his campaign and limit the overall amount that can be spent by
a candidate in campaigning for federal office. * * *

A. General Principles
The Act’s contribution and expenditure limitations operate in an area of the most
fundamental First Amendment activities. 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. The First Amendment affords the broadest protection to such political
expression in order “to assure [the] unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484
(1957). Although First Amendment protections are not confined to “the exposition of ideas,”
Winters v. New York, 333 U.S. 507, 510 (1948), “there is practically universal agreement that a
major purpose of that Amendment was to protect the free discussion of governmental affairs, . . .
of course includ[ing] discussions of candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966) [p.
XXX]. This no more than reflects our “profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964) [p. XXX]. In a republic where the people are sovereign, the
ability of the citizenry to make informed choices among candidates for office is essential, for the
identities of those who are elected will inevitably shape the course that we follow as a nation. As
the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), “it can hardly be
doubted that the constitutional guarantee has its fullest and most urgent application precisely to
the conduct of campaigns for political office.”
The First Amendment protects political association as well as political expression. The
constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 (1958),
stemmed from the Court’s recognition that “[e]ffective advocacy of both public and private
12

points of view, particularly controversial ones, is undeniably enhanced by group association.”

Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee
“freedom to associate with others for the common advancement of political beliefs and ideas,” a
freedom that encompasses “[t]he right to associate with the political party of one’s choice.”
It is with these principles in mind that we consider the primary contentions of the parties with
respect to the Act’s limitations upon the giving and spending of money in political campaigns.
Those conflicting contentions could not more sharply define the basic issues before us. Appellees
contend that what the Act regulates is conduct, and that its effect on speech and association is
incidental at most. Appellants respond that contributions and expenditures are at the very core of
political speech, and that the Act’s limitations thus constitute restraints on First Amendment
liberty that are both gross and direct.
In upholding the constitutional validity of the Act’s contribution and expenditure provisions
on the ground that those provisions should be viewed as regulating conduct, not speech, the
Court of Appeals relied upon United States v. O’Brien, 391 U.S. 367 (1968). The O’Brien case
involved a defendant’s claim that the First Amendment prohibited his prosecution for burning his
draft card because his act was “symbolic speech” engaged in as a “demonstration against the war
and against the draft.” On the assumption that “the alleged communicative element in O’Brien’s
conduct [was] sufficient to bring into play the First Amendment,” the Court sustained the
conviction because it found “a sufficiently important governmental interest in regulating the
nonspeech element” that was “unrelated to the suppression of free expression” and that had an
“incidental restriction on alleged First Amendment freedoms . . . no greater than [was] essential
to the furtherance of that interest.” Id., at 376-377. The Court expressly emphasized that O’Brien
was not a case “where the alleged governmental interest in regulating conduct arises in some
measure because the communication allegedly integral to the conduct is itself thought to be
harmful.” Id., at 382.
We cannot share the view that the present Act’s contribution and expenditure limitations are
comparable to the restrictions on conduct upheld in O’Brien. The expenditure of money simply
cannot be equated with such conduct as destruction of a draft card. Some forms of
communication made possible by the giving and spending of money involve speech alone, some
involve conduct primarily, and some involve a combination of the two. Yet this Court has never
suggested that the dependence of a communication on the expenditure of money operates itself to
introduce a nonspeech element or to reduce the exacting scrutiny required by the First
Amendment. For example, in Cox v. Louisiana, 379 U.S. 559 (1965), the Court contrasted
picketing and parading with a newspaper comment and a telegram by a citizen to a public
official. The parading and picketing activities were said to constitute conduct “intertwined with
expression and association,” whereas the newspaper comment and the telegram were described
as a “pure form of expression” involving “free speech alone” rather than “expression mixed with
particular conduct.” Id., at 563-564.
Even if the categorization of the expenditure of money as conduct were accepted, the
limitations challenged here would not meet the O’Brien test because the governmental interests
advanced in support of the Act involve “suppressing communication.” The interests served by
the Act include restricting the voices of people and interest groups who have money to spend and
reducing the overall scope of federal election campaigns. Although the Act does not focus on the
ideas expressed by persons or groups subjected to its regulations, it is aimed in part at equalizing
the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures
for political expression by citizens and groups. Unlike O’Brien, where the Selective Service
 13

System’s administrative interest in the preservation of draft cards was wholly unrelated to their
use as a means of communication, it is beyond dispute that the interest in regulating the alleged
“conduct” of giving or spending money “arises in some measure because the communication
allegedly integral to the conduct is itself thought to be harmful.”
Nor can the Act’s contribution and expenditure limitations be sustained * * * [as] reasonable
time, place, and manner regulations, which do not discriminate among speakers or ideas, in order
to further an important governmental interest unrelated to the restriction of communication. * * *
[T]he present Act’s contribution and expenditure limitations impose direct quantity restrictions
on political communication and association by persons, groups, candidates, and political parties
in addition to any reasonable time, place, and manner regulations otherwise imposed.17
A restriction on the amount of money a person or group can spend on political
communication during a campaign 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.18 This is because virtually every means of communicating ideas in today’s mass society
requires the expenditure of money. The distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and
publicizing the event. The electorate’s increasing dependence on television, radio, and other
mass media for news and information has made these expensive modes of communication
indispensable instruments of effective political speech.
The expenditure limitations contained in the Act represent substantial rather than merely
theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on
spending “relative to a clearly identified candidate” would appear to exclude all citizens and
groups except candidates, political parties, and the institutional press from any significant use of
the most effective modes of communication.20 Although the Act’s limitations on expenditures by
campaign organizations and political parties provide substantially greater room for discussion
and debate, they would have required restrictions in the scope of a number of past congressional
and Presidential campaigns and would operate to constrain campaigning by candidates who raise
sums in excess of the spending ceiling.
By contrast with a limitation upon expenditures for political expression, a limitation upon the
amount that any one person or group may contribute to a candidate or political committee entails
only a marginal restriction upon the contributor’s ability to engage in free communication. A
contribution serves as a general expression of support for the candidate and his views, but does
not communicate the underlying basis for the support. The quantity of communication by the
contributor does not increase perceptibly with the size of his contribution, since the expression
rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the
contribution provides a very rough index of the intensity of the contributor’s support for the
candidate. A limitation on the amount of money a person may give to a candidate or campaign
17
The nongovernmental appellees argue that just as the decibels emitted by a sound truck can be regulated
consistently with the First Amendment, the Act may restrict the volume of dollars in political campaigns without
impermissibly restricting freedom of speech. This comparison underscores a fundamental misconception. [A]
decibel restriction * * * limit[s] the manner of operating a soundtruck, but not the extent of its proper use. By
contrast, the Act’s dollar ceilings restrict the extent of the reasonable use of virtually every means of communicating
information. * * *
18
Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to
drive an automobile as far and as often as one desires on a single tank of gasoline.
20
The record indicates that, as of January 1, 1975, one full-page advertisement in a daily edition of a certain
metropolitan newspaper cost $6,971.04—almost seven times the annual limit on expenditures “relative to” a
particular candidate imposed on the vast majority of individual citizens and associations.
14

organization thus involves little direct restraint on his political communication, for it permits the
symbolic expression of support evidenced by a contribution but does not in any way infringe the
contributor’s freedom to discuss candidates and issues. While contributions may result in
political expression if spent by a candidate or an association to present views to the voters, the
transformation of contributions into political debate involves speech by someone other than the
contributor.
Given the important role of contributions in financing political campaigns, contribution
restrictions could have a severe impact on political dialogue if the limitations prevented
candidates and political committees from amassing the resources necessary for effective
advocacy. There is no indication, however, that the contribution limitations imposed by the Act
would have any dramatic adverse effect on the funding of campaigns and political associations.23
The overall effect of the Act’s contribution ceilings is merely to require candidates and political
committees to raise funds from a greater number of persons and to compel people who would
otherwise contribute amounts greater than the statutory limits to expend such funds on direct
political expression, rather than to reduce the total amount of money potentially available to
promote political expression.
The Act’s contribution and expenditure limitations also impinge on protected associational
freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a
candidate. In addition, it enables like-minded persons to pool their resources in furtherance of
common political goals. The Act’s contribution ceilings thus limit one important means of
associating with a candidate or committee, but leave the contributor free to become a member of
any political association and to assist personally in the association’s efforts on behalf of
candidates. And the Act’s contribution limitations permit associations and candidates to
aggregate large sums of money to promote effective advocacy. By contrast, the Act’s $1,000
limitation on independent expenditures “relative to a clearly identified candidate” precludes most
associations from effectively amplifying the voice of their adherents, the original basis for the
recognition of First Amendment protection of the freedom of association. See NAACP v.
Alabama, 357 U.S., at 460. The Act’s constraints on the ability of independent associations and
candidate campaign organizations to expend resources on political expression “is simultaneously
an interference with the freedom of [their] adherents,” Sweezy v. New Hampshire, 354 U.S. 234,
250 (1957) (plurality opinion).
In sum, although the Act’s contribution and expenditure limitations both implicate
fundamental First Amendment interests, its expenditure ceilings impose significantly more
severe restrictions on protected freedoms of political expression and association than do its
limitations on financial contributions.

B. Contribution Limitations
1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and
Authorized Campaign Committees
Section 608(b) provides, with certain limited exceptions, that “no person shall make
contributions to any candidate with respect to any election for Federal office which, in the
aggregate, exceed $1,000.” The statute defines “person” broadly to include “an individual,
partnership, committee, association, corporation or any other organization or group of persons.”
23
Statistical findings agreed to by the parties reveal that approximately 5.1% of the $73,483,613 raised by the 1,161
candidates for Congress in 1974 was obtained in amounts in excess of $1,000. In 1974, two major-party senatorial
candidates, Ramsey Clark and Senator Charles Mathias, Jr., operated large-scale campaigns on contributions raised
under a voluntarily imposed $100 contribution limitation.
 15

The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or
promise to give a contribution, made for the purpose of influencing a primary election, a
Presidential preference primary, or a general election for any federal office.24 The $1,000 ceiling
applies regardless of whether the contribution is given to the candidate, to a committee
authorized in writing by the candidate to accept contributions on his behalf, or indirectly via
earmarked gifts passed through an intermediary to the candidate.25 The restriction applies to
aggregate amounts contributed to the candidate for each election—with primaries, run-off
elections, and general elections counted separately and all Presidential primaries held in any
calendar year treated together as a single election campaign. * * *
Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First
Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates
opposing incumbent officeholders and against minor-party candidates in violation of the Fifth
Amendment. We address each of these claims of invalidity in turn.

(a)
As the general discussion in Part I-A indicated, the primary First Amendment problem raised
by the Act’s contribution limitations is their restriction of one aspect of the contributor’s freedom
of political association. * * * In view of the fundamental nature of the right to associate,
governmental “action which may have the effect of curtailing the freedom to associate is subject
to the closest scrutiny.” Yet, it is clear that “[n]either the right to associate nor the right to
participate in political activities is absolute.” CSC v. Letter Carriers, 413 U.S. 548, 567 (1973)
[p. XXX]. Even a “ ‘significant interference’ with protected rights of political association” may
be sustained if the State demonstrates a sufficiently important interest and employs means
closely drawn to avoid unnecessary abridgment of associational freedoms.
Appellees argue that the Act’s restrictions on large campaign contributions are justified by
three governmental interests. According to the parties and amici, the primary interest served by
the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the
appearance of corruption spawned by the real or imagined coercive influence of large financial
contributions on candidates’ positions and on their actions if elected to office. Two “ancillary”
interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions.
First, the limits serve to mute the voices of affluent persons and groups in the election process
and thereby to equalize the relative ability of all citizens to affect the outcome of elections.
Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of
political campaigns and thereby serve to open the political system more widely to candidates
without access to sources of large amounts of money.
It is unnecessary to look beyond the Act’s primary purpose—to limit the actuality and
appearance of corruption resulting from large individual financial contributions—in order to find
a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of
private financing of elections, a candidate lacking immense personal or family wealth must
depend on financial contributions from others to provide the resources necessary to conduct a
successful campaign. The increasing importance of the communications media and sophisticated
mass-mailing and polling operations to effective campaigning make the raising of large sums of
24
The Act exempts from the contribution ceiling the value of all volunteer services provided by individuals to a
candidate or a political committee and excludes the first $500 spent by volunteers on certain categories of campaign-
related activities. * * *
25
Expenditures by persons and associations that are “authorized or requested” by the candidate or his agents are
treated as contributions under the Act.
16

money an ever more essential ingredient of an effective candidacy. To the extent that large
contributions are given to secure a political quid pro quo from current and potential office
holders, the integrity of our system of representative democracy is undermined. Although the
scope of such pernicious practices can never be reliably ascertained, the deeply disturbing
examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of
the appearance of corruption stemming from public awareness of the opportunities for abuse
inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers the
Court found that the danger to “fair and effective government” posed by partisan political
conduct on the part of federal employees charged with administering the law was a sufficiently
important concern to justify broad restrictions on the employees’ right of partisan political
association. Here, as there, Congress could 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.”
Appellants contend that the contribution limitations must be invalidated because bribery laws
and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with
“proven and suspected quid pro quo arrangements.” But laws making criminal the giving and
taking of bribes deal with only the most blatant and specific attempts of those with money to
influence governmental action. And while disclosure requirements serve the many salutary
purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that
disclosure was only a partial measure, and that contribution ceilings were a necessary legislative
concomitant to deal with the reality or appearance of corruption inherent in a system permitting
unlimited financial contributions, even when the identities of the contributors and the amounts of
their contributions are fully disclosed.
The Act’s $1,000 contribution limitation focuses precisely on the problem of large campaign
contributions—the narrow aspect of political association where the actuality and potential for
corruption have been identified—while leaving persons free to engage in independent political
expression, to associate actively through volunteering their services, and to assist to a limited but
nonetheless substantial extent in supporting candidates and committees with financial
resources.31 Significantly, the Act’s contribution limitations in themselves do not undermine to
any material degree the potential for robust and effective discussion of candidates and campaign
issues by individual citizens, associations, the institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by our prior decisions, the
weighty interests served by restricting the size of financial contributions to political candidates
are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000
contribution ceiling.

31
While providing significant limitations on the ability of all individuals and groups to contribute large amounts of
money to candidates, the Act’s contribution ceilings do not foreclose the making of substantial contributions to
candidates by some major special-interest groups through the combined effect of individual contributions from
adherents or the proliferation of political funds each authorized under the Act to contribute to candidates. As a prime
example, § 610 permits corporations and labor unions to establish segregated funds to solicit voluntary contributions
to be utilized for political purposes. Corporate and union resources without limitation may be employed to
administer these funds and to solicit contributions from employees, stockholders, and union members. Each separate
fund may contribute up to $5,000 per candidate per election so long as the fund qualifies as a political committee
under § 608(b)(2). * * *
 17

(b)
Appellants’ first overbreadth challenge to the contribution ceilings rests on the proposition
that most large contributors do not seek improper influence over a candidate’s position or an
officeholder’s action. Although the truth of that proposition may be assumed, it does not
undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate
suspect contributions but, more importantly, Congress was justified in concluding that the
interest in safeguarding against the appearance of impropriety requires that the opportunity for
abuse inherent in the process of raising large monetary contributions be eliminated.
A second, related overbreadth claim is that the $1,000 restriction is unrealistically low
because much more than that amount would still not be enough to enable an unscrupulous
contributor to exercise improper influence over a candidate or officeholder, especially in
campaigns for statewide or national office. While the contribution limitation provisions might
well have been structured to take account of the graduated expenditure limitations for
Congressional and Presidential campaigns, Congress’ failure to engage in such fine tuning does
not invalidate the legislation. As the Court of Appeals observed, “[i]f it is satisfied that some
limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling
might not serve as well as $1,000.” Such distinctions in degree become significant only when
they can be said to amount to differences in kind.

(c)
Apart from these First Amendment concerns, appellants argue that the contribution limitations
work such an invidious discrimination between incumbents and challengers that the statutory
provisions must be declared unconstitutional on their face.33 In considering this contention, it is
important at the outset to note that the Act applies the same limitations on contributions to all
candidates regardless of their present occupations, ideological views, or party affiliations. 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.
There is no such evidence to support the claim that the contribution limitations in themselves
discriminate against major-party challengers to incumbents. Challengers can and often do defeat
incumbents in federal elections. Major-party challengers in federal elections are usually men and
women who are well known and influential in their community or State. Often such challengers
33
In this discussion, we address only the argument that the contribution limitations alone impermissibly discriminate
against nonincumbents. We do not address the more serious argument that these limitations, in combination with the
limitation on expenditures by individuals and groups, the limitation on a candidate’s use of his own personal and
family resources, and the overall ceiling on campaign expenditures invidiously discriminate against major-party
challengers and minor-party candidates.
Since an incumbent is subject to these limitations to the same degree as his opponent, the Act, on its face, appears
to be evenhanded. The appearance of fairness, however, may not reflect political reality. Although some incumbents
are defeated in every congressional election, it is axiomatic that an incumbent usually begins the race with
significant advantages. In addition to the factors of voter recognition and the status accruing to holding federal
office, the incumbent has access to substantial resources provided by the Government. These include local and
Washington offices, staff support, and the franking privilege. Where the incumbent has the support of major special-
interest groups which have the flexibility described in n.31, supra, and is further supported by the media, the overall
effect of the contribution and expenditure limitations enacted by Congress could foreclose any fair opportunity of a
successful challenge.
However, since we decide in Part I-C, infra, that the ceilings on independent expenditures, on the candidate’s
expenditures from his personal funds, and on overall campaign expenditures are unconstitutional under the First
Amendment, we need not express any opinion with regard to the alleged invidious discrimination resulting from the
full sweep of the legislation as enacted.
18

are themselves incumbents in important local, state, or federal offices. Statistics in the record
indicate that major-party challengers as well as incumbents are capable of raising large sums for
campaigning. Indeed, a small but nonetheless significant number of challengers have in recent
elections outspent their incumbent rivals. And, to the extent that incumbents generally are more
likely than challengers to attract very large contributions, the Act’s $1,000 ceiling has the
practical effect of benefiting challengers as a class.d Contrary to the broad generalization drawn
by the appellants, the practical impact of the contribution ceilings in any given election will
clearly depend upon the amounts in excess of the ceilings that, for various reasons, the
candidates in that election would otherwise have received and the utility of these additional
amounts to the candidates. To be sure, the limitations may have a significant effect on particular
challengers or incumbents, but the record provides no basis for predicting that such adventitious
factors will invariably and invidiously benefit incumbents as a class. Since the danger of
corruption and the appearance of corruption apply with equal force to challengers and to
incumbents, Congress had ample justification for imposing the same fundraising constraints
upon both.
The charge of discrimination against minor-party and independent candidates is more
troubling, but the record provides no basis for concluding that the Act invidiously disadvantages
such candidates. As noted above, the Act on its face treats all candidates equally with regard to
contribution limitations. And the restriction would appear to benefit minor-party and independent
candidates relative to their major-party opponents because major-party candidates receive far
more money in large contributions. Although there is some force to appellants’ response that
minor-party candidates are primarily concerned with their ability to amass the resources
necessary to reach the electorate rather than with their funding position relative to their major-
party opponents, the record is virtually devoid of support for the claim that the $1,000
contribution limitation will have a serious effect on the initiation and scope of minor-party and
independent candidacies. Moreover, any attempt to exclude minor parties and independents en
masse from the Act’s contribution limitations overlooks the fact that minor-party candidates may
win elective office or have a substantial impact on the outcome of an election.
In view of these considerations, we conclude that the impact of the Act’s $1,000 contribution
limitation on major-party challengers and on minor-party candidates does not render the
provision unconstitutional on its face.

2. The $5,000 Limitation on Contributions by Political Committees

Section 608(b)(2) permits certain committees, designated as “political committees,” to
contribute up to $5,000 to any candidate with respect to any election for federal office. In order
to qualify for the higher contribution ceiling, a group must have been registered with the
Commission as a political committee for not less than six months, have received contributions
from more than 50 persons and, except for state political party organizations, have contributed to
five or more candidates for federal office. Appellants argue that these qualifications
unconstitutionally discriminate against ad hoc organizations in favor of established interest
groups and impermissibly burden free association. The argument is without merit. Rather than
undermining freedom of association, the basic provision enhances the opportunity of bona fide
groups to participate in the election process, and the registration, contribution, and candidate
d
In fact, data have consistently shown that challengers receive a higher percentage of their total funds in
contributions of $1000 or more. See, e.g., Campaign Finance Institute, Raising Limits Helps Non-Incumbents More
Than Incumbents, Mar. 26, 2001, available at http://www.cfinst.org/pr/prRelease.aspx?ReleaseID=35#tables. [–
Eds.]
 19

conditions serve the permissible purpose of preventing individuals from evading the applicable
contribution limitations by labeling themselves committees.

3. Limitations on Volunteers’ Incidental Expenses

The Act excludes from the definition of contribution “the value of services provided without
compensation by individuals who volunteer a portion or all of their time on behalf of a candidate
or political committee.” Certain expenses incurred by persons in providing volunteer services to
a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500.
These expenses are expressly limited to (1) “the use of real or personal property and the cost of
invitations, food, and beverages, voluntarily provided by an individual to a candidate in
rendering voluntary personal services on the individual’s residential premises for candidate-
related activities”; “the sale of any food or beverage by a vendor for use in a candidate’s
campaign at a charge [at least equal to cost but] less than the normal comparable charge”; and (3)
“any unreimbursed payment for travel expenses made by an individual who on his own behalf
volunteers his personal services to a candidate.”
If, as we have held, the basic contribution limitations are constitutionally valid, then surely
these provisions are a constitutionally acceptable accommodation of Congress’ valid interest in
encouraging citizen participation in political campaigns while continuing to guard against the
corrupting potential of large financial contributions to candidates. The expenditure of resources
at the candidate’s direction for a fundraising event at a volunteer’s residence or the provision of
in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the
participants in such an event provides material financial assistance to a candidate. The ultimate
effect is the same as if the person had contributed the dollar amount to the candidate and the
candidate had then used the contribution to pay for the fundraising event or the food. Similarly,
travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the
campaign and may properly be viewed as a contribution if the volunteer absorbs the fare.
Treating these expenses as contributions when made to the candidate’s campaign or at the
direction of the candidate or his staff forecloses an avenue of abuse without limiting actions
voluntarily undertaken by citizens independently of a candidate’s campaign.

4. The $25,000 Limitation on Total Contributions During any Calendar Year

In addition to the $1,000 limitation on the nonexempt contributions that an individual may
make to a particular candidate for any single election, the Act contains an overall $25,000
limitation on total contributions by an individual during any calendar year. * * * The overall
$25,000 ceiling does impose an ultimate restriction upon the number of candidates and
committees with which an individual may associate himself by means of financial support. But
this quite modest restraint upon protected political activity serves to prevent evasion of the
$1,000 contribution limitation by a person who might otherwise contribute massive amounts of
money to a particular candidate through the use of unearmarked contributions to political
committees likely to contribute to that candidate, or huge contributions to the candidate’s
political party. The limited, additional restriction on associational freedom imposed by the
overall ceiling is thus no more than a corollary of the basic individual contribution limitation that
we have found to be constitutionally valid.

C. Expenditure Limitations
The Act’s expenditure ceilings impose direct and substantial restraints on the quantity of
20

political speech. The most drastic of the limitations restricts individuals and groups, including
political parties that fail to place a candidate on the ballot, to an expenditure of $1,000 “relative
to a clearly identified candidate during a calendar year.” Other expenditure ceilings limit
spending by candidates, their campaigns, and political parties in connection with election
campaigns. It is clear that a primary effect of these expenditure limitations is to restrict the
quantity of campaign speech by individuals, groups, and candidates. The restrictions, while
neutral as to the ideas expressed, limit political expression “at the core of our electoral process
and of the First Amendment freedoms.”

1. The $1,000 Limitation on Expenditures “Relative to a Clearly Identified Candidate”

Section 608(e)(1) provides that “[n]o person may make any expenditure . . . relative to a
clearly identified candidate during a calendar year which, when added to all other expenditures
made by such person during the year advocating the election or defeat of such candidate, exceeds
$1,000.”45 The plain effect of § 608(e)(1) is to prohibit all individuals, who are neither candidates
nor owners of institutional press facilities, and all groups, except political parties and campaign
organizations, from voicing their views “relative to a clearly identified candidate” through means
that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for
example, would make it a federal criminal offense for a person or association to place a single
one-quarter page advertisement “relative to a clearly identified candidate” in a major
metropolitan newspaper.
Before examining the interests advanced in support of § 608(e)(1)’s expenditure ceiling,
consideration must be given to appellants’ contention that the provision is unconstitutionally
vague. * * *48 The test is whether the language of § 608(e)(1) affords the “[p]recision of
regulation [that] must be the touchstone in an area so closely touching our most precious
freedoms.”
The key operative language of the provision limits “any expenditure . . . relative to a clearly
identified candidate.” Although “expenditure,” “clearly identified,” and “candidate” are defined
in the Act, there is no definition clarifying what expenditures are “relative to” a candidate. The
use of so indefinite a phrase as “relative to” a candidate fails to clearly mark the boundary
between permissible and impermissible speech, unless other portions of § 608(e)(1) make
sufficiently explicit the range of expenditures covered by the limitation. The section prohibits
“any expenditure . . . relative to a clearly identified candidate during a calendar year which,
when added to all other expenditures . . . advocating the election or defeat of such candidate,
exceeds $1,000.” (Emphasis added.) This context clearly permits, if indeed it does not require,
the phrase “relative to” a candidate to be read to mean “advocating the election or defeat of” a
candidate.
45
* * * The statute provides some limited exceptions through various exclusions from the otherwise comprehensive
definition of “expenditure.” The most important exclusions are: (1) “any news story, commentary, or editorial
distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication,
unless such facilities are owned or controlled by any political party, political committee, or candidate,” and (2) “any
communication by any membership organization or corporation to its members or stockholders, if such membership
organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or
election, of any person to Federal office.” * * *
48
In such circumstances, vague laws may not only “trap the innocent by not providing fair warning” or foster
“arbitrary and discriminatory application” but also operate to inhibit protected expression by inducing “citizens to
‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’ ”
“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only
with narrow specificity.”
 21

But while such a construction of § 608(e)(1) refocuses the vagueness question, the Court of
Appeals was mistaken in thinking that this construction eliminates the problem of
unconstitutional vagueness altogether. For the distinction between discussion of issues and
candidates and advocacy of election or defeat of candidates may often dissolve in practical
application. Candidates, especially incumbents, are intimately tied to public issues involving
legislative proposals and governmental actions. Not only do candidates campaign on the basis of
their positions on various public issues, but campaigns themselves generate issues of public
interest. In an analogous context, this Court in Thomas v. Collins, 323 U.S. 516 (1945),
observed:
“[W]hether words intended and designed to fall short of invitation would miss that mark is a question
both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might
say upon the general subject would not be understood by some as an invitation. In short, the supposedly
clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in
these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of
whatever inference may be drawn as to his intent and meaning.
“Such a distinction offers no security for free discussion. In these conditions it blankets with
uncertainty whatever may be said. It compels the speaker to hedge and trim.” Id. at 535.

The constitutional deficiencies described in Thomas v. Collins can be avoided only by

reading § 608(e)(1) as limited to communications that include explicit words of advocacy of
election or defeat of a candidate, much as the definition of “clearly identified” in § 608(e)(2)
requires that an explicit and unambiguous reference to the candidate appear as part of the
communication.51 * * * [I]n order to preserve the provision against invalidation on vagueness
grounds, § 608(e)(1) must be construed to apply only to expenditures for communications that in
express terms advocate the election or defeat of a clearly identified candidate for federal office.52
We turn then to the basic First Amendment question—whether § 608(e)(1) even as thus
narrowly and explicitly construed, impermissibly burdens the constitutional right of free
expression. * * *
The discussion in Part I-A, supra, explains why the Act’s expenditure limitations impose far
greater restraints on the freedom of speech and association than do its contribution limitations.
The markedly greater burden on basic freedoms caused by § 608(e)(1) thus cannot be sustained
simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution
limitations. Rather, the constitutionality of § 608(e)(1) turns on whether the governmental
interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core
First Amendment rights of political expression.
We find that the governmental interest in preventing corruption and the appearance of
corruption is inadequate to justify § 608(e)(1)’s ceiling on independent expenditures. First,
assuming, arguendo, that large independent expenditures pose the same dangers of actual or
apparent quid pro quo arrangements as do large contributions, § 608(e)(1) does not provide an
answer that sufficiently relates to the elimination of those dangers. Unlike the contribution
51
Section 608(e)(2) defines “clearly identified” to require that the candidate’s name, photograph or drawing, or
other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference
would include use of the candidate’s initials (e.g., FDR), the candidate’s nickname (e.g., Ike), his office (e.g., the
President or the Governor of Iowa), or his status as a candidate (e.g., the Democratic Presidential nominee, the
senatorial candidate of the Republican Party of Georgia).
52
This construction would restrict the application of § 608(e)(1) to communications containing express words of
advocacy of election or defeat, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,”
“vote against,” “defeat,” “reject.”
22

limitations’ total ban on the giving of large amounts of money to candidates, § 608(e)(1)
prevents only some large expenditures. So long as persons and groups eschew expenditures that
in express terms advocate the election or defeat of a clearly identified candidate, they are free to
spend as much as they want to promote the candidate and his views. The exacting interpretation
of the statutory language necessary to avoid unconstitutional vagueness thus undermines the
limitation’s effectiveness as a loophole-closing provision by facilitating circumvention by those
seeking to exert improper influence upon a candidate or officeholder. It would naively
underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence
to believe that they would have much difficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign.
Yet no substantial societal interest would be served by a loophole-closing provision designed to
check corruption that permitted unscrupulous persons and organizations to expend unlimited
sums of money in order to obtain improper influence over candidates for elective office.
Second, quite apart from the shortcomings of § 608(e)(1) in preventing any abuses generated
by large independent expenditures, the independent advocacy restricted by the provision does not
presently appear to pose dangers of real or apparent corruption comparable to those identified
with large campaign contributions. The parties defending § 608(e)(1) contend that it is necessary
to prevent would-be contributors from avoiding the contribution limitations by the simple
expedient of paying directly for media advertisements or for other portions of the candidate’s
campaign activities. They argue that expenditures controlled by or coordinated with the
candidate and his campaign might well have virtually the same value to the candidate as a
contribution and would pose similar dangers of abuse. Yet such controlled or coordinated
expenditures are treated as contributions rather than expenditures under the Act. Section 608(b)’s
contribution ceilings rather than § 608(e)(1)’s independent expenditure limitation prevent
attempts to circumvent the Act through prearranged or coordinated expenditures amounting to
disguised contributions. By contrast, § 608(e)(1) limits expenditures for express advocacy of
candidates made totally independently of the candidate and his campaign. Unlike contributions,
such independent expenditures may well provide little assistance to the candidate’s campaign
and indeed may prove counterproductive. 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. Rather than preventing circumvention of the
contribution limitations, § 608(e)(1) severely restricts all independent advocacy despite its
substantially diminished potential for abuse.
While the independent expenditure ceiling thus fails to serve any substantial governmental
interest in stemming the reality or appearance of corruption in the electoral process, it heavily
burdens core First Amendment expression. * * * Advocacy of the election or defeat of
candidates for federal office is no less entitled to protection under the First Amendment than the
discussion of political policy generally or advocacy of the passage or defeat of legislation.
It is argued, however, that the ancillary governmental interest in equalizing the relative
ability of individuals and groups to influence the outcome of elections serves to justify the
limitation on express advocacy of the election or defeat of candidates imposed by § 608(e)(1)’s
expenditure ceiling. But the 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, which was designed “to secure ‘the widest possible dissemination of information
from diverse and antagonistic sources,’ ” and “to assure unfettered interchange of ideas for the
 23

bringing about of political and social changes desired by the people.” The First Amendment’s
protection against governmental abridgment of free expression cannot properly be made to
depend on a person’s financial ability to engage in public discussion.55 * * *
The Court’s decisions in Mills v. Alabama, 384 U.S. 214 (1966) [p. XXX], and Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) [p. XXX], held that legislative
restrictions on advocacy of the election or defeat of political candidates are wholly at odds with
the guarantees of the First Amendment. In Mills, the Court addressed the question whether “a
State, consistently with the United States Constitution, can make it a crime for the editor of a
daily newspaper to write and publish an editorial on election day urging people to vote a certain
way on issues submitted to them.” We held that “no test of reasonableness can save [such] a state
law from invalidation as a violation of the First Amendment.” Id., at 220. Yet the prohibition of
election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom
than a $1,000 limitation on the amount of money any person or association can spend during an
entire election year in advocating the election or defeat of a candidate for public office. More
recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper to
make space available for a political candidate to reply to its criticism. Yet under the Florida
statute, every newspaper was free to criticize any candidate as much as it pleased so long as it
undertook the modest burden of printing his reply. The legislative restraint involved in Tornillo
thus also pales in comparison to the limitations imposed by § 608(e)(1).56
For the reasons stated, we conclude that § 608(e)(1)’s independent expenditure limitation is
unconstitutional under the First Amendment.

55
Neither the voting rights cases nor the Court’s decision upholding the Federal Communications Commission’s
fairness doctrine lends support to appellees’ position that the First Amendment permits Congress to abridge the
rights of some persons to engage in political expression in order to enhance the relative voice of other segments of
our society.
Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate for public
office rest on the conclusion that wealth “is not germane to one’s ability to participate intelligently in the electoral
process” and is therefore an insufficient basis on which to restrict a citizen’s fundamental right to vote. * * * These
voting cases and the reapportionment decisions serve to assure that citizens are accorded an equal right to vote for
their representatives regardless of factors of wealth or geography. But the principles that underlie invalidation of
governmentally imposed restrictions on the franchise do not justify governmentally imposed restrictions on political
expression. Democracy depends on a well-informed electorate, not a citizenry legislatively limited in its ability to
discuss and debate candidates and issues.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) [p. XXX], the Court upheld the political-editorial
and personal-attack portions of the Federal Communications Commission’s fairness doctrine. That doctrine requires
broadcast licensees to devote programming time to the discussion of controversial issues of public importance and to
present both sides of such issues. Red Lion “makes clear that the broadcast media pose unique and special problems
not present in the traditional free speech case,” by demonstrating that “it is idle to posit an unabridgeable First
Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” Red Lion
therefore undercuts appellees’ claim that § 608(e)(1)’s limitations may permissibly restrict the First Amendment
rights of individuals in this “traditional free speech case.” Moreover, in contrast to the undeniable effect of § 608(e)
(1), the presumed effect of the fairness doctrine is one of “enhancing the volume and quality of coverage” of public
issues.
56
The Act exempts most elements of the institutional press, limiting only expenditures by institutional press
facilities that are owned or controlled by candidates and political parties. But, whatever differences there may be
between the constitutional guarantees of a free press and of free speech, it is difficult to conceive of any principled
basis upon which to distinguish § 608(e)(1)’s limitations upon the public at large and similar limitations imposed
upon the press specifically.
24

2. Limitation on Expenditures by Candidates from Personal or Family Resources

The Act also sets limits on expenditures by a candidate “from his personal funds, or the
personal funds of his immediate family, in connection with his campaigns during any calendar
year.”
The ceiling on personal expenditures by candidates on their own behalf, like the limitations
on independent expenditures contained in § 608(e)(1), imposes a substantial restraint on the
ability of persons to engage in protected First Amendment expression. The candidate, no less
than any other person, has a First Amendment right to engage in the discussion of public issues
and vigorously and tirelessly to advocate his own election and the election of other candidates.
Indeed, it is of particular importance that candidates have the unfettered opportunity to make
their views known so that the electorate may intelligently evaluate the candidates’ personal
qualities and their positions on vital public issues before choosing among them on election day.
Mr. Justice Brandeis’ observation that in our country “public discussion is a political duty,”
Whitney v. California, 274 U.S. 357, 375 (concurring), applies with special force to candidates
for public office. Section 608(a)’s ceiling on personal expenditures by a candidate in furtherance
of his own candidacy thus clearly and directly interferes with constitutionally protected
freedoms.
The primary governmental interest served by the Act—the prevention of actual and apparent
corruption of the political process—does not support the limitation on the candidate’s
expenditure of his own personal funds. As the Court of Appeals concluded: “Manifestly, the core
problem of avoiding undisclosed and undue influence on candidates from outside interests has
lesser application when the monies involved come from the candidate himself or from his
immediate family.” Indeed, the use of personal funds reduces the candidate’s dependence on
outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse
to which the Act’s contribution limitations are directed.
The ancillary interest in equalizing the relative financial resources of candidates competing
for elective office, therefore, provides the sole relevant rationale for § 608(a)’s expenditure
ceiling. That interest is clearly not sufficient to justify the provision’s infringement of
fundamental First Amendment rights. First, the limitation may fail to promote financial equality
among candidates. A candidate who spends less of his personal resources on his campaign may
nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a
candidate’s personal wealth may impede his efforts to persuade others that he needs their
financial contributions or volunteer efforts to conduct an effective campaign. Second, and more
fundamentally, the First Amendment simply cannot tolerate § 608(a)’s restriction upon the
freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We
therefore hold that § 608(a)’s restriction on a candidate’s personal expenditures is
unconstitutional.

3. Limitations on Campaign Expenditures

Section 608(c) places limitations on overall campaign expenditures by candidates seeking
nomination for election and election to federal office. * * *
No governmental interest that has been suggested is sufficient to justify the restriction on the
quantity of political expression imposed by § 608(c)’s campaign expenditure limitations. The
major evil associated with rapidly increasing campaign expenditures is the danger of candidate
dependence on large contributions. The interest in alleviating the corrupting influence of large
contributions is served by the Act’s contribution limitations and disclosure provisions rather than
 25

by § 608(c)’s campaign expenditure ceilings. The Court of Appeals’ assertion that the
expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution
limits is not persuasive. There is no indication that the substantial criminal penalties for violating
the contribution ceilings combined with the political repercussion of such violations will be
insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure
requirements applicable to both contributions and expenditures by political campaigns are
designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals
noted, the Act permits an officeholder or successful candidate to retain contributions in excess of
the expenditure ceiling and to use these funds for “any other lawful purpose.” This provision
undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing
the contribution ceilings.
The interest in equalizing the financial resources of candidates competing for federal office is
no more convincing a justification for restricting the scope of federal election campaigns. Given
the limitation on the size of outside contributions, the financial resources available to a
candidate’s campaign, like the number of volunteers recruited, will normally vary with the size
and intensity of the candidate’s support. There is nothing invidious, improper, or unhealthy in
permitting such funds to be spent to carry the candidate’s message to the electorate. Moreover,
the equalization of permissible campaign expenditures might serve not to equalize the
opportunities of all candidates but to handicap a candidate who lacked substantial name
recognition or exposure of his views before the start of the campaign.
The campaign expenditure ceilings appear to be designed primarily to serve the
governmental interests in reducing the allegedly skyrocketing costs of political campaigns. * * *
[T]he mere growth in the cost of federal election campaigns in and of itself provides no basis for
governmental restrictions on the quantity of campaign spending and the resulting limitation on
the scope of federal campaigns. The First Amendment denies government the power to
determine that spending to promote one’s political views is wasteful, excessive, or unwise. In the
free society ordained by our Constitution it is not the government but the people—individually as
citizens and candidates and collectively as associations and political committees—who must
retain control over the quantity and range of debate on public issues in a political campaign.
For these reasons we hold that § 608(c) is constitutionally invalid.
In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single
candidate, a $5,000 limitation on contributions by a political committee to a single candidate,
and a $25,000 limitation on total contributions by an individual during any calendar year, are
constitutionally valid. These limitations, along with the disclosure provisions, constitute the
Act’s primary weapons against the reality or appearance of improper influence stemming from
the dependence of candidates on large campaign contributions. The contribution ceilings thus
serve the basic governmental interest in safeguarding the integrity of the electoral process
without directly impinging upon the rights of individual citizens and candidates to engage in
political debate and discussion. By contrast, the First Amendment requires the invalidation of the
Act’s independent expenditure ceiling, its limitation on a candidate’s expenditures from his own
personal funds, and its ceilings on overall campaign expenditures. These provisions place
substantial and direct restrictions on the ability of candidates, citizens, and associations to engage
in protected political expression, restrictions that the First Amendment cannot tolerate. * * *
[Affirmed in part and reversed in part.]

MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.
26

MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part.

* * * [T]he Court’s result does violence to the intent of Congress in this comprehensive
scheme of campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the
Court fails to recognize that the whole of this Act is greater than the sum of its parts. Congress
intended to regulate all aspects of federal campaign finances, but what remains after today’s
holding leaves no more than a shadow of what Congress contemplated. I question whether the
residue leaves a workable program. * * *
I agree fully with that part of the Court’s opinion that holds unconstitutional the limitations
the Act puts on campaign expenditures * * *. Yet when it approves similarly stringent limitations
on contributions, the Court ignores the reasons it finds so persuasive in the context of
expenditures. For me contributions and expenditures are two sides of the same First Amendment
coin.
By limiting campaign contributions, the Act restricts the amount of money that will be spent
on political activity—and does so directly. Appellees argue, as the Court notes, that these limits
will “act as a brake on the skyrocketing cost of political campaigns.” In treating campaign
expenditure limitations, the Court says that the “First Amendment denies government the power
to determine that spending to promote one’s political views is wasteful, excessive, or unwise.”
Limiting contributions, as a practical matter, will limit expenditures and will put an effective
ceiling on the amount of political activity and debate that the Government will permit to take
place. The argument that the ceiling is not, after all, very low as matters now stand gives little
comfort for the future, [owing to] the rapid inflation in the cost of political campaigning.
The Court attempts to separate the two communicative aspects of political contributions—the
“moral” support that the gift itself conveys, which the Court suggests is the same whether the gift
is $10 or $10,000,6 and the fact that money translates into communication. The Court dismisses
the effect of the limitations on the second aspect of contributions: “[T]he transformation of
contributions into political debate involves speech by someone other than the contributor.” On
this premise—that contribution limitations restrict only the speech of “someone other than the
contributor”—rests the Court’s justification for treating contributions differently from
expenditures. The premise is demonstrably flawed; the contribution limitations will, in specific
instances, limit exactly the same political activity that the expenditure ceilings limit, and at least
one of the “expenditure” limitations the Court finds objectionable [i.e., limits on a candidate’s
contributions to his own campaign] operates precisely like the “contribution” limitations.
The Court’s attempt to distinguish the communication inherent in political contributions from
the speech aspects of political expenditures simply “will not wash.” We do little but engage in
word games unless we recognize that people—candidates and contributors—spend money on
political activity because they wish to communicate ideas, and their constitutional interest in
doing so is precisely the same whether they or someone else utters the words.
The Court attempts to make the Act seem less restrictive by casting the problem as one that
goes to freedom of association rather than freedom of speech. I have long thought freedom of
association and freedom of expression were two peas from the same pod. The contribution
limitations of the Act impose a restriction on certain forms of associational activity that are for
the most part, as the Court recognizes, harmless in fact. And the restrictions are hardly incidental
6
Whatever the effect of the limitation, it is clearly arbitrary—Congress has imposed the same ceiling on
contributions to a New York or California senatorial campaign that it has put on House races in Alaska or Wyoming.
Both the strength of support conveyed by the gift of $1,000 and the gift’s potential for corruptly influencing the
recipient will vary enormously from place to place. * * *
 27

in their effect upon particular campaigns. Judges are ill-equipped to gauge the precise impact of
legislation, but a law that impinges upon First Amendment rights requires us to make the
attempt. It is not simply speculation to think that the limitations on contributions will foreclose
some candidacies.9 The limitations will also alter the nature of some electoral contests
drastically.10
At any rate, the contribution limits are a far more severe restriction on First Amendment
activity than the sort of “chilling” legislation for which the Court has shown such extraordinary
concern in the past. * * * If such restraints can be justified at all, they must be justified by the
very strongest of state interests. With this much the Court clearly agrees; the Court even goes so
far as to note that legislation cutting into these important interests must employ “means closely
drawn to avoid unnecessary abridgment of associational freedoms.”
After a bow to the “weighty interests” Congress meant to serve, the Court then forsakes this
analysis in one sentence: “Congress was surely entitled to conclude that disclosure was only a
partial measure, and that contribution ceilings were a necessary legislative concomitant to deal
with the reality or appearance of corruption. . . .” In striking down the limitations on campaign
expenditures, the Court relies in part on its conclusion that other means—namely, disclosure and
contribution ceilings—will adequately serve the statute’s aim. It is not clear why the same
analysis is not also appropriate in weighing the need for contribution ceilings in addition to
disclosure requirements. Congress may well be entitled to conclude that disclosure was a “partial
measure,” but I had not thought until today that Congress could enact its conclusions in the First
Amendment area into laws immune from the most searching review by this Court.
Finally, it seems clear to me that in approving these limitations on contributions the Court
must rest upon the proposition that “pooling” money is fundamentally different from other forms
of associational or joint activity. I see only two possible ways in which money differs from
volunteer work, endorsements, and the like. Money can be used to buy favors, because an
unscrupulous politician can put it to personal use; second, giving money is a less visible form of
associational activity. With respect to the first problem, the Act does not attempt to do any more
than the bribery laws to combat this sort of corruption. In fact, the Act does not reach at all, and
certainly the contribution limits do not reach, forms of “association” that can be fully as corrupt
as a contribution intended as a quid pro quo—such as the eleventh-hour endorsement by a
former rival, obtained for the promise of a federal appointment. This underinclusiveness is not a
constitutional flaw, but it demonstrates that the contribution limits do not clearly focus on this
first distinction. To the extent Congress thought that the second problem, the lesser visibility of
contributions, required that money be treated differently from other forms of associational
activity, disclosure laws are the simple and wholly efficacious answer; they make the invisible
apparent. * * *

MR. JUSTICE WHITE, concurring in part and dissenting in part.

I am * * * in agreement with the Court’s judgment upholding the limitations on
contributions. I dissent, however, from the Court’s view that the expenditure limitations violate
9
Candidates who must raise large initial contributions in order to appeal for more funds to a broader audience will
be handicapped. It is not enough to say that the contribution ceilings “merely . . . require candidates . . . to raise
funds from a greater number of persons,” where the limitations will effectively prevent candidates without
substantial personal resources from doing just that.
10
Under the Court’s holding, candidates with personal fortunes will be free to contribute to their own campaigns as
much as they like, since the Court chooses to view the Act’s provisions in this regard as unconstitutional
“expenditure” limitations rather than “contribution” limitations.
28

the First Amendment.

Concededly, neither the limitations on contributions nor those on expenditures directly or
indirectly purport to control the content of political speech by candidates or by their supporters
or detractors. What the Act regulates is giving and spending money, acts that have First
Amendment significance not because they are themselves communicative with respect to their
qualifications of the candidate, but because money may be used to defray the expenses of
speaking or otherwise communicating about the merits or demerits of federal candidates for
election. The act of giving money to political candidates, however, may have illegal or other
undesirable consequences: it may be used to secure the express or tacit understanding that the
giver will enjoy political favor if the candidate is elected. Both Congress and this Court’s cases
have recognized this as a mortal danger against which effective preventive and curative steps
must be taken. * * *
It would make little sense to me and apparently made none to Congress, to limit the amounts
an individual may give to a candidate or spend with his approval but fail to limit the amounts that
could be spent on his behalf. Yet the Court permits the former while striking down the latter
limitation. * * * Let us suppose that each of two brothers spends $1 million on TV spot
announcements that he has individually prepared and in which he appears, urging the election of
the same named candidate in identical words. One brother has sought and obtained the approval
of the candidate; the other has not. The former may validly be prosecuted under § 608(e); under
the Court’s view, the latter may not, even though the candidate could scarcely help knowing
about and appreciating the expensive favor. For constitutional purposes it is difficult to see the
difference between the two situations. * * *
As an initial matter, the argument that money is speech and that limiting the flow of money
to the speaker violates the First Amendment proves entirely too much. Compulsory bargaining
and the right to strike, both provided for or protected by federal law, inevitably have increased
the labor costs of those who publish newspapers, which are in turn an important factor in the
recent disappearance of many daily papers. Federal and state taxation directly removes from
company coffers large amounts of money that might be spent on larger and better newspapers.
The antitrust laws are aimed at preventing monopoly profits and price fixing, which gouge the
consumer. It is also true that general price controls have from time to time existed and have been
applied to the newspapers or other media. But it has not been suggested, nor could it be
successfully, that these laws, and many others, are invalid because they siphon off or prevent the
accumulation of large sums that would otherwise be available for communicative activities. * * *
[E]xpenditure ceilings reinforce the contribution limits and help eradicate the hazard of
corruption. * * * Without limits on total expenditures, campaign costs will inevitably and
endlessly escalate. Pressure to raise funds will constantly build and with it the temptation to
resort in “emergencies” to those sources of large sums, who, history shows, are sufficiently
confident of not being caught to risk flouting contribution limits. Congress would save the
candidate from the predicament by establishing a reasonable ceiling on all candidates. This is a
major consideration in favor of the limitation. It should be added that many successful candidates
will also be saved from large, over-hanging campaign debts which must be paid off with money
raised while holding public office and at a time when they are already preparing or thinking
about the next campaign. The danger to the public interest in such situations is self-evident.
Besides backing up the contribution provisions, which are aimed at preventing untoward
influence on candidates that are elected, expenditure limits have their own potential for
preventing the corruption of federal elections themselves. For many years the law has required
 29

the disclosure of expenditures as well as contributions. * * * [T]he corrupt use of money by

candidates is as much to be feared as the corrosive influence of large contributions. There are
many illegal ways of spending money to influence elections. One would be blind to history to
deny that unlimited money tempts people to spend it on whatever money can buy to influence an
election. On the assumption that financing illegal activities is low on the campaign
organization’s priority list, the expenditure limits could play a substantial role in preventing
unethical practices. There just would not be enough of “that kind of money” to go around.
I have little doubt in addition that limiting the total that can be spent will ease the candidate’s
understandable obsession with fundraising, and so free him and his staff to communicate in more
places and ways unconnected with the fundraising function. There is nothing objectionable—
indeed it seems to me a weighty interest in favor of the provision—in the attempt to insulate the
political expression of federal candidates from the influence inevitably exerted by the endless job
of raising increasingly large sums of money. I regret that the Court has returned them all to the
treadmill.
It is also important to restore and maintain public confidence in federal elections. It is critical
to obviate or dispel the impression that federal elections are purely and simply a function of
money, that federal offices are bought and sold or that political races are reserved for those who
have the facility—and the stomach—for doing whatever it takes to bring together those interests,
groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls.
***
The holding perhaps is not that federal candidates have the constitutional right to purchase
their election, but many will so interpret the Court’s conclusion in this case. I cannot join the
Court in this respect. * * *

Notes and Questions

1. Congress’s right to regulate campaign finance is well established in the Court’s
jurisprudence and was not challenged by the parties in Buckley. See 424 U.S. at 14 & n.16.
Article I, § 4 of the Constitution gives Congress the power to regulate the “Times, Places, and
Manner of holding Elections for Senators and Representatives.” Is “holding [an] Election[]” the
same as campaigning, or has the Court wrongfully conflated the two? Cf. id. at 248 (Burger, C.J.
concurring in part and dissenting in part) (arguing that FECA’s public-financing system for
presidential campaigns, discussed infra at pp. XXX-XXX, was not “polic[ing] the integrity of the
electoral process” but instead was “financing . . . political debate itself”).
2. What are the constitutional interests at stake in campaign-finance regulation? Read
Buckley carefully: Does it say, as some have suggested, say that “money is speech,” see J. Skelly
Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001, 1005 (1976), or is
its message slightly but significantly different? In either case, virtually everyone agrees that
campaign-finance laws, in the Court’s words, “operate in an area of the most fundamental First
Amendment activities.” Since Buckley, nineteen men and women have sat on the Court, and only
Justice Stevens has argued that for constitutional purposes, campaign-contribution and
expenditure limitations should be treated merely as restrictions on property. See Nixon v. Shrink
Missouri Government PAC, 528 U.S. 377, 398-99 [p. XXX] (Stevens, J., concurring). What
fundamental First Amendment activities are at stake?
3. The more difficult issue for the courts has not been whether the First Amendment is at
issue, but whether or not, in the words of Justice Breyer, “constitutionally protected interests lie
on both sides of the legal equation,” id. at 400 (Breyer, J., concurring); see also STEPHEN BREYER,
ACTIVE LIBERTY 49 (2005); Burt Neuborne, Toward a Democracy Centered Reading of the First
30

Amendment, 93 NW. U. L. REV. 1055, 1058-59 (1999) (arguing that constitutional “values”
support campaign finance limitations); Harold Leventhal, Courts and Political Thickets, 77
COLUM. L. REV. 345, 373 (1977), and, if so, what that means. Justice Breyer has argued that
restrictions can enhance First Amendment interests. As a result, “a presumption against
constitutionality is out of place.” Shrink PAC, 528 U.S. at 401 (Breyer, J., concurring). In what
ways might campaign-finance regulations enhance free speech or other constitutional values?
For arguments that “constitutionally protected interests” or “constitutional values” are poor
substitutes for traditional First Amendment analysis, see Daniel D. Polsby, Buckley v. Valeo:
The Special Nature of Political Speech, 1976 SUP. CT. REV. 1 (1976); Bradley A. Smith, The
John Roberts Salvage Company: After McConnell, a New Court Looks to Repair the
Constitution, 68 OHIO ST. L.J. 891, 904-907 (2007).
The dispute over the role of constitutional values and interests is not merely one of theory,
but of empirical analysis as well. Critics of campaign-finance regulation have not only disputed
whether there are constitutionally protected interests on both sides of the legal equation, but
whether regulation in fact protects or enhances such interests. See RODNEY A. SMITH , MONEY,
POWER & ELECTIONS : HOW CAMPAIGN FINANCE REFORM SUBVERTS AMERICAN DEMOCRACY (2006);
BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM 144-45 (2001).
4. For the most part, Buckley seems to recognize just one compelling government interest:
prevention of “corruption or its appearance.” The extent to which campaign contributions are
truly a source of political corruption is hotly disputed in professional literature, see Stephen D.
Ansolabehere et al., Why Is There So Little Money in American Politics, 17 J. ECON. PERSPECTIVES
105, 113-117 (2003) (compiling and reviewing thirty-six peer-reviewed studies between 1977
and 2002 and concluding, “after controlling for legislator ideology, [campaign] contributions
have no detectable effects on the behavior of legislators”), but there is no question the public
perceives contributions as corrupting, see Nathaniel Persily & Kelli Lammi, Perceptions of
Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153
U. PA. L. REV. 119 (2004).
What is meant by “the appearance of corruption”? If there is actual corruption, why isn’t that
enough? If it refers to fears unsupported by evidence, Persily and Lammi, id. at 124, note that
irrational fears are one of the few reasons insufficient to pass the Court’s lowest level of scrutiny,
rational basis. See Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985). Does the “appearance of corruption” serve as a proxy for the
difficulty of proving actual corruption?
5. One of the most oft-quoted passages of Buckley is its quick dismissal of the equality
interest proffered by the government as “wholly foreign to the First Amendment.” However,
many scholars believe that the equality rationale is the more compelling reason to support
limitations and restrictions. See, e.g., J. Skelly Wright, Money and the Pollution of Politics: Is
the First Amendment an Obstacle to Political Equality?, 82 COLUM. L. REV. 611 (1982); Owen
Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1425 (1986); Cass R. Sunstein,
Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1398-99 (1994). The
result of Buckley, however, is that defenses of campaign-finance regulation, regardless of their
motivation, must be shoehorned into an anti-corruption rationale. See Elizabeth Garrett, Justice
Marshall’s Jurisprudence on Law and Politics, 52 HOW. L.J. 655, 665-679 (2009).
Did the Court err in rejecting the equality rationale? Compare Fiss, supra, at 1416, 1425
(“We should learn to recognize the state not only as an enemy, but also as a friend of speech . . .
[W]e may sometimes find it necessary to restrict the speech of some elements of our society in
 31

order to enhance the relative influence of others. . . .”) with Polsby, supra, at 43 (“Almost every
country in the world, including those behind the iron curtain, can display a constitution that
guarantees freedom of expression to the people—to the extent, of course, that the people’s
representatives deem proper. With Buckley v. Valeo in hand, we can boast that our Constitution
protects something far scarcer in history than that sort of freedom. And with the knowledge of
the caliber of people who sometimes get their hands on our government, it is well that this is
so.”). See also David A. Strauss, What is the Goal of Campaign Finance Reform, 1995 U. CHI.
LEGAL F. 141; Bruce E. Cain, Moralism & Realism in Campaign Finance Reform, 1995 U. CHI.
LEGAL F. 111; Daniel H. Lowenstein, Campaign Contributions and Corruption, 1995 U. CHI.
LEGAL F. 163.
Buckley did recognize other state interests in the context of disclosure, which will be
discussed later in this Chapter.
6. What is the level of scrutiny that Buckley applied to expenditure limits? To limits on
contributions? See Marlene A. Nicholson, Political Campaign Expenditure Limitations and the
Unconstitutional Conditions Doctrine, 10 HASTINGS CONST. L.Q. 601, 607-08 (1983). A concern
voiced in Buckley, that will resurface regularly in the Court’s later cases, is whether or not
restrictions primarily serve to benefit incumbent officeholders seeking re-election. See, e.g.,
MICHAEL J. MALBIN & THOMAS GAIS, THE DAY AFTER REFORM: SOBERING CAMPAIGN FINANCE
LESSONS FROM THE STATES 144-45 (1998). Does this concern go to the level of scrutiny to be
applied, or to the Court’s analysis under whatever level of scrutiny is applied?
7. Does Buckley’s distinction between contributions and expenditures make sense? What are
some of the consequences of that distinction?
Perhaps the most obvious consequence of the Court’s decision to uphold contribution limits
while striking down expenditure limits is that the distinction leaves an unlimited demand for
campaign money, while limiting the supply of campaign money available. Joel M. Gora, Book
Review: No Law Abridging . . ., 24 HARV. J.L. & PUB. POL’Y 841, 859 (2001). What are some of
the predictable results of constricting supply while leaving demand unlimited? See Samuel
Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV.
1705, 1710-11 (1999). Other commentators argue that the distinction is fundamentally flawed as
a matter of constitutional law: The commentators include those both those who would allow
limits on spending, Burt Neuborne, The Supreme Court and Free Speech: Love and a Question,
42 ST. LOUIS U. L. REV. 789, 796-97 (1996); William P. Marshall, The Last Best Chance for
Campaign Finance Reform, 94 NW. U. L. REV. 335, 350-51 (2000); and those who would abolish
limits on contributions, see Lillian R. BeVier, Money & Politics: A Perspective on the First
Amendment and Campaign Finance Reform, 73 CAL. L. REV. 1045 (1985); Bradley A. Smith,
Money Talks: Speech, Corruption, Equality and Campaign Finance, 86 GEO. L.J. 45 (1997).
Despite these criticisms, the contribution/expenditure distinction has remained remarkably
durable. Professor Daniel Lowenstein has argued that “[c]ontribution limits address the conflict
of interest problem more directly . . . than campaign spending limits, whereas spending limits
restrict speech more directly than contribution limits.” Also, “[a]lthough the jury of social
scientists is still out, there is reason to believe that to the extent spending limits reduce spending
more than contribution limits, this will tend to make spending limits more detrimental to
electoral competition.” Lowenstein concluded, however, that these distinctions are insufficient to
“support a general principle that expenditure limits are nearly always unconstitutional while
contribution limits are nearly always valid.” Daniel H. Lowenstein, A Patternless Mosaic:
Campaign Finance and the First Amendment After Austin, 21 CAP. U. L. REV. 381, 401-402
32

(1992). Professor Eugene Volokh has offered a more vigorous defense, arguing that the
distinction offers a realistic compromise between the public’s concerns about corruption and
equality and First Amendment demands that speakers retain “considerable opportunities to
speak.” Eugene Volokh, Freedom of Speech and Speech About Political Candidates: The
Unintended Consequences of Three Proposals, 24 HARV. J.L. & PUB. POL’Y 47, 65 (2000); see
also Eugene Volokh, Why Buckley v. Valeo is Basically Right, 34 ARIZ. ST. L.J. 1095 (2002).
8. Re-read Buckley’s footnote 52 and the accompanying text. Here the Court distinguished
between what became commonly known as “express advocacy,” that is, explicit exhortations for
voters to vote for or against specific candidates; and “issue advocacy,” the discussion of
candidates and issues that stopped short of such explicit exhortations to vote in particular ways.
In the decades after Buckley, this distinction would come to dominate many of the legal debates
over the reach and propriety of campaign-finance laws.

C. LIMITS ON CONTRIBUTIONS AND THE CONTRIBUTION/EXPENDITURE

DISTINCTION
A key distinction in Buckley is that between limits on contributions, which are subjected to a
lower standard of review and generally held constitutional, and limits on expenditures, which are
given more rigorous scrutiny and were found unconstitutional in Buckley. Understanding this
paradigm is basic to any understanding of campaign-finance law. In the cases that follow in this
section, the Court has developed and refined this dichotomy.

CALIFORNIA MEDICAL ASSOCIATION v. FEDERAL

ELECTION COMMISSION
Supreme Court of the United States
453 U.S. 182, 101 S. Ct. 2712, 69 L. Ed. 2d 567 (1981)

JUSTICE MARSHALL delivered the opinion of the Court with respect to Parts I, II, and IV [in
which JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS joined], and
delivered an opinion with respect to Part III, in which JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE
STEVENS joined.

I
The California Medical Association (CMA) is a not-for-profit unincorporated association of
approximately 25,000 doctors residing in California. In 1976, CMA formed the California
Medical Political Action Committee (CALPAC). CALPAC is registered as a political committee
with the Federal Election Commission, and is subject to the provisions of the Federal Election
Campaign Act relating to multicandidate political committees. One such provision, 2 U.S.C.
§ 441a(a)(1)(C), prohibits individuals and unincorporated associations such as CMA from
contributing more than $5,000 per calendar year to any multicandidate political committee such
as CALPAC. A related provision of the Act, 2 U.S.C. § 441a(f), makes it unlawful for political
committees such as CALPAC knowingly to accept contributions exceeding this limit.
In October 1978, the Federal Election Commission found “reason to believe” that CMA had
violated the Act by making annual contributions to CALPAC in excess of $5,000, and that
CALPAC had unlawfully accepted such contributions. * * *
 33

III
* * * Although the $5,000 annual limit imposed by § 441a(a)(1)(C) on the amount that
individuals and unincorporated associations may contribute to political committees is, strictly
speaking, a contribution limitation, appellants * * * contend that § 441a(a)(1)(C) is akin to an
unconstitutional expenditure limitation because it restricts the ability of CMA to engage in
political speech through a political committee, CALPAC. Appellants further contend that even if
the challenged provision is viewed as a contribution limitation, it is qualitatively different from
the contribution restrictions we upheld in Buckley [v. Valeo, 424 U.S. 1 (1976)] [p. XXX].
Specifically, appellants assert that because the contributions here flow to a political committee,
rather than to a candidate, the danger of actual or apparent corruption of the political process
recognized by this Court in Buckley as a sufficient justification for contribution restrictions is not
present in this case.
While these contentions have some surface appeal, they are in the end unpersuasive. The type
of expenditures that this Court in Buckley considered constitutionally protected were those made
independently by a candidate, individual, or group in order to engage directly in political speech.
Id., at 44-48. Nothing in § 441a(a)(1)(C) limits the amount CMA or any of its members may
independently expend in order to advocate political views; rather, the statute restrains only the
amount that CMA may contribute to CALPAC. Appellants nonetheless insist that CMA’s
contributions to CALPAC should receive the same constitutional protection as independent
expenditures because, according to appellants, this is the manner in which CMA has chosen to
engage in political speech.
We would naturally be hesitant to conclude that CMA’s determination to fund CALPAC
rather than to engage directly in political advocacy is entirely unprotected by the First
Amendment. Nonetheless, the “speech by proxy” that CMA seeks to achieve through its
contributions to CALPAC is not the sort of political advocacy that this Court in Buckley found
entitled to full First Amendment protection. CALPAC, as a multicandidate political committee,
receives contributions from more than 50 persons during a calendar year. Thus, appellants’ claim
that CALPAC is merely the mouthpiece of CMA is untenable. CALPAC instead is a separate
legal entity that receives funds from multiple sources and that engages in independent political
advocacy. Of course, CMA would probably not contribute to CALPAC unless it agreed with the
views espoused by CALPAC, but this sympathy of interests alone does not convert CALPAC’s
speech into that of CMA.
* * * If the First Amendment rights of a contributor are not infringed by limitations on the
amount he may contribute to a campaign organization which advocates the views and candidacy
of a particular candidate, [as we held in Buckley,] the rights of a contributor are similarly not
impaired by limits on the amount he may give to a multicandidate political committee, such as
CALPAC, which advocates the views and candidacies of a number of candidates.
We also disagree with appellants’ claim that the contribution restriction challenged here does
not further the governmental interest in preventing the actual or apparent corruption of the
political process. Congress enacted § 441a(a)(1)(C) in part to prevent circumvention of the very
limitations on contributions that this Court upheld in Buckley. Under the Act, individuals and
unincorporated associations such as CMA may not contribute more than $1,000 to any single
candidate in any calendar year. Moreover, individuals may not make more than $25,000 in
aggregate annual political contributions. If appellants’ position—that Congress cannot prohibit
individuals and unincorporated associations from making unlimited contributions to
multicandidate political committees—is accepted, then both these contribution limitations could
34

be easily evaded. Since multicandidate political committees may contribute up to $5,000 per year
to any candidate, an individual or association seeking to evade the $1,000 limit on contributions
to candidates could do so by channeling funds through a multicandidate political committee.
Similarly, individuals could evade the $25,000 limit on aggregate annual contributions to
candidates if they were allowed to give unlimited sums to multicandidate political committees,
since such committees are not limited in the aggregate amount they may contribute in any year.19
These concerns prompted Congress to enact § 441a(a)(1)(C), and it is clear that this provision is
an appropriate means by which Congress could seek to protect the integrity of the contribution
restrictions upheld by this Court in Buckley. * * *
[Affirmed.]

JUSTICE BLACKMUN, concurring in part and concurring in the judgment. * * *

By definition, a multicandidate political committee like CALPAC makes contributions to
five or more candidates for federal office. Multicandidate political committees are therefore
essentially conduits for contributions to candidates, and as such they pose a perceived threat of
actual or potential corruption. In contrast, contributions to a committee that makes only
independent expenditures pose no such threat. The Court repeatedly has recognized that
“[effective] advocacy of both public and private points of view, particularly controversial ones,
is undeniably enhanced by group association . . . .” * * * By pooling their resources, adherents of
an association amplify their own voices; the association “is but the medium through which its
individual members seek to make more effective the expression of their own views.” NAACP v.
Alabama, 357 U.S. [449], 459 [(1958)]. Accordingly, I believe that contributions to political
committees can be limited only if those contributions implicate the governmental interest in
preventing actual or potential corruption, and if the limitation is no broader than necessary to
achieve that interest. Because this narrow test is satisfied here, I concur in the result reached in
Part III of JUSTICE MARSHALL’s opinion.

[JUSTICE STEWART, with whom CHIEF JUSTICE BURGER, JUSTICE POWELL, and JUSTICE REHNQUIST
joined, dissented on jurisdictional grounds.]

19
Appellants suggest that their First Amendment concerns would be satisfied if this Court declared § 441a(a)(1)(C)
unconstitutional to the extent that it restricts CMA’s right to contribute administrative support to CALPAC. The Act
defines “contribution” broadly to include
“any gift, subscription, loan, advance, or deposit of money or anything of value . . . or . . . the payment by any
person of compensation for the personal services of another person which are rendered to a political committee
without charge for any purpose.” 2 U.S.C. §§ 431(8)(A)(i), (ii).
Thus, contributions for administrative support clearly fall within the sorts of donations limited by § 441a(a)(1)(C).
Appellants contend, however, that because these contributions are earmarked for administrative support, they lack
any potential for corrupting the political process. We disagree. If unlimited contributions for administrative support
are permissible, individuals and groups like CMA could completely dominate the operations and contribution
policies of independent political committees such as CALPAC. Moreover, if an individual or association was
permitted to fund the entire operation of a political committee, all moneys solicited by that committee could be
converted into contributions, the use of which might well be dictated by the committee’s main supporter. In this
manner, political committees would be able to influence the electoral process to an extent disproportionate to their
public support and far greater than the individual or group that finances the committee’s operations would be able to
do acting alone. In so doing, they could corrupt the political process in a manner that Congress, through its
contribution restrictions, has sought to prohibit. We therefore conclude that § 441a(a)(1)(C) applies equally to all
forms of contributions specified in § 431(8)(A), and assess appellants’ constitutional claims from that perspective.
 35

CITIZENS AGAINST RENT CONTROL/COALITION

FOR FAIR HOUSING v. CITY OF BERKELEY
Supreme Court of the United States
454 U.S. 290, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981)

CHIEF JUSTICE BURGER delivered the opinion of the Court [in which JUSTICE BRENNAN, JUSTICE
POWELL , JUSTICE REHNQUIST, and JUSTICE STEVENS join.]
The issue on appeal is whether a limitation of $250 on contributions to committees formed
to support or oppose ballot measures violates the First Amendment. * * *
Appellant Citizens Against Rent Control is an unincorporated association formed to oppose a
ballot measure at issue in the April 19, 1977, election. The ballot measure would have imposed
rent control on many of Berkeley’s rental units. To make its views on the ballot measure known,
Citizens Against Rent Control raised more than $108,000 from approximately 1,300
contributors. It accepted nine contributions over the $250 limit [established by § 602 of
Berkeley’s Election Reform Act, for which it was fined $18,600]. * * *
[T]he freedom of association “is diluted if it does not include the right to pool money through
contributions, for funds are often essential if ‘advocacy’ is to be truly or optimally ‘effective.’ ”5
Under the Berkeley ordinance an affluent person can, acting alone, spend without limit to
advocate individual views on a ballot measure. It is only when contributions are made in concert
with one or more others in the exercise of the right of association that they are restricted by
§ 602.
There are, of course, some activities, legal if engaged in by one, yet illegal if performed in
concert with others, but political expression is not one of them. To place a Spartan limit—or
indeed any limit—on individuals wishing to band together to advance their views on a ballot
measure, while placing none on individuals acting alone, is clearly a restraint on the right of
association. Section 602 does not seek to mute the voice of one individual, and it cannot be
allowed to hobble the collective expressions of a group.
Buckley identified a single narrow exception to the rule that limits on political activity were
contrary to the First Amendment. The exception relates to the perception of undue influence of
large contributors to a candidate: “To the extent that large contributions are given to secure a
political quid pro quo from current and potential office holders, the integrity of our system of
representative democracy is undermined. * * *” Buckley thus sustained limits on contributions to
candidates and their committees. * * *
In First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) [p. XXX], we held that a
state could not prohibit corporations any more than it could preclude individuals from making
contributions or expenditures advocating views on ballot measures. The Bellotti Court relied on
Buckley to strike down state legislative limits on advocacy relating to ballot measures:
“Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases
involving candidate elections * * * simply is not present in a popular vote on a public issue. To be sure,
corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that
advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution ‘protects
expression which is eloquent no less than that which is unconvincing.’ ”

5
The value of the right to associate is illustrated by the cost of reaching the public. Appellants represent that the cost
of a single mailing to each of the 71,088 persons registered to vote in Berkeley in 1977 was $12,800. The cost of a
full-page advertisement in a Berkeley area newspaper, the Independent Gazette, was $1,620. * * *
36

Notwithstanding Buckley and Bellotti, the city of Berkeley argues that § 602 is necessary as a
prophylactic measure to make known the identity of supporters and opponents of ballot
measures. It is true that when individuals or corporations speak through committees, they often
adopt seductive names that may tend to conceal the true identity of the source. Here, there is no
risk that the Berkeley voters will be in doubt as to the identity of those whose money supports or
opposes a given ballot measure since contributors must make their identities known under § 112
of the ordinance, which requires publication of lists of contributors in advance of the voting.
* * * In addition, the record in this case does not support the California Supreme Court’s
conclusion that § 602 is needed to preserve voters’ confidence in the ballot measure process.
* * * It is clear, therefore, that § 602 does not advance a legitimate governmental interest
significant enough to justify its infringement of First Amendment rights.6
Apart from the impermissible restraint on freedom of association, but virtually inseparable
from it in this context, § 602 imposes a significant restraint on the freedom of expression of
groups and those individuals who wish to express their views through committees. As we have
noted, an individual may make expenditures without limit under § 602 on a ballot measure but
may not contribute beyond the $250 limit when joining with others to advocate common views.
The contribution limit thus automatically affects expenditures, and limits on expenditures operate
as a direct restraint on freedom of expression of a group or committee desiring to engage in
political dialogue concerning a ballot measure.
Whatever may be the state interest or degree of that interest in regulating and limiting
contributions to or expenditures of a candidate or a candidate’s committees there is no significant
state or public interest in curtailing debate and discussion of a ballot measure. Placing limits on
contributions which in turn limit expenditures plainly impairs freedom of expression. The
integrity of the political system will be adequately protected if contributors are identified in a
public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw
anonymous contributions.
A limit on contributions in this setting need not be analyzed exclusively in terms of the right
of association or the right of expression. The two rights overlap and blend; to limit the right of
association places an impermissible restraint on the right of expression. The restraint imposed by
the Berkeley ordinance on rights of association and in turn on individual and collective rights of
expression plainly contravenes both the right of association and the speech guarantees of the
First Amendment. Accordingly, the judgment of the California Supreme Court is reversed, and
the case is remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.

JUSTICE REHNQUIST, concurring.

I agree that the judgment of the Supreme Court of California must be reversed in this case.
Unlike the factual situation in First National Bank of Boston v. Bellotti, the Berkeley ordinance
was not aimed only at corporations, but sought to impose an across-the-board limitation on the
size of contributions to committees formed to support or oppose ballot measure referenda. * * *
Therefore, my dissenting opinion in First National Bank of Boston v. Bellotti, which relied on
the corporate shield which the State had granted to corporations as a form of quid pro quo for the
limitation, does not come into play. Buckley v. Valeo holds that, in this situation, there is no state
6
The dissent argues a case not before the Court. Its references to Bellotti relate to corporate contributions; § 602
limits contributions by “persons.” The dissent’s references to Buckley relate to contributions to candidates and their
committees; the case before us relates to contributions to committees favoring or opposing ballot measures.
 37

interest which could justify a limitation on the exercise of rights guaranteed under the First and
Fourteenth Amendments to the United States Constitution.

JUSTICE MARSHALL, concurring in the judgment. * * *

Because the Court’s opinion is silent on the standard of review it is applying to this
contributions limitation, I must assume that the Court is following our consistent position that
this type of governmental action is subjected to less rigorous scrutiny than a direct restriction on
expenditures. The city of Berkeley seeks to justify its ordinance on the ground that it is necessary
to maintain voter confidence in government. If I found that the record before the California
Supreme Court disclosed sufficient evidence to justify the conclusion that large contributions to
ballot measure committees undermined the “confidence of the citizenry in government,” * * * I
would join JUSTICE WHITE in dissent on the ground that the State had demonstrated a sufficient
governmental interest to sustain the indirect infringement on First Amendment interests resulting
from the operation of the Berkeley ordinance. * * * I find no such evidentiary support in this
record. I therefore concur in the judgment.

JUSTICE BLACKMUN and JUSTICE O’CONNOR, concurring in the judgment. * * *

We would hold the Berkeley has neither demonstrated a genuine threat to its important
governmental interests nor employed means closely drawn to avoid unnecessary abridgment of
protected activity. In Buckley, this Court upheld limitations on contributions to candidates as
necessary to prevent contributors from corrupting the representatives to whom the people have
delegated political decisions. But curtailment of speech and association in a ballot measure
campaign, where the people themselves render the ultimate political decision, cannot be justified
on this basis.
Nor has Berkeley proved a genuine threat to its interest in maintaining voter confidence in
government. We would not deny the legitimacy of that interest[, but the record does not
demonstrate such a threat]. * * *
Finally, Berkeley does not justify its contribution limit as necessary to encourage disclosure.
We cannot accept the Court’s conclusion that that interest is “insubstantial,” given the Court’s
concession that, “when individuals or corporations speak through committees, they often adopt
seductive names that may tend to conceal the true identity of the source.” Yet Berkeley need not
impose a $250 ceiling on contributions to encourage disclosure so long as it vigorously enforces
its already stringent disclosure laws.
We need say no more in order to reverse. Accordingly, we concur in the judgment.

JUSTICE WHITE, dissenting. * * *

The Berkeley ordinance does not control the quantity or content of speech. Unlike the statute
in Bellotti, it does not completely prohibit contributions and expenditures. Any person or
company may contribute up to $250. If greater spending is desired, it must be made as an
expenditure, and expenditures are not limited or otherwise controlled. Individuals also remain
completely unfettered in their ability to join interested groups or otherwise directly participate in
the campaign. * * *
The Court reaches the conclusion that the ordinance is unconstitutional only by giving
Buckley the most extreme reading and by essentially giving the Berkeley ordinance no reading at
all. It holds that the contributions involved here are “beyond question a very significant form of
political expression.” Yet in Buckley the Court found that contribution limitations “[entail] only a
38

marginal restriction upon the contributor’s ability to engage in free communication.” As with
contributions to candidates, ballot measure contributions “[involve] speech by someone other
than the contributor” and a limitation on such donations “does not in any way infringe the
contributor’s freedom to discuss candidates and issues.” * * * “Speech by proxy,” we said, “is
not the sort of advocacy that this Court in Buckley found entitled to full First Amendment
protection.”
The Court also finds that the freedom of association is impermissibly compromised by not
allowing persons to contribute unlimited funds to committees organized to support or oppose a
ballot measure. However, in Buckley, the Court observed that contribution ceilings “[leave]
persons free to engage in independent political expression, to associate actively through
volunteering their services, and to assist to a limited but nonetheless substantial extent in
supporting candidates and committees with financial resources.” Associational rights, it was
thought, were seriously impinged only by expenditure ceilings—there by virtue of precluding
associations from effectively amplifying the voice of their adherents[.] * * * The Court’s concern
that this ordinance will “hobble the collective expressions of a group” is belied by the fact that
appellants, having already met their campaign budget, ended all fundraising almost a month
before the election.
It is bad enough that the Court overstates the extent to which First Amendment interests are
implicated. But the Court goes on to assert that the ordinance furthers no legitimate public
interest and cannot survive “any degree of scrutiny.” Apparently the Court assumes this to be so
because the ordinance is not directed at quid pro quos between large contributors and candidates
for office, “the single narrow exception” for regulation that it viewed Buckley as endorsing. The
Buckley Court, however, found it “unnecessary to look beyond the Act’s primary purpose,” the
prevention of corruption, to uphold the contribution limits, and thus did not consider other
possible interests for upholding the restriction. Indeed, at least since United States v. Automobile
Workers, 352 U.S. 567, 575 (1957) [p. XXX], the Court has recognized that “sustaining the
active alert responsibility of the individual citizen in a democracy for the wise conduct of
government” is a valid state interest. The Bellotti Court took care to note that this objective,
along with “[preserving] the integrity of the electoral process [and] the individual citizen’s
confidence in government” “are interests of the highest importance.”
In Bellotti, the Court found inadequate evidence in the record to support these interests, but it
suggested that some regulation of corporate spending might be justified if “corporate advocacy
threatened imminently to undermine democratic processes, thereby denigrating rather than
serving First Amendment interests.” The Court suggested that such a situation would arise if it
could be shown that “the relative voice of corporations [had] been overwhelming [and] . . .
significant in influencing referenda.” It is quite possible that such a test is fairly met in this case.
Large contributions, mainly from corporate sources, have skyrocketed as the role of individuals
has declined. Staggering disparities have developed between spending for and against various
ballot measures.3 While it is not possible to prove that heavy spending “bought” a victory on any

3
In a 1978 initiative over the construction of an oil storage terminal in Long Beach, Cal., Standard Oil of Ohio
“contributed” all $864,568 spent by the Long Beach Civil Action Committee in support of the measure; opponents
spent $17,721. * * * In 1980, three ballot measures were rejected by California voters statewide. One was an
initiative which sought to circumscribe smoking in public places. The committee supporting the measure collected
$676,216; $518,337 in contributions under $1,000. An opposing group, Californians Against Regulatory Excess,
collected over $2,750,987. Of this amount, over $2.5 million was contributed in amounts of over $10,000, and four
tobacco companies contributed between $300,000 and $1 million each. * * *
A second example is an initiative which would have taxed large energy companies to provide revenue to finance
 39

particular ballot proposition, there is increasing evidence that large contributors are at least able
to block the adoption of measures through the initiative process.4 Recognition that enormous
contributions from a few institutional sources can overshadow the efforts of individuals may
have discouraged participation in ballot measure campaigns5 and undermined public confidence
in the referendum process.
By restricting the size of contributions, the Berkeley ordinance requires major contributors to
communicate directly with the voters. If the ordinance has an ultimate impact on speech, it will
be to assure that a diversity of views will be presented to the voters. As such, it will “facilitate
and enlarge public discussion and participation in the electoral process, goals vital to a self-
governing people.” Buckley, 424 U.S., at 92-93. Of course, entities remain free to make major
direct expenditures. But because political communications must state the source of funds, voters
will be able to identify the source of such messages and recognize that the communication
reflects, for example, the opinion of a single powerful corporate interest rather than the views of
a large number of individuals. As the existence of disclosure laws in many States suggests,
information concerning who supports or opposes a ballot measure significantly affects voter
evaluation of the proposal. The Court asserts, without elaboration, that existing disclosure
requirements suffice to inform voters of the identity of contributors. Yet, the inadequacy of
disclosure laws was a major reason for the adoption of the Berkeley ordinance. Section 101(d) of
the ordinance constitutes a finding by the people of Berkeley that “the influence of large
campaign contributors is increased because existing laws for disclosure of campaign receipts and
expenditures have proved to be inadequate.”
Admittedly, Berkeley cannot present conclusive evidence of a causal relationship between
major undisclosed expenditures and the demise of the referendum as a tool of direct democracy.
But the information available suffices to demonstrate that the voters had valid reasons for
adopting contribution ceilings. It was on a similar foundation that the Court upheld contribution
limits in Buckley and California Medical Assn. v. FEC, 453 U.S. 182 (1981) [p. XXX]. In my
view, the ordinance survives scrutiny under the Buckley and Bellotti cases.
There are other grounds for sustaining the ordinance. I continue to believe that because the
limitations are content-neutral, and because many regulatory actions will indirectly affect speech
in the same manner as regulations in the sphere of campaign finance, “the argument that money
is speech and that limiting the flow of money to the speaker violates the First Amendment proves
entirely too much.” Buckley, supra, at 262. Every form of regulation—from taxes to compulsory
bargaining—has some effect on the ability of individuals and corporations to engage in
public transportation and to develop alternative energy sources. Californians for Fair Taxation, an association
opposed to the measure, received nearly $6 million in contributions, of which approximately $5 million was given
by large corporations. Proponents mustered but $464,000. * * *
The third measure, like the initiative in this litigation, concerned rent control. Proponents, who sought to repeal
existing rent control ordinances, gathered $6,867,108, mostly in contributions over $1,000; opponents collected
$195,496, mostly in contributions under $1,000. * * *
4
Several studies have shown that large amounts of money skew the outcome of local ballot measure campaigns.
Professor Lowenstein’s investigation found that of 15 propositions supported by significant one-sided spending,
defined as spending of at least $250,000 and twice as much as the opposite side, 7 were successful and 8 were
defeated. On the other hand, of 10 propositions opposed by significant one-sided spending, 9 were defeated and only
1 was successful. D. Lowenstein, Campaign Spending and Ballot Propositions (1981). A study of three Colorado
initiatives found that in each of the races the pro-initiative side held a commanding lead which it lost as the
campaign progressed. Corporate-backed opposition forces heavily outspent their counterparts. On election day, each
initiative was defeated. Nationwide, a study of 19 recent campaigns found that the side with corporate backing
outspent opponents by better than 2 to 1 in 15 campaigns and won in 12 of them.
5
Voter turnout in Berkeley municipal elections has decreased from 65.9% in April 1973 to 45.6% in April 1981.
40

expressive activity. We must therefore focus on the extent to which expressive and associational
activity is restricted by the Berkeley ordinance. That First Amendment interests are implicated
should begin, not end, our inquiry. When the infringement is as slight and ephemeral as it is here,
the requisite state interest to justify the regulation need not be so high.
* * * From its earliest days, [direct democracy in California] was designed to circumvent the
undue influence of large corporate interests on government decisionmaking. * * * In more recent
years, concerned that the heavy financial participation by corporations in referendum contests
has undermined this tool of direct democracy, the voters of California enacted by initiative in
1974 the Political Reform Act, which limited expenditures in statewide ballot measure
campaigns, and Berkeley voters adopted the ordinance at issue in this case. The role of the
initiative in California cannot be separated from its purpose of preventing the dominance of
special interests. That is the very history and purpose of the initiative in California, and similarly
it is the purpose of ancillary regulations designed to protect it. Both serve to maximize the
exchange of political discourse. As in Bellotti, “[the] Court’s fundamental error is its failure to
realize that the state regulatory interests . . . are themselves derived from the First Amendment.”
435 U.S., at 803-804 (WHITE, J., dissenting).
Perhaps, as I have said, neither the city of Berkeley nor the State of California can “prove”
that elections have been or can be unfairly won by special interest groups spending large sums of
money, but there is a widespread conviction in legislative halls, as well as among citizens, that
the danger is real. I regret that the Court continues to disregard that hazard.

Notes and Questions

1. Buckley v. Valeo drew an important distinction between contributions and expenditures
and held that contribution limits would be handled under a less rigorous standard of review than
the one applicable to expenditure limitations. Why then, were the contribution limits in Citizens
Against Rent Control (CARC) struck down by the Court? What standard of review did the Court
apply? Is the case consistent with Buckley?
CARC—only the second post-Buckley contributions case heard by the Court—demonstrated
that it is an oversimplification to say that Buckley allowed limits on contributions but not on
expenditures. Indeed, Buckley itself struck down limits on a candidate’s personal spending in
connection with his or her own campaign. Typically, however, candidates do not support their
own campaigns by making “independent expenditures,” but rather, they comingle the personal
funds they wish to spend on the campaign with funds raised for the campaign from others, under
contribution limits. These personal donations to the campaign are described in FEC regulations
as “expenditures,” see 11 C.F.R. § 110.10, but treated as contributions for reporting purposes.
See FEDERAL ELECTION COMMISSION , GUIDE FOR CONGRESSIONAL CANDIDATES AND COMMITTEES 91
(2008). Is the question whether or not a particular action is described as a “contribution” or as an
“expenditure,” or was something (what?) more complex guiding the Court?
2. CALPAC, decided just a few months before CARC, upheld a limit on contributions to a
political committee. What distinguishes the two cases? Read closely Justice Blackmun’s opinion
concurring in the judgment, and then describe the holding of the CALPAC Court.
3. In footnote 4 of his dissenting opinion in CARC, Justice White cited “studies [that] have
shown that large amounts of money skew the outcome of local ballot measure campaigns.” How
might the same argument might be used to support the result in CARC?
There is some evidence that large spending advantages can play a substantial role in
defeating ballot proposals, but are less effective in helping to pass ballot measures. See ELISABETH
 41

R. GERBER, THE POPULIST PARADOX: INTEREST GROUP INFLUENCE AND THE PROMISE OF DIRECT
LEGISLATION (1999).
4. The California Medical Association’s desire to provide unlimited administrative support
for its PAC was undoubtedly prompted by the cost of operating and maintaining a PAC. PACs
are subject to extensive and detailed organizational, reporting, and compliance requirements,
including limits on who can be solicited for contributions to the PAC, in addition to applicable
limitations on the amount of contributions. For many PACs, the administrative and compliance
costs can equal or even exceed the amount raised by the PAC for the purpose of making
contributions to candidates. Title 2 U.S.C. § 441b allows corporations and unions to pay these
administrative and compliance costs without limit, thus vastly increasing the amounts that can be
spent on political races. See John M. de Figueiredo & Elizabeth Garrett, Paying for Politics, 78
S. CAL. L. REV. 591, 603 (2005).

FEDERAL ELECTION COMMISSION v. NATIONAL RIGHT

TO WORK COMMITTEE
Supreme Court of the United States
459 U.S. 197, 103 S. Ct. 552, 74 L. Ed. 2d 364 (1982)

JUSTICE REHNQUIST delivered the opinion of the Court [in which CHIEF JUSTICE BURGER, JUSTICE
BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE POWELL, JUSTICE STEVENS, and
JUSTICE O’CONNOR join]. * * *
Respondent NRWC is a nonprofit corporation without capital stock organized under the laws
of the Commonwealth of Virginia. Given the central role of the congressional use of the word
“member” in this litigation, it is useful to set forth respondent’s organizational history in some
detail. In 1975, respondent’s predecessor and another corporation merged; the articles of merger
* * * stated that NRWC “shall not have members.” A similar statement is contained in the
articles of incorporation of NRWC that are presently filed in Virginia. Likewise, respondent’s
bylaws make no reference to members or to membership in the corporation. The stated purpose
of NRWC, according to its Virginia articles of incorporation, is “[to] help make the public aware
of the fact that American citizens are being required, against their will, to join and pay dues to
labor organizations in order to earn a living.” In pursuance of this objective, NRWC regularly
mails messages to millions of individuals and businesses whose names have found their way
onto commercially available mailing lists that the organization has purchased or rented. The
letters do not mention membership in NRWC, but seek donations to help NRWC publicize its
opposition to compulsory unionism and frequently contain a questionnaire that the recipient is
requested to answer and return.
In late 1975, in order to comply with [2 U.S.C.] § 441b, NRWC established a separate
segregated fund [i.e., a PAC –Eds.], see § 441b(b)(4)(C),4 “to receive and make contributions on
behalf of federal candidates.” The fund was denominated the “Employees Rights Campaign
Committee” (ERCC); its operation was completely subsidized from the NRWC treasury, which
paid all the expenses of establishing and administering the fund, and of soliciting contributions.
During part of 1976, NRWC sent letters to some 267,000 individuals, who had at one time

4
The separate segregated fund may be completely controlled by the sponsoring corporation or union, whose officers
may decide which political candidates contributions to the fund will be spent to assist. The “fund must be separate
from the sponsoring union [or corporation] only in the sense that there must be a strict segregation of its monies”
from the corporation’s other assets. Pipefitters v. United States, 407 U.S. 385, 414-417 (1972). * * *
42

contributed to it, soliciting contributions to ERCC. As a result of these solicitations, the fund
received some $77,000 in contributions. * * *
* * * The statutory purpose of § 441b * * * is to prohibit contributions or expenditures by
corporations or labor organizations in connection with federal elections. The section, however,
permits some participation of unions and corporations in the federal electoral process by
allowing them to establish and pay the administrative expenses of “separate segregated [funds],”
which may be “utilized for political purposes.” The Act restricts the operations of such
segregated funds, however, by making it unlawful for a corporation to solicit contributions to a
fund established by it from persons other than its “stockholders and their families and its
executive or administrative personnel and their families.” Finally, and of most relevance here,
* * * “a . . . corporation without capital stock, or a separate segregated fund established by a . . .
corporation without capital stock, [may] solicit[] contributions to such a fund from members” of
the sponsoring corporation. The effect of this proviso is to limit solicitation by nonprofit
corporations to those persons attached in some way to it by its corporate structure.
* * * [NRWC recognizes two categories of members, both of which consist of persons who,
through their responses to NRWC’s mailings, “evidence[] an intention to support NRWC in
promoting voluntary unionism.”]:
“* * * A person who responds without contributing financially is considered a supporting member; a
person who responds and also contributes is considered an active member. NRWC sends an
acknowledgment and a membership card to both classes. In the regular course of operations, NRWC’s
members receive newsletters, action alerts, and responses to individual requests for information. They
respond to issue surveys and are asked to communicate with their elected representatives when
appropriate.” * * *

The [FEC], however, insists that these standards of “membership” are too fluid and
insubstantial to come within the statutory term “member,” and argues further that they do not
comply with the Commission’s regulation defining the term:
“(e) ‘Members’ means all persons who are currently satisfying the requirements for membership in a
membership organization, trade association, cooperative, or corporation without capital stock. . . . A person
is not considered a member under this definition if the only requirement for membership is a contribution to
a separate segregated fund.” 11 CFR § 114.1(e).

The Commission also contends that NRWC’s Virginia articles of incorporation, filed by
respondent, which state that respondent has no members, are dispositive. While we do not feel
sufficiently informed at this time to attempt an exegesis of the statutory meaning of the word
“members” beyond that necessary to decide this case, we find it relatively easy to dispose of
these arguments that respondent’s solicitation was limited to its “members,” since in our view
this would virtually excise from the statute the restriction of solicitation to “members.” * * *
Applying the statutory language as we interpret it to the facts of this case, we think Congress
did not intend to allow the 267,000 individuals solicited by NRWC during 1976 to come within
the exclusion for “members” in 2 U.S.C. § 441b(b)(4)(C). Although membership cards are
ultimately sent to those who either contribute or respond in some other way to respondent’s
mailings, the solicitation letters themselves make no reference to members. Members play no
part in the operation or administration of the corporation; they elect no corporate officials, and
indeed there are apparently no membership meetings. There is no indication that NRWC’s
asserted members exercise any control over the expenditure of their contributions. Moreover, as
previously noted, NRWC’s own articles of incorporation and other publicly filed documents
 43

explicitly disclaimed the existence of members. We think that under these circumstances, those
solicited were insufficiently attached to the corporate structure of NRWC to qualify as
“members” under the statutory proviso.
[W]e do not think this construction of the statute raises any insurmountable constitutional
difficulties[;] * * * the associational rights asserted by respondent may be and are overborne by
the interests Congress has sought to protect in enacting § 441b.
* * * The first purpose of § 441b, petitioners state, is to ensure that substantial aggregations
of wealth amassed by the special advantages which go with the corporate form of organization
should not be converted into political “war chests” which could be used to incur political debts
from legislators who are aided by the contributions. * * * The second purpose of the provisions,
petitioners argue, is to protect 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. * * *
We agree with petitioners that these purposes are sufficient to justify the regulation at issue.
* * * [I]n Buckley v. Valeo, we specifically affirmed the importance of preventing both the actual
corruption threatened by large financial contributions and the eroding of public confidence in the
electoral process through the appearance of corruption. These interests directly implicate “the
integrity of our electoral process, and, not less, the responsibility of the individual citizen for the
successful functioning of that process.” * * *
We are also convinced that the statutory prohibitions and exceptions we have considered are
sufficiently tailored to these purposes to avoid undue restriction on the associational interests
asserted by respondent. The history of the movement to regulate the political contributions and
expenditures of corporations and labor unions is set forth in great detail in United States v.
Automobile Workers, [352 U.S. 567, 570-84 (1957)] [p. XXX][.] * * *
This 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 and labor
organizations warrants considerable deference. As we discuss below, it also reflects a
permissible assessment of the dangers posed by those entities to the electoral process.
In order to prevent both actual and apparent corruption, Congress aimed a part of its
regulatory scheme at corporations. The statute reflects a legislative judgment that the special
characteristics of the corporate structure require particularly careful regulation. * * * While
§ 441b restricts the solicitation of corporations and labor unions without great financial
resources, as well as those more fortunately situated, we accept Congress’ judgment that it is the
potential for such influence that demands regulation. Nor will we second-guess a legislative
determination as to the need for prophylactic measures where corruption is the evil feared. As we
said in California Medical Assn. v. FEC, 453 U.S. 182, 201 (1981) [p. XXX], the “differing
structures and purposes” of different entities “may require different forms of regulation in order
to protect the integrity of the electoral process.”
To accept the view that a solicitation limited only to those who have in the past proved
“philosophically compatible” to the views of the corporation must be permitted under the statute
in order for the prohibition to be constitutional would ignore the teachings of our earlier
decisions. The governmental interest in preventing both actual corruption and the appearance of
corruption of elected representatives has long been recognized, * * * and there is no reason why
it may not in this case be accomplished by treating unions, corporations, and similar
organizations differently from individuals. * * *
The judgment of the Court of Appeals is reversed.
44

It is so ordered.

FEDERAL ELECTION COMMISSION v. NATIONAL

CONSERVATIVE POLITICAL ACTION COMMITTEE
Supreme Court of the United States
470 U.S. 480, 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985)

JUSTICE REHNQUIST delivered the opinion of the Court [in the entirety of which CHIEF JUSTICE
BURGER, JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE O’CONNOR join, and in Part II of which
JUSTICE BRENNAN and JUSTICE STEVENS join].
The Presidential Election Campaign Fund Act (Fund Act), 26 U.S.C. § 9001 et seq., offers
the Presidential candidates of major political parties the option of receiving public financing for
their general election campaigns. If a Presidential candidate elects public financing, § 9012(f)
makes it a criminal offense for independent “political committees,” such as appellees National
Conservative Political Action Committee (NCPAC) and Fund For A Conservative Majority
(FCM), to expend more than $1,000 to further that candidate’s election. * * *

II
NCPAC is a nonprofit, nonmembership corporation formed under the District of Columbia
Nonprofit Corporation Act in August 1975 and registered with the FEC as a political committee.
Its primary purpose is to attempt to influence directly or indirectly the election or defeat of
candidates for federal, state, and local offices by making contributions and by making its own
expenditures. It is governed by a three-member board of directors which is elected annually by
the existing board. The board’s chairman and the other two members make all decisions
concerning which candidates to support or oppose, the strategy and methods to employ, and the
amounts of money to spend. Its contributors have no role in these decisions. It raises money by
general and specific direct mail solicitations. It does not maintain separate accounts for the
receipts from its general and specific solicitations, nor is it required by law to do so.
FCM is incorporated under the laws of Virginia and is registered with the FEC as a
multicandidate political committee. In all material respects it is identical to NCPAC.
Both NCPAC and FCM are self-described ideological organizations with a conservative
political philosophy. They solicited funds in support of President Reagan’s 1980 campaign, and
they spent money on such means as radio and television advertisements to encourage voters to
elect him President. On the record before us, these expenditures were “independent” in that they
were not made at the request of or in coordination with the official Reagan election campaign
committee or any of its agents. Indeed, there are indications that the efforts of these
organizations were at times viewed with disfavor by the official campaign as counterproductive
to its chosen strategy. NCPAC and FCM expressed their intention to conduct similar activities in
support of President Reagan’s reelection in 1984, and we may assume that they did so. * * *
There can be no doubt that the expenditures at issue in this case produce speech at the core of
the First Amendment. * * * The PACs in this case, of course, are not lone pamphleteers or street
corner orators in the Tom Paine mold; they spend substantial amounts of money in order to
communicate their political ideas through sophisticated media advertisements. And of course the
criminal sanction in question is applied to the expenditure of money to propagate political views,
rather than to the propagation of those views unaccompanied by the expenditure of money. But
for purposes of presenting political views in connection with a nationwide Presidential election,
 45

allowing the presentation of views while forbidding the expenditure of more than $1,000 to
present them is much like allowing a speaker in a public hall to express his views while denying
him the use of an amplifying system. * * *
We also reject the notion that the PACs’ form of organization or method of solicitation
diminishes their entitlement to First Amendment protection. The First Amendment freedom of
association is squarely implicated in these cases. NCPAC and FCM are mechanisms by which
large numbers of individuals of modest means can join together in organizations which serve to
“[amplify] the voice of their adherents.” Buckley v. Valeo, 424 U.S., at 22. It is significant that in
1979-1980 approximately 101,000 people contributed an average of $75 each to NCPAC and in
1980 approximately 100,000 people contributed an average of $25 each to FCM.
The FEC urges that these contributions do not constitute individual speech, but merely
“speech by proxy,” because the contributors do not control or decide upon the use of the funds
by the PACs or the specific content of the PACs’ advertisements and other speech. * * * Unlike
California Medical Assn. [v. Federal Election Comm’n, 453 U.S. 182 (1981)] [p. XXX],
[however,] the present cases involve limitations on expenditures by PACs, not on the
contributions they receive; and in any event these contributions are predominantly small and thus
do not raise the same concerns as the sizable contributions involved in California Medical Assn.
Another reason the “proxy speech” approach is not useful in this case is that the contributors
obviously like the message they are hearing from these organizations and want to add their
voices to that message; otherwise they would not part with their money. To say that their
collective action in pooling their resources to amplify their voices is not entitled to full First
Amendment protection would subordinate the voices of those of modest means as opposed to
those sufficiently wealthy to be able to buy expensive media ads with their own resources.
Our decision in FEC v. National Right to Work Committee, 459 U.S. 197 (1982) [p. XXX]
(NRWC), is not to the contrary. That case turned on the special treatment historically accorded
corporations. In return for the special advantages that the State confers on the corporate form,
individuals acting jointly through corporations forgo some of the rights they have as individuals.
* * * NRWC is consistent with this Court’s earlier holding that a corporation’s expenditures to
propagate its views on issues of general public interest are of a different constitutional stature
than corporate contributions to candidates. First National Bank of Boston v. Bellotti, 435 U.S.
765, 789-790 (1978) [p. XXX]. * * *
Like the National Right to Work Committee, NCPAC and FCM are also formally
incorporated; however, these are not “corporations” cases because § 9012(f) applies not just to
corporations but to any “committee, association, or organization (whether or not incorporated)”
that accepts contributions or makes expenditures in connection with electoral campaigns. The
terms of § 9012(f)’s prohibition apply equally to an informal neighborhood group that solicits
contributions and spends money on a Presidential election as to the wealthy and professionally
managed PACs involved in these cases.
Having concluded that the PACs’ expenditures are entitled to full First Amendment
protection, we now look to see if there is a sufficiently strong governmental interest served by
§ 9012(f)’s restriction on them and whether the section is narrowly tailored to the evil that may
legitimately be regulated. * * *
We held in Buckley and reaffirmed in Citizens Against Rent Control [v. Berkeley, 454 U.S.
290 (1981)] [p. XXX] that preventing corruption or the appearance of corruption are the only
legitimate and compelling government interests thus far identified for restricting campaign
finances. In Buckley we struck down the FECA’s limitation on individuals’ independent
46

expenditures because we found no tendency in such expenditures, uncoordinated with the

candidate or his campaign, to corrupt or to give the appearance of corruption. For similar
reasons, we also find § 9012(f)’s limitation on independent expenditures by political committees
to be constitutionally infirm.
Corruption is a subversion of the political process. Elected officials are influenced to act
contrary to their obligations of office by the prospect of financial gain to themselves or infusions
of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars
for political favors. But here the conduct proscribed is not contributions to the candidate, but
independent expenditures in support of the candidate. The amounts given to the PACs are
overwhelmingly small contributions, well under the $1,000 limit on contributions upheld in
Buckley; and the contributions are by definition not coordinated with the campaign of the
candidate. The Court concluded in Buckley that there was a fundamental constitutional difference
between money spent to advertise one’s views independently of the candidate’s campaign and
money contributed to the candidate to be spent on his campaign. We said there:
“Unlike contributions, such independent expenditures may well provide little assistance to the candidate’s
campaign and indeed may prove counterproductive. 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.” 424 U.S., at 47.

We think the same conclusion must follow here. It is contended that, because the PACs may
by the breadth of their organizations spend larger amounts than the individuals in Buckley, the
potential for corruption is greater. But precisely what the “corruption” may consist of we are
never told with assurance. The fact that candidates and elected officials may alter or reaffirm
their own positions on issues in response to political messages paid for by the PACs can hardly
be called corruption, for one of the essential features of democracy is the presentation to the
electorate of varying points of view. It is of course hypothetically possible here, as in the case of
the independent expenditures forbidden in Buckley, that candidates may take notice of and
reward those responsible for PAC expenditures by giving official favors to the latter in exchange
for the supporting messages. But here, as in Buckley, the absence of prearrangement and
coordination undermines the value of the expenditure to the candidate, and thereby alleviates the
danger that expenditures will be given as a quid pro quo for improper commitments from the
candidate. On this record, such an exchange of political favors for uncoordinated expenditures
remains a hypothetical possibility and nothing more. * * *
In the District Court, the FEC attempted to show actual corruption or the appearance of
corruption by offering evidence of high-level appointments in the Reagan administration of
persons connected with the PACs and newspaper articles and polls purportedly showing a public
perception of corruption. The District Court excluded most of the proffered evidence as
irrelevant to the critical elements to be proved: corruption of candidates or public perception of
corruption of candidates. A tendency to demonstrate distrust of PACs is not sufficient. We * * *
agree with the District Court that the evidence falls far short of being adequate [to show
corruption or its appearance].
Finally, the FEC urges us to uphold § 9012(f) as a prophylactic measure deemed necessary
by Congress, which has far more expertise than the Judiciary in campaign finance and corrupting
influences. In NRWC, 459 U.S., at 210, we stated:
“While [2 U.S.C.] § 441b restricts the solicitation of corporations and labor unions without great financial
 47

resources, as well as those more fortunately situated, we accept Congress’ judgment that it is the potential for
such influence that demands regulation. Nor will we second-guess a legislative determination as to the need
for prophylactic measures where corruption is the evil feared.”

Here, however, the groups and associations in question, designed expressly to participate in
political debate, are quite different from the traditional corporations organized for economic
gain. In NRWC we rightly concluded that Congress might include, along with labor unions and
corporations traditionally prohibited from making contributions to political candidates,
membership corporations, though contributions by the latter might not exhibit all of the evil that
contributions by traditional economically organized corporations exhibit. But this proper
deference to a congressional determination of the need for a prophylactic rule where the evil of
potential corruption had long been recognized does not suffice to establish the validity of
§ 9012(f), which indiscriminately lumps with corporations any “committee, association or
organization.” Indeed, the FEC in its briefs to this Court does not even make an effort to defend
the statute under a construction limited in reach to corporations.
While in NRWC we held that the compelling governmental interest in preventing corruption
supported the restriction of the influence of political war chests funneled through the corporate
form, in the present cases we do not believe that a similar finding is supportable: when the First
Amendment is involved, our standard of review is “rigorous,” Buckley v. Valeo, 424 U.S., at 29,
and the effort to link either corruption or the appearance of corruption to independent
expenditures by PACs, whether large or small, simply does not pass this standard of review.
Even assuming that Congress could fairly conclude that large-scale PACs have a sufficient
tendency to corrupt, the overbreadth of § 9012(f) in these cases is so great that the section may
not be upheld. We are not quibbling over fine-tuning of prophylactic limitations, but are
concerned about wholesale restriction of clearly protected conduct. * * *
[Affirmed.]
[JUSTICE STEVENS’s opinion concurring in part and dissenting in part briefly addresses a
standing issue which is omitted from the Court’s opinion.]

JUSTICE WHITE * * *, dissenting. * * *

Today’s holding * * * rests on [Buckley’s] distinction between “independent” and
“coordinated” expenditures. The Court was willing to accept that expenditures undertaken in
consultation with a candidate or his committee should be viewed as contributions. But it rejected
Congress’ judgment that independent expenditures were matters of equal concern, concluding
that they did not pose the danger of real or apparent corruption that supported limits on
contributions. The distinction is not tenable. “Independent” PAC expenditures function as
contributions. Indeed, a significant portion of them no doubt would be direct contributions to
campaigns had the FECA not limited such contributions to $5,000. The growth of independent
PAC spending has been a direct and openly acknowledged response to the contribution limits in
the FECA. In general, then, the reasons underlying limits on contributions equally underly limits
on such “independent” expenditures.
The credulous acceptance of the formal distinction between coordinated and independent
expenditures blinks political reality. That the PACs’ expenditures are not formally “coordinated”
is too slender a reed on which to distinguish them from actual contributions to the campaign. The
candidate cannot help but know of the extensive efforts “independently” undertaken on his
behalf. In this realm of possible tacit understandings and implied agreements, I see no reason not
to accept the congressional judgment that so-called independent expenditures must be closely
48

regulated.
The PACs do not operate in an anonymous vacuum. There are significant contacts between
an organization like NCPAC and candidates for, and holders of, public office. In addition,
personnel may move between the staffs of candidates or officeholders and those of PACs. This is
not to say that there has in the past been any improper coordination or political favors. We need
not evaluate the accuracy of reports of such activities, or of the perception that large-scale
independent PAC expenditures mean “the return of the big spenders whose money talks and
whose gifts are not forgotten.” It is enough to note that there is ample support for the
congressional determination that the corrosive effects of large campaign contributions—not least
among these a public perception of business as usual—are not eliminated solely because the
“contribution” takes the form of an “independent expenditure.” “Preserving the integrity of the
electoral process [and] the individual citizen’s confidence in government” “are interests of the
highest importance.” * * *
As in Buckley, I am convinced that it is pointless to limit the amount that can be contributed
to a candidate or spent with his approval without also limiting the amounts that can be spent on
his behalf.9 In the Fund Act, Congress limited contributions, direct or coordinated, to zero. It is
nonsensical to allow the purposes of this limitation to be entirely defeated by allowing the sort of
“independent” expenditures at issue here, and the First Amendment does not require us to do so.
***

JUSTICE MARSHALL, dissenting.

* * *Although I joined the portion of the Buckley per curiam that distinguished contributions
from independent expenditures for First Amendment purposes, I now believe that the distinction
has no constitutional significance.
The contribution/expenditure distinction in Buckley was grounded on two factors. First, the
Court reasoned that independent expenditures offer significantly less potential for abuse than
contributions. * * *
Undoubtedly, when an individual interested in obtaining the proverbial ambassadorship had
the option of either contributing directly to a candidate’s campaign or doing so indirectly through
independent expenditures, he gave money directly. It does not take great imagination, however,
to see that, when the possibility for direct financial assistance is severely limited, as it is in light
of Buckley’s decision to uphold the contribution limitation, such an individual will find other
ways to financially benefit the candidate’s campaign. It simply belies reality to say that a
campaign will not reward massive financial assistance provided in the only way that is legally
available. And the possibility of such a reward provides a powerful incentive to channel an
independent expenditure into an area that a candidate will appreciate. Surely an eager supporter
9
In a discussion with which I entirely agree, the Senate Committee supported the 1974 limits on “independent
expenditures” as follows:
“[Such] controls are imperative if Congress is to enact meaningful limits on direct contributions. Otherwise,
wealthy individuals limited to a $3,000 direct contribution could also purchase one hundred thousand dollars’ worth
of advertisements for a favored candidate. Such a loophole would render direct contribution limits virtually
meaningless.
“Admittedly, expenditures made directly by an individual to urge support of a candidate pose First Amendment
issues more vividly than do financial contributions to a campaign fund. Nevertheless, to prohibit a $60,000 direct
contribution to be used for a TV spot commercial but then to permit the would-be contributor to purchase the time
himself, and place a commercial endorsing the candidate, would exalt constitutional form over substance. Your
Committee does not believe the First Amendment requires such a wooden construction.” S. Rep. No. 93-689, pp. 18-
19 (1974).
 49

will be able to discern a candidate’s needs and desires; similarly, a willing candidate will notice
the supporter’s efforts. To the extent that individuals are able to make independent expenditures
as part of a quid pro quo, they succeed in undermining completely the first rationale for the
distinction made in Buckley.
The second factor supporting the distinction between contributions and expenditures was the
relative magnitude of the First Amendment interest at stake. The Court found that the
constitutional interest implicated in the limitation on expenditures was the right to advocate the
election or defeat of a particular candidate. This right, the Court reasoned, “is no less entitled to
protection under the First Amendment than the discussion of political policy generally or
advocacy of the passage or defeat of legislation.” In contrast, the Court found that the limitation
on contributions primarily implicated “the contributor’s freedom of political association.”
Although the Court acknowledged that this right was a “fundamental” one, it concluded that the
expenditure ceiling imposed significantly more severe restrictions on political freedoms than the
contribution limitation.
I disagree that the limitations on contributions and expenditures have significantly different
impacts on First Amendment freedoms. First, the underlying rights at issue—freedom of speech
and freedom of association—are both core First Amendment rights. Second, in both cases the
regulation is of the same form: It concerns the amount of money that can be spent for political
activity. Thus, I do not see how one interest can be deemed more compelling than the other.
In summary, I am now unpersuaded by the distinction established in Buckley. I have come to
believe that the limitations on independent expenditures challenged in that case and here are
justified by the congressional interests in promoting “the reality and appearance of equal access
to the political arena,” and in eliminating political corruption and the appearance of such
corruption. Therefore, I dissent * * *.

Notes and Questions

1. The Court recognized two government interests in play in National Right to Work
Committee (NRWC): preventing the accumulation of large “war chests” and protecting the
interests of “individuals who have paid money into a corporation or union.” So is NRWC a
“corruption” case, or a “corporations” case? Or some mix of the two?
2. The Court ties the first interest of NRWC to Buckley’s concern about “corruption,” by
noting that large war chests might “be used to incur debts from legislators.” Is this a problem,
given that limitations on contributions to the PAC assure that any “war chest” so accumulated
will be the result of large numbers of people voluntarily making small contributions, and that the
PAC itself is limited to contributing no more than $5000 to any candidate in an election?e Or, to
put it differently, does it matter if the candidate feels a debt to a group when that debt is incurred
because the group represents large numbers of people? Don’t those large numbers reflect the
popularity of the ideas?
If accumulation of a large war chest through solicitation of the public was a concern in
NRWC, why wasn’t it a concern in National Conservative Political Action Committee (NCPAC)
and CARC? One difference between CARC and NRWC is that CARC involved limits on
committees formed to support or oppose ballot measures. While heavy spending may influence
in the result of an initiative, there is no legislator who might feel indebted because of that
spending. But that distinction is not applicable when comparing NRWC to NCPAC, both of

e
Under FECA, the primary and the general election are considered separate elections. Thus, a PAC may contribute
$5000 to a candidate for each race, or a total of $10,000 in a two-year election cycle. 11 C.F.R. § 100.2.
50

which made contributions and expenditures in candidate races. One distinction between NRWC
and NCPAC is that NRWC can use its corporate treasury to pay its PAC’s administrative
expenses, which, as we have noted, can be considerable. NCPAC, as an “unconnected PAC” (one
without a separate, sponsoring organization) must pay its administrative and compliance costs
from contributions made to it. In light of the $5000 limit on what PACs can contribute to a
candidate, does the “war chest” problem represent a compelling state interest?
3. The Court’s acceptance of the second interest offered by the state—protecting persons
who have “paid money into a corporation or union” from having their “money used to support
political candidates to whom they may be opposed,” is even more puzzling. Whatever the merits
of that concern where members are required to join unions by law, see Abood v. Detroit Bd. of
Educ., 431 U.S. 209 (1977), or unable to sell corporate stock without significant sacrifice, see
Stuart Taylor, Congress Can Help Repair Ruling’s Damage, NAT’L J., Jan. 30, 2010, does it
apply in the case of the National Right to Work Committee? Wouldn’t most people who “paid
money into the corporation” (note that the NRWC did not have capital stock, only members and
donors) do so precisely because they favored the organization’s political goals?
4. In the wake of NRWC, a good deal of an organization’s ability to solicit and raise PAC
funds will depend on the definition of “member.” The Court suggested that to be considered
“members” for purposes of PAC solicitations, individuals would need to have some ability to
exercise control over an organization’s administration and finance. How much control is
enough? In 1993, the FEC adopted a regulation that limited the definition of “member” to those
who either (i) had a “significant financial attachment” to the organization beyond “merely the
payment of dues,” (ii) paid regular dues and had the right to vote directly for at least one member
of the organization’s board, or (iii) had the right to vote directly for all members of the
organization’s board. 11 C.F.R. § 114.1(e) (1993). The United States Chamber of Commerce and
the American Medical Association sued. The plaintiffs noted that under the FEC regulation, over
220,000 dues-paying members of the Chamber (all but 63 of their total membership) and
approximately 44,500 of the AMA’s 290,000 dues-paying physicians would not qualify as
“members,” meaning that the organization could not solicit them for PAC contributions or
communicate with them on political matters, other than by using its PAC. The Court of Appeals
held that the definition violated the First Amendment rights of the plaintiffs to communicate with
their members. United States Chamber of Commerce v. Federal Election Commission, 69 F.3d
600 (D.C. Cir. 1995). The FEC then amended its rule to provide that anyone paying regular dues
qualified as a “member” for purposes of the Act. 11 C.F.R. § 100.134(f).
5. In addition to reaffirming differential treatment of contributions and expenditures,
NCPAC seemed to reaffirm that only the threat of quid pro quo corruption was sufficient to
justify campaign-finance regulation. Additionally, the Court found that the government’s scant
evidence of quid pro quo corruption resulting from independent expenditures was insufficient to
overcome the Court’s “rigorous” standard of reviewing expenditure limits. What quantity of
evidence is necessary? The next case addressed that question.

NIXON v. SHRINK MISSOURI GOVERNMENT PAC

Supreme Court of the United States
528 U.S. 377, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000)

JUSTICE SOUTER delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE
STEVENS, JUSTICE O’CONNOR, JUSTICE GINSBURG, and JUSTICE BREYER join].
The principal issues in this case are whether Buckley v. Valeo, 424 U.S. 1 (1976) [p. XXX]
 51

(per curiam), is authority for state limits on contributions to state political candidates
and whether the federal limits approved in Buckley, with or without adjustment for inflation,
define the scope of permissible state limitations today. We hold Buckley to be authority for
comparable state regulation, which need not be pegged to Buckley’s dollars.
In 1994, the Legislature of Missouri enacted Senate Bill 650 to restrict the permissible
amounts of contributions to candidates for state office. Mo. Rev. Stat. § 130.032. * * *
The statutory dollar amounts are baselines for an adjustment each even-numbered year, to be
made “by multiplying the base year amount by the cumulative consumer price index . . . and
rounded to the nearest twenty-five-dollar amount, for all years since January 1, 1995.”
§ 130.032.2. When this suit was filed, the limits ranged from a high of $1,075 for contributions
to candidates for statewide office (including state auditor) and for any office where the
population exceeded 250,000, down to $275 for contributions to candidates for state
representative or for any office for which there were fewer than 100,000 people represented.
Respondents Shrink Missouri Government PAC, a political action committee, and Zev David
Fredman, a candidate for the 1998 Republican nomination for state auditor, sought to enjoin
enforcement of the contribution statute as violating their First and Fourteenth Amendment rights
(presumably those of free speech, association, and equal protection, although the complaint did
not so state). Shrink Missouri gave $1,025 to Fredman’s candidate committee in 1997, and
another $50 in 1998. Shrink Missouri represented that, without the limitation, it would contribute
more to the Fredman campaign. Fredman alleged he could campaign effectively only with more
generous contributions than § 130.032.1 allowed.
[T]he District Court sustained the statute[, but t]he Court of Appeals for the Eighth Circuit
[reversed]. * * *
Precision about the relative rigor of the standard to review contribution limits was not a
pretense of the Buckley per curiam opinion. To be sure, in addressing the speech claim, we
explicitly rejected both O’Brien intermediate scrutiny for communicative action, see United
States v. O’Brien, 391 U.S. 367 (1968), and the similar standard applicable to merely time, place,
and manner restrictions. * * * In distinguishing these tests, the discussion referred generally to
“the exacting scrutiny required by the First Amendment,” and added that “the constitutional
guarantee has its fullest and most urgent application precisely to the conduct of campaigns for
political office.” * * *
We then, however, drew a line between expenditures and contributions, treating expenditure
restrictions as direct restraints on speech, which nonetheless suffered little direct effect from
contribution limits:
“[A] limitation upon the amount that any one person or group may contribute to a candidate or political
committee entails only a marginal restriction upon the contributor’s ability to engage in free
communication. A contribution serves as a general expression of support for the candidate and his views,
but does not communicate the underlying basis for the support. The quantity of communication by the
contributor does not increase perceptibly with the size of his contribution, since the expression rests solely
on the undifferentiated symbolic act of contributing. At most, the size of the contribution provides a very
rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of
money a person may give to a candidate or campaign organization thus involves little direct restraint on his
political communication, for it permits the symbolic expression of support evidenced by a contribution but
does not in any way infringe the contributor’s freedom to discuss candidates and issues.” [424 U.S.], at 20-
21.

We thus said, in effect, that limiting contributions left communication significantly unimpaired.
We flagged a similar difference between expenditure and contribution limitations in their
52

impacts on the association right. While an expenditure limit “precludes most associations from
effectively amplifying the voice of their adherents” (thus interfering with the freedom of the
adherents as well as the association) the contribution limits “leave the contributor free to become
a member of any political association and to assist personally in the association’s efforts on
behalf of candidates.” While we did not then say in so many words that different standards might
govern expenditure and contribution limits affecting associational rights, we have since then said
so explicitly in Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,
259-260 (1986) [p. XXX]: “We have consistently held that restrictions on contributions require
less compelling justification than restrictions on independent spending.” It has, in any event,
been plain ever since Buckley that contribution limits would more readily clear the hurdles before
them. * * * Thus, under Buckley’s standard of scrutiny, a contribution limit involving
“significant interference” with associational rights could survive if the Government demonstrated
that contribution regulation was “closely drawn” to match a “sufficiently important
interest,” though the dollar amount of the limit need not be “fine tun[ed].”
While we did not attempt to parse distinctions between the speech and association standards
of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily
on the associational right than on freedom to speak. We consequently proceeded on the
understanding that a contribution limitation surviving a claim of associational abridgment would
survive a speech challenge as well, and we held the standard satisfied by the contribution limits
under review.
“[T]he prevention of corruption and the appearance of corruption” was found to be a
“constitutionally sufficient justification”:
“To the extent that large contributions are given to secure a political quid pro quo from current and
potential office holders, the integrity of our system of representative democracy is undermined. . . .
“Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the
appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a
regime of large individual financial contributions. . . . Congress could 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.’ ” [Buckley, 424 U.S.], at 26-27.

In speaking of “improper influence” and “opportunities for abuse” in addition to “quid pro
quo arrangements,” we recognized a concern not confined to bribery of public officials, but
extending to the broader threat from politicians too compliant with the wishes of large
contributors. These were the obvious points behind our recognition that the Congress could
constitutionally address the power of money “to influence governmental action” in ways less
“blatant and specific” than bribery. [Id.], at 28.
In defending its own statute, Missouri espouses those same interests of preventing corruption
and the appearance of it that flows from munificent campaign contributions. Even without the
authority of Buckley, there would be no serious question about the legitimacy of the interests
claimed, which, after all, underlie bribery and antigratuity statutes. While neither law nor morals
equate all political contributions, without more, with bribes, we spoke in Buckley of the
perception of corruption “inherent in a regime of large individual financial contributions” to
candidates for public office, as a source of concern “almost equal” to quid pro quo improbity.
The public interest in countering that perception was, indeed, the entire answer to the
overbreadth claim raised in the Buckley case. This made perfect sense. Leave the perception of
impropriety unanswered, and the cynical assumption that large donors call the tune could
jeopardize the willingness of voters to take part in democratic governance. Democracy works
 53

“only if the people have faith in those who govern, and that faith is bound to be shattered when
high officials and their appointees engage in activities which arouse suspicions of malfeasance
and corruption.” United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961).
Although respondents neither challenge the legitimacy of these objectives nor call for any
reconsideration of Buckley, they take the State to task, as the Court of Appeals did, for failing to
justify the invocation of those interests with empirical evidence of actually corrupt practices or of
a perception among Missouri voters that unrestricted contributions must have been exerting a
covertly corrosive influence. The state statute is not void, however, for want of evidence.
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. Buckley demonstrates that the dangers of large, corrupt contributions and the suspicion
that large contributions are corrupt are neither novel nor implausible. * * * Although we did not
ourselves marshal the evidence in support of the congressional concern, we referred to “a
number of the abuses” detailed in the Court of Appeals’s decision, which described how
corporations, well-financed interest groups, and rich individuals had made large contributions,
some of which were illegal under existing law, others of which reached at least the verge of
bribery. The evidence before the Court of Appeals described public revelations by the parties in
question more than sufficient to show why voters would tend to identify a big donation with a
corrupt purpose.
While Buckley’s evidentiary showing exemplifies a sufficient justification for contribution
limits, it does not speak to what may be necessary as a minimum. As to that, respondents are
wrong in arguing that in the years since Buckley came down we have “supplemented” its holding
with a new requirement that governments enacting contribution limits must “demonstrate that the
recited harms are real, not merely conjectural[.]” * * *
* * * [T]his case does not present a close call requiring further definition of whatever the
State’s evidentiary obligation may be. While the record does not show that the Missouri
Legislature relied on the evidence and findings accepted in Buckley,6 * * * the substantiation of
the congressional concerns reflected in Buckley has its counterpart supporting the Missouri law.
Although Missouri does not preserve legislative history, the State presented an affidavit from
State Senator Wayne Goode, the co-chair of the state legislature’s Interim Joint Committee on
Campaign Finance Reform at the time the State enacted the contribution limits, who stated that
large contributions have “the real potential to buy votes.” The District Court cited newspaper
accounts of large contributions supporting inferences of impropriety. One report questioned the
state treasurer’s decision to use a certain bank for most of Missouri’s banking business after that
institution contributed $20,000 to the treasurer’s campaign. Another made much of the receipt by
a candidate for state auditor of a $40,000 contribution from a brewery and one for $20,000 from
a bank. * * * [T]he Eighth Circuit itself * * * identified a $420,000 contribution to candidates in
northern Missouri from a political action committee linked to an investment bank, and three
scandals, including one in which a state representative was “accused of sponsoring legislation in
exchange for kickbacks,” and another in which Missouri’s former attorney general pleaded guilty
to charges of conspiracy to misuse state property, after being indicted for using a state workers’
compensation fund to benefit campaign contributors. And although majority votes do not, as
such, defeat First Amendment protections, the statewide vote on Proposition A [which imposed
6
Cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986) (“The First Amendment does not require a city,
before enacting . . . an ordinance, to conduct new studies or produce evidence independent of that already generated
by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem
that the city addresses”).
54

even stricter contribution limits than the ones enacted by the Missouri Legislature] certainly
attested to the perception relied upon here: “[A]n overwhelming 74 percent of the voters of
Missouri determined that contribution limits are necessary to combat corruption and the
appearance thereof.”
There might, of course, be need for a more extensive evidentiary documentation if
respondents had made any showing of their own to cast doubt on the apparent implications of
Buckley’s evidence and the record here, but the closest respondents come to challenging these
conclusions is their invocation of academic studies said to indicate that large contributions to
public officials or candidates do not actually result in changes in candidates’ positions.
Smith, Money Talks: Speech, Corruption, Equality, and Campaign Finance, 86 Geo. L.J. 45, 58
(1997); Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance
Reform, 105 Yale L.J. 1049, 1067-1068 (1995). Other studies, however, point the other way. F.
Sorauf, Inside Campaign Finance 169 (1992); Hall & Wayman, Buying Time: Moneyed Interests
and the Mobilization of Bias in Congressional Committees, 84 Am. Pol. Sci. Rev. 797 (1990); D.
Magleby & C. Nelson, The Money Chase 78 (1990). Given the conflict among these
publications, and the absence of any reason to think that public perception has been influenced
by the studies cited by respondents, there is little reason to doubt that sometimes large
contributions will work actual corruption of our political system, and no reason to question the
existence of a corresponding suspicion among voters.
Nor do we see any support for respondents’ various arguments that in spite of their striking
resemblance to the limitations sustained in Buckley, those in Missouri are so different in kind as
to raise essentially a new issue about the adequacy of the Missouri statute’s tailoring to serve its
purposes. Here, as in Buckley, “[t]here is no indication . . . that the contribution limitations
imposed by the [law] would have any dramatic[ally] adverse effect on the funding of campaigns
and political associations,” and thus no showing that “the limitations prevented the candidates
and political committees from amassing the resources necessary for effective advocacy.” 424
U.S., at 21. The District Court found here that in the period since the Missouri limits became
effective, “candidates for state elected office [have been] quite able to raise funds sufficient to
run effective campaigns,” and that “candidates for political office in the state are still able to
amass impressive campaign war chests.” The plausibility of these conclusions is buttressed by
petitioners’ evidence that in the 1994 Missouri elections (before any relevant state limitations
went into effect), 97.62 percent of all contributors to candidates for state auditor made
contributions of $2,000 or less. Even if we were to assume that the contribution limits affected
respondent Fredman’s ability to wage a competitive campaign (no small assumption given that
Fredman only identified one contributor, Shrink Missouri, that would have given him more than
$1,075 per election), a showing of one affected individual does not point up a system of
suppressed political advocacy that would be unconstitutional under Buckley.
These conclusions of the District Court and the supporting evidence also suffice to answer
respondents’ variant claim that the Missouri limits today differ in kind from Buckley’s owing to
inflation since 1976. Respondents seem to assume that Buckley set a minimum constitutional
threshold for contribution limits, which in dollars adjusted for loss of purchasing power are now
well above the lines drawn by Missouri. But this assumption is a fundamental misunderstanding
of what we held.
In Buckley, we specifically rejected the contention that $1,000, or any other amount, was a
constitutional minimum below which legislatures could not regulate. As indicated above, we
referred instead to the outer limits of contribution regulation by asking whether there was any
 55

showing that the limits were so low as to impede the ability of candidates to “amas[s] the
resources necessary for effective advocacy.” We asked, in other words, whether the contribution
limitation was so radical in effect as to render political association ineffective, drive the sound of
a candidate’s voice below the level of notice, and render contributions pointless. Such being the
test, the issue in later cases cannot be truncated to a narrow question about the power of the
dollar, but must go to the power to mount a campaign with all the dollars likely to be
forthcoming. [T]he dictates of the First Amendment are not mere functions of the Consumer
Price Index.
The dissenters in this case think our reasoning evades the real issue. JUSTICE THOMAS chides us
for “hiding behind” Buckley, and JUSTICE KENNEDY faults us for seeing this case as “a routine
application of our analysis” in Buckley instead of facing up to what he describes as the
consequences of Buckley. Each dissenter would overrule Buckley and thinks we should do the
same.
The answer is that we are supposed to decide this case. Shrink and Fredman did not request
that Buckley be overruled; the furthest reach of their arguments about the law was that
subsequent decisions already on the books had enhanced the State’s burden of justification
beyond what Buckley required, a proposition we have rejected as mistaken.
There is no reason in logic or evidence to doubt the sufficiency of Buckley to govern this case
in support of the Missouri statute. The judgment of the Court of Appeals is, accordingly,
reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.

JUSTICE STEVENS , concurring.

* * * Money is property; it is not speech.
Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign
trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay
hired laborers to perform the same tasks. It does not follow, however, that the First Amendment
provides the same measure of protection to the use of money to accomplish such goals as it
provides to the use of ideas to achieve the same results.
Our Constitution and our heritage properly protect the individual’s interest in making
decisions about the use of his or her own property. Governmental regulation of such decisions
can sometimes be viewed either as “deprivations of liberty” or as “deprivations of property.”
* * * Because I did not participate in the Court’s decision in Buckley, I did not have the
opportunity to suggest then that those property and liberty concerns adequately explain the
Court’s decision to invalidate the expenditure limitations in the 1974 Act.
* * * The right to use one’s own money to hire gladiators, or to fund “speech by proxy,”
certainly merits significant constitutional protection. These property rights, however, are not
entitled to the same protection as the right to say what one pleases.

JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring.

The dissenters accuse the Court of weakening the First Amendment. They believe that failing
to adopt a “strict scrutiny” standard “balance[s] away First Amendment freedoms.” But the
principal dissent oversimplifies the problem faced in the campaign finance context. It takes a
difficult constitutional problem and turns it into a lopsided dispute between political expression
and government censorship. Under the cover of this fiction and its accompanying formula, the
dissent would make the Court absolute arbiter of a difficult question best left, in the main, to the
56

political branches. * * *
If the dissent believes that the Court diminishes the importance of the First Amendment
interests before us, it is wrong. The Court’s opinion does not question the constitutional
importance of political speech or that its protection lies at the heart of the First Amendment. Nor
does it question the need for particularly careful, precise, and independent judicial review where,
as here, that protection is at issue. But this is a case where constitutionally protected interests lie
on both sides of the legal equation. For that reason there is no place for a strong presumption
against constitutionality, of the sort often thought to accompany the words “strict scrutiny.” Nor
can we expect that mechanical application of the tests associated with “strict scrutiny”—the tests
of “compelling interests” and “least restrictive means”—will properly resolve the difficult
constitutional problem that campaign finance statutes pose. * * *
On the one hand, a decision to contribute money to a campaign is a matter of First
Amendment concern—not because money is speech (it is not); but because it enables speech.
Through contributions the contributor associates himself with the candidate’s cause, helps the
candidate communicate a political message with which the contributor agrees, and helps the
candidate win by attracting the votes of similarly minded voters. * * * Both political association
and political communication are at stake.
On the other hand, restrictions upon the amount any one individual can contribute to a
particular candidate seek to protect the integrity of the electoral process—the means through
which a free society democratically translates political speech into concrete governmental action.
* * * Moreover, by limiting the size of the largest contributions, such restrictions aim to
democratize the influence that money itself may bring to bear upon the electoral process. Cf.
Reynolds v. Sims, 377 U.S. 533, 565 (1964) [p. XXX] (in the context of apportionment, the
Constitution “demands” that each citizen have “an equally effective voice”). In doing so, they
seek to build public confidence in that process and broaden the base of a candidate’s meaningful
financial support, encouraging the public participation and open discussion that the First
Amendment itself presupposes.
In service of these objectives, the statute imposes restrictions of degree. It does not deny the
contributor the opportunity to associate with the candidate through a contribution, though it
limits a contribution’s size. Nor does it prevent the contributor from using money (alone or with
others) to pay for the expression of the same views in other ways. Instead, it permits all
supporters to contribute the same amount of money, in an attempt to make the process fairer and
more democratic.
Under these circumstances, a presumption against constitutionality is out of place. I
recognize that Buckley used language that could be interpreted to the contrary. It said, for
example, that it rejected “the concept that government may restrict the speech of some elements
of our society in order to enhance the relative voice of others.” But those words cannot be taken
literally. The Constitution often permits restrictions on the speech of some in order to prevent a
few from drowning out the many—in Congress, for example, where constitutionally protected
debate is limited to provide every Member an equal opportunity to express his or her views. Or
in elections, where the Constitution tolerates numerous restrictions on ballot access, limiting the
political rights of some so as to make effective the political rights of the entire electorate.
See, e.g., Storer v. Brown, 415 U.S. 724, 736 (1974) [p. XXX]. Regardless, as the result
in Buckley made clear, the statement does not automatically invalidate a statute that seeks a fairer
electoral debate through contribution limits, nor should it forbid the Court to take account of the
competing constitutional interests just mentioned.
 57

In such circumstances—where a law significantly implicates competing constitutionally

protected interests in complex ways—the Court has closely scrutinized the statute’s impact on
those interests, but refrained from employing a simple test that effectively presumes
unconstitutionality. Rather, it has balanced interests. And in practice that has meant asking
whether the statute burdens any one such interest in a manner out of proportion to the statute’s
salutary effects upon the others (perhaps, but not necessarily, because of the existence of a
clearly superior, less restrictive alternative). Where a legislature has significantly greater
institutional expertise, as, for example, in the field of election regulation, the Court in practice
defers to empirical legislative judgments—at least where that deference does not risk such
constitutional evils as, say, permitting incumbents to insulate themselves from effective electoral
challenge. This approach is that taken in fact by Buckley for contributions, and is found generally
where competing constitutional interests are implicated, such as privacy, see, e.g., Frisby v.
Schultz, 487 U.S. 474, 485-488 (1988) (balancing rights of privacy and expression); First
Amendment interests of listeners or viewers, see, e.g., Turner Broadcasting System, Inc. v.
FCC, 520 U.S. 180, 192-194 (1997) (recognizing the speech interests of both viewers and cable
operators); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S.
94, 102-103 (1973) (“Balancing the various First Amendment interests involved in the broadcast
media . . . is a task of a great delicacy and difficulty”); Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 389-390 (1969) [p. XXX] (First Amendment permits the Federal Communications
Commission to restrict the speech of some to enable the speech of others), and the integrity of
the electoral process, see, e.g., Storer v. Brown, supra, at 730 (“[T]here must be a substantial
regulation of elections if they are to be fair and honest”). The approach taken by these cases is
consistent with that of other constitutional courts facing similarly complex constitutional
problems. See, e.g., Bowman v. United Kingdom, 26 Eur. Ct. H.R. 1 (European Comm’n of
Human Rights 1998) (demanding proportionality in the campaign finance context); Libman v.
Quebec (Attorney General), 151 D.L. R. (4th) 385 (Canada 1997) (same). For the dissenters to
call the approach “sui generis” overstates their case.
Applying this approach to the present case, I would uphold the statute essentially for the
reasons stated by the Court. * * *

JUSTICE KENNEDY, dissenting. * * *

Zev David Fredman asks us to evaluate his speech claim in the context of a system which
favors candidates and officeholders whose campaigns are supported by soft money, usually
funneled through political parties. The Court pays him no heed. The plain fact is that the
compromise the Court invented in Buckley set the stage for a new kind of speech to enter the
political system. It is covert speech. The Court has forced a substantial amount of political
speech underground, as contributors and candidates devise ever more elaborate methods of
avoiding contribution limits, limits which take no account of rising campaign costs. The
preferred method has been to conceal the real purpose of the speech. Soft money may be
contributed to political parties in unlimited amounts, see Colorado Republican Federal
Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604 (1996) [p. XXX], and is used often
to fund so-called issue advocacy, advertisements that promote or attack a candidate’s positions
without specifically urging his or her election or defeat. Issue advocacy, like soft money, is
unrestricted, while straightforward speech in the form of financial contributions paid to a
candidate, speech subject to full disclosure and prompt evaluation by the public, is not. Thus has
the Court’s decision given us covert speech. This mocks the First Amendment. The current
58

system would be unfortunate, and suspect under the First Amendment, had it evolved from a
deliberate legislative choice; but its unhappy origins are in our earlier decree in Buckley, which
by accepting half of what Congress did (limiting contributions) but rejecting the other (limiting
expenditures) created a misshapen system, one which distorts the meaning of speech.
The irony that we would impose this regime in the name of free speech ought to be sufficient
ground to reject Buckley’s wooden formula in the present case. The wrong goes deeper, however.
By operation of the Buckley rule, a candidate cannot oppose this system in an effective way
without selling out to it first. Soft money must be raised to attack the problem of soft money. In
effect, the Court immunizes its own erroneous ruling from change. Rulings of this Court must
never be viewed with more caution than when they provide immunity from their own correction
in the political process and in the forum of unrestrained speech. The melancholy history of
campaign finance in Buckley’s wake shows what can happen when we intervene in the dynamics
of speech and expression by inventing an artificial scheme of our own.
The case in one sense might seem unimportant. It appears that Mr. Fredman was an outsider
candidate who may not have had much of a chance. Yet, by binding him to the outdated limit of
$1,075 per contribution in a system where parties can raise soft money without limitation and a
powerful press faces no restrictions on use of its own resources to back its preferred candidates,
the Court tells Mr. Fredman he cannot challenge the status quo unless he first gives into it. This
is not the First Amendment with which I am familiar.
To defend its extension of Buckley to present times, the Court, of course, recites the dangers
of corruption, or the appearance of corruption, when an interested person contributes money to a
candidate. What the Court does not do is examine and defend the substitute it has encouraged,
covert speech funded by unlimited soft money. In my view that system creates dangers greater
than the one it has replaced. The first danger is the one already mentioned: that we require
contributors of soft money and its beneficiaries to mask their real purpose. Second, we have an
indirect system of accountability that is confusing, if not dispiriting, to the voter. The very
disaffection or distrust that the Court cites as the justification for limits on direct contributions
has now spread to the entire political discourse. Buckley has not worked.
My colleagues in the majority, in my respectful submission, do much disservice to our First
Amendment jurisprudence by failing to acknowledge or evaluate the whole operation of the
system that we ourselves created in Buckley. Our First Amendment principles surely tell us that
an interest thought to be the compelling reason for enacting a law is cast into grave doubt when a
worse evil surfaces in the law’s actual operation. And our obligation to examine the operation of
the law is all the more urgent when the new evil is itself a distortion of speech. By these
measures the law before us cannot pass any serious standard of First Amendment review.
Among the facts the Court declines to take into account is the emergence of cyberspace
communication by which political contributions can be reported almost simultaneously with
payment. The public can then judge for itself whether the candidate or the officeholder has so
overstepped that we no longer trust him or her to make a detached and neutral judgment. This is
a far more immediate way to assess the integrity and the performance of our leaders than through
the hidden world of soft money and covert speech.
Officeholders face a dilemma inherent in the democratic process and one that has never been
easy to resolve: how to exercise their best judgment while soliciting the continued support and
loyalty of constituents whose interests may not always coincide with that judgment. Edmund
Burke captured the tension in his Speeches at Bristol. “Your representative owes you, not his
industry only, but his judgment; and he betrays instead of serving you, if he sacrifices it to your
 59

opinion.” E. Burke, Speeches of the Right Hon. Edmund Burke 130 (J. Burke ed. 1867). Whether
our officeholders can discharge their duties in a proper way when they are beholden to certain
interests both for reelection and for campaign support is, I should think, of constant concern not
alone to citizens but to conscientious officeholders themselves. There are no easy answers, but
the Constitution relies on one: open, robust, honest, unfettered speech that the voters can
examine and assess in an ever-changing and more complex environment.
To this point my view may seem to be but a reflection of what JUSTICE THOMAS has written,
and to a large extent I agree with his insightful and careful discussion of our precedents. If an
ensuing chapter must be written, I may well come out as he does, for his reasoning and my own
seem to point to the conclusion that the legislature can do little by way of imposing limits on
political speech of this sort. For now, however, I would leave open the possibility that Congress,
or a state legislature, might devise a system in which there are some limits on both expenditures
and contributions, thus permitting officeholders to concentrate their time and efforts on official
duties rather than on fundraising. For the reasons I have sought to express, there are serious
constitutional questions to be confronted in enacting any such scheme, but I would not foreclose
it at the outset. I would overrule Buckley and then free Congress or state legislatures to attempt
some new reform, if, based upon their own considered view of the First Amendment, it is
possible to do so. Until any reexamination takes place, however, the existing distortion of speech
caused by the halfway house we created in Buckley ought to be eliminated. The First
Amendment ought to be allowed to take its own course without further obstruction from the
artificial system we have imposed. It suffices here to say that the law in question does not come
even close to passing any serious scrutiny. * * *

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.

In the process of ratifying Missouri’s sweeping repression of political speech, the Court
today adopts the analytic fallacies of our flawed decision in Buckley v. Valeo. Unfortunately, the
Court is not content to merely adhere to erroneous precedent. Under the guise of
applying Buckley, the Court proceeds to weaken the already enfeebled constitutional protection
that Buckley afforded campaign contributions. In the end, the Court employs a sui generis test to
balance away First Amendment freedoms.
Because the Court errs with each step it takes, I dissent. [O]ur decision in Buckley was in
error, and I would overrule it. I would subject campaign contribution limitations to strict
scrutiny, under which Missouri’s contribution limits are patently unconstitutional.

I
I begin with a proposition that ought to be unassailable: Political speech is the primary object
of First Amendment protection. * * * The Founders sought to protect the rights of individuals to
engage in political speech because a self-governing people depends upon the free exchange of
political information. And that free exchange should receive the most protection when it matters
the most—during campaigns for elective office. “The value and efficacy of [the right to elect the
members of government] depends on the knowledge of the comparative merits and demerits of
the candidates for public trust, and on the equal freedom, consequently, of examining and
discussing these merits and demerits of the candidates respectively.” Madison, Report on the
Resolutions (1799), in 6 Writings of James Madison 397 (G. Hunt ed. 1906).
I do not start with these foundational principles because the Court openly disagrees with
them—it could not, for they are solidly embedded in our precedents. * * * Instead, I start with
60

them because the Court today abandons them. For nearly half a century, this Court has extended
First Amendment protection to a multitude of forms of “speech,” such as making false
defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity,
burning flags, and wearing military uniforms. Not surprisingly, the Courts of Appeals have
followed our lead and concluded that the First Amendment protects, for example, begging,
shouting obscenities, erecting tables on a sidewalk, and refusing to wear a necktie. In light of the
many cases of this sort, today’s decision is a most curious anomaly. Whatever the proper status
of such activities under the First Amendment, I am confident that they are less integral to the
functioning of our Republic than campaign contributions. Yet the majority today, rather than
going out of its way to protect political speech, goes out of its way to avoid protecting it. As I
explain below, contributions to political campaigns generate essential political speech. And
contribution caps, which place a direct and substantial limit on core speech, should be met with
the utmost skepticism and should receive the strictest scrutiny.

II * * * A
To justify its decision upholding contribution limitations while striking down expenditure
limitations, the Court in Buckley explained that expenditure limits “represent substantial rather
than merely theoretical restraints on the quantity and diversity of political speech,” while
contribution limits “entai[l] only a marginal restriction upon the contributor’s ability to engage in
free communication.” In drawing this distinction, the Court in Buckley relied on the premise that
contributing to a candidate differs qualitatively from directly spending money. It noted that
“[w]hile contributions may result in political expression if spent by a candidate or an association
to present views to the voters, the transformation of contributions into political debate involves
speech by someone other than the contributor.” * * *
But this was a faulty distinction ab initio because it ignored the reality of how speech of all
kinds is disseminated:
“Even in the case of a direct expenditure, there is usually some go-between that facilitates the
dissemination of the spender’s message—for instance, an advertising agency or a television station. To call
a contribution ‘speech by proxy’ thus does little to differentiate it from an expenditure. The only possible
difference is that contributions involve an extra step in the proxy chain. But again, that is a difference in
form, not substance.” Colorado Republican, 518 U.S., at 638-639 (THOMAS, J., concurring in judgment and
dissenting in part).

And, inasmuch as the speech-by-proxy argument was disconnected from the realities of political
speech to begin with, it is not surprising that we have firmly rejected it since Buckley. In Federal
Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480 (1985) [p.
XXX], we cast aside the argument that a contribution does not represent the constitutionally
protected speech of a contributor, recognizing “that the contributors obviously like the message
they are hearing from these organizations and want to add their voices to that message; otherwise
they would not part with their money.” Though in that case we considered limitations on
expenditures made by associations, our holding that the speech-by-proxy argument fails to
diminish contributors’ First Amendment rights is directly applicable to this case. In both cases,
donors seek to disseminate information by giving to an organization controlled by others.
Through contributing, citizens see to it that their views on policy and politics are articulated. In
short, “they are aware that however great the confidence they may justly feel in their own good
sense, their interests can be more effectually promoted by [another] than by themselves.” The
Federalist No. 35, p. 214 (C. Rossiter ed. 1961) (A. Hamilton).
 61

Without the assistance of the speech-by-proxy argument, the remainder of

Buckley’s rationales founder. Those rationales—that the “quantity of communication by the
contributor does not increase perceptibly with the size of his contribution,” that “the size of the
contribution provides a very rough index of the intensity of the contributor’s support for the
candidate,” and that “[a] contribution serves as a general expression of support for the candidate
and his views, but does not communicate the underlying basis for the support”—still rest on the
proposition that speech by proxy is not fully protected. These contentions simply ignore that a
contribution, by amplifying the voice of the candidate, helps to ensure the dissemination of the
messages that the contributor wishes to convey. Absent the ability to rest on the denigration of
contributions as mere “proxy speech,” the arguments fall apart.3
The decision of individuals to speak through contributions rather than through independent
expenditures is entirely reasonable.4 Political campaigns are largely candidate focused and
candidate driven. Citizens recognize that the best advocate for a candidate (and the policy
positions he supports) tends to be the candidate himself. And candidate organizations also offer
other advantages to citizens wishing to partake in political expression. Campaign organizations
offer a ready-built, convenient means of communicating for donors wishing to support and
amplify political messages. Furthermore, the leader of the organization—the candidate—has a
strong self-interest in efficiently expending funds in a manner that maximizes the power of the
messages the contributor seeks to disseminate. Individual citizens understandably realize that
they “may add more to political discourse by giving rather than spending, if the donee is able to
put the funds to more productive use than can the individual.” Colorado Republican, 518 U.S., at
636 (THOMAS, J., concurring in judgment and dissenting in part). * * *5
In the end, Buckley’s claim that contribution limits “d[o] not in any way infringe the
contributor’s freedom to discuss candidates and issues,” ignores the distinct role of candidate

3
If one were to accept the speech-by-proxy point and consider a contribution a mere symbolic gesture,
Buckley’s auxiliary arguments still falter. The claim that a large contribution receives less protection because it only
expresses the “intensity of the contributor’s support for the candidate,” fails under our jurisprudence because we
have accorded full First Amendment protection to expressions of intensity. See Cohen v. California, 403 U.S. 15,
25-26 (1971) (protecting the use of an obscenity to stress a point). Equally unavailing is the claim that a contribution
warrants less protection because it “does not communicate the underlying basis for the support.” We regularly hold
that speech is protected when the underlying basis for a position is not given. See, e.g., City of Ladue v. Gilleo, 512
U.S. 43, 46 (1994) (sign reading “For Peace in the Gulf”); Tinker v. Des Moines Independent Community School
Dist., 393 U.S. 503 (1969) (black armband signifying opposition to Vietnam war). * * *
4
JUSTICE STEVENS asserts that “[m]oney is property; it is not speech,” and contends that there is no First Amendment
right “to hire mercenaries” and “to hire gladiators.” These propositions are directly contradicted by many of our
precedents. For example, in Meyer v. Grant, 486 U.S. 414 (1988) [p. XXX] (opinion of the Court by STEVENS, J.),
* * * [we] held that “[a state ban on payments to] petition circulators restricts political expression” by “limit[ing] the
number of voices who will convey appellees’ message and the hours they can speak and, therefore, limits the size of
the audience they can reach.” In short, the Court held that the First Amendment protects the right to pay others to
help get a message out. In other cases, this Court extended such protection, holding that the First Amendment
prohibits laws that do not ban, but instead only regulate, the terms upon which so-called mercenaries and gladiators
are retained. See Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781 (1988) (holding that the First
Amendment prohibits state restriction on the amount a charity may pay a professional fundraiser). * * *
5
Even if contributions to a candidate were not the most effective means of speaking—and contribution caps left
political speech “significantly unimpaired”—an individual’s choice of that mode of expression would still be
protected. “The First Amendment protects [individuals’] right not only to advocate their cause but also to select
what they believe to be the most effective means for so doing.” Meyer, supra, at 424, (opinion of the Court by
STEVENS, J.). See also Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 488 (1997) (SOUTER, J.,
dissenting) (noting a “First Amendment interest in touting [one’s] wares as he sees fit”).
62

organizations as a means of individual participation in the Nation’s civic dialogue. 6 The result is
simply the suppression of political speech. By depriving donors of their right to speak through
the candidate, contribution limits relegate donors’ points of view to less effective modes of
communication. Additionally, limiting contributions curtails individual participation. “Even for
the affluent, the added costs in money or time of taking out a newspaper advertisement, handing
out leaflets on the street, or standing in front of one’s house with a hand-held sign may make the
difference between participating and not participating in some public debate.” Buckley
completely failed in its attempt to provide a basis for permitting government to second-guess the
individual choices of citizens partaking in quintessentially democratic activities. “The First
Amendment mandates that we presume that speakers, not the government, know best both what
they want to say and how to say it.”

B
The Court in Buckley denigrated the speech interests not only of contributors, but also of
candidates * * * [by] abstract[ing] from a candidate’s individual right to speak and focus[ing]
exclusively on aggregate campaign funding.
The Court’s flawed and unsupported aggregate approach ignores both the rights and value of
individual candidates. * * * [T]he right to free speech is a right held by each American, not
by Americans en masse. The Court in Buckley provided no basis for suppressing the speech of an
individual candidate simply because other candidates (or candidates in the aggregate) may
succeed in reaching the voting public. And any such reasoning would fly in the face of the
premise of our political system—liberty vested in individual hands safeguards the functioning of
our democracy. In the case at hand, the Missouri scheme has a clear and detrimental effect on a
candidate such as respondent Fredman, who lacks the advantages of incumbency, name
recognition, or substantial personal wealth, but who has managed to attract the support of a
relatively small number of dedicated supporters: It forbids his message from reaching the voters.
And the silencing of a candidate has consequences for political debate and competition overall.
See Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666, 692, n.14 (1998) [p.
XXX] (STEVENS, J., dissenting) (noting that the suppression of a minor candidate’s speech may
directly affect the outcome of an election).
In my view, the Constitution leaves it entirely up to citizens and candidates to determine who
shall speak, the means they will use, and the amount of speech sufficient to inform and
persuade. Buckley’s ratification of the government’s attempt to wrest this fundamental right from
citizens was error.

III
Today, the majority blindly adopts Buckley’s flawed reasoning without so much as pausing to
consider the collapse of the speech-by-proxy argument or the reality that Buckley’s remaining
premises fall when deprived of that support.

6
Buckley’s approach to associational freedom is also unsound. In defense of its decision, the Court
in Buckley explained that contribution limits “leave the contributor free to become a member of any political
association and to assist personally in the association’s efforts on behalf of candidates.” In essence, the Court
accepted contribution limits because alternative channels of association remained open. This justification, however,
is peculiar because we have rejected the notion that a law will pass First Amendment muster simply because it
leaves open other opportunities. Spence v. Washington, 418 U.S. 405, 411, n.4 (1974) (Although a prohibition’s
effect may be “minuscule and trifling,” a person “is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some other place.” * * *
 63

After ignoring these shortcomings, the Court proceeds to apply something less—much less—
than strict scrutiny. Just how much less the majority never says. The Court in Buckley at least
purported to employ a test of “closest scrutiny.” The Court’s words were belied by its actions,
however, and it never deployed the test in the fashion that the superlative instructs. * * * The
Court today abandons even that pretense and reviews contributions under the sui generis
“Buckley’s standard of scrutiny,” which fails to obscure the Court’s ad hoc balancing away of
First Amendment rights. Apart from its endorsement of Buckley’s rejection of the intermediate
standards of review used to evaluate expressive conduct and time, place, and manner
restrictions, the Court makes no effort to justify its deviation from the tests we traditionally
employ in free speech cases. * * *
Unfortunately, the majority does not stop with a revision of Buckley’s labels. After hiding
behind Buckley’s discredited reasoning and invoking “Buckley’s standard of scrutiny,” the Court
proceeds to significantly extend the holding in that case. The Court’s substantive departure
from Buckley begins with a revision of our compelling-interest jurisprudence. In Buckley, the
Court indicated that the only interest that could qualify as “compelling” in this area was the
government’s interest in reducing actual and apparent corruption. And the Court repeatedly used
the word “corruption” in the narrow quid pro quo sense, meaning “[p]erversion or destruction of
integrity in the discharge of public duties by bribery or favour.” 3 Oxford English Dictionary 974
(2d ed. 1989). See also Webster’s Third New International Dictionary 512 (1976) (“inducement
(as of a political official) by means of improper considerations (as bribery) to commit a violation
of duty”). When the Court set forth the interest in preventing actual corruption, it spoke about
“large contributions . . . given to secure a political quid pro quo from current and potential office
holders.” The Court used similar language when it set forth the interest in protecting against the
appearance of corruption: “Of almost equal concern as the danger of actual quid pro
quo arrangements is the impact of the appearance of corruption stemming from public awareness
of the opportunities for abuse inherent in a regime of large individual financial contributions.”
Later, in discussing limits on independent expenditures, the Court yet again referred to the
interest in protecting against the “dangers of actual or apparent quid pro quo arrangements.” To
be sure, after mentioning quid pro quo transactions, the Court went on to use more general terms
such as “opportunities for abuse,” “potential for abuse,” “improper influence,” “attempts . . . to
influence,” and “buy[ing] influence.” But this general language acquires concrete meaning only
in light of the preceding specific references to quid pro quo arrangements.
Almost a decade after Buckley, we reiterated that “corruption” has a narrow meaning with
respect to contribution limitations on individuals:
“Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their
obligations of office by the prospect of financial gain to themselves or infusions of money into their
campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political
favors.” [NCPAC], 470 U.S., at 497. * * *

The majority today, by contrast, separates “corruption” from its quid pro quo roots and gives
it a new, far-reaching (and speech-suppressing) definition, something like “[t]he perversion of
anything from an original state of purity.” 3 Oxford English Dictionary, supra, at 974. * * * And
the Court proceeds to define that state of purity, casting aspersions on “politicians too compliant
with the wishes of large contributors.” “But precisely what the ‘corruption’ may consist of we
are never told with assurance.” Presumably, the majority does not mean that politicians should be
64

free of attachments to constituent groups.9 And the majority does not explicitly rely upon the
“harm” that the Court in Buckley rejected out of hand, namely, that speech could be regulated to
equalize the voices of citizens. Instead, without bothering to offer any elaboration, much less
justification, the majority permits vague and unenumerated harms to suffice as a compelling
reason for the government to smother political speech.
In refashioning Buckley, the Court then goes on to weaken the requisite precision in tailoring,
while at the same time representing that its fiat “do[es] not relax Buckley’s standard.” The fact is
that the majority ratifies a law with a much broader sweep than that approved in Buckley. In
Buckley, the Court upheld contribution limits of $1,000 on individuals and $5,000 on political
committees (in 1976 dollars). Here, by contrast, the Court approves much more restrictive
contribution limitations, ranging from $250 to $1,000 (in 1995 dollars) for both individuals and
political committees. The disparity between Missouri’s caps and those upheld in Buckley is more
pronounced when one takes into account some measure of inflation [which has reduced the
purchasing power of a dollar by two-thirds since 1976]. Yet the Court’s opinion gives not a
single indication that the two laws may differ in their tailoring. The Court fails to pay any regard
to the drastically lower level of the limits here, fails to explain why political committees should
be subjected to the same limits as individuals, and fails to explain why caps that vary with the
size of political districts are tailored to corruption. I cannot fathom how a $251 contribution
could pose a substantial risk of “secur[ing] a political quid pro quo.” Thus, contribution caps set
at such levels could never be “closely drawn,” to preventing quid pro quo corruption. The
majority itself undertakes no such defense.
The Court * * * persuad[es] itself that Missouri’s limits do not suppress political speech
because, prior to the enactment of contribution limits, “97.62 percent of all contributors to
candidates for state auditor made contributions of $2,000 or less.” But this statistical anecdote
offers the Court no refuge and the citizenry no comfort. As an initial matter, the statistic provides
no assurance that Missouri’s law has not reduced the resources supporting political speech, since
the largest contributors provide a disproportionate amount of funds. * * * If the majority’s
assumption is incorrect—i.e., if Missouri’s contribution limits actually do significantly reduce
campaign speech—then the majority’s calm assurance that political speech remains unaffected
collapses. If the majority’s assumption is correct—i.e., if large contributions provide very little
assistance to a candidate seeking to get out his message (and thus will not be missed when
capped)—then the majority’s reasoning still falters. For if large contributions offer as little help
to a candidate as the Court maintains, then the Court fails to explain why a candidate would
engage in “corruption” for such a meager benefit. The majority’s statistical claim directly

9
The Framers, of course, thought such attachments inevitable in a free society and that faction would infest the
political process. As to controlling faction, James Madison explained, “There are again two methods of removing
the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to
every citizen the same opinions, the same passions, and the same interests.” The Federalist No. 10, p.78 (C. Rossiter
ed. 1961). Contribution caps are an example of the first method, which Madison contemptuously dismissed:
“It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction
what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty,
which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which
is essential to animal life, because it imparts to fire its destructive agency.” Ibid. The Framers preferred a political
system that harnessed such faction for good, preserving liberty while also ensuring good government. Rather than
adopting the repressive “cure” for faction that the majority today endorses, the Framers armed individual citizens
with a remedy. “If a faction consists of less than a majority, relief is supplied by the republican principle, which
enables the majority to defeat its sinister views by regular vote.” Id., at 80.
 65

undercuts its constitutional defense that large contributions pose a substantial risk of
corruption.10
Given the majority’s ill-advised and illiberal aggregate rights approach, it is unsurprising that
the Court’s pro forma hunt for suppressed speech proves futile. Such will always be the case, for
courts have no yardstick by which to judge the proper amount and effectiveness of campaign
speech. See, e.g., Smith, Faulty Assumptions and Undemocratic Consequences of Campaign
Finance Reform, 105 Yale L.J. 1049, 1061 (1996). I, however, would not fret about such matters.
The First Amendment vests choices about the proper amount and effectiveness of political
advocacy not in the government—whether in the legislatures or the courts—but in the people.

IV
In light of the importance of political speech to republican government, Missouri’s
substantial restriction of speech warrants strict scrutiny, which requires that contribution limits
be narrowly tailored to a compelling governmental interest. * * *
Missouri does assert that its contribution caps are aimed at preventing actual and apparent
corruption. As we have noted, “preventing corruption or the appearance of corruption are the
only legitimate and compelling government interests thus far identified for restricting campaign
finances.” [NCPAC], 470 U.S., at 496-497. But the State’s contribution limits are not narrowly
tailored to that harm. The limits directly suppress the political speech of both contributors and
candidates, and only clumsily further the governmental interests that they allegedly serve. They
are crudely tailored because they are massively overinclusive, prohibiting all donors who wish to
contribute in excess of the cap from doing so and restricting donations without regard to whether
the donors pose any real corruption risk. * * * Moreover, the government has less restrictive
means of addressing its interest in curtailing corruption. Bribery laws bar precisely the quid pro
quo arrangements that are targeted here. And disclosure laws “deter actual corruption and avoid
the appearance of corruption by exposing large contributions and expenditures to the light of
publicity.” * * *
In the end, contribution limitations find support only in the proposition that other means will
not be as effective at rooting out corruption. But when it comes to a significant infringement on
our fundamental liberties, that some undesirable conduct may not be deterred is an insufficient
justification to sweep in vast amounts of protected political speech. * * *
* * * States are free to enact laws that directly punish those engaged in corruption and
require the disclosure of large contributions, but they are not free to enact generalized laws that
suppress a tremendous amount of protected speech along with the targeted corruption. * * *

10
The majority’s statistical analysis also overlooks the quantitative data in the record that directly undercut its
position that Missouri’s law does not create “a system of suppressed political advocacy.” For example, the Court
does not bother to note that following the imposition of contribution limits, total combined spending during primary
and general elections for five statewide offices was cut by over half, falling from $21,599,000 to $9,337,000.
Significantly, total primary election expenditures in each of the races decreased. In fact, after contribution limits
were imposed, overall spending in statewide primary elections plummeted 89 percent, falling from $14,249,000 to
$1,625,000. Most importantly, the majority does not bother to mention that before spending caps were enacted each
of the 10 statewide primary elections was contested, with two to four candidates vying for every nomination in
1992. After caps were enacted, however, only 1 of the 10 primary elections was contested. Overall, the total number
of candidates participating in statewide primaries fell from 32 to 11. Even if these data do not conclusively show
that Missouri’s contribution limits diminish political speech (although it is undeniable that the data strongly suggest
such a result), they at least cast great doubt on the majority’s assumption that the picture is rosy.
66

Notes and Questions

1. Shrink PAC, as this decision is often called, is the first in a series of cases from the early
2000s reflecting an approach that Professor Hasen dubbed “the new deference.” Richard L.
Hasen, Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot
Measure Campaigns, 78 S. CAL. L. REV. 885, 886 (2005). These cases—Shrink PAC; Federal
Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), 533
U.S. 431 (2001) [p. XXX]; Federal Election Commission v. Beaumont, 539 U.S. 146 (2003) [p.
XXX]; and McConnell v. Federal Election Commission, 540 U.S. 93 (2003) [p. XXX]—are
marked by a high degree of deference to legislative judgment and expertise atypical of the
Court’s earlier campaign-finance decisions.
Consider the level the evidence that the Court found acceptable to justify Missouri’s
regulation in Shrink PAC: a handful of newspaper editorials, and affidavits submitted by
supporters of the legislation. The Court held that the quantity 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.” One scholar has argued that in Shrink PAC,
“since contribution limits do not seem to be narrowly tailored to the problem of eliminating
corruption, the Court simply lowered the bar.” J. Clark Kelso, Book Review, Mr. Smith Goes to
Washington, 1 ELEC. L.J. 75, 78 (2002). Do you think that the evidence described in the Court’s
opinion would have been sufficient to carry the government’s burden in Buckley, CARC, or
NCPAC? Should it be? Compare the Court’s approach to its approach in non-political-speech
cases, e.g., Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173, 188 (1999)
(“a governmental body seeking to sustain a restriction on commercial speech must demonstrate
that the harms it recites are real and that its restriction will in fact alleviate them to a material
degree”) (quoting Edenfield v. Fane, 507 U.S. 761, 768 (1993)); Rubin v. Coors Brewing Co.,
514 U.S. 476, 487 (1995) (“this requirement [is] critical”).
2. Shrink PAC was the first challenge to the size of a contribution limit to reach the
Supreme Court since Buckley. Missouri’s 1998 limit of $1075 was the equivalent of
approximately $355 in 1976, when Buckley was decided. Upholding contribution limits
generally, the Buckley court suggested that limits could nevertheless be unconstitutional if they
“prevented candidates and political committees from amassing the resources necessary for
effective advocacy.” How would a court decide when or if this point were reached? Is there a
realistic alternative to the posture of deference taken by the majority in Shrink PAC?
The majority relied on the District Court finding that “candidates for political office in the
state are still able to amass impressive campaign war chests.” The dissent focused specifically on
the plaintiff, Zev Fredman, and his inability to compete under the Missouri limits. Which is more
important to the First Amendment analysis—that most candidates can raise the funds needed to
compete, or that some candidates cannot?
3. Justice Breyer suggested that the Court “in practice” defers to the legislature where it has
“significantly greater institutional expertise, as, for example, in the field of election regulation.”
Is this true? Compare this to many of the cases that appear elsewhere in this book, cf., e.g.,
Reynolds v. Sims, 377 U.S. 533 (1964) [p. XXX] (population criteria for redistricting); Shaw v.
Reno, 509 U.S. 630 (1993) [p. XXX] (consideration of race in redistricting); Tashjian v.
Republican Party of Connecticut, 479 U.S. 208 (1986) [p. XXX] (closed primaries); California
Democratic Party v. Jones, 530 U.S. 567 (2000) [p. XXX] (blanket primaries); Timmons v. Twin
Cities Area New Party, 520 U.S. 351 (1997) [p. XXX] (party cross-endorsements); Meyer v.
Grant, 486 U.S. 414 (1988) [p. XXX] (gathering petition signatures); Williams v. Rhodes, 393
 67

U.S. 23 (1968) [p. XXX] (independent ballot access); Republican Party of Minnesota v. White,
536 U.S. 765 (2002) [p. XXX] (speech in judicial elections), or Buckley v. Valeo, 424 U.S. 1
(1976) [p. XXX] (independent expenditures in campaigns).
Justice Breyer did qualify his position by adding that deference has been accorded “at least
where that deference does not risk such constitutional evils as, say, permitting incumbents to
insulate themselves from effective electoral challenge.” See also Colorado Republican Federal
Campaign Committee v. Federal Election Commission, 518 U.S. 604, 644 n.9 (1996) [p. XXX]
(Thomas, J., concurring in the judgment and dissenting in part) (alleging that deference to
legislatures concerning campaign finance “amounts to letting the fox stand watch over the
henhouse”). Do the cases listed above, and others in this book where the Court has not deferred
to the legislature, hinge on incumbents insulating themselves from effective challenge? Or are
there other evils, and if so, which evils should qualify as triggering a higher level of scrutiny, i.e.,
less deference? In their separate Shrink PAC dissents, Justices Thomas and Kennedy both noted
that Zev Fredman needed to accept larger contributions because he lacked the advantages of
some other candidates, mainly incumbents. How is a Justice to tell, then, if a law allows
incumbents to insulate themselves from challenge? One way might be through increased reliance
on social-science research. See Richard L. Hasen, The Newer Incoherence: Competition, Social
Science, and Balancing in Campaign Finance Law after Randall v. Sorrell, 68 OHIO ST. L.J. 849
(2007). But does relying on social-science research merely put the judge exactly in the position
of second-guessing legislative judgments? For a response to Professor Hasen, see Bradley A.
Smith, The John Roberts Salvage Company: After McConnell, a New Court Looks to Repair the
Constitution, 68 OHIO ST. L.J. 891, 907-909 (2007).
4. In the next case, the Court, with Chief Justice Roberts and Justice Alito having replaced
Chief Justice Rehnquist and Justice O’Connor from the Shrink PAC majority, again faced the
challenge of determining when, if ever, a contribution limit can be too low to withstand
constitutional scrutiny. The Court was also asked to consider if spending limitations could be
constitutional.

RANDALL v. SORRELL
Supreme Court of the United States
548 U.S. 230, 126 S. Ct. 2479, 165 L. Ed. 2d 482 (2006)

JUSTICE BREYER announced the judgment of the Court and delivered an opinion, in which THE
CHIEF JUSTICE [ROBERTS] joins, and in which JUSTICE ALITO joins except as to Parts II-B-1 and II-B-
2.
We here consider the constitutionality of a Vermont campaign finance statute that limits both
(1) the amounts that candidates for state office may spend on their campaigns (expenditure
limitations) and (2) the amounts that individuals, organizations, and political parties may
contribute to those campaigns (contribution limitations). We hold that both sets of limitations are
inconsistent with the First Amendment. Well-established precedent makes clear that the
expenditure limits violate the First Amendment. Buckley v. Valeo, 424 U.S. 1, 54-58 (1976) [p.
XXX] (per curiam). The contribution limits are unconstitutional because in their specific details
(involving low maximum levels and other restrictions) they fail to satisfy the First Amendment’s
requirement of careful tailoring. Id. at 25-30. That is to say, they impose burdens upon First
Amendment interests that (when viewed in light of the statute’s legitimate objectives) are
disproportionately severe.
68

I***
In 1997, Vermont enacted a * * * campaign finance law, Pub. Act No. 64, codified at Vt.
Stat. Ann., Tit. 17, § 2801 et seq. (hereinafter Act or Act 64), the statute at issue here. Act 64,
which took effect immediately after the 1998 elections, imposes mandatory expenditure limits on
the total amount a candidate for state office can spend during a “two-year general election
cycle,” i.e., the primary plus the general election, in approximately the following amounts:
governor, $300,000; lieutenant governor, $100,000; other statewide offices, $45,000; state
senator, $4,000 (plus an additional $2,500 for each additional seat in the district); state
representative (two-member district), $3,000; and state representative (single member district),
$2,000. These limits are adjusted for inflation in odd-numbered years based on the Consumer
Price Index. Incumbents seeking reelection to statewide office may spend no more than 85% of
the above amounts, and incumbents seeking reelection to the State Senate or House may spend
no more than 90% of the above amounts. The Act defines “[e]xpenditure” broadly to mean the
“payment, disbursement, distribution, advance, deposit, loan or gift of money or anything of value, paid or
promised to be paid, for the purpose of influencing an election, advocating a position on a public question,
or supporting or opposing one or more candidates.”

With certain minor exceptions, expenditures over $50 made on a candidate’s behalf by others
count against the candidate’s expenditure limit if those expenditures are “intentionally facilitated
by, solicited by or approved by” the candidate’s campaign. These provisions apply so as to count
against a campaign’s expenditure limit any spending by political parties or committees that is
coordinated with the campaign and benefits the candidate. And any party expenditure that
“primarily benefits six or fewer candidates who are associated with the political party” is
“presumed” to be coordinated with the campaign and therefore to count against the campaign’s
expenditure limit.
Act 64 also imposes strict contribution limits. The amount any single individual can
contribute to the campaign of a candidate for state office during a “two-year general election
cycle” is limited as follows: governor, lieutenant governor, and other statewide offices, $400;
state senator, $300; and state representative, $200. Unlike its expenditure limits, Act 64’s
contribution limits are not indexed for inflation.
A political committee is subject to these same limits. So is a political party, defined broadly
to include “any subsidiary, branch or local unit” of a party, as well as any “national or regional
affiliates” of a party (taken separately or together). Thus, for example, the statute treats the local,
state, and national affiliates of the Democratic Party as if they were a single entity and limits
their total contribution to a single candidate’s campaign for governor (during the primary and the
general election together) to $400.
The Act also imposes a limit of $2,000 upon the amount any individual can give to a political
party during a 2-year general election cycle.
The Act defines “contribution” broadly in approximately the same way it defines
“expenditure.” Any expenditure made on a candidate’s behalf counts as a contribution to the
candidate if it is “intentionally facilitated by, solicited by or approved by” the candidate. And a
party expenditure that “primarily benefits six or fewer candidates who are associated with the”
party is “presumed” to count against the party’s contribution limits.
There are a few exceptions. A candidate’s own contributions to the campaign and those of
the candidate’s family fall outside the contribution limits. Volunteer services do not count as
 69

contributions. Nor does the cost of a meet-the-candidate function, provided that the total cost for
the function amounts to $100 or less. * * *
The petitioners are individuals who have run for state office in Vermont, citizens who vote in
Vermont elections and contribute to Vermont campaigns, and political parties and committees
that participate in Vermont politics. Soon after Act 64 became law, they brought this lawsuit in
Federal District Court against the respondents, state officials charged with enforcement of the
Act. * * *

II * * * B-1
The respondents recognize that, in respect to expenditure limits, Buckley appears to be a
controlling—and unfavorable—precedent. They seek to overcome that precedent in two ways.
First, they ask us in effect to overrule Buckley. Post-Buckley experience, they believe, has shown
that contribution limits (and disclosure requirements) alone cannot effectively deter corruption or
its appearance; hence experience has undermined an assumption underlying that case. * * *
Second, in the alternative, they ask us to limit the scope of Buckley significantly by
distinguishing Buckley from the present case. They advance as a ground for distinction a
justification for expenditure limitations that, they say, Buckley did not consider, namely, that
such limits help to protect candidates from spending too much time raising money rather than
devoting that time to campaigning among ordinary voters. We find neither argument persuasive.

2
* * * [T]he rule of law demands that adhering to our prior case law be the norm. Departure
from precedent is exceptional, and requires “special justification.” * * * This is especially true
where, as here, the principle has become settled through iteration and reiteration over a long
period of time.
We can find here no such special justification that would require us to overrule Buckley.
Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic
legal principles. * * * We cannot find in the respondents’ claims any demonstration that
circumstances have changed so radically as to undermine Buckley’s critical factual assumptions.
The respondents have not shown, for example, any dramatic increase in corruption or its
appearance in Vermont; nor have they shown that expenditure limits are the only way to attack
that problem. * * * At the same time, Buckley has promoted considerable reliance. Congress and
state legislatures have used Buckley when drafting campaign finance laws. And, as we have said,
this Court has followed Buckley, upholding and applying its reasoning in later cases. Overruling
Buckley now would dramatically undermine this reliance on our settled precedent.
For all these reasons, we find this a case that fits the stare decisis norm. And we do not
perceive the strong justification that would be necessary to warrant overruling so well
established a precedent. We consequently decline the respondents’ invitation to reconsider
Buckley.

3
The respondents also ask us to distinguish these cases from Buckley. But we can find no
significant basis for that distinction. Act 64’s expenditure limits are not substantially different
from those at issue in Buckley. In both instances the limits consist of a dollar cap imposed upon a
candidate’s expenditures. Nor is Vermont’s primary justification for imposing its expenditure
limits significantly different from Congress’ rationale for the Buckley limits: preventing
70

corruption and its appearance.

The sole basis on which the respondents seek to distinguish Buckley concerns a further
supporting justification. They argue that expenditure limits are necessary in order to reduce the
amount of time candidates must spend raising money. Increased campaign costs, together with
the fear of a better-funded opponent, mean that, without expenditure limits, a candidate must
spend too much time raising money instead of meeting the voters and engaging in public debate.
Buckley, the respondents add, did not fully consider this justification. Had it done so, they say,
the Court would have upheld, not struck down, FECA’s expenditure limits.
In our view, it is highly unlikely that fuller consideration of this time protection rationale
would have changed Buckley’s result. The Buckley Court was aware of the connection between
expenditure limits and a reduction in fundraising time. In a section of the opinion dealing with
FECA’s public financing provisions, it wrote that Congress was trying to “free candidates from
the rigors of fundraising.” * * * The Court of Appeals’ opinion and the briefs filed in this Court
pointed out that a natural consequence of higher campaign expenditures was that “candidates
were compelled to allow to fund raising increasing and extreme amounts of money and energy.”
And, in any event, the connection between high campaign expenditures and increased
fundraising demands seems perfectly obvious.
Under these circumstances, the respondents’ argument amounts to no more than an invitation
so to limit Buckley’s holding as effectively to overrule it. For the reasons set forth above, we
decline that invitation as well. And, given Buckley’s continued authority, we must conclude that
Act 64’s expenditure limits violate the First Amendment.

III
We turn now to a more complex question, namely, the constitutionality of Act 64’s
contribution limits. The parties, while accepting Buckley’s approach, dispute whether, despite
Buckley’s general approval of statutes that limit campaign contributions, Act 64’s contribution
limits are so severe that in the circumstances its particular limits violate the First Amendment.

A***
[In Buckley, the Court held that] contribution limitations are permissible as long as the
Government demonstrates that the limits are “closely drawn” to match a “sufficiently important
interest.” It found that the interest advanced in the case, “prevent[ing] corruption” and its
“appearance,” was “sufficiently important” to justify the statute’s contribution limits.
The Court also found that the contribution limits before it were “closely drawn.” It
recognized that, in determining whether a particular contribution limit was “closely drawn,” the
amount, or level, of that limit could make a difference. Indeed, it wrote that “contribution
restrictions could have a severe impact on political dialogue if the limitations prevented
candidates and political committees from amassing the resources necessary for effective
advocacy.” But the Court added that such “distinctions in degree become significant only when
they can be said to amount to differences in kind.” Pointing out that it had “no scalpel to probe,
whether, say, a $2,000 ceiling might not serve as well as $1,000,” the Court found “no
indication” that the $1,000 contribution limitations imposed by the Act would have “any
dramatic adverse effect on the funding of campaigns.” It therefore found the limitations
constitutional.
Since Buckley, the Court has consistently upheld contribution limits in other statutes. * * *
The Court has recognized, however, that contribution limits might sometimes work more harm to
 71

protected First Amendment interests than their anti-corruption objectives could justify. See
[Nixon v.] Shrink [Missouri Government PAC, 528 U.S. 377, 395-397 (2000)] [p. XXX];
Buckley, supra, at 21. And individual Members of the Court have expressed concern lest too low
a limit magnify the “reputation-related or media-related advantages of incumbency and thereby
insulat[e] legislators from effective electoral challenge.” Shrink, supra (BREYER, J., joined by
GINSBURG, J., concurring). In the cases before us, the petitioners challenge Act 64’s contribution
limits on that basis.

B
Following Buckley, we must determine whether Act 64’s contribution limits prevent
candidates from “amassing the resources necessary for effective [campaign] advocacy”; whether
they magnify the advantages of incumbency to the point where they put challengers to a
significant disadvantage; in a word, whether they are too low and too strict to survive First
Amendment scrutiny. In answering these questions, we recognize, as Buckley stated, that we
have “no scalpel to probe” each possible contribution level. We cannot determine with any
degree of exactitude the precise restriction necessary to carry out the statute’s legitimate
objectives. In practice, the legislature is better equipped to make such empirical judgments, as
legislators have “particular expertise” in matters related to the costs and nature of running for
office. McConnell [v. Federal Election Comm’n], 540 U.S. [93], 137 [(2003)] [p. XXX]. Thus
ordinarily we have deferred to the legislature’s determination of such matters.
Nonetheless, as Buckley acknowledged, we must recognize the existence of some lower
bound. At some point the constitutional risks to the democratic electoral process become too
great. After all, the interests underlying contribution limits, preventing corruption and the
appearance of corruption, “directly implicate the integrity of our electoral process.” McConnell,
supra, at 136. Yet that rationale does not simply mean “the lower the limit, the better.” That is
because contribution limits that are too low can also harm the electoral process by preventing
challengers from mounting effective campaigns against incumbent officeholders, thereby
reducing democratic accountability. Were we to ignore that fact, a statute that seeks to regulate
campaign contributions could itself prove an obstacle to the very electoral fairness it seeks to
promote. Thus, we see no alternative to the exercise of independent judicial judgment as a statute
reaches those outer limits. And, where there is strong indication in a particular case, i.e., danger
signs, that such risks exist (both present in kind and likely serious in degree), courts, including
appellate courts, must review the record independently and carefully with an eye toward
assessing the statute’s “tailoring,” that is, toward assessing the proportionality of the restrictions.
***
We find those danger signs present here. As compared with the contribution limits upheld by
the Court in the past, and with those in force in other States, Act 64’s limits are sufficiently low
as to generate suspicion that they are not closely drawn. The Act sets its limits per election cycle,
which includes both a primary and a general election. Thus, in a gubernatorial race with both
primary and final election contests, the Act’s contribution limit amounts to $200 per election per
candidate (with significantly lower limits for contributions to candidates for State Senate and
House of Representatives). These limits apply both to contributions from individuals and to
contributions from political parties, whether made in cash or in expenditures coordinated (or
presumed to be coordinated) with the candidate.
These limits are well below the limits this Court upheld in Buckley. Indeed, in terms of real
dollars (i.e., adjusting for inflation), the Act’s $200 per election limit on individual contributions
72

to a campaign for governor is slightly more than one-twentieth of the limit on contributions to
campaigns for federal office before the Court in Buckley. Adjusted to reflect its value in 1976
(the year Buckley was decided), Vermont’s contribution limit on campaigns for statewide office
(including governor) amounts to $113.91 per 2-year election cycle, or roughly $57 per election,
as compared to the $1,000 per election limit on individual contributions at issue in Buckley. (The
adjusted value of Act 64’s limit on contributions from political parties to candidates for statewide
office, again $200 per candidate per election, is just over one one-hundredth of the comparable
limit before the Court in Buckley, $5,000 per election.) Yet Vermont’s gubernatorial district—the
entire State—is no smaller than the House districts to which Buckley’s limits applied. In 1976,
the average congressional district contained a population of about 465,000. * * * Indeed,
Vermont’s population is 621,000—about one-third larger. * * *
Moreover, considered as a whole, Vermont’s contribution limits are the lowest in the Nation.
Act 64 limits contributions to candidates for statewide office (including governor) to $200 per
candidate per election. We have found no State that imposes a lower per election limit. Indeed,
we have found only seven States that impose limits on contributions to candidates for statewide
office at or below $500 per election, more than twice Act 64’s limit. * * * We are aware of no
State that imposes a limit on contributions from political parties to candidates for statewide
office lower than Act 64’s $200 per candidate per election limit. Similarly, we have found only
three States that have limits on contributions to candidates for state legislature below Act 64’s
$150 and $100 per election limits. And we are aware of no State that has a lower limit on
contributions from political parties to state legislative candidates.
Finally, Vermont’s limit is well below the lowest limit this Court has previously upheld, the
limit of $1,075 per election (adjusted for inflation every two years) for candidates for Missouri
state auditor. Shrink. The comparable Vermont limit of roughly $200 per election, not adjusted
for inflation, is less than one-sixth of Missouri’s current inflation-adjusted limit ($1,275).
We recognize that Vermont’s population is much smaller than Missouri’s. Indeed, Vermont
is about one-ninth of the size of Missouri. Thus, per citizen, Vermont’s limit is slightly more
generous. As of 2006, the ratio of the contribution limit to the size of the constituency in
Vermont is .00064, while Missouri’s ratio is .00044, 31% lower.
But this does not necessarily mean that Vermont’s limits are less objectionable than the limit
upheld in Shrink. A campaign for state auditor is likely to be less costly than a campaign for
governor; campaign costs do not automatically increase or decrease in precise proportion to the
size of an electoral district. Moreover, Vermont’s limits, unlike Missouri’s limits, apply in the
same amounts to contributions made by political parties. And, as we have said, Missouri’s
(current) $1,275 per election limit, unlike Vermont’s $200 per election limit, is indexed for
inflation.
The factors we have mentioned offset any neutralizing force of population differences. At the
very least, they make it difficult to treat Shrink’s (then) $1,075 limit as providing affirmative
support for the lawfulness of Vermont’s far lower levels. And even were that not so, Vermont’s
failure to index for inflation means that Vermont’s levels would soon be far lower than
Missouri’s regardless of the method of comparison.
In sum, Act 64’s contribution limits are substantially lower than both the limits we have
previously upheld and comparable limits in other States. These are danger signs that Act 64’s
contribution limits may fall outside tolerable First Amendment limits. We consequently must
examine the record independently and carefully to determine whether Act 64’s contribution
limits are “closely drawn” to match the State’s interests.
 73

C
Our examination of the record convinces us that, from a constitutional perspective, Act 64’s
contribution limits are too restrictive. We reach this conclusion based not merely on the low
dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on
volunteer activity in Vermont elections. Taken together, Act 64’s substantial restrictions on the
ability of candidates to raise the funds necessary to run a competitive election, on the ability of
political parties to help their candidates get elected, and on the ability of individual citizens to
volunteer their time to campaigns show that the Act is not closely drawn to meet its objectives.
In particular, five factors together lead us to this decision.
First, the record suggests, though it does not conclusively prove, that Act 64’s contribution
limits will significantly restrict the amount of funding available for challengers to run
competitive campaigns. For one thing, the petitioners’ expert, Clark Bensen, conducted a race-
by-race analysis of the 1998 legislative elections (the last to take place before Act 64 took effect)
and concluded that Act 64’s contribution limits would have reduced the funds available in 1998
to Republican challengers in competitive races in amounts ranging from 18% to 53% of their
total campaign income. * * *
For another thing, the petitioners’ expert witnesses produced evidence and analysis showing
that Vermont political parties (particularly the Republican Party) “target” their contributions to
candidates in competitive races, that those contributions represent a significant amount of total
candidate funding in such races, and that the contribution limits will cut the parties’ contributions
to competitive races dramatically. Their statistics showed that the party contributions accounted
for a significant percentage of the total campaign income in those races. And their studies
showed that Act 64’s contribution limits would cut the party contributions by between 85% (for
the legislature on average) and 99% (for governor).
More specifically, Bensen pointed out that in 1998, the Republican Party made contributions
to 19 Senate campaigns in amounts that averaged $2,001, which on average represented 16% of
the recipient campaign’s total income. Act 64 would reduce these contributions to $300 per
campaign, an average reduction of about 85%. The party contributed to 50 House campaigns in
amounts averaging $787, which on average represented 28% of the recipient campaign’s total
income. Act 64 would reduce these contributions to $200 per campaign, an average reduction of
74.5%. And the party contributed $40,600 to its gubernatorial candidate, an amount that
accounted for about 16% of the candidate’s funding. The Act would have reduced that
contribution by 99%, to $400.
Bensen added that 57% of all 1998 Senate campaigns and 30% of all House campaigns
exceeded Act 64’s expenditure limits, which were enacted along with the statute’s contribution
limits. Moreover, 27% of all Senate campaigns and 10% of all House campaigns spent more than
double those limits.
The respondents did not contest these figures. Rather, they presented evidence that focused,
not upon strongly contested campaigns, but upon the funding amounts available for the average
campaign. The respondents’ expert, Anthony Gierzynski, concluded, for example, that * * *
“only a small proportion of” all contributions to all campaigns for state office “made during the
last three elections would have been affected by the new limits.” * * *
The respondents’ evidence leaves the petitioners’ evidence unrebutted in certain key respects.
That is because the critical question concerns not simply the average effect of contribution limits
on fundraising but, more importantly, the ability of a candidate running against an incumbent
74

officeholder to mount an effective challenge. And information about average races, rather than
competitive races, is only distantly related to that question, because competitive races are likely
to be far more expensive than the average race. See, e.g., N. Ornstein, T. Mann, & M. Malbin,
Vital Statistics on Congress 2001-2002, pp 89-98 (2002). We concede that the record does
contain some anecdotal evidence supporting the respondents’ position, namely, testimony about
a post-Act-64 competitive mayoral campaign in Burlington, which suggests that a challenger can
“amas[s] the resources necessary for effective advocacy.” But the facts of that particular election
are not described in sufficient detail to offer a convincing refutation of the implication arising
from the petitioners’ experts’ studies.
Rather, the petitioners’ studies, taken together with low average Vermont campaign
expenditures and the typically higher costs that a challenger must bear to overcome the name-
recognition advantage enjoyed by an incumbent, raise a reasonable inference that the
contribution limits are so low that they may pose a significant obstacle to candidates in
competitive elections. Cf. Ornstein, supra, at 87-96 (In the 2000 U.S. House and Senate
elections, successful challengers spent far more than the average candidate). Information about
average races does not rebut that inference. Consequently, the inference amounts to one factor
(among others) that here counts against the constitutional validity of the contribution limits.
Second, Act 64’s insistence that political parties abide by exactly the same low contribution
limits that apply to other contributors threatens harm to a particularly important political right,
the right to associate in a political party. * * *
In addition to the negative effect on “amassing funds” that we have described, the Act would
severely limit the ability of a party to assist its candidates’ campaigns by engaging in coordinated
spending on advertising, candidate events, voter lists, mass mailings, even yard signs. And, to an
unusual degree, it would discourage those who wish to contribute small amounts of money to a
party, amounts that easily comply with individual contribution limits. Suppose that many
individuals do not know Vermont legislative candidates personally, but wish to contribute, say,
$20 or $40, to the State Republican Party, with the intent that the party use the money to help
elect whichever candidates the party believes would best advance its ideals and interests—the
basic object of a political party. Or, to take a more extreme example, imagine that 6,000 Vermont
citizens each want to give $1 to the State Democratic Party because, though unfamiliar with the
details of the individual races, they would like to make a small financial contribution to the goal
of electing a Democratic state legislature. And further imagine that the party believes control of
the legislature will depend on the outcome of three (and only three) House races. The Act
prohibits the party from giving $2,000 (of the $6,000) to each of its candidates in those pivotal
races. Indeed, it permits the party to give no more than $200 to each candidate, thereby thwarting
the aims of the 6,000 donors from making a meaningful contribution to state politics by giving a
small amount of money to the party they support. Thus, the Act would severely inhibit collective
political activity by preventing a political party from using contributions by small donors to
provide meaningful assistance to any individual candidate.
We recognize that we have previously upheld limits on contributions from political parties to
candidates, in particular the federal limits on coordinated party spending. Colorado II, 533 U.S.
431 [(2001)] [p. XXX]. And we also recognize that any such limit will negatively affect to some
extent the fund-allocating party function just described. But the contribution limits at issue in
Colorado II were far less problematic, for they were significantly higher than Act 64’s limits (at
least $67,560 in coordinated spending and $5,000 in direct cash contributions for U.S. Senate
candidates, at least $33,780 in coordinated spending and $5,000 in direct cash contributions for
 75

U.S. House candidates). And they were much higher than the federal limits on contributions
from individuals to candidates, thereby reflecting an effort by Congress to balance (1) the need to
allow individuals to participate in the political process by contributing to political parties that
help elect candidates with (2) the need to prevent the use of political parties “to circumvent
contribution limits that apply to individuals.” Act 64, by placing identical limits upon
contributions to candidates, whether made by an individual or by a political party, gives to the
former consideration no weight at all. * * *
Third, the Act’s treatment of volunteer services aggravates the problem. Like its federal
statutory counterpart, the Act excludes from its definition of “contribution” all “services
provided without compensation by individuals volunteering their time on behalf of a candidate.”
But the Act does not exclude the expenses those volunteers incur, such as travel expenses, in the
course of campaign activities. The Act’s broad definitions would seem to count those expenses
against the volunteer’s contribution limit, at least where the spending was facilitated or approved
by campaign officials. And, unlike the Federal Government’s treatment of comparable
requirements, the State has not (insofar as we are aware) created an exception excluding such
expenses. * * *
The absence of some such exception may matter in the present context, where contribution
limits are very low. That combination, low limits and no exceptions, means that a gubernatorial
campaign volunteer who makes four or five round trips driving across the State performing
volunteer activities coordinated with the campaign can find that he or she is near, or has
surpassed, the contribution limit. So too will a volunteer who offers a campaign the use of her
house along with coffee and doughnuts for a few dozen neighbors to meet the candidate, say, two
or three times during a campaign. Such supporters will have to keep careful track of all miles
driven, postage supplied (500 stamps equals $200), pencils and pads used, and so forth. And any
carelessness in this respect can prove costly, perhaps generating a headline, “Campaign laws
violated,” that works serious harm to the candidate.
These sorts of problems are unlikely to affect the constitutionality of a limit that is
reasonably high. * * * But Act 64’s contribution limits are so low, and its definition of
“contribution” so broad, that the Act may well impede a campaign’s ability effectively to use
volunteers, thereby making it more difficult for individuals to associate in this way. * * * Again,
the very low limits at issue help to transform differences in degree into difference in kind. And
the likelihood of unjustified interference in the present context is sufficiently great that we must
consider the lack of tailoring in the Act’s definition of “contribution” as an added factor counting
against the constitutional validity of the contribution limits before us.
Fourth, unlike the contribution limits we upheld in Shrink, Act 64’s contribution limits are
not adjusted for inflation. Its limits decline in real value each year. Indeed, in real dollars the
Act’s limits have already declined by about 20% ($200 in 2006 dollars has a real value of
$160.66 in 1997 dollars). A failure to index limits means that limits which are already
suspiciously low will almost inevitably become too low over time. It means that future
legislation will be necessary to stop that almost inevitable decline, and it thereby imposes the
burden of preventing the decline upon incumbent legislators who may not diligently police the
need for changes in limit levels to ensure the adequate financing of electoral challenges.
Fifth, we have found nowhere in the record any special justification that might warrant a
contribution limit so low or so restrictive as to bring about the serious associational and
expressive problems that we have described. * * * The record contains no indication that, for
example, corruption (or its appearance) in Vermont is significantly more serious a matter than
76

elsewhere. * * *
These five sets of considerations, taken together, lead us to conclude that Act 64’s
contribution limits are not narrowly tailored. * * *

IV
We conclude that Act 64’s expenditure limits violate the First Amendment as interpreted in
Buckley v. Valeo. We also conclude that the specific details of Act 64’s contribution limits
require us to hold that those limits violate the First Amendment, for they burden First
Amendment interests in a manner that is disproportionate to the public purposes they were
enacted to advance. * * *
[Reversed and remanded.]

JUSTICE ALITO, concurring in part and concurring in the judgment.

* * * [R]espondents’ primary defense of Vermont’s expenditure limits is that those limits are
consistent with Buckley v. Valeo. Only as a backup argument, an afterthought almost, do
respondents make a naked plea for us to “revisit Buckley.” * * *
Whether or not a case can be made for reexamining Buckley in whole or in part, what matters
is that respondents do not do so here, and so I think it unnecessary to reach the issue.

JUSTICE KENNEDY, concurring in the judgment. * * *

The parties neither ask the Court to overrule Buckley in full nor challenge the level of
scrutiny that decision applies to campaign contributions. The exacting scrutiny the plurality
applies to expenditure limitations, however, is appropriate. For the reasons explained in the
plurality opinion, respondents’ attempts to distinguish the present limitations from those we have
invalidated are unavailing. * * * Vermont’s contribution[] [limits], as the plurality’s detailed
analysis indicates, are even more stifling than the ones that survived Shrink’s unduly lenient
review. * * *
Viewed within the legal universe we have ratified and helped create, the result the plurality
reaches is correct; given my own skepticism regarding that system and its operation, however, it
seems to me appropriate to concur only in the judgment.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment. * * *
I continue to believe that Buckley provides insufficient protection to political speech, the core
of the First Amendment. The illegitimacy of Buckley is further underscored by the continuing
inability of the Court (and the plurality here) to apply Buckley in a coherent and principled
fashion. As a result, stare decisis should pose no bar to overruling Buckley and replacing it with
a standard faithful to the First Amendment. Accordingly, I concur only in the judgment. * * *

JUSTICE STEVENS, dissenting. * * *

I am convinced that Buckley’s holding on expenditure limits is wrong, and that the time has
come to overrule it. * * * [S]everal factors, taken together, provide special justification for
revisiting the constitutionality of statutory limits on candidate expenditures.
To begin with, Buckley’s holding on expenditure limits itself upset a long-established
practice. For the preceding 65 years, congressional races had been subject to statutory limits on
both expenditures and contributions. * * * [O]ur earlier jurisprudence provided solid support for
treating these limits as permissible regulations of conduct rather than speech. * * * While
 77

Buckley’s holding on contribution limits was consistent with this backdrop, its holding on
expenditure limits “involve[d] collision with a prior doctrine more embracing in its scope,
intrinsically sounder, and verified by experience.”
There are further reasons for reexamining Buckley’s holding on candidate expenditure limits
that do not apply to its holding on candidate contribution limits. Although we have subsequently
reiterated the line Buckley drew between these two types of limits, we have done so primarily in
cases affirming the validity of contribution limits or their functional equivalents. * * * In
contrast, these are our first post-Buckley cases that raise the constitutionality of expenditure
limits on the amounts that candidates for office may spend on their own campaigns.
Accordingly, while we have explicitly recognized the importance of stare decisis in the
context of Buckley’s holding on contribution limits, McConnell, 540 U.S., at 137-138, we have
never before done so with regard to its rejection of expenditure limits. And McConnell’s
recognition rested largely on an interest specific to Buckley’s holding on contribution limits.
There, we stated that “[c]onsiderations of stare decisis, buttressed by the respect that the
Legislative and Judicial Branches owe to one another, provide additional powerful reasons for
adhering to the analysis of contribution limits that the Court has consistently followed since
Buckley was decided.” This powerful buttress is absent from Buckley’s refusal to defer to the
Legislature’s judgment as to the importance of expenditure limits. Relatedly, while Congress and
state legislatures have long relied on Buckley’s authorization of contribution limits, Buckley’s
rejection of expenditure limits “has not induced [comparable] detrimental reliance.” * * *
[I]t is quite wrong to equate money and speech. To the contrary: “* * * [R]estrictions [on
spending money], to the extent they do affect speech, are viewpoint-neutral and indicate no
hostility to the speech itself or its effects.” [Federal Election Comm’n v.] National Conservative
Political Action Comm., 470 U.S. [480], 508-509 [(1985)] [p. XXX] (White, J., dissenting).
Accordingly, these limits on expenditures are far more akin to time, place, and manner
restrictions than to restrictions on the content of speech. Like Justice White, I would uphold them
“so long as the purposes they serve are legitimate and sufficiently substantial.”
Buckley’s conclusion to the contrary relied on the following oft-quoted metaphor: “Being
free to engage in unlimited political expression subject to a ceiling on expenditures is like being
free to drive an automobile as far and as often as one desires on a single tank of gasoline.”
But, of course, while a car cannot run without fuel, a candidate can speak without spending
money. And while a car can only travel so many miles per gallon, there is no limit on the number
of speeches or interviews a candidate may give on a limited budget. Moreover, provided that this
budget is above a certain threshold, a candidate can exercise due care to ensure that her message
reaches all voters. Just as a driver need not use a Hummer to reach her destination, so a candidate
need not flood the airways with ceaseless sound-bites of trivial information in order to provide
voters with reasons to support her.
Indeed, the examples of effective speech in the political arena that did not depend on any
significant expenditure by the campaigner are legion. It was the content of William Jennings
Bryan’s comments on the “Cross of Gold”—and William McKinley’s responses delivered from
his front porch in Canton, Ohio—rather than any expenditure of money that appealed to their
cost-free audiences. Neither Abraham Lincoln nor John F. Kennedy paid for the opportunity to
engage in the debates with Stephen Douglas and Richard Nixon that may well have determined
the outcomes of Presidential elections. When the seasoned campaigners who were Members of
the Congress that endorsed the expenditure limits in the Federal Election Campaign Act
Amendments of 1974 concluded that a modest budget would not preclude them from effectively
78

communicating with the electorate, they necessarily rejected the Buckley metaphor.
These campaigners also identified significant government interests favoring the imposition of
expenditure limits. Not only do these limits serve as an important complement to corruption-
reducing contribution limits, * * * but they also “protect equal access to the political arena, [and]
free candidates and their staffs from the interminable burden of fundraising.” Colorado
Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604, 649-650
(1996) [p. XXX] (STEVENS, J., dissenting). These last two interests are particularly acute. When
campaign costs are so high that only the rich have the reach to throw their hats into the ring, we
fail “to protect the political process from undue influence of large aggregations of capital and to
promote individual responsibility for democratic government.” Automobile Workers, 352 U.S.
[567], 590 [(1957)] [p. XXX]. States have recognized this problem, but Buckley’s perceived ban
on expenditure limits severely limits their options in dealing with it.
The interest in freeing candidates from the fundraising straitjacket is even more compelling.
Without expenditure limits, fundraising devours the time and attention of political leaders,
leaving them too busy to handle their public responsibilities effectively. That fact * * * has
surely been confirmed by the mountains of evidence that has been accumulated in recent years
concerning the time that elected officials spend raising money for future campaigns and the
adverse effect of fundraising on the performance of their official duties.
Additionally, there is no convincing evidence that these important interests favoring
expenditure limits are fronts for incumbency protection. Buckley’s cursory suggestion to the
contrary failed to take into account the mixed evidence before it on this issue. * * * And only by
“permit[ting] States nationwide to experiment with these critically needed reforms”—as 18
States urge us to do—will we enable further research on how expenditure limits relate to our
incumbent reelection rates.4 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—rather
than the quality or the content—of repetitive speech in the marketplace of ideas. * * *

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, and with whom JUSTICE STEVENS joins as to
Parts II and III, dissenting.

I***
We said in Buckley that “expenditure limitations impose far greater restraints on the freedom
of speech and association than do . . . contribution limitations,” but the Buckley Court did not
categorically foreclose the possibility that some spending limit might comport with the First
Amendment. Instead, Buckley held that the constitutionality of an expenditure limitation “turns
on whether the governmental interests advanced in its support satisfy the [applicable] exacting
4
Indeed, the example of the city of Albuquerque suggests that concerns about incumbent entrenchment are
unfounded. In 1974, the city set expenditure limits on municipal elections. A 2-year interlude aside, these limits
applied until 2001, when they were successfully challenged by municipal candidates. * * * [While] “[n]ationwide,
eighty-eight percent (88%) of incumbent Mayors successfully sought reelection in 1999 * * *, since 1974, the City
has had a zero percent (0%) success rate for Mayors seeking reelection.” * * * While far from conclusive, this
example cuts against the view that there is a slam-dunk correlation between expenditure limits and incumbent
advantage. See also Brief for Center for Democracy and Election Management at American University as Amicus
Curiae (concluding that Canada, the United Kingdom, New Zealand, and Malta—all of which have campaign
expenditure limits—have more electoral competition than the United States, Jamaica, Ireland, and Australia—all of
which lack such limits).
 79

scrutiny.” In applying that standard in Buckley itself, the Court gave no indication that it had
given serious consideration to an aim that Vermont’s statute now pursues: to alleviate the drain
on candidates’ and officials’ time caused by the endless fundraising necessary to aggregate many
small contributions to meet the opportunities for ever more expensive campaigning. * * *
The legislature’s findings are surely significant enough to justify the Court of Appeals’s
remand to the District Court to decide whether Vermont’s spending limits are the least restrictive
means of accomplishing what the court unexceptionably found to be worthy objectives. * * *

II
Although I would defer judgment on the merits of the expenditure limitations, I believe the
Court of Appeals correctly rejected the challenge to the contribution limits. Low though they are,
one cannot say that “the contribution limitation[s are] so radical in effect as to render political
association ineffective, drive the sound of a candidate’s voice below the level of notice, and
render contributions pointless.” Shrink, 528 U.S., [at] 397.
The limits set by Vermont are not remarkable departures either from those previously upheld
by this Court or from those lately adopted by other States. The plurality concedes that on a per-
citizen measurement Vermont’s limit for statewide elections “is slightly more generous” than the
one set by the Missouri statute approved by this Court in Shrink. Not only do those dollar
amounts get more generous the smaller the district, they are consistent with limits set by the
legislatures of many other States, all of them with populations larger than Vermont’s, some
significantly so. The point is not that this Court is bound by judicial sanctions of those numbers;
it is that the consistency in legislative judgment tells us that Vermont is not an eccentric party of
one, and that this is a case for the judicial deference that our own precedents say we owe here.
***
To place Vermont’s contribution limits beyond the constitutional pale, therefore, is to forget
not only the facts of Shrink, but also our self-admonition against second-guessing legislative
judgments about the risk of corruption to which contribution limits have to be fitted. And
deference here would surely not be overly complaisant. Vermont’s legislators themselves
testified at length about the money that gets their special attention, see Act 64, H. 28, Legislative
Findings and Intent (finding that “[s]ome candidates and elected officials, particularly when time
is limited, respond and give access to contributors who make large contributions in preference to
those who make small or no contributions”); testimony of Elizabeth Ready: “If I have only got
an hour at night when I get home to return calls, I am much more likely to return [a donor’s] call
than I would [a non-donor’s] . . . . [W]hen you only have a few minutes to talk, there are certain
people that get access.” * * * And testimony identified the amounts high enough to pay for
effective campaigning in a State where the cost of running tends to be on the low side, see
[Landell v. Sorrell, 118 F. Supp. 2d 459, 472 (Vt. 2000)] (“Vermont ranks 49th out of the 50
states in campaign spending. The majority of major party candidates for statewide office in the
last three election cycles spent less than what the spending limits of Act 64 would allow. * * *”).
Still, our cases do not say deference should be absolute. We can all imagine dollar limits that
would be laughable, and per capita comparisons that would be meaningless because aggregated
donations simply could not sustain effective campaigns. The plurality thinks that point has been
reached in Vermont, and in particular that the low contribution limits threaten the ability of
challengers to run effective races against incumbents. * * * [But t]he petitioners offered, and the
plurality invokes, no evidence that the risk of a pro-incumbent advantage has been realized; in
fact, * * * the experience of the Burlington race [where, the plurality concedes, a mayoral
80

challenger was able to run a competitive campaign] is confirmed by recent empirical studies
addressing this issue of incumbent’s advantage. See, e.g., Eom & Gross, Contribution Limits and
Disparity in Contributions Between Gubernatorial Candidates, 59 Pol. Research Q. 99 (2006)
(“Analyses of both the number of contributors and the dollar amount of contributions [to
gubernatorial candidates] suggest no support for an increased bias in favor of incumbents
resulting from the presence of campaign contribution limits. If anything, contribution limits can
work to reduce the bias that traditionally works in favor of incumbents. Also, contribution limits
do not seem to increase disparities between gubernatorial candidates in general”); Bardwell,
Money and Challenger Emergence in Gubernatorial Primaries, 55 Pol. Research Q. 653 (2002)
(finding that contribution limits favor neither incumbents nor challengers); Hogan, The Costs of
Representation in State Legislatures: Explaining Variations in Campaign Spending, 81 Soc. Sci.
Q. 941, 952 (2000) (finding that contribution limits reduce incumbent spending but have no
effect on challenger or open-seat candidate spending). The Legislature of Vermont evidently
tried to account for the realities of campaigning in Vermont, and I see no evidence of
constitutional miscalculation sufficient to dispense with respect for its judgments.

III
* * * [I]ssues of detail call for some attention, the first being the requirement that a
volunteer’s expenses count against the person’s contribution limit. The plurality certainly makes
out the case that accounting for these expenses will be a colossal nuisance, but there is no case
here that the nuisance will noticeably limit volunteering, or that volunteers whose expenses reach
the limit cannot continue with their efforts subject to charging their candidates for the excess.
Granted, if the provisions for contribution limits were teetering on the edge of
unconstitutionality, Act 64’s treatment of volunteers’ expenses might be the finger-flick that
gives the fatal push, but it has no greater significance than that.
Second, the failure of the Vermont law to index its limits for inflation is even less important.
This challenge is to the law as it is, not to a law that may have a different impact after future
inflation if the state legislature fails to bring it up to economic date.
Third, subjecting political parties to the same contribution limits as individuals does not
condemn the Vermont scheme. * * * The capacity and desire of parties to make large
contributions to competitive candidates with uphill fights are shared by rich individuals, and the
risk that large party contributions would be channels to evade individual limits cannot be
eliminated. Nor are these reasons to support the party limits undercut by claims that the
restrictions render parties impotent, for the parties are not precluded from uncoordinated
spending to benefit their candidates. That said, I acknowledge the suggestions in the petitioners’
briefs that such restrictions in synergy with other influences weakening party power would
justify a wholesale reexamination of the situation of party organization today. But whether such
a comprehensive reexamination belongs in courts or only in legislatures is not an issue presented
by these cases. * * *

IV
Because I would not pass upon the constitutionality of Vermont’s expenditure limits prior to
further enquiry into their fit with the problem of fundraising demands on candidates, and because
I do not see the contribution limits as depressed to the level of political inaudibility, I
respectfully dissent.
 81

Notes and Questions

1. Act 64 was passed, in part, specifically “to provoke a test case to overrule Buckley with
regard to expenditure limitations.” See Landell v. Sorrell, 382 F.3d 91, 156 (2d Cir. 2002)
(Winter, J. dissenting), rev’d sub nom. Randall v. Sorrell. For a fuller explication of the “time-
protection rationale” offered by the state in support of spending limits, see Mark C. Alexander,
Let Them Do Their Jobs: The Compelling Government Interest in Protecting the Time of
Candidates and Elected Officials, 37 LOY. U. CHI. L.J. 669 (2006); Vincent Blasi, Free Speech
and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the
First Amendment After All, 94 COLUM. L. REV. 1281 (1994).
One author of this Casebook has argued that the state’s evidence in Randall was “a fraud.”
See Bradley A. Smith, Fooling the Court, ElectionLaw@Moritz, Mar. 1, 2006 (available at
http://moritzlaw.osu.edu/electionlaw/etable06/060301-smith01.php) (noting that none of the
Vermont lawmakers supporting the legislation either admitted to or identified any specific acts of
corruption, and that the state’s Attorney General admitted he had never prosecuted a politician
for corruption in over a decade on the job; further noting that Vermont’s legislators earned $8000
annually for their part-time service, while the average cost of running for the legislature was
$4000, meaning that a typical part-time legislator with other sources of income could fund his or
her campaign using just one-quarter of his salary and never spend any time fundraising).
2. After Randall, is Buckley “superprecedent?” See Allison R. Hayward, The Per Curiam
Opinion of Steel: Buckley v. Valeo as Superprecedent?: Clues from Wisconsin and Vermont,
2005-06 CATO SUP. CT. REV. 195 (2006). Justice Breyer’s plurality opinion devoted very little
space to rebutting the state’s time-protection argument, or to arguments that contribution limits
alone were insufficient to deter corruption or its appearance. Rather the opinion dealt with the
question of spending limits primarily by clinging to precedent. Why?
3. In arguing for not disturbing the Buckley precedent on expenditure limitations, Justice
Breyer suggested that states have relied on Buckley when drafting legislation. Does this argument
make sense? Would you have encouraged, or expected, more states to follow Vermont’s lead and
pass laws in direct defiance of the Court’s constitutional ruling in Buckley? If the Court had
reversed Buckley on expenditure limits, in what way would states have been harmed by their past
reliance?
More generally, should the Court show different degrees of respect for constitutional
precedent depending on whether that precedent allows the government to regulate conduct or
forbids such regulation? Compare Justice Stevens’s suggestion in Randall that the Court should
be free to revisit Buckley’s holding outlawing expenditure limits (but not its holding permitting
contribution limits) with the Court’s approach to stare decisis in Lawrence v. Texas, 539 U.S.
558 (2003), which overturned Bowers v. Hardwick, 478 U.S. 186 (1986), and forbade states from
criminalizing consensual sexual acts between adults. Lawrence explained its willingness to
overturn Bowers by arguing that there was “no individual or societal reliance” on the earlier
holding authorizing states to prohibit homosexual sodomy. 539 U.S. at 577. See also id.
(“[W]hen a court is asked to overrule a precedent recognizing a constitutional liberty interest,
individual or societal reliance on the existence of that liberty cautions with particular strength
against reversing course. . . .”) citing Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833,
855-56 (1992).
4. In campaign-finance cases, it is rare for Justice Thomas and Justice Souter to agree, but
both alleged (Justice Thomas in a portion of his opinion not reprinted above) that Randall’s
plurality opinion was not faithful to Shrink PAC. Do you agree? Contrast, for example, Shrink
82

PAC and Randall with respect to whether limits should be adjusted for inflation, as well as for
their comparison between the limits challenged in their cases and the real-dollar value of the
limits at issue in Buckley.
5. Justice Stevens argued that unlimited spending merely encourages “ceaseless sound-bites
of trivial information.” Compare that view to Justice Kennedy’s argument in Shrink PAC: “a
self-governing people depends upon the free exchange of political information.” Do these
differing views of the value of campaign speech explain the Court’s divisions?
6. Problem. Does Randall provide a meaningful set of criteria for lower courts to apply?
Imagine you are the legislative aide to a state senator in Colorado, population 4.9 million.
Concerned about heavy spending in state races, the senator wants to propose a bill reducing the
maximum contribution in state races to $400 in all state races. Contributions to parties will be
capped at $500 dollars and parties will be limited to contributing $500 to candidates. Individuals
will be subject to an overall cap of $2500 per election cycle. Limits are not indexed for inflation,
but all volunteer services are exempt. Following Buckley, independent expenditures are
unlimited. The Senator wants your opinion as to whether the bill is constitutional under Randall.
7. What is a contribution? One factor the Court considered in finding Vermont’s
contribution limits unconstitutionally low was the strict limit on volunteer activity. What types of
volunteer activity can or should be considered contributions at all? Most citizens who volunteer
for a campaign devote only a few hours to the effort. However, consider a law student who
spends the summer volunteering for a campaign, devoting 10 weeks of full-time work. As a
summer clerk at a local law firm, the student could earn $1000 per week. How should his
volunteer work be valued? Similarly, the FEC’s regulations on volunteer activity permit a major
music artist to perform at a campaign rally on behalf of a candidate without charging a fee. See
FEC Advisory Opinion 1980-42 (June 25, 1980). The value of such an appearance, of course
might normally be many thousands of dollars. Even the ability of more and more people to create
and upload videos for public viewing on the Internet, and to devote blog sites to political activity,
have created new dilemmas for the state’s regulatory apparatus. In Advisory Opinion 1998-22
(Nov. 12, 1998), the FEC determined that a web site set up to support President Clinton had to be
reported as an independent expenditure. By 2002, the FEC had changed its tune; writing
regulations to implement the Bipartisan Campaign Reform Act, the Commission wrote a broad
exemption for Internet activity—so broad that a federal court struck it down as contrary to the
Act. See Shays v. Federal Election Commission, 337 F. Supp. 2d 28 (D.D.C. 2004). The FEC’s
second effort at an Internet regulation also exempted a substantial amount of Internet activity, a
decision that remains at once popular and controversial. See 71 Fed. Reg. 18589 (Apr. 12, 2006);
Daniel W. Butrymowicz, Loophole.com: How the FEC’s Failure To Fully Regulate the Internet
Undermines Campaign Finance Law, 109 COLUM. L. REV. 1708 (2009).
The following case explores the question of how far the definition of expenditure and
contribution extends.

SAN JUAN COUNTY v. NO NEW GAS TAX

Supreme Court of Washington
160 Wa. 2d 141, 157 P.3d 831 (Wash. 2007)

MADSEN, J. [with whom ALEXANDER, C.J., and C. JOHNSON, BRIDGE, CHAMBERS, OWENS, and
FAIRHURST, JJ., concur]— * * *
In 1972, Washington voters passed Initiative 276 (later enacted as chapter 42.17 RCW),
which regulates the financing of political campaigns. * * * Political committees, whether
 83

organized in support of a candidate or a ballot measure, are required to register with the Public
Disclosure Commission (PDC) and file a series of financial reports in accordance with detailed
timing and content requirements. In particular, political committees must disclose the identities
of campaign contributors and the amounts and dates of each contribution.
In 1992, the voters approved Initiative 134, the FCPA [Fair Campaign Practices Act]. The
FCPA supplemented the disclosure requirements of chapter 42.17 RCW with certain limitations
on campaign contributions and expenditures. Among other changes, the FCPA made it illegal to
either give or receive a contribution of more than $5,000 to any campaign within 21 days of an
election. At the same time, the definition of “contribution” was amended to expressly exempt
certain press activities.
On May 6, 2005, [petitioner No New Gas Tax (NNGT)] registered with the PDC as a
political committee. The purpose of the committee was to support a ballot measure, Initiative 912
(I-912), that would have repealed a statewide fuel tax approved by the 2005 legislature.
Kirby Wilbur and John Carlson are radio talk show hosts with regularly scheduled programs
on 570 KVI AM, a radio station owned by Fisher Communications, Inc. During their broadcasts,
Wilbur and Carlson typically discuss their views on political and social issues. Fisher
Communications charges for political advertising during the “commercial” segments of its radio
programs, but it does not charge for the value of any content time associated with Wilbur’s and
Carlson’s talk shows.
Wilbur and Carlson strongly criticized the legislature’s enactment of the fuel tax and devoted
a substantial portion of their radio broadcasts to supporting the campaign. In particular, they
encouraged listeners to contribute funds to NNGT, to visit NNGT’s web site and offices to
obtain petitions, and to circulate and gather signatures on the petitions in order to qualify the
initiative for the ballot.
On June 22, 2005, the prosecuting authorities of San Juan County and the cities of Kent,
Auburn, and Seattle filed a complaint against NNGT, alleging that it violated the disclosure
provisions of the FCPA by, in part, failing to report “valuable radio announcer professional
services and valuable commercial radio air-time” as a campaign “contribution” * * *. The
prosecutors retained a private law firm to represent them in the litigation. The law firm serves as
bond counsel for the State of Washington and supported a political committee opposing I-912.
About two weeks before the deadline to qualify the initiative for the ballot, the prosecutors
sought an injunction to prevent NNGT “from accepting in-kind contributions from Fisher
Communications” until it complied with the disclosure requirements. The prosecutors also
sought fines, investigation costs, and an award of attorney fees.
The prosecutors asserted that Wilbur and Carlson are “self-identified spokespersons” for
NNGT, that the KVI web site has a link to the NNGT web site, and that “this link and the
constant exposure on the radio is more than simply reporting the news and constitutes
advertising” for NNGT as defined in RCW 42.17.020(37). The prosecutors asserted that Wilbur
and Carlson are “officers and agents” of NNGT because “[t]hey have solicited money and other
resources to qualify Initiative 912 for the ballot.” The prosecutors asked the court to require
NNGT to report the value of the advertising provided by Fisher Communications. In support, the
prosecutors presented several excerpts from the radio broadcasts in which Wilbur and Carlson
discussed their participation in NNGT, directed listeners to NNGT’s web site, solicited funds and
services in support of the initiative campaign, and reported on the progress of fundraising efforts.
The trial court granted a preliminary injunction, finding that NNGT had received
“contributions of air time for political advertising purposes in support of Initiative 912 from
84

Fisher Communications, owner and operator of the radio station 570 KVI.” The court also found
that Fisher’s “donation of free air time” is a reportable “contribution” and required NNGT to
disclose its value to the PDC.
Counsel for NNGT requested clarification of the trial court’s order, stating, “I’m not sure
what you’re asking us to do, and here is my problem, your Honor. How are we to decide what is
political advertising and what’s not?” The trial court declined to clarify its order, stating, “you
have the same problem that any other candidate or campaign has in trying to understand how to
make full reporting, and I’m not inclined to treat you any differently.” In compliance with the
order, NNGT reported a $20,000 contribution from Fisher Communications. NNGT also
reported the value of other media discussions in support of the ballot measure. * * *
Fisher Communications’ vice-president and general manager, Robert I. Dunlop, signed a
declaration stating:
We would have no way to assess when or whether a “$5,000” threshold would be crossed. Therefore, I will
have to direct Mr. Carlson and Mr. Wilbur to not discuss I-912 during the content portions on their
programs to avoid this risk [of violating the contribution limit] because Fisher Seattle Radio does not wish
to face a possible prosecution for violation of the Fair Campaign Practices Act. * * *

On August 9, 2005, NNGT asserted 14 counterclaims against the prosecutors, alleging that
they violated its civil rights by bringing the enforcement action and obtaining the preliminary
injunction.5 * * * The prosecutors [successfully] moved for dismissal of NNGT’s
counterclaims[.] * * *
The FCPA defines “contribution,” in relevant part, as:
(i) A loan, gift, deposit, subscription, forgiveness of indebtedness, donation, advance, pledge, payment,
transfer of funds between political committees, or anything of value, including personal and professional
services for less than full consideration; . . . .
(iii) The financing by a person of the dissemination, distribution, or republication, in whole or in part, of
broadcast, written, graphic, or other form of political advertising or electioneering communication
prepared by a candidate, a political committee, or its authorized agent.

The definition of “contribution” includes several specific exemptions. At issue here is the
media exemption, which excludes:
A news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary
interest to the general public, that is in a news medium controlled by a person whose business is that news
medium, and that is not controlled by a candidate or a political committee. . . .

The campaign finance regulations of chapter 42.17 RCW are patterned after the Federal
Election Campaign Act of 1971. Thus, we may look to federal authorities for guidance in
interpreting provisions of the act that are analogous to federal provisions. * * *
5
NNGT alleged that the prosecutors violated their state and federal constitutional rights to freedom of speech and
freedom of association; that the preliminary injunction was unconstitutionally vague; that permitting a financially
interested law firm to prosecute the case violated their constitutional rights to due process under the state and federal
constitutions and also violated the state constitution’s faithful execution clause; that the action violated the state
privileges and immunities clauses by permitting arbitrary enforcement through local authorities rather than through
the PDC; that the preliminary injunction unfairly singles out radio broadcast discussions in violation of the equal
protection guarantees of the federal and state constitutions; and that forcing NNGT to disclose sensitive internal
campaign documents to a financially interested private law firm that supports the opposing side violates its state and
federal constitutional rights to free speech and free association.
 85

The prosecutors argue, and the trial court agreed, that Wilbur’s and Carlson’s broadcasts
supporting the initiative fall outside the media exemption because the broadcasts constitute
“political advertising” rather than “commentary.” We reject the prosecutors’ argument and adopt
the approach taken by federal courts applying the federal media exemption: When considering
complaints relating to media entities, the initial inquiry is whether the media exemption applies
to the communication at issue. Only if the court concludes that the media exemption does not
apply, is it appropriate to consider whether the communication fits within the otherwise broad
definition of “contribution.” This approach accords with the statute’s focus on whether a media
entity is controlled by a candidate or political committee, and with the purpose of the media
exemption, which is to avoid burdening the First Amendment rights of the press.
The definition of “contribution” is extraordinarily broad, encompassing “anything of value,”
including “political advertising,” defined as “appeal[s] . . . for votes or for financial or other
support.” Absent a media exemption, this language could easily encompass many news items,
features, commentary, and editorials. By incorporating the media exemption into the definition
of “contribution,” the voters plainly intended to protect publications that would otherwise
constitute a “contribution” subject to regulation. In order to give effect to the voters’ intent, it is
necessary to determine whether the media exemption applies before considering whether the
communication at issue otherwise falls within the definition of “contribution.” Thus, the initial
inquiry is whether the news medium is controlled by a candidate or political committee and
whether it was functioning as a regular news medium with respect to the conduct in question.
***
The prosecutors contend, though, that the media exemption does not apply because the radio
broadcasts were “controlled” by a political committee, given Wilbur’s and Carlson’s roles as
“principals” of NNGT. But the phrase “not controlled by a candidate or political committee”
modifies “news medium,” not “news item, feature, commentary, or editorial.” Thus, the
applicability of the media exemption does not turn on Wilbur and Kirby’s relationship to the
campaign. The question is whether the news medium—here, the radio station—is controlled by a
political committee, not whether a political committee authored the content of a particular
communication. As with the federal media exemption, “control” does not change from hour to
hour, depending on who may be hosting a particular radio program. * * *
In deciding whether the media exemption applies, it is inappropriate to draw distinctions
between “commentary” and “political advertising” based on the content of the publication, or the
speaker’s motivations, intent, sources of information, or connection with a campaign. * * *
Indeed, the content of a news story, editorial, or commentary is largely irrelevant in deciding
whether a media entity is exercising its valid press functions. * * * In a consolidated ruling, the
Federal Election Commission rejected several complaints that various news entities acted as
agents of candidates or political committees by presenting allegedly biased coverage during the
federal election campaigns of 2000. In re ABC, CBS, NBC, N.Y. Times, L.A. Times, Wash. Post,
MURs 4929, 5006, 5090, 5117, SOR of Chairman Wold, Vice Chairman McDonald and
Comm’rs Mason, Sandstrom, and Thomas at 3 (Fed. Election Comm’n Dec. 20, 2000), available
at http://eqs.sdrdc.com/eqsdocs/000011BC.pdf. The Federal Election Commission aptly
remarked that
[i]t is clearly a part of the normal press function to attend to the competing claims of parties, campaigns and
interest groups and to choose which to feature, investigate or address in news, editorial and opinion
coverage of political campaigns. Id. at 4.
86

We agree with the Federal Election Commission that for the media exemption to apply, the
publication need not be fair, balanced, or avoid express advocacy or solicitations. * * *
The distinction between “political advertising” and “commentary” may be relevant in
deciding whether a media entity is performing a legitimate press function. However, the
distinction does not turn on the content of the communication. In accordance with its statutory
authority, the PDC has further defined “political advertising” as it relates to the media
exemption:
Political advertising does not include letters to the editor, news or feature articles, editorial comment or
replies thereto in a regularly published newspaper, periodical, or on a radio or television broadcast where
payment for the printed space or broadcast time is not normally required.

Under the PDC’s regulation, the media exemption applies to coverage of a candidate or
ballot measure that occurs during the “content” period of a broadcast, as opposed to the
commercial advertising period, when payment is normally required. Hence, if a radio station
makes available to a campaign broadcast time for which it ordinarily receives a fee, i.e.,
commercial time, an in-kind contribution would result. However, the mere fact that a broadcast
has value to a campaign, or includes solicitation of funds, votes, or other support, does not
convert “commentary” into “advertising” when it occurs during the content portion of a
broadcast for which payment is not normally required. * * *
The uncontroverted facts establish that the radio station involved here is a regular media
entity that is not controlled by a candidate or political committee. The radio station was
exercising one of its core media functions in broadcasting Wilbur’s and Carlson’s talk shows.
The broadcasts in question occurred during the regularly scheduled content portion of Wilbur’s
and Carlson’s radio programs, not during commercial advertising time for which Fisher
ordinarily collects a fee. The broadcasts were typical of Wilbur’s and Carlson’s regularly
scheduled broadcasts in that they involved critical commentary on an important political issue of
interest to the general public. Wilbur’s and Carlson’s broadcasts supporting the initiative
campaign fall within the media exemption, regardless of whether the talk show hosts acted at the
behest of NNGT or solicited votes and financial support for the initiative campaign. Because the
media exemption applies, the trial court erred in ruling that the radio broadcasts were a
“contribution” subject to disclosure under the FCPA. * * *
Because we hold that the radio broadcasts at issue are not a “contribution,” we do not address
whether the disclosure requirements of the FCPA are unconstitutional as applied to NNGT. * * *
[Reversed and remanded.]

J.M. JOHNSON, J., [with whom SANDERS, J., concurs] (concurring)—

Today we are confronted with an example of abusive prosecution by several local
governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter
Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent
discussing a proposed initiative. This litigation was actually for the purpose of restricting or
silencing political opponents and was quickly dismissed after the filing deadline for the initiative.
The disregard for core freedoms of speech and association in this case, and resulting interference
with these constitutional rights, is described in the majority. The Municipalities augmented their
prosecuting attorneys and legal staff with an interested15 private law firm to engage in this
15
Before agreeing to represent the Municipalities, Foster Pepper PLLC, was an active member of “Keep
Washington Rolling,” a coalition of groups formed to defeat Initiative 912.
 87

prosecution of No New Gas Tax (NNGT), in a transparent attempt to block filing of an initiative,
which is also a constitutional right in Washington.
I concur with the majority’s holding construing the statute in a constitutional manner to not
apply to the political speech of the defendants. I write separately to emphasize that the contrary
positions of the Municipalities and court below resulted in infringing constitutional rights. * * *
The Municipalities involved expected millions of dollars from increased tax revenue if
Initiative 912 failed to qualify for the ballot. The private law firm would potentially derive
financial benefit from its role as one state bond counsel and volunteered to help litigate against
NNGT “on behalf of the State of Washington.” (The term “pro bono publico” is not appropriate
here.) * * *
[I]t appears that the Municipalities’ prosecution of the case, and especially the preliminary
injunction, was calculated to muzzle media support of the NNGT initiative. This behavior sought
to keep the initiative from ballot qualification during the very limited window between passage
of the disputed legislation and the initiative filing deadline. This lawsuit was not justified under
the law (the majority so holds) and was offensive to the notion of free and open debate. * * *
The voters had their say on I-912, as is appropriate under our constitution. The legal action
and injunction below meant the advocates on one side of their issue were denied their rights to
speak before the voters decided. * * *

Notes and Questions

1. The prosecutors in NNGT claimed not only that KVI had “contributed through Wilbur’s
and Carlson’s commentary, but also that KVI’s web site featured a link to the NNGT web site.
Should the link itself have been considered a contribution? Would it have been constitutional to
do so?
2. Under the equality rationale for campaign finance, rejected by the Supreme Court in
Buckley but favored by many academics and activists, see supra at [XXX-XXX], does it make
sense to exclude volunteer activity from the definition of “contribution”? Certainly such a
construction allows a small number of people, mainly celebrities, to make contributions of
enormous value that other citizens cannot match. Bradley A. Smith, Faulty Assumptions and
Undemocratic Consequences of Campaign Finance Reform, 105 YALE L.J. 1049, 1078-81
(1996).
3. The Washington Supreme Court did not hold that defendants Kirby and Carlson had a
constitutional right to engage in commentary, but only that their activity was exempt from the
definition of “contribution” under the Washington law. Does the Constitution mandate such a
media exemption? If so, who is entitled to the exemption? Talk radio or television hosts, such as
Wilbur and Carlson, or Rush Limbaugh and Keith Olbermann? Politically oriented comedians
such as Jon Stewart? What about bloggers? Newspapers? See Clifford A. Jones, The Stephen
Colbert Problem: The Media Exemption for Corporate Political Advocacy and the “Hail to the
Cheese Stephen Colbert Nacho Cheese Doritos 2008 Presidential Campaign Coverage,” 19 U.
FLA. J.L. & PUB. POL’Y 295 (2008) (exploring the breakdown of traditional media categories in
the modern era). See also Richard L. Hasen, Campaign Finance Laws and the Rupert Murdoch
Problem, 77 TEX. L. REV. 1627 (1999) (arguing that the media exemption is “unjustifiable”);
Allison R. Hayward, Regulation of Blog Campaign Advocacy on the Internet: Comparing U.S.,
German, and E.U. Approaches, 16 CARDOZO J. INT’L & COMP. L. 379 (2008) (comparing and
evaluating various approaches).
88

D. INDEPENDENT AND COORDINATED EXPENDITURES

Recall that in Buckley v. Valeo the Supreme Court held that expenditures were entitled to
greater protection than were contributions. It then struck down limitations both on expenditures
by candidates, and on expenditures made independently of candidates. But the Court also noted
that expenditures “controlled by or coordinated with” a campaign were treated under the Act as
contributions to the campaign, and so subject to limitation. Additionally, while the Buckley Court
struck down limits on independent expenditures, it held that expenditures that expressly
advocated the election or defeat of candidates were subject to disclosure rules. Furthermore, in
cases such as National Right to Work Committee, National Conservative Political Action
Committee, and California Medical Association, the Court implicitly suggested, without ever
holding, that a group that engages in express advocacy qualifies as a political committee and is
therefore subject to federal disclosure laws and presumptively subject to limits on the size of
contributions it may accept; but a group that neither makes contributions to candidates nor
expenditures for express advocacy escapes limits on the size of contributions it may accept, most
disclosure obligations, and the need to register as a political committee. These distinctions create
two important issues for political advocates and the lawyers who advise them: First, what does it
mean to “coordinate,” such that what would otherwise be an “expenditure” not subject to limits
becomes a “contribution” subject to limits? Second, what constitutes “express advocacy” and
what constitutes “issue advocacy”?

COLORADO REPUBLICAN FEDERAL CAMPAIGN

COMMITTEE v. FEDERAL ELECTION COMMISSION
(Colorado Republican I)
Supreme Court of the United States
518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d 795 (1996)

JUSTICE BREYER announced the judgment of the Court and delivered an opinion, in which
JUSTICE O’CONNOR and JUSTICE SOUTER join.
In April 1986, before the Colorado Republican Party had selected its senatorial candidate for
the fall’s election, that party’s Federal Campaign Committee bought radio advertisements
attacking Timothy Wirth, the Democratic Party’s likely candidate. The Federal Election
Commission (FEC) charged that this “expenditure” exceeded the dollar limits that a provision of
the Federal Election Campaign Act of 1971 (FECA or Act) imposes upon political party
“expenditure[s] in connection with” a “general election campaign” for congressional office. 2
U.S.C. § 441a(d)(3). This case focuses upon the constitutionality of those limits as applied to this
case. We conclude that the First Amendment prohibits the application of this provision to the
kind of expenditure at issue here—an expenditure that the political party has made
independently, without coordination with any candidate.

I***
* * * [W]ithout special treatment, political parties ordinarily would be subject to [§ 441a(a)
(4), which] * * * limits annual contributions by a “multicandidate political committee” to no
more than $5,000 to any candidate. And * * * this contribution limit governs not only direct
contributions but also indirect contributions that take the form of coordinated expenditures,
defined as “expenditures made . . . in cooperation, consultation, or concert, with, or at the request
 89

or suggestion of, a candidate, his authorized political committees, or their agents.” § 441a(a)(7)
(B)(i). Thus, ordinarily, a party’s coordinated expenditures would be subject to the $5,000
limitation.
However, FECA’s special provision, which we shall call the “Party Expenditure Provision,”
creates a general exception from this contribution limitation, and from any other limitation on
expenditures. * * * § 441a(d)(1). After exempting political parties from the general contribution
and expenditure limitations of the statute, the Party Expenditure Provision then imposes a
substitute limitation upon party “expenditures” in a senatorial campaign equal to the greater of
$20,000 or “2 cents multiplied by the voting age population of the State,” adjusted for inflation
since 1974. The provision permitted a political party in Colorado in 1986 to spend about
$103,000 in connection with the general election campaign of a candidate for the United States
Senate. * * *
In January 1986, Timothy Wirth, then a Democratic Congressman, announced that he would
run for an open Senate seat in November. In April, before either the Democratic primary or the
Republican convention, the Colorado Republican Federal Campaign Committee (Colorado Party
or Party), a petitioner here, bought radio advertisements attacking Congressman Wirth. The State
Democratic Party complained to the FEC. It pointed out that the Colorado Party had previously
assigned its $103,000 general election allotment to the National Republican Senatorial
Committee, leaving it without any permissible spending balance. See Federal Election Comm’n
v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) (state party may appoint
national senatorial campaign committee as agent to spend its Party Expenditure Provision
allotment). It argued that the purchase of radio time was an “expenditure in connection with the
general election campaign of a candidate for Federal office,” which, consequently, exceeded the
Party Expenditure Provision limits. * * *

II
The summary judgment record indicates that the expenditure in question is what this Court in
Buckley called an “independent” expenditure, not a “coordinated” expenditure that other
provisions of FECA treat as a kind of campaign “contribution.” See Buckley [v. Valeo, 424 U.S.
1], 36-37, 46-47, 78 [(1978)] [p. XXX] [(per curiam)]; [Federal Election Comm’n v. National
Conservative Political Action Comm., 470 U.S. 480, 498 (1985)] [p. XXX]. * * * In a deposition,
the Colorado Party’s Chairman, Howard Callaway, pointed out that, at the time of the
expenditure, the Party had not yet selected a senatorial nominee from among the three
individuals vying for the nomination. He added that he arranged for the development of the script
at his own initiative, that he, and no one else, approved it, that the only other politically relevant
individuals who might have read it were the Party’s executive director and political director, and
that all relevant discussions took place at meetings attended only by Party staff.
* * * [Callaway did state] that it was the practice of the Party to “coordinate with the
candidate” “campaign strategy,” and for Callaway to be “as involved as [he] could be” with the
individuals seeking the Republican nomination, by making available to them “all of the assets of
the party.” These latter statements, however, are general descriptions of Party practice. They do
not refer to the advertising campaign at issue here or to its preparation. Nor do they conflict with,
or cast significant doubt upon, the uncontroverted direct evidence that this advertising campaign
was developed by the Colorado Party independently and not pursuant to any general or particular
understanding with a candidate. We can find no “genuine” issue of fact in this respect. * * * And
we therefore treat the expenditure, for constitutional purposes, as an “independent” expenditure,
90

not an indirect campaign contribution.

So treated, the expenditure falls within the scope of the Court’s precedents that extend First
Amendment protection to independent expenditures. Beginning with Buckley, the Court’s cases
have found a “fundamental constitutional difference between money spent to advertise one’s
views independently of the candidate’s campaign and money contributed to the candidate to be
spent on his campaign.” NCPAC, supra, at 497. * * *
Given these established principles, we do not see how a provision that limits a political
party’s independent expenditures can escape their controlling effect. A political party’s
independent expression not only reflects its members’ views about the philosophical and
governmental matters that bind them together, it also seeks to convince others to join those
members in a practical democratic task, the task of creating a government that voters can instruct
and hold responsible for subsequent success or failure. The independent expression of a political
party’s views is “core” First Amendment activity no less than is the independent expression of
individuals, candidates, or other political committees. See, e.g., Eu v. San Francisco County
Democratic Central Comm., 489 U.S. 214 (1989) [p. XXX].
We are not aware of any special dangers of corruption associated with political parties that
tip the constitutional balance in a different direction. * * *
We recognize that FECA permits individuals to contribute more money ($20,000) to a party
than to a candidate ($1,000) or to other political committees ($5,000). We also recognize that
FECA permits unregulated “soft money” contributions to a party for certain activities, such as
electing candidates for state office, or for voter registration and “get out the vote” drives. But the
opportunity for corruption posed by these greater opportunities for contributions is, at best,
attenuated. Unregulated “soft money” contributions may not be used to influence a federal
campaign, except when used in the limited, party-building activities specifically designated in
the statute. Any contribution to a party that is earmarked for a particular campaign is considered
a contribution to the candidate and is subject to the contribution limitations. A party may not
simply channel unlimited amounts of even undesignated contributions to a candidate, since such
direct transfers are also considered contributions and are subject to the contribution limits on a
“multicandidate political committee.” The greatest danger of corruption, therefore, appears to be
from the ability of donors to give sums up to $20,000 to a party which may be used for
independent party expenditures for the benefit of a particular candidate. We could understand
how Congress, were it to conclude that the potential for evasion of the individual contribution
limits was a serious matter, might decide to change the statute’s limitations on contributions to
political parties. Cf. California Medical Assn. [v. Federal Election Comm’n], 453 U.S. [182],
197-199 [(1981)] [p. XXX] (plurality opinion) (danger of evasion of limits on contribution to
candidates justified prophylactic limitation on contributions to PAC’s). But we do not believe
that the risk of corruption present here could justify the “markedly greater burden on basic
freedoms caused by” the statute’s limitations on expenditures. * * * Contributors seeking to
avoid the effect of the $1,000 contribution limit indirectly by donations to the national party
could spend that same amount of money (or more) themselves more directly by making their
own independent expenditures promoting the candidate. See Buckley, supra, at 44-48 (risk of
corruption by individuals’ independent expenditures is insufficient to justify limits on such
spending). If anything, an independent expenditure made possible by a $20,000 donation, but
controlled and directed by a party rather than the donor, would seem less likely to corrupt than
the same (or a much larger) independent expenditure made directly by that donor. In any case,
the constitutionally significant fact, present equally in both instances, is the lack of coordination
 91

between the candidate and the source of the expenditure. This fact prevents us from assuming,
absent convincing evidence to the contrary, that a limitation on political parties’ independent
expenditures is necessary to combat a substantial danger of corruption of the electoral system.
The Government does not point to record evidence or legislative findings suggesting any
special corruption problem in respect to independent party expenditures. To the contrary, this
Court’s opinions suggest that Congress wrote the Party Expenditure Provision not so much
because of a special concern about the potentially “corrupting” effect of party expenditures, but
rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and
excessive campaign spending. See Buckley, supra, at 57. In fact, rather than indicating a special
fear of the corruptive influence of political parties, the legislative history demonstrates Congress’
general desire to enhance what was seen as an important and legitimate role for political parties
in American elections. See Federal Election Comm’n v. Democratic Senatorial Campaign
Comm., 454 U.S. at 41 (Party Expenditure Provision was intended to “assure that political parties
will continue to have an important role in federal elections”); S. Rep. No. 93-689, p.7 (1974)
(“[A] vigorous party system is vital to American politics. . . . Pooling resources from many small
contributors is a legitimate function and an integral part of party politics”).
We therefore believe that this Court’s prior case law controls the outcome here. We do not
see how a Constitution that grants to individuals, candidates, and ordinary political committees
the right to make unlimited independent expenditures could deny the same right to political
parties. Having concluded this, we need not consider the Party’s further claim that the statute’s
“in connection with” language, and the FEC’s interpretation of that language, are
unconstitutionally vague.

III
The Government does not deny the force of the precedent we have discussed. Rather, it
argued below, and the lower courts accepted, that the expenditure in this case should be treated
under those precedents, not as an “independent expenditure,” but rather as a “coordinated
expenditure,” which those cases have treated as “contributions,” and which those cases have held
Congress may constitutionally regulate. See, e.g., Buckley, supra, at 23-38. * * *
[T]he Government and supporting amici argue that the expenditure is “coordinated” because
a party and its candidate are identical, i.e., the party, in a sense, “is” its candidates. We cannot
assume, however, that this is so. See, e.g., W. Keefe, Parties, Politics, and Public Policy in
America 59-74 (5th ed. 1988) (describing parties as “coalitions” of differing interests). Congress
chose to treat candidates and their parties quite differently under the Act, for example, by
regulating contributions from one to the other. And we are not certain whether a metaphysical
identity would help the Government, for in that case one might argue that the absolute identity of
views and interests eliminates any potential for corruption, as would seem to be the case in the
relationship between candidates and their campaign committees. * * *
For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded
for further proceedings.
It is so ordered.

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE [REHNQUIST] and JUSTICE SCALIA join, concurring
in the judgment and dissenting in part. * * *
We had no occasion in Buckley to consider possible First Amendment objections to
limitations on spending by parties. While our cases uphold contribution limitations on
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individuals and associations, * * * political party spending “in cooperation, consultation, or

concert with” a candidate does not fit within our description of “contributions” in Buckley. In my
view, we should not transplant the reasoning of cases upholding ordinary contribution limitations
to a case involving FECA’s restrictions on political party spending.
The First Amendment embodies a “profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964) [p. XXX]. Political parties have a unique role in serving this
principle; they exist to advance their members’ shared political beliefs. * * * A political party
has its own traditions and principles that transcend the interests of individual candidates and
campaigns; but in the context of particular elections, candidates are necessary to make the
party’s message known and effective, and vice versa.
It makes no sense, therefore, to ask, as FECA does, whether a party’s spending is made “in
cooperation, consultation, or concert with” its candidate. The answer in most cases will be yes,
but that provides more, not less, justification for holding unconstitutional the statute’s attempt to
control this type of party spending, which bears little resemblance to the contributions discussed
in Buckley. Party spending “in cooperation, consultation, or concert with” its candidates of
necessity “communicate[s] the underlying basis for the support,” 424 U.S., at 21, i.e., the hope
that he or she will be elected and will work to further the party’s political agenda.
The problem is not just the absence of a basis in our First Amendment cases for treating the
party’s spending as contributions. The greater difficulty posed by the statute is its stifling effect
on the ability of the party to do what it exists to do. It is fanciful to suppose that limiting party
spending of the type at issue here “does not in any way infringe the contributor’s freedom to
discuss candidates and issues,” since it would be impractical and imprudent, to say the least, for
a party to support its own candidates without some form of “cooperation” or “consultation.” The
party’s speech, legitimate on its own behalf, cannot be separated from speech on the candidate’s
behalf without constraining the party in advocating its most essential positions and pursuing its
most basic goals. The party’s form of organization and the fact that its fate in an election is
inextricably intertwined with that of its candidates cannot provide a basis for the restrictions
imposed here. See [NCPAC], 470 U.S., [at] 494-495.
We have a constitutional tradition of political parties and their candidates engaging in joint
First Amendment activity; we also have a practical identity of interests between the two entities
during an election. Party spending “in cooperation, consultation, or concert with” a candidate
therefore is indistinguishable in substance from expenditures by the candidate or his campaign
committee. We held in Buckley that the First Amendment does not permit regulation of the latter,
and it should not permit this regulation of the former. Congress may have authority, consistent
with the First Amendment, to restrict undifferentiated political party contributions which satisfy
the constitutional criteria we discussed in Buckley, but that type of regulation is not at issue here.
I would resolve the Party’s First Amendment claim in accord with these principles rather
than remit the Party to further protracted proceedings. Because the principal opinion would do
otherwise, I concur only in the judgment.

JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join * * *, concurring in the
judgment and dissenting in part. * * *
Were I convinced that the Buckley framework rested on a principled distinction between
contributions and expenditures, which I am not, I would nevertheless conclude that § 441a(d)
(3)’s limits on political parties violate the First Amendment. * * *
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The Government asserts that the purpose of § 441a(d)(3) is to prevent the corruption of
candidates and elected representatives by party officials. * * * As applied in the specific context
of campaign funding by political parties, [however,] the anticorruption rationale loses its force.
What could it mean for a party to “corrupt” its candidate or to exercise “coercive” influence over
him? The very aim of a political party is to influence its candidate’s stance on issues and, if the
candidate takes office or is reelected, his votes. When political parties achieve that aim, that
achievement does not, in my view, constitute “a subversion of the political process.” For
instance, if the Democratic Party spends large sums of money in support of a candidate who
wins, takes office, and then implements the Party’s platform, that is not corruption; that is
successful advocacy of ideas in the political marketplace and representative government in a
party system. * * *
The structure of political parties is such that the theoretical danger of those groups actually
engaging in quid pro quos with candidates is significantly less than the threat of individuals or
other groups doing so. American political parties, generally speaking, have numerous members
with a wide variety of interests, features necessary for success in majoritarian elections.
Consequently, the influence of any one person or the importance of any single issue within a
political party is significantly diffused. * * *
In sum, there is only a minimal threat of “corruption,” as we have understood that term, when
a political party spends to support its candidate or to oppose his competitor, whether or not that
expenditure is made in concert with the candidate. Parties and candidates have traditionally
worked together to achieve their common goals, and when they engage in that work, there is no
risk to the Republic. To the contrary, the danger to the Republic lies in Government suppression
of such activity. Under Buckley and our subsequent cases, § 441a(d)(3)’s heavy burden on First
Amendment rights is not justified by the threat of corruption at which it is assertedly aimed.

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting.

In my opinion, all money spent by a political party to secure the election of its candidate for
the office of United States Senator should be considered a “contribution” to his or her campaign.
I therefore disagree with the conclusion reached in Part III of the principal opinion.
I am persuaded that three interests provide a constitutionally sufficient predicate for federal
limits on spending by political parties. First, such limits serve the interest in avoiding both the
appearance and the reality of a corrupt political process. A party shares a unique relationship
with the candidate it sponsors because their political fates are inextricably linked. That
interdependency creates a special danger that the party—or the persons who control the party—
will abuse the influence it has over the candidate by virtue of its power to spend. The provisions
at issue are appropriately aimed at reducing that threat. The fact that the party in this case had not
yet chosen its nominee at the time it broadcast the challenged advertisements is immaterial to the
analysis. Although the Democratic and Republican nominees for the 1996 Presidential race will
not be selected until this summer, current advertising expenditures by the two national parties are
no less contributions to the campaigns of the respective frontrunners than those that will be made
in the fall.
Second, these restrictions supplement other spending limitations embodied in the Federal
Election Campaign Act of 1971, which are likewise designed to prevent corruption. Individuals
and certain organizations are permitted to contribute up to $1,000 to a candidate. Since the same
donors can give up to $5,000 to party committees, if there were no limits on party spending, their
contributions could be spent to benefit the candidate and thereby circumvent the $1,000 cap. We
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have recognized the legitimate interest in blocking similar attempts to undermine the policies of
the Act. See California Medical Assn., 453 U.S., [at] 197-199 (plurality opinion) (approving
ceiling on contributions to political action committees to prevent circumvention of limitations on
individual contributions to candidates); Buckley v. Valeo, 424 U.S., [at] 38 (approving limitation
on total contributions by an individual in connection with an election on same rationale).
Finally, I believe the Government has an important interest in leveling the electoral playing
field by constraining the cost of federal campaigns. * * * It is quite wrong to assume that the net
effect of limits on contributions and expenditures—which tend to protect equal access to the
political arena, to free candidates and their staffs from the interminable burden of fund-raising,
and to diminish the importance of repetitive 30-second commercials—will be adverse to the
interest in informed debate protected by the First Amendment.
Congress surely has both wisdom and experience in these matters that is far superior to ours.
I would therefore accord special deference to its judgment on questions related to the extent and
nature of limits on campaign spending. Accordingly, I would affirm the judgment of the Court of
Appeals.

Notes and Questions

1. “Coordination” is an elusive concept, made more difficult by the fact that most major
interest groups have regular contacts with their advocates and supporters in government. For
example, a major interest group such as the Sierra Club or the National Rifle Association will
meet frequently with allies in Congress to discuss legislation. In doing so, they may discuss the
status of public opinion on issues of mutual concern, ways to move public opinion, and the
general political climate as it relates to their issues. Later, when these candidates seek reelection
or election to higher office, these same interest groups may wish to support their candidacies. At
what point does their general political knowledge about the plans and messages of the candidates
rise to the level of “coordination”?
This determination is made more difficult by the fluidity of staffing in politics, and the
relatively small number of skilled vendors. For example, it would not be uncommon for an
environmentally conscious Congressman’s legislative director to accept a job with the Sierra
Club; and then to leave the Sierra Club later to serve as campaign manager for her former boss’s
re-election effort, which the Sierra Club will seek to support. Given the staffer’s knowledge of
both the Sierra Club’s and the candidate’s campaigns, does this create coordination per se?
Furthermore, there are a relatively small number of political consultants who handle most major
campaigns. Suppose that Senator Jones has hired Political Admen, Inc. to handle media for her
campaign, and that the Club for Growth, a group that lobbies for lower taxes and reduced
government spending, also uses Political Admen, Inc., for its media needs. If the Club decides to
make expenditures in support of Senator Jones, Political Admen will have access to the media
and messaging strategies of both the Club and Senator Jones, as it advises each on how to spend
campaign dollars. Does this constitute coordination?
Making this even more difficult is what some have called “independent coordination.” That
is, it is not generally difficult for political junkies to know which states, congressional districts,
or portions of districts are particularly important. Similarly, it is relatively easy, simply through
following the news, to learn of the key issues in a campaign and the positions taken by the
candidates. Moreover, campaigns will usually publicize upcoming campaign appearances, and a
campaign may speak openly in the press about its strategies for winning. Indeed, because the law
now requires ad buys to be made public, groups can even know of candidates’ advertising plans.
 95

Thus, an organization can typically gather all the information it needs to run a “coordinated”
campaign without ever speaking to the candidate.
In response to Colorado I and FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999)
(rejecting the FEC’s theory of coordination and holding that coordination occurs only where
there has been substantial discussion or negotiation over the content, timing, location, and
amount of advertising), the FEC adopted a new definition of coordination. 65 Fed. Reg. 76138
(Dec. 6, 2000). Campaign-finance-reform groups were concerned that this new FEC definition
allowed too many opportunities for “coordinated” activities to pass unregulated. Thus, extensive
efforts were made to write a new, statutory definition of coordination into the Bipartisan
Campaign Reform Act. Ultimately, however, Congress could not agree on a definition, and
settled for repealing the existing FEC regulation and ordering the Agency to write a new
definition. Pub. L. No. 107-155, § 214 (2002). Accordingly, the FEC adopted a new definition in
2002, but the lead House sponsors of BCRA challenged the FEC’s regulations in Court as
insufficiently rigorous, and they were struck down by a federal court in Shays v. Federal
Election Commission, 337 F. Supp. 2d 28 (D.D.C. 2004), aff’d 414 F.3d 76 (D.C. Cir. 2005). The
Commission tried again, passing new rules in 2006, which were again successfully challenged in
Court as insufficiently rigorous, Shays v. FEC, 508 F. Supp. 2d 10 (D.D.C. 2007), aff’d 528 F.
3d 914 (D.C. Cir. 2008). The FEC opened yet another rulemaking in the fall of 2009, seven years
after passage of BCRA. See 74 Fed. Reg. 53893 (Oct. 21, 2009).
2. Investigations into allegedly coordinated actions are among the most intrusive undertaken
by the FEC. In order to determine if coordination has taken place, the FEC typically probes into
the number and content of communications between the candidate and his campaign staff, and
the staff and leadership of the group alleged to be illegally coordinating its activities. This
frequently involves substantial probing into the political strategy and tactics of both entities. See
James Bopp, Jr. & Richard E. Colestrom, The First Amendment Needs No Reform: Protecting
Liberty from Campaign Finance Reformers, 51 CATH. U. L. REV. 785, 833 (2002). See generally
Bradley A. Smith & Stephen M. Hoersting, A Toothless Anaconda: Innovation, Impotence, and
Overenforcement at the Federal Election Commission, 1 ELECTION L.J. 145, 167-169 (2002).

FEDERAL ELECTION COMMISSION v. COLORADO

REPUBLICAN FEDERAL CAMPAIGN COMMITTEE
(Colorado Republican II)
Supreme Court of the United States
533 U.S. 431, 121 S. Ct. 2351, 150 L. Ed. 2d 461 (2001)

JUSTICE SOUTER delivered the opinion of the Court [in which JUSTICE STEVENS, JUSTICE
O’CONNOR, JUSTICE GINSBURG, and JUSTICE BREYER join].
In Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S.
604 (1996) [p. XXX] (Colorado I), we held that spending limits set by the Federal Election
Campaign Act were unconstitutional as applied to the Colorado Republican Party’s independent
expenditures in connection with a senatorial campaign. We remanded for consideration of the
party’s claim that all limits on expenditures by a political party in connection with congressional
campaigns are facially unconstitutional and thus unenforceable even as to spending coordinated
with a candidate. Today we reject that facial challenge to the limits on parties’ coordinated
expenditures. * * *
[In] Colorado I * * * the FEC argued that parties and candidates are coupled so closely that
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all of a party’s expenditures on an election campaign are coordinated with its candidate[.] * * *
Colorado I held otherwise, however, the principal opinion’s view being that some party
expenditures could be seen as “independent” for constitutional purposes. * * *
But that still left the question whether the First Amendment allows coordinated election
expenditures by parties to be treated functionally as contributions, the way coordinated
expenditures by other entities are treated. Colorado I found no justification for placing parties at
a disadvantage when spending independently; but was there a case for leaving them entirely free
to coordinate unlimited spending with candidates when others could not? * * * The issue is
posed by two questions: does limiting coordinated spending impose a unique burden on parties,
and is there reason to think that coordinated spending by a party would raise the risk of
corruption posed when others spend in coordination with a candidate? * * *
The Party’s argument that its coordinated spending, like its independent spending, should be
left free from restriction under the Buckley line of cases boils down to this: because a party’s
most important speech is aimed at electing candidates and is itself expressed through those
candidates, any limit on party support for a candidate imposes a unique First Amendment
burden. The point of organizing a party, the argument goes, is to run a successful candidate who
shares the party’s policy goals. Therefore, while a campaign contribution is only one of several
ways that individuals and nonparty groups speak and associate politically, * * * financial support
of candidates is essential to the nature of political parties as we know them. And coordination
with a candidate is a party’s natural way of operating, not merely an option that can easily be
avoided. Limitation of any party expenditure coordinated with a candidate, the Party contends, is
therefore a serious, rather than incidental, imposition on the party’s speech and associative
purpose, and that justifies a stricter level of scrutiny than we have applied to analogous limits on
individuals and nonparty groups. But whatever level of scrutiny is applied, the Party goes on to
argue, the burden on a party reflects a fatal mismatch between the effects of limiting coordinated
party expenditures and the prevention of corruption or the appearance of it.
The Government’s argument for treating coordinated spending like contributions goes back
to Buckley. There, the rationale for endorsing Congress’s equation of coordinated expenditures
and contributions was that the equation “prevents attempts to circumvent the Act through
prearranged or coordinated expenditures amounting to disguised contributions.” 424 U.S. [1,] 47
[(1976)] [p. XXX] [(per curiam)]. The idea was that coordinated expenditures are as useful to
the candidate as cash, and that such “disguised contributions” might be given “as a quid pro quo
for improper commitments from the candidate” (in contrast to independent expenditures, which
are poor sources of leverage for a spender because they might be duplicative or
counterproductive from a candidate’s point of view). Ibid. * * *
The Government develops this rationale a step further in applying it here. Coordinated
spending by a party should be limited not only because it is like a party contribution, but for a
further reason. A party’s right to make unlimited expenditures coordinated with a candidate
would induce individual and other nonparty contributors to give to the party in order to finance
coordinated spending for a favored candidate beyond the contribution limits binding on them.
***
[The Party counters that] coordinated spending is essential to parties because “a party and its
candidate are joined at the hip,” owing to the very conception of the party as an organization
formed to elect candidates. Parties, thus formed, have an especially strong working relationship
with their candidates and the speech this special relationship facilitates is much more effective
than independent speech.
 97

There are two basic arguments here. The first turns on the relationship of a party to a
candidate: a coordinated relationship between them so defines a party that it cannot function as
such without coordinated spending, the object of which is a candidate’s election. We think
political history and political reality belie this argument. The second argument turns on the
nature of a party as uniquely able to spend in ways that promote candidate success. We think that
this argument is a double-edged sword, and one hardly limited to political parties.
The assertion that the party is so joined at the hip to candidates that most of its spending must
necessarily be coordinated spending is a statement at odds with the history of nearly 30 years
under the Act. It is well to remember that ever since the Act was amended in 1974, coordinated
spending by a party committee in a given race has been limited by the provision challenged here
(or its predecessor). * * * It was not until 1996 and the decision in Colorado I that any spending
was allowed above that amount, and since then only independent spending has been unlimited.
As a consequence, the Party’s claim that coordinated spending beyond the limit imposed by the
Act is essential to its very function as a party amounts implicitly to saying that for almost three
decades political parties have not been functional or have been functioning in systematic
violation of the law. The Party, of course, does not in terms make either statement, and we
cannot accept either implication. There is no question about the closeness of candidates to parties
and no doubt that the Act affected parties’ roles and their exercise of power. But the political
scientists who have weighed in on this litigation [as amici] observe that “there is little evidence
to suggest that coordinated party spending limits adopted by Congress have frustrated the ability
of political parties to exercise their First Amendment rights to support their candidates,” and that
“in reality, political parties are dominant players, second only to the candidates themselves, in
federal elections.” * * *
When we look directly at a party’s function in getting and spending money, it would ignore
reality to think that the party role is adequately described by speaking generally of electing
particular candidates. The money parties spend comes from contributors with their own personal
interests. PACs, for example, are frequent party contributors who (according to one of the
Party’s own experts) “do not pursue the same objectives in electoral politics” that parties do.
PACs “are most concerned with advancing their narrow interests” and therefore “provide support
to candidates who share their views, regardless of party affiliation.” In fact, many PACs
naturally express their narrow interests by contributing to both parties during the same electoral
cycle, and sometimes even directly to two competing candidates in the same election. Parties are
thus necessarily the instruments of some contributors whose object is not to support the party’s
message or to elect party candidates across the board, but rather to support a specific candidate
for the sake of a position on one narrow issue, or even to support any candidate who will be
obliged to the contributors.
Parties thus perform functions more complex than simply electing candidates; whether they
like it or not, they act as agents for spending on behalf of those who seek to produce obligated
officeholders. It is this party role, which functionally unites parties with other self-interested
political actors, that the Party Expenditure Provision targets. This party role, accordingly,
provides good reason to view limits on coordinated spending by parties through the same lens
applied to such spending by donors, like PACs, that can use parties as conduits for contributions
meant to place candidates under obligation.
Insofar as the Party suggests that its strong working relationship with candidates and its
unique ability to speak in coordination with them should be taken into account in the First
Amendment analysis, we agree. It is the accepted understanding that a party combines its
98

members’ power to speak by aggregating contributions and broadcasting messages more widely
than individual contributors generally could afford to do, and the party marshals this power with
greater sophistication than individuals generally could, using such mechanisms as speech
coordinated with a candidate. In other words, the party is efficient in generating large sums to
spend and in pinpointing effective ways to spend them. * * *
It does not, however, follow from a party’s efficiency in getting large sums and spending
intelligently that limits on a party’s coordinated spending should be scrutinized under an
unusually high standard, and in fact any argument from sophistication and power would cut both
ways. On the one hand, one can seek the benefit of stricter scrutiny of a law capping party
coordinated spending by emphasizing the heavy burden imposed by limiting the most effective
mechanism of sophisticated spending. And yet it is exactly this efficiency culminating in
coordinated spending that (on the Government’s view) places a party in a position to be used to
circumvent contribution limits that apply to individuals and PACs, and thereby to exacerbate the
threat of corruption and apparent corruption that those contribution limits are aimed at reducing.
As a consequence, what the Party calls an unusual burden imposed by regulating its spending is
not a simple premise for arguing for tighter scrutiny of limits on a party; it is the premise for a
question pointing in the opposite direction. If the coordinated spending of other, less efficient
and perhaps less practiced political actors can be limited consistently with the Constitution, why
would the Constitution forbid regulation aimed at a party whose very efficiency in channeling
benefits to candidates threatens to undermine the contribution (and hence coordinated spending)
limits to which those others are unquestionably subject?
The preceding question assumes that parties enjoy a power and experience that sets them
apart from other political spenders. But in fact the assumption is too crude. While parties
command bigger spending budgets than most individuals, some individuals could easily rival
party committees in spending. Rich political activists crop up, and the United States has known
its Citizens Kane. Their money speaks loudly, too, and they are therefore burdened by
restrictions on its use just as parties are. And yet they are validly subject to coordinated spending
limits, Buckley, 424 U.S., at 46-47, and so are PACs, id., at 35-36, 46-47, which may amass
bigger treasuries than most party members can spare for politics.
Just as rich donors, media executives, and PACs have the means to speak as loudly as parties
do, they would also have the capacity to work effectively in tandem with a candidate, just as a
party can do. While a candidate has no way of coordinating spending with every contributor,
there is nothing hard about coordinating with someone with a fortune to donate, any more than a
candidate would have difficulty in coordinating spending with an inner circle of personal
political associates or with his own family. Yet all of them are subject to coordinated spending
limits upheld in Buckley. A party, indeed, is now like some of these political actors in yet another
way: in its right under Colorado I to spend money in support of a candidate without legal limit so
long as it spends independently. A party may spend independently every cent it can raise
wherever it thinks its candidate will shine, on every subject and any viewpoint. * * *
We accordingly apply to a party’s coordinated spending limitation the same scrutiny we have
applied to the other political actors, that is, scrutiny appropriate for a contribution limit,
enquiring whether the restriction is “closely drawn” to match what we have recognized as the
“sufficiently important” government interest in combating political corruption. * * * With the
standard thus settled, the issue remains whether adequate evidentiary grounds exist to sustain the
limit under that standard, on the theory that unlimited coordinated spending by a party raises the
risk of corruption (and its appearance) through circumvention of valid contribution limits.
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Indeed, all members of the Court agree that circumvention is a valid theory of corruption; the
remaining bone of contention is evidentiary.
Since there is no recent experience with unlimited coordinated spending, the question is
whether experience under the present law confirms a serious threat of abuse from the unlimited
coordinated party spending as the Government contends. * * * It clearly does. Despite years of
enforcement of the challenged limits, substantial evidence demonstrates how candidates, donors,
and parties test the limits of the current law, and it shows beyond serious doubt how contribution
limits would be eroded if inducement to circumvent them were enhanced by declaring parties’
coordinated spending wide open.
Under the Act, a donor is limited to $2,000 in contributions to one candidate in a given
election cycle. The same donor may give as much as another $20,000 each year to a national
party committee supporting the candidate. What a realist would expect to occur has occurred.
Donors give to the party with the tacit understanding that the favored candidate will benefit.
Although the understanding between donor and party may involve no definite commitment
and may be tacit on the donor’s part, the frequency of the practice and the volume of money
involved has required some manner of informal bookkeeping by the recipient. In the Democratic
Party, at least, the method is known as “tallying,” a system that helps to connect donors to
candidates through the accommodation of a party.22
Such is the state of affairs under the current law, which requires most party spending on a
candidate’s behalf to be done independently, and thus less desirably from the point of view of a
donor and his favored candidate. If suddenly every dollar of spending could be coordinated with
the candidate, the inducement to circumvent would almost certainly intensify. Indeed, if a
candidate could be assured that donations through a party could result in funds passed through to
him for spending on virtually identical items as his own campaign funds, a candidate enjoying
the patronage of affluent contributors would have a strong incentive not merely to direct donors
to his party, but to promote circumvention as a step toward reducing the number of donors
requiring time-consuming cultivation. If a candidate could arrange for a party committee to foot
his bills, to be paid with $20,000 contributions to the party by his supporters, the number of
donors necessary to raise $1,000,000 could be reduced from 500 (at $2,000 per cycle) to 46 (at
$2,000 to the candidate and $20,000 to the party, without regard to donations outside the election
year.
While this evidence rules out denying the potential for corruption by circumvention, the
Party does try to minimize the threat. It says that most contributions to parties are small, with
negligible corrupting momentum to be carried through the party conduit. But some contributions
are not small; they can go up to $20,000, and the record shows that even under present law
substantial donations turn the parties into matchmakers whose special meetings and receptions
give the donors the chance to get their points across to the candidates. * * *
Finally, the Party falls back to claiming that, even if there is a threat of circumvention, the
First Amendment demands a response better tailored to that threat than a limitation on spending,
even coordinated spending. The Party has two suggestions.
22
* * * The dissent may be correct that the FEC considers tallying legal, but one thing is clear: tallying is a sign that
contribution limits are being diluted and could be diluted further if the floodgates were open. Why, after all, does a
party bother to tally? The obvious answer is that it wants to know who gets the benefit of the contributions to the
party * * *. And the fact that the parties may not fund sure losers, stressed by the dissent, is irrelevant. The issue is
what would become of contribution limits if parties could use unlimited coordinated spending to funnel
contributions to those serious contenders who are favored by the donors.
100

First, it says that better crafted safeguards are in place already, in particular the earmarking
rule of § 441a(a)(8), which provides that contributions that “are in any way earmarked or
otherwise directed through an intermediary or conduit to [a] candidate” are treated as
contributions to the candidate. The Party says that this provision either suffices to address any
risk of circumvention or would suffice if clarified to cover practices like tallying. * * * This
position, however, ignores the practical difficulty of identifying and directly combating
circumvention under actual political conditions. Donations are made to a party by contributors
who favor the party’s candidates in races that affect them; donors are (of course) permitted to
express their views and preferences to party officials; and the party is permitted (as we have held
it must be) to spend money in its own right. When this is the environment for contributions going
into a general party treasury, and candidate-fundraisers are rewarded with something less
obvious than dollar-for-dollar pass-throughs (distributed through contributions and party
spending), circumvention is obviously very hard to trace. The earmarking provision, even if it
dealt directly with tallying, would reach only the most clumsy attempts to pass contributions
through to candidates. * * *
The Party’s second preferred prescription for the threat of an end run calls for replacing
limits on coordinated expenditures by parties with limits on contributions to parties, the latter
supposedly imposing a lesser First Amendment burden. The Party thus invokes the general rule
[recognized in Buckley and Colorado I] that contribution limits take a lesser First Amendment
toll, expenditure limits a greater one. * * *
In each of those cases, however, the * * * analysis ultimately turned on the understanding
that the expenditures at issue were not potential alter egos for contributions, but were
independent and therefore functionally true expenditures, qualifying for the most demanding
First Amendment scrutiny employed in Buckley. * * * Thus, in Colorado I we could not assume,
“absent convincing evidence to the contrary,” that the Party’s independent expenditures formed a
link in a chain of corruption-by-conduit. “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”; therefore, “the constitutionally significant fact” in
Colorado I was “the lack of coordination between the candidate and the source of the
expenditure,” 518 U.S. at 617.
Here, however, just the opposite is true. There is no significant functional difference between
a party’s coordinated expenditure and a direct party contribution to the candidate, and there is
good reason to expect that a party’s right of unlimited coordinated spending would attract
increased contributions to parties to finance exactly that kind of spending. Coordinated
expenditures of money donated to a party are tailor-made to undermine contribution limits.
Therefore the choice here is not, as in Buckley and Colorado I, between a limit on pure
contributions and pure expenditures. The choice is between limiting contributions and limiting
expenditures whose special value as expenditures is also the source of their power to corrupt.
Congress is entitled to its choice.
We hold that a party’s coordinated expenditures, unlike expenditures truly independent, may
be restricted to minimize circumvention of contribution limits. We therefore reject the Party’s
facial challenge and, accordingly, reverse the judgment of the United States Court of Appeals for
the Tenth Circuit.
It is so ordered.
 101

JUSTICE THOMAS, with whom [THE CHIEF JUSTICE (REHNQUIST),] JUSTICE SCALIA and JUSTICE
KENNEDY join * * *, dissenting. * * *
The Court * * * attempts simply to treat coordinated expenditures by political parties as
equivalent to contributions by individuals and political committees. Thus, at least implicitly, the
Court draws two conclusions: coordinated expenditures are no different from contributions, and
political parties are no different from individuals and political committees. Both conclusions are
flawed.
The Court considers a coordinated expenditure to be an “expenditure made by any person in
cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his
authorized political committees, or their agents.” This definition covers a broad array of conduct,
some of which is akin to an independent expenditure. At one extreme, to be sure, are outlays that
are “virtually indistinguishable from simple contributions.” Colorado I, 518 U.S., at 624
(opinion of BREYER, J.). An example would be “a donation of money with direct payment of a
candidate’s media bills.” Ibid. But toward the other end of the spectrum are expenditures that
largely resemble, and should be entitled to the same protection as, independent expenditures.
Take, for example, a situation in which the party develops a television advertising campaign
touting a candidate’s record on education, and the party simply “consults,” 2 U.S.C. § 441a(a)(7)
(B)(i), with the candidate on which time slot the advertisement should run for maximum
effectiveness. I see no constitutional difference between this expenditure and a purely
independent one. In the language of Buckley, the advertising campaign is not a mere “general
expression of support for the candidate and his views,” but a communication of “the underlying
basis for the support.” 424 U.S. at 21. It is not just “symbolic expression,” ibid. but a clear
manifestation of the party’s most fundamental political views. By restricting such speech, the
Party Expenditure Provision undermines parties’ “freedom to discuss candidates and issues,” and
cannot be reconciled with our campaign finance jurisprudence.
Even if I were to ignore the breadth of the statutory text, and to assume that all coordinated
expenditures are functionally equivalent to contributions, I still would strike down the Party
Expenditure Provision. The source of the “contribution” at issue is a political party, not an
individual or a political committee, as in Buckley and [Nixon v.] Shrink Missouri [Government
PAC, 528 U.S. 377 (2000)] [p. XXX]. Restricting contributions by individuals and political
committees may, under Buckley, entail only a “marginal restriction,” but the same cannot be said
about limitations on political parties.
Political parties and their candidates are “inextricably intertwined” in the conduct of an
election. Colorado I, supra, at 630 (KENNEDY, J., concurring in judgment and dissenting in part).
A party nominates its candidate; a candidate often is identified by party affiliation throughout the
election and on the ballot; and a party’s public image is largely defined by what its candidates
say and do. Most importantly, a party’s success or failure depends in large part on whether its
candidates get elected. Because of this unity of interest, it is natural for a party and its candidate
to work together and consult with one another during the course of the election. * * * Indeed, “it
would be impractical and imprudent . . . for a party to support its own candidates without some
form of ‘cooperation’ or ‘consultation.’ ” See [ibid]. “Candidates are necessary to make the
party’s message known and effective, and vice versa.” Id. at 629. Thus, the ordinary means for a
party to provide support is to make coordinated expenditures[.] * * *
[T]o break this link between the party and its candidates would impose “additional costs and
burdens to promote the party message.” * * * Establishing and maintaining independence also
tends to create voter confusion and to undermine the candidate that the party sought to support.
102

* * * Finally, because of the ambiguity in the term “coordinated expenditure,” the Party
Expenditure Provision chills permissible speech as well. * * * Thus, far from being a mere
“marginal” restraint on speech, Buckley, the Party Expenditure Provision has restricted the
party’s most natural form of communication; has precluded parties “from effectively amplifying
the voice of their adherents”; and has had a “stifling effect on the ability of the party to do what it
exists to do.”3 Colorado I, 518 U.S., at 630 (KENNEDY, J., concurring in judgment and dissenting
in part).
The Court nevertheless concludes that these concerns of inhibiting party speech are rendered
“implausible” by the nearly 30 years of history in which coordinated spending has been
statutorily limited. Without a single citation to the record, the Court rejects the assertion “that for
almost three decades political parties have not been functional or have been functioning in
systematic violation of the law.” I am unpersuaded by the Court’s attempts to downplay the
extent of the burden on political parties’ First Amendment rights. First, the Court does not
examine the record or the findings of the District Court, but instead relies wholly on the
“observations” of the “political scientists” who happen to have written an amicus brief in support
of the petitioner. I find more convincing, and more relevant, the record evidence that the parties
have developed, which * * * indicates that parties have suffered as a result of the Party
Expenditure Provision.4 Second, we have never before upheld a limitation on speech simply
because speakers have coped with the limitation for 30 years. * * * And finally, if the passage of
time were relevant to the constitutional inquiry, I would wonder why the Court adopted a “30-
year” rule rather than the possible countervailing “200-year” rule. For nearly 200 years, this
country had congressional elections without limitations on coordinated expenditures by political
parties. Nowhere does the Court suggest that these elections were not “functional,” or that they
were marred by corruption.
The Court’s only other response to the argument that parties are linked to candidates and that
breaking this link would impose significant costs on speech is no response at all. The Court
contends that parties are not organized simply to “elect particular candidates” as evidenced by

3
The Court contends that, notwithstanding this burden, “it is nonetheless possible for parties, like individuals and
nonparty groups, to speak independently” (emphasis added). That is correct, but it does not render the restriction
constitutional. If Congress were to pass a law imposing a $1,000 tax on every political newspaper editorial, the law
would surely constitute an unconstitutional restraint on speech, even though it would still be possible for newspapers
to print such editorials.
The Court’s holding presents an additional First Amendment problem. Because of the close relationship between
parties and candidates, lower courts will face a difficult, if not insurmountable, task in trying to determine whether
particular party expenditures are in fact coordinated or independent. “[E]ven if such an inquiry is feasible, it
inevitably would involve an intrusive and constitutionally troubling investigation of the inner workings of political
parties.”
4
Moreover, were I to depart from the record, as does the Court, I could consider sources suggesting that parties in
fact have lost power in recent years. See, e.g., M. Wattenberg, The Decline of American Political Parties, 1952-
1996, p. 174 (1998) (indicating that percentage of voters who identify with a party has declined while percentage of
split tickets has increased); Maisel, American Political Parties: Still Central to a Functioning Democracy?, in
American Political Parties: Decline or Resurgence?, 103, 107-111 (J. Cohen, R. Fleisher, & P. Kantor eds. 2001)
(describing weaknesses of modern political parties). I also could explore how political parties have coped with the
restrictions on coordinated expenditures. As JUSTICE KENNEDY has explained, “the Court has forced a substantial
amount of political speech underground, as contributors and candidates devise ever more elaborate methods of
avoiding contribution limits.” Shrink, 528 U.S., [at] 406 (dissenting opinion). Perhaps political parties have
survived, not because the regulation at issue imposes less than a substantial burden on speech, but simply because
the parties have found “underground” alternatives for communication.
 103

the fact that many political action committees donate money to both parties and sometimes even
opposing candidates. * * * There are two flaws in the Court’s analysis. First, no one argues that a
party’s role is merely to get particular candidates elected. Surely, among other reasons, parties
also exist to develop and promote a platform. The point is simply that parties and candidates
have shared interests, that it is natural for them to work together, and that breaking the
connection between parties and their candidates inhibits the promotion of the party’s message.
Second, the mere fact that some donors contribute to both parties and their candidates does not
necessarily imply that the donors control the parties or their candidates. It certainly does not
mean that the parties are mere “instruments” or “agents,” of the donors. Indeed, if a party
receives money from donors on both sides of an issue, how can it be a tool of both donors? If the
Green Party were to receive a donation from an industry that pollutes, would the Green Party
necessarily become, through no choice of its own, an instrument of the polluters? The Court
proffers no evidence that parties have become pawns of wealthy contributors. Parties might be
the target of the speech of donors, but that does not suggest that parties are influenced (let alone
improperly influenced) by the speech. Thus, the Court offers no explanation for why political
parties should be treated the same as individuals and political committees.
But even if I were to view parties’ coordinated expenditures as akin to contributions by
individuals and political committees, I still would hold the Party Expenditure Provision
constitutionally invalid. * * * As this Court made clear just last Term, “we have never accepted
mere conjecture as adequate to carry a First Amendment burden.” Shrink Missouri, 528 U.S., at
392. Some “quantum of empirical evidence [is] needed to satisfy heightened judicial scrutiny of
legislative judgments.” Precisely how much evidence is required will “vary up or down with the
novelty and plausibility of the justification raised.” Today, the Court has jettisoned this
evidentiary requirement.
Considering that we have never upheld an expenditure limitation against political parties, I
would posit that substantial evidence is necessary to justify the infringement of parties’ First
Amendment interests. But we need not accept this high evidentiary standard to strike down the
Party Expenditure Provision for want of evidence. Under the least demanding evidentiary
requirement, the Government has failed to carry its burden, for it has presented no evidence at all
of corruption or the perception of corruption. The Government does not, and indeed cannot,
point to any congressional findings suggesting that the Party Expenditure Provision is necessary,
or even helpful, in reducing corruption or the perception of corruption. In fact, this Court has
recognized that “Congress wrote the Party Expenditure Provision not so much because of a
special concern about the potentially ‘corrupting’ effect of party expenditures, but rather for the
constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign
spending.” Colorado I, 518 U.S., at 618.
Without explanation, the Court departs from this earlier, well-considered understanding of
the Party Expenditure Provision. Were there any evidence of corruption in the record that the
parties have since developed, such a departure might be justified. But as the District Court found,
“the facts which [the] FEC contends support its position . . . do not establish that the limit on
party coordinated expenditures is necessary to prevent corruption or the appearance thereof.”
Indeed, “none of the FEC’s examples [of alleged corruption] involves coordinated expenditures.”
The dearth of evidence is unsurprising in light of the unique relationship between a political
party and its candidates: “The very aim of a political party is to influence its candidate’s stance
on issues and, if the candidate takes office or is reelected, his votes.” Colorado I, 518 U.S., at
646 (THOMAS, J., concurring in judgment and dissenting in part). If coordinated expenditures help
104

achieve this aim, the achievement “does not . . . constitute ‘a subversion of the political
process.’ ” Ibid. It is simply the essence of our Nation’s party system of government. One can
speak of an individual citizen or a political action committee corrupting or coercing a candidate,
but “what could it mean for a party to ‘corrupt’ its candidate or to exercise ‘coercive’ influence
over him?” Bennett v. New Jersey, 470 U.S. 632, 646 (1985).
Apparently unable to provide an answer to this question, the Court relies upon an alternative
theory of corruption. According to the Court, the Party Expenditure Provision helps combat
circumvention of the limits on individual donors’ contributions, which limits are necessary to
reduce corruption by those donors. The primary problem with this contention, however, is that it
too is plainly contradicted by the findings of the District Court and the overwhelming evidence
in the record. And this contention is particularly surprising in light of Colorado I, in which we
discussed the same opportunity for corruption through circumvention, and, far from finding it
dispositive, concluded that any opportunity for corruption was “at best, attenuated.”
Without addressing the District Court’s determination or reflecting on this Court’s
understanding in Colorado I, the Court today asserts that its newfound position is supported by
“substantial evidence.” The best evidence the Court can come up with, however, is the
Democratic Senatorial Campaign Committee’s (DSCC) use of the “tally system,” which
“connects donors to candidates through the accommodation of a party.” The tally system is not
evidence of corruption-by-circumvention. In actuality, the DSCC is not acting as a mere conduit,
allowing donors to contribute money in excess of the legal limits. The DSCC instead has
allocated money based on a number of factors, including “the financial strength of the
campaign,” “what [the candidate’s] poll numbers looked like,” and “who had the best chance of
winning or who needed the money most.” As the District Court found, “the primary
consideration in allocating funds is which races are marginal—that is which races are ones where
party money could be the difference between winning and losing.” * * * The “bottom line” of the
tally system is that “some candidates get back more money than they raise, and others get back
less.”
Moreover, the Court does not explain how the tally system could constitute evidence of
corruption. Both the initial contribution to the party and the subsequent expenditure by the party
on the candidate are currently legal. In essence, the Court is asserting that it is corrupt for parties
to do what is legal to enhance their participation in the political process. Each step in the process
is permitted, but the combination of those steps, the Court apparently believes, amounts to
corruption sufficient to silence those who wish to support a candidate. In my view, the First
Amendment demands a more coherent explication of the evidence of corruption.
Finally, even if the tally system were evidence of corruption-through-circumvention, it is
only evidence of what is occurring under the current system, not of additional “corruption” that
would arise in the absence of the Party Expenditure Provision. The Court speculates that, if we
invalidated the Party Expenditure Provision, “the inducement to circumvent would almost
certainly intensify.” But that is nothing more than supposition, which is insufficient under our
precedents to sustain a restriction on First Amendment interests. * * * And it is weak supposition
at that. The Court does not contend that the DSCC’s alleged efforts to channel money through
the tally system were restricted in any way by the Party Expenditure Provision. On the contrary,
the Court suggests that a donation to the DSCC was increased by the party; in other words, the
candidate got more than the initial donation. Because I am unpersuaded by weak speculation
ungrounded in any evidence, I disagree with the Court’s conclusion that the Party Expenditure
Provision furthers the Government interest of reducing corruption.
 105

Even if the Government had presented evidence that the Party Expenditure Provision affects
corruption, the statute still would be unconstitutional, because there are better tailored
alternatives for addressing the corruption. In addition to bribery laws and disclosure laws, * * *
the Government has two options that would not entail the restriction of political parties’ First
Amendment rights.
First, the Government could enforce the earmarking rule of 2 U.S.C. § 441a(a)(8), under
which contributions that “are in any way earmarked or otherwise directed through an
intermediary or conduit to [a] candidate” are treated as contributions to the candidate. Vigilant
enforcement of this provision is a precise response to the Court’s circumvention concerns. If a
donor contributes $2,000 to a candidate (the maximum donation in an election cycle), he cannot
direct the political party to funnel another dime to the candidate without confronting the Federal
Election Campaign Act’s civil and criminal penalties, see 2 U.S.C. § 437g(a)(6)(C) (civil);
§ 437g(d) (criminal).
According to the Court, reliance on this earmarking provision “ignores the practical
difficulty of identifying and directly combating circumvention” and “would reach only the most
clumsy attempts to pass contributions through to candidates.” The Court, however, does not cite
any evidence to support this assertion. Nor does it articulate what failed steps the Government
already has taken. Nor does it explain why the burden that the Government allegedly would have
to bear in uncovering circumvention justifies the infringement of political parties’ First
Amendment rights. In previous cases, we have not been so willing to overlook such failures.
***
In any event, there is a second, well-tailored option for combating corruption that does not
entail the reduction of parties’ First Amendment freedoms. The heart of the Court’s
circumvention argument is that, whereas individuals can donate only $2,000 to a candidate in a
given election cycle, they can donate $20,000 to the national committees of a political party, an
amount that is allegedly large enough to corrupt the candidate. If indeed $20,000 is enough to
corrupt a candidate (an assumption that seems implausible on its face and is, in any event,
unsupported by any evidence), the proper response is to lower the cap. That way, the speech
restriction is directed at the source of the alleged corruption—the individual donor—and not the
party. * * * “It would be quite remarkable to hold that speech by a law-abiding [entity] can be
suppressed in order to deter conduct by a non-law-abiding third party.” The Court takes that
unorthodox path today, a decision that is all the more remarkable considering that the controlling
opinion in Colorado I expressly rejected it just five years ago. 518 U.S. at 617 (“We could
understand how Congress, were it to conclude that the potential for evasion of the individual
limits was a serious matter, might decide to change the statute’s limitations on contributions to
political parties. But we do not believe that the risk of corruption present here could justify the
‘markedly greater burden on basic freedoms caused by’ the statute’s limitations on
expenditures”).
In my view, it makes no sense to contravene a political party’s core First Amendment rights
because of what a third party might unlawfully try to do. Instead of broadly restricting political
parties’ speech, the Government should have pursued better-tailored alternatives for combating
the alleged corruption.

Notes and Questions

1. “The * * * result of this pair of cases [Colorado I and Colorado II] is to drive a wedge
between parties and candidates. Parties can spend unlimited sums to help their candidates, but
106

only if they do so independently of the candidates—that is, without sharing information on the
candidate’s strengths and weaknesses, strategies, plans, polling data, and so forth.” Bradley A.
Smith, A Moderate, Modern Campaign Finance Reform Agenda, 12 NEXUS J. OP. 3, 16 (2007).
2. In Colorado Republican II, the Court was clearly concerned that parties could serve as
conduits for large contributions, and in so doing be a source of corruption. See Richard L. Hasen,
Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v.
Federal Election Commission, 153 U. PA. L. REV. 31, 44-45, 48-52 (2004). At the time that
Colorado II was decided, national political parties were able to raise and spend “soft money”
funds beyond the $20,000 limit in the Act, so long as they were not spent on federal candidate
elections. Does this give added force to the majority’s opinion? See also Amanda G. Altman,
Party Poopers: The Supreme Court Overlooks the Party in Federal Election Commission v.
Colorado Republican Federal Campaign Committee, 46 ST. LOUIS L.J. 1001, 1018-32 (2002).
3. Two scholars have recently authored a book-length defense of the proposition that parties
ought to receive favored status under the law. Parties are seen as buffers between donors and the
ultimate recipients of funds, as mediators between candidates and interest groups, and as sources
that can direct funds to those races and candidates where they can be used most efficiently. See
PETER J. WALLISON & JOEL M. GORA, BETTER PARTIES, BETTER GOVERNMENT: A REALISTIC
PROGRAM FOR CAMPAIGN FINANCE REFORM 87-111 (2009).
4. Recall also the distinction drawn by Buckley between “express advocacy” and “issue
advocacy,” supra p. XXX. Under Buckley, an organization that engaged in “express advocacy”
became regulated as a “political committee” under FECA, and thus subject not only to the
organizational and reporting requirements imposed on political committees, but also to the
prohibitions and limits on contributions to political committees. If, however, an organization’s
speech did not constitute “express advocacy of election or defeat,” 424 U.S. at 45, then the
organization did not become a political committee and was free to accept funds both in excess of
FECA’s contribution limits, and from FECA’s prohibited sources (corporations, unions, and
government contractors). Thus, considerable fundraising advantages and administrative
flexibility accrued to a person, group, or organization whose speech did not constitute express
advocacy. Because Buckley was a constitutional decision, the Supreme Court’s interpretation of
express advocacy and issue advocacy also affected state laws. During the 1980s and 1990s, legal
disputes over campaign finance frequently turned on whether or not the speaker was engaged in
express advocacy, and thus subject to regulation as a political committee, or issue advocacy, and
thus free from much regulation. In the following cases, compare the different approaches taken
by three different appellate courts.

FEDERAL ELECTION COMMISSION v. CENTRAL LONG

ISLAND TAX REFORM IMMEDIATELY COMMITTEE
United States Court of Appeals for the Second Circuit (en banc)
616 F.2d 45 (2d Cir. 1980)

PER CURIAM [CHIEF JUDGE KAUFMAN, and CIRCUIT JUDGES FEINBERG, MANSFIELD, MULLIGAN ,
OAKES, TIMBERS, VAN GRAAFEILAND , MESKILL, NEWMAN, and KEARSE join in this unanimous
opinion]: * * *
* * * The John Birch Society, Inc. (Society), a Massachusetts corporation founded in 1958 by
Robert Welch, publishes the TRIM (Tax Reform Immediately) Bulletin, a quarterly in which the
Society is identified as the publisher. The Society, which is not affiliated with any political party,
 107

committee or candidate, primarily serves the educational interests of its followers and not any
pecuniary business interest. It is supported by membership dues and voluntary contributions.
National TRIM is a committee established by the Society, consisting of a network of local TRIM
committees throughout the United States, advocating lower taxes and less government spending.
The local TRIM committees are expected to send to TRIM a monthly report on their activities
and income, as well as one-half of all dues and donations received.
Since 1975 National TRIM has researched, written and mailed to the local TRIM committees
“camera-ready” copy of the quarterly TRIM Bulletin, with instructions for printing. The copy
sets forth (1) positions with respect to certain economic and tax issues, (2) the voting records of
all members of Congress on specific legislation concerning these issues, along with a
characterization of votes as “For Lower Taxes and Less Government” or “For Higher Taxes and
More Government,” and (3) a commentary reflecting National TRIM’s views as to the merits of
the bills identified. No mention is made of any particular federal election, the political affiliation
of any congressman, the fact that he is or is not a candidate for elective office, or the name or
views of any electoral opponent of any congressman. The instructions suggest to the local TRIM
committees that they use a photograph of their congressman, since this permits voters to connect
him or her with his or her voting record and aids in “unseating a liberal,” “unseating or changing
the voting pattern of a ‘moderate,’ ” or “strengthening a conservative” representative. * * *
In the summer of 1976 defendant Cozzette, a resident of Huntington Station, Long Island,
who has been active with others in advancing views on economic and social issues, formed
CLITRIM, a non-profit unincorporated association whose purpose was to inform Long Island
residents of the need for lowering taxes through less government. It became affiliated with
National TRIM, held meetings at which there were discussions and films shown with respect to
the danger of higher taxes, and decided to distribute the TRIM Bulletin.
Using the material received from TRIM, CLITRIM prepared a Fall, 1976, TRIM Bulletin.
Two of its four pages set forth the general views of the organizations, identified the officers of
the Committee, furnished information about the CLITRIM members and invited others to join.
The remaining pages reported the voting record of Congressman Jerome A. Ambro, a local
representative of central Long Island. These pages included a photograph of Congressman
Ambro and a chart of 24 votes cast by him, 21 of which were characterized as for “Higher Taxes
and More Government” and 3 as for “Lower Taxes and Less Government.” CLITRIM’s stand
against higher taxes and “Big Government” in favor of lower taxes and “Less Government” was
made clear by slogans and commentaries. However, the leaflet did not refer to any federal
election, to Congressman Ambro’s political affiliation or candidacy, or to any electoral opponent
of the Congressman. Some 5,000 to 10,000 copies were handed out at the local railroad station,
shopping centers and a public meeting at which Congressman Ambro spoke. The cost of printing
was $135. Thereafter leafleting activity ceased and CLITRIM was disbanded. However, several
other local TRIM committees have been formed in various parts of the United States and have
engaged in similar publicizing of congressmen’s votes on economic and tax issues. * * *
[FECA] obligates any “person . . . who makes contributions or independent expenditures
expressly advocating the election or defeat of a clearly identified candidate” in an amount
exceeding [$1000] in any calendar year, to file with the FEC a statement containing the
information required of contributors of more than $100f to a candidate or political committee.
Similarly [the Act] requires any person who “makes an expenditure for the purpose of financing
communications expressly advocating the election or defeat of a clearly identified candidate”
f
Now $200 [–Eds.]
108

through media, advertising or mailing, to state whether the communication is authorized by a

candidate, his political committees or agents and, if not, to give the name of the person who
financed it.
The language quoted from the statutes was incorporated by Congress in the 1976 FECA
amendments, to conform the statute to the Supreme Court’s holding in Buckley v. Valeo, 424
U.S. [1], 78-80 [(1976)] [p. XXX] [(per curiam)], that speech not by a candidate or political
committee could be regulated only to the extent that the communications “expressly advocate the
election or defeat of a clearly identified candidate.” * * * Public discussion of [issues] was held
[in Buckley] to fall beyond the scope of the statute: “As narrowed, [the Act] . . . does not reach
all partisan discussion for it only requires disclosure of those expenditures that expressly
advocate a particular election result.” 424 U.S. at 80. * * *
* * * [C]ontrary to the position of the FEC, the words “expressly advocating” means exactly
what they say. The FEC, to support its position, argues that “[t]he TRIM bulletins at issue here
were not disseminated for such a limited purpose” as merely informing the public about the
voting record of a government official. Rather, the purpose was to unseat “big spenders.” Thus,
the FEC would apparently have us read “expressly advocating the election or defeat” to mean for
the purpose, express or implied, of encouraging election or defeat. * * * The position is totally
meritless.
The CLITRIM Bulletin of Fall, 1976, contains nothing which could rationally be termed
express advocacy. The nearest it comes to expressly calling for action of any sort is its
exhortation that “[i]f your Representative consistently votes for measures that increase taxes, let
him know how you feel. And thank him when he votes for lower taxes and less government.”
Neither this nor the voting chart calls for anyone’s election or defeat. Indeed, a reader of the
pamphlet could not find any indication, express or implied, of how TRIM would have him or her
vote, without knowing the positions of the incumbent’s opponent. There is no reference
anywhere in the Bulletin to the congressman’s party, to whether he is running for re-election, to
the existence of an election or the act of voting in any election; nor is there anything approaching
an unambiguous statement in favor of or against the election of Congressman Ambro.
* * * We therefore remand the case to the district court with directions to dismiss the
complaint.

KAUFMAN, CHIEF JUDGE (with whom OAKES, CIRCUIT JUDGE, joins), concurring:
* * * I confess that I find this episode somewhat perverse. It is disturbing because citizens of
this nation should not be required to account to this court for engaging in debate of political
issues. Indeed, since the days of the infamous Stamp Act, vigorous denunciation of “oppressive”
rates of taxation, has enjoyed a long and notable history. Moreover, it is incongruous to compel
defendants to convince a court that they have not dared to “expressly advocate” the defeat of a
candidate for public office. I had always believed that such advocacy was to be applauded in a
representative democracy. * * *
Buckley v. Valeo imposed upon the FEC the weighty, if not impossible, obligation to exercise
its powers in a manner harmonious with a system of free expression. Our decision today should
stand as an admonition to the Commission that, at least in this case, it has failed abysmally to
meet this awesome responsibility.

FEDERAL ELECTION COMMISSION v. FURGATCH

United States Court of Appeals for the Ninth Circuit
 109

807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987)

FARRIS, CIRCUIT JUDGE [with whom GOODWIN, CIRCUIT JUDGE, and SOLOMON, SENIOR DISTRICT
JUDGE (sitting by designation) join]:
* * * On October 28, 1980, one week prior to the 1980 presidential election, the New York
Times published a full page advertisement captioned “Don’t let him do it,” placed and paid for
by Harvey Furgatch. The advertisement read:

DON’T LET HIM DO IT.

The President of the United States continues degrading the electoral process and lessening the prestige
of the office.
It was evident months ago when his running mate outrageously suggested Ted Kennedy was
unpatriotic. The President remained silent.
And we let him.
It continued when the President himself accused Ronald Reagan of being unpatriotic.
And we let him do it again.
In recent weeks, Carter has tried to buy entire cities, the steel industry, the auto industry, and others
with public funds.
We are letting him do it.
He continues to cultivate the fears, not the hopes, of the voting public by suggesting the choice is
between “peace and war,” “black or white,” “north or south,” and “Jew vs. Christian.” His meanness of
spirit is divisive and reckless McCarthyism at its worst. And from a man who once asked, “Why Not the
Best?”
It is an attempt to hide his own record, or lack of it. If he succeeds the country will be burdened with
four more years of incoherencies, ineptness and illusion, as he leaves a legacy of low-level campaigning.
DON’T LET HIM DO IT.

On November 1, 1980, three days before the election, Furgatch placed the same
advertisement in The Boston Globe. Unlike the first advertisement, which stated that it was paid
for by Furgatch and was “not authorized by any candidate,” the second advertisement omitted
the disclaimer. The two advertisements cost Furgatch approximately $25,000. * * *
The FEC argues that Furgatch’s advertisement expressly advocates the defeat of Jimmy
Carter and therefore is an independent expenditure which must be reported to the FEC. The
examples of express advocacy contained in the Buckley [v. Valeo] opinion (i.e., “vote for,”
“support,” etc.) [see 424 U.S. 1, 44 n.52 (1976) (per curiam)] [p. XXX], the FEC argues, merely
provide guidelines for determining what constitutes “express advocacy.” Whether those words
are contained in the advertisement is not determinative. The test is whether or not the
advertisement contains a message advocating the defeat of a political candidate. Furgatch’s
advertisement, the FEC contends, contains an unequivocal message that Carter must not
“succeed” in “burden[ing]” the country with “four more years” of his allegedly harmful
leadership.
The FEC further argues that the advertisement is, in the words of the Supreme Court,
“unambiguously related to the campaign of a particular federal candidate.” Buckley, 424 U.S. at
80. Nothing more, it contends, is required to place this advertisement under coverage of the Act.
The FEC grounds this argument on the Court’s effort in Buckley to distinguish between speech
that pertains only to candidates and their campaigns and speech revolving around political issues
in general. The FEC argues that because the advertisement discusses Carter, the candidate, rather
than the political issues, Furgatch must report the expenditure.
Furgatch responds that the mere raising of any question on this issue demonstrates that it is
not express advocacy. We would not be debating the meaning of the advertisement, he contends,
110

if it were express. He argues that the words “don’t let him do it” do not expressly call for
Carter’s defeat at the polls but an end to his “attempt to hide his own record, or lack of it.” The
advertisement, according to Furgatch, is merely a warning that Carter will be re-elected if the
public allows him to continue to use “low-level campaign tactics.”
As the district court noted, whether the advertisement expressly advocates the defeat of
Jimmy Carter is a very close call. * * *
We begin with the proposition that “express advocacy” is not strictly limited to
communications using certain key phrases. The short list of words included in the Supreme
Court’s opinion in Buckley does not exhaust the capacity of the English language to expressly
advocate the election or defeat of a candidate. A test requiring the magic words “elect,”
“support,” etc., or their nearly perfect synonyms for a finding of express advocacy would
preserve the First Amendment right of unfettered expression only at the expense of eviscerating
the Federal Election Campaign Act. “Independent” campaign spenders working on behalf of
candidates could remain just beyond the reach of the Act by avoiding certain key words while
conveying a message that is unmistakably directed to the election or defeat of a named candidate.
A proper understanding of the speaker’s message can best be obtained by considering speech
as a whole. * * * This is not to say that we will not examine each sentence in an effort to
understand the whole. We only recognize that the whole consists of its parts in relation to each
other.
The subjective intent of the speaker cannot alone be determinative. Words derive their
meaning from what the speaker intends and what the reader understands. A speaker may
expressly advocate regardless of his intention, and our attempts to fathom his mental state would
distract us unnecessarily from the speech itself. Interpreting political speech in this context is not
the same as interpreting a contract, where subjective intent underlies the formation and
construction of the contract and would be the explicit focus of interpretation were it not for the
greater reliability of the objective terms. The intent behind political speech is less important than
its effect for the purposes of this inquiry.
More problematic than use of “magic words” or inquiry into subjective intent are questions
of context. The FEC argues, for example, that this advertisement cannot be construed outside its
temporal context, the 1980 presidential election. Furgatch, on the other hand, maintains that the
court must find express advocacy in the speech itself, without reference to external
circumstances.
The problem of the context of speech goes to the heart of some of the most difficult First
Amendment questions. The doctrines of subversive speech, “fighting words,” libel, and speech in
the workplace and in public fora illustrate that when and where speech takes place can determine
its legal significance. In these instances, context is one of the crucial factors making these kinds
of speech regulable. First Amendment doctrine has long recognized that words take part of their
meaning and effect from the environment in which they are spoken. When the constitutional and
statutory standard is “express advocacy,” however, the weight that we give to the context of
speech declines considerably. Our concern here is with the clarity of the communication rather
than its harmful effects. Context remains a consideration, but an ancillary one, peripheral to the
words themselves.
We conclude that context is relevant to a determination of express advocacy. A consideration
of the context in which speech is uttered may clarify ideas that are not perfectly articulated, or
supply necessary premises that are unexpressed but widely understood by readers or viewers. We
should not ignore external factors that contribute to a complete understanding of speech,
 111

especially when they are factors that the audience must consider in evaluating the words before
it. However, context cannot supply a meaning that is incompatible with, or simply unrelated to,
the clear import of the words.
With these principles in mind, we propose a standard for “express advocacy” that will
preserve the efficacy of the Act without treading upon the freedom of political expression. We
conclude that speech need not include any of the words listed in Buckley to be express advocacy
under the Act, but it must, when read as a whole, and with limited reference to external events,
be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a
specific candidate. This standard can be broken into three main components. First, even if it is
not presented in the clearest, most explicit language, speech is “express” for present purposes if
its message is unmistakable and unambiguous, suggestive of only one plausible meaning.
Second, speech may only be termed “advocacy” if it presents a clear plea for action, and thus
speech that is merely informative is not covered by the Act. Finally, it must be clear what action
is advocated. Speech cannot be “express advocacy of the election or defeat of a clearly identified
candidate” when reasonable minds could differ as to whether it encourages a vote for or against a
candidate or encourages the reader to take some other kind of action.
We emphasize that if any reasonable alternative reading of speech can be suggested, it cannot
be express advocacy subject to the Act’s disclosure requirements. This is necessary and
sufficient to prevent a chill on forms of speech other than the campaign advertising regulated by
the Act. Under this standard, the court is not forced to ignore the plain meaning of campaign-
related speech in a search for certain fixed indicators of “express advocacy.”
Applying this standard to Furgatch’s advertisement, we reject the district court’s ruling that it
does not expressly advocate the defeat of Jimmy Carter. We have no doubt that the ad asks the
public to vote against Carter. It cannot be read in the way that Furgatch suggests.
The bold print of the advertisement pleads: “Don’t let him do it.” The district court
determined that the focus of the inquiry, and the message of the ad, is the meaning of the word
“it.” Under the district court’s analysis, only if “it” is a clear reference to Carter’s re-election,
supported by the text of the ad, could one find express advocacy. The district court accepted the
arguments of Furgatch that “it” may plausibly be read to refer to Carter’s degradation of his
office, and his manipulation of the campaign process. The ad deplores Carter’s “attempt to hide
his own record,” his “legacy of low-level campaigning,” his divisiveness and “meanness of
spirit,” and his “incoherencies, ineptness, and illusion.” As the district court viewed it, although
the advertisement criticizes Carter’s campaign tactics, it never refers to the election or to voting
against Carter. The words “don’t let him do it” urge readers to stop Carter from doing those
things now and in the future.
We disagree with the district court that the word “it” is the proper focus of the inquiry. There
is no question what “it” is—“it” is all the things that the ad accuses Jimmy Carter of doing, the
litany of abuses and indiscretions that constitutes the body of the statement. The pivotal question
is not what the reader should prevent Jimmy Carter from doing, but what the reader should do to
prevent it. The words we focus on are “don’t let him.” They are simple and direct. “Don’t let
him” is a command. The words “expressly advocate” action of some kind. If the action that
Furgatch is urging the public to take is a rejection of Carter at the polls, this advertisement is
covered by the Campaign Act.
In Furgatch’s advertisement we are presented with an express call to action, but no express
indication of what action is appropriate. We hold, however, that this failure to state with
specificity the action required does not remove political speech from the coverage of the
112

Campaign Act when it is clearly the kind of advocacy of the defeat of an identified candidate that
Congress intended to regulate.
Reasonable minds could not dispute that Furgatch’s advertisement is urging readers to vote
against Jimmy Carter. This was the only action open to those who would not “let him do it.” The
reader could not sue President Carter for his indelicate remarks, or arrest him for his
transgressions. If Furgatch had been seeking impeachment, or some form of judicial or
administrative action against Carter, his plea would have been to a different audience, in a
different forum. If Jimmy Carter was degrading his office, as Furgatch claimed, the audience to
whom the ad was directed must vote him out of that office. If Jimmy Carter was attempting to
buy the election, or to win it by “hid[ing] his own record, or lack of it,” as Furgatch suggested,
the only way to not let him do it was to give the election to someone else. Although the ad may
be evasively written, its meaning is clear.
Our conclusion is reinforced by consideration of the timing of the ad. The ad is bold in
calling for action, but fails to state expressly the precise action called for, leaving an obvious
blank that the reader is compelled to fill in. It refers repeatedly to the election campaign and
Carter’s campaign tactics. Timing the appearance of the advertisement less than a week before
the election left no doubt of the action proposed.
Finally, this advertisement was not issue-oriented speech of the sort that the Supreme Court
was careful to distinguish in Buckley, and the Second Circuit found to be excluded from the
coverage of the Act in Central Long Island Tax Reform [616 F.2d 45 (2d Cir. 1980)] [p. XXX].
The ad directly attacks a candidate, not because of any stand on the issues of the election, but for
his personal qualities and alleged improprieties in the handling of his campaign. It is the type of
advertising that the Act was enacted to cover.
There is vagueness in Furgatch’s message, but no ambiguity. Furgatch was obligated to file
the statement and make the disclosures required for any “independent expenditure” under the
Federal Election Campaign Act. He is liable for the omission. * * *
REVERSED.

FEDERAL ELECTION COMMISSION v. CHRISTIAN ACTION

NETWORK
United States Court of Appeals for the Fourth Circuit
110 F.3d 1049 (4th Cir. 1997)

LUTTIG, CIRCUIT JUDGE [with whom RUSSELL, CIRCUIT JUDGE, and CHAPMAN, SENIOR CIRCUIT JUDGE,
join]: * * *
* * * [Title 2 U.S.C. § 441b(a) prohibits corporations from making contributions or
expenditures “in connection with” federal campaigns.] In the underlying litigation, the Federal
Election Commission advanced the position that the Christian Action Network violated section
441b(a) through corporate expenditures for a commercial in which the following text was read
by a narrator:
Bill Clinton’s vision for America includes job quotas for homosexuals, giving homosexuals special civil
rights, allowing homosexuals in the armed forces. Al Gore supports homosexual couples’ adopting
children and becoming foster parents. Is this your vision for a better America? For more information on
traditional family values, contact the Christian Action Network. * * *

[T]he district court dismissed the FEC’s action against the Network for failure to state a
 113

claim upon which relief could be granted, holding that, as “issue advocacy intended to inform the
public about political issues germane to the 1992 presidential election,” the advertisements were
“fully protected as ‘political speech’ under the First Amendment.” * * *
In Buckley v. Valeo [424 U.S. 1 (1976)] [p. XXX], * * * the Court held that the Federal
Election Campaign Act could be applied consistently with the First Amendment only if it were
limited to expenditures for communications that literally include words which in and of
themselves advocate the election or defeat of a candidate. The Court even provided an
illustrative list of the kinds of “express words of advocacy” the use of which in corporately-
funded communications could violate section 608(e)(1): * * * “vote for,” “elect,” “support,”
“cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” “reject.” Id. at 44 n.52.
[The Court reaffirmed this interpretation in FEC v. Massachusetts Citizens For Life, Inc., 479
U.S. 238 (1986) [p. XXX] [(MCFL)].]
* * * That the Court in Buckley and MCFL unambiguously limited the Federal Election
Commission’s regulatory authority over corporate expenditures to those for communications that
use explicit words of advocacy has been uniformly recognized by the lower courts. * * *
In one of the first appellate cases following Buckley, the Second Circuit flatly rejected the
FEC’s definition of “express advocacy.” FEC v. Central Long Island Tax Reform Immediately
Committee, 616 F.2d 45 (2nd Cir. 1980) (en banc) [p. XXX] (“CLITRIM”). * * *
Seven years later, and less than a month following the Court’s decision in MCFL, the Ninth
Circuit in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), could not have been clearer that it, too,
shared this understanding of the Court’s decision in Buckley. Although the court declined to
“strictly limit” express advocacy to the “magic words” of Buckley’s footnote 52 because that
footnote’s list does “not exhaust the capacity of the English language to expressly advocate
election or defeat of a candidate,” id. at 862-63, the entire premise of the court’s analysis was
that words of advocacy such as those recited in footnote 52 were required to support
Commission jurisdiction over a given corporate expenditure. * * *
Indeed, the simple holding of Furgatch was that, in those instances where political
communications do include an explicit directive to voters to take some course of action, but that
course of action is unclear, “context”—including the timing of the communication in relation to
the events of the day—may be considered in determining whether the action urged is the election
or defeat of a particular candidate for public office. * * *
In emphasis of the language of the communication, the court’s analysis focused on the words
of the advertisement at issue in the case, “DON’T LET HIM DO IT,” and, specifically, on the
words “DON’T LET HIM.” The court characterized these words as “simple and direct” words of
“command,” which “ ‘expressly advocated’ action of some kind.” Although acknowledging that
whether the words constituted express advocacy was a “very close call,” the court ultimately
held that “reasonable minds could not dispute that [the] advertisement urged readers to vote
against Jimmy Carter . . . [because] this was the only action open to those who would not ‘let
him do it.’ ” It noted the fact that the advertisement appeared one week before the 1980
presidential election; however, the court explained, that fact only served to “reinforce” its
determination based upon the language of the advertisement. Bridging the decade between
Furgatch and today, the First Circuit, in Maine Right to Life Committee v. FEC [98 F.3d 1 (1st
Cir. 1996)], recently even invalidated that portion of the FEC’s new regulatory definition of
“express advocacy” which, in substance, is the definition the FEC urged upon us. 7 * * *

7
In relevant part, the FEC’s new regulatory definition of “express advocacy,” which became effective October 5,
1995, provides,
114

Reasoning that the “bright line” created by the Supreme Court’s insistence upon explicit words
of advocacy for the election or defeat of a particular candidate permits free discussion of “things
that affect the election process, but at all costs avoids restricting, in any way, discussion of public
issues,” the First Circuit held, as have we, that both Buckley and MCFL unequivocally require
“express” or “explicit” “words of advocacy of election or defeat of a candidate.”
And the First Circuit’s rejection of the FEC’s arguments as to the meaning of “express
advocacy” is only the most recent in a string of losses in cases between the FEC and issue
advocacy groups over the meaning of the phrase “express advocacy” and the permissible scope
of the FEC’s regulatory authority over corporate political speech. See, e.g., FEC v. Christian
Action Network, 894 F. Supp. 946 (W.D. Va.), aff’d per curiam, 92 F.3d 1178 (4th Cir. 1996);
FEC v. Survival Education Fund, 1994 U.S. Dist. LEXIS 210, No. 89 Civ. 0347, (S.D.N.Y. Jan.
12, 1994), aff’d in part and rev’d in part on other grounds, 65 F.3d 285, 290 (2nd Cir. 1995);
FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1448 (D. Co.), rev’d
on other grounds, 59 F.3d 1015 (10th Cir.), vacated on other grounds, 518 U.S. 604 (1996) [p.
XXX]; Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); FEC v. National Organization for
Women, 713 F. Supp. 428 (D.D.C. 1989); FEC v. Central Long Island Tax Reform Immediately
Committee, 616 F.2d 45 (2d Cir. 1980) [p. XXX]; FEC v. American Federation of State, County
and Municipal Employees, 471 F. Supp. 315 (D.D.C. 1979).
Against this overwhelming weight of (and, in the case of the Supreme Court decisions,
dispositive) authority, the FEC argued before the district court and before us the concededly
“novel” position, that, even though the Christian Action Network’s advertisements did not
include any explicit words or language advocating Governor Clinton’s defeat, the expenditure of
corporate funds for these advertisements nonetheless violated section 441b because, considered
as a whole with the imagery, music, film footage, and voice intonations, the advertisements’
nonprescriptive language unmistakably conveyed a message expressly advocating the defeat of
Governor Clinton. That is, the FEC argued the position that “no words of advocacy are necessary
to expressly advocate the election of a candidate,” that an advertisement which does not include
any “express words of advocacy” may nevertheless constitute “express advocacy” as defined by
the Supreme Court in Buckley and MCFL, provided it unmistakably conveys a message urging
action with respect to a particular candidate for public office. * * *
[T]he FEC’s argument was (and is) that the determination of whether a given communication
constitutes “express advocacy” depends upon all of the circumstances, internal and external to
the communication, that could reasonably be considered to bear upon the recipient’s
interpretation of the message. The right to engage in political speech would turn on an
interpretation of the “imagery” employed by the speaker. It would depend upon the perceived
“charge” of the “rhetoric” used. * * *
To quote the following passage, in which the FEC articulates some of the multitude of factors
that would be considered under its interpretation in determining whether a given communication

Expressly advocating means any communication that . . .

(b) When taken as a whole and with limited reference to external events, such as the proximity to the election,
could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or
more clearly identified candidate(s) because—
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one
meaning; and
(2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more
clearly identified candidate(s) or encourages some other kind of action.
11 C.F.R. § 100.22(b).
 115

was prohibited, is to appreciate the breadth of power that the FEC would appropriate to itself
under its definition of “express advocacy”:
Express electoral advocacy [can] consist[] not of words alone, but of the combined message of words and
dramatic moving images, sounds, and other non-verbal cues such as film editing, photographic techniques,
and music, involving highly charged rhetoric and provocative images which, taken as a whole, send an
unmistakable message to oppose [a specific candidate].

This is little more than an argument that the FEC will know “express advocacy” when it sees it.
The FEC’s enforcement action against the Christian Action Network in this case brings into
relief the extent to which, under the FEC’s interpretation of “express advocacy,” political speech
would become hostage to the vicissitudes of the Commission, because, although a viewer could
interpret the Network’s video as election advocacy of the defeat of Governor Clinton, another
viewer could just as readily interpret the video as issue advocacy on the question of homosexual
rights. Indeed, the commercial and advertisements that the FEC here contend fall squarely within
its regulatory purview are precisely the kinds of issue advocacy that the Supreme Court sought to
protect in Buckley and MCFL; and the FEC’s interpretation of these advertisements is exactly
that contemplated by the Court when it warned of the constitutional pitfalls in subjecting a
speaker’s message to the unpredictability of audience interpretation, see Buckley, 424 U.S. at 43.
The text of the television advertisement is nonprescriptive, taking no position whatever,
implied or otherwise, on the candidacy of Governor Clinton and Senator Gore, or even on the
issue of homosexual rights. * * *
The video’s nonprescriptive language is no more incontrovertibly an exhortation to vote
against Governor Clinton when spoken with the inflection and overlaid with the imagery, music,
and film footage which served as the backdrop for the text. Entitled “Clinton’s Vision for a
Better America,” the video opens with a complimentary, fullcolor photograph of Governor
Clinton, which quickly fades into a black-and-white photographic negative and then almost
immediately disappears, as a narrator recites the above text and as three pictures of pro-
homosexual rights parades rapidly flash across the screen. The very short advertisement
concludes with the narrator asking rhetorically, “Is this your vision for a better America? For
more information on traditional family values, contact the Christian Action Network.” This is
simply not express advocacy of the defeat of Governor Clinton; the advertisement urges no
action upon viewers at all, beyond contacting the network for more information on traditional
family values should they wish, much less action at the polls. Far from a commercial that would
be “instantly recognizable by any voter as a negative ad against the candidacy of Bill Clinton,”
the video could just as readily be viewed as passionate issue advocacy on the important question
of homosexual rights—the very kind of speech which the Supreme Court has held the First
Amendment jealously protects. * * *
* * * In sum, unlike even the advertisement in Furgatch, which was “bold in calling for
action, but failed to state expressly the precise action called for,” in * * * the video * * * at issue
in this case there [is no] action urged with respect to any candidate. There are no words expressly
advocating the defeat of Governor Clinton in the 1992 presidential election, or, for that matter,
any words urging voters to take any action whatsoever as to the Governor. As the district court
found, these advertisements are simply “devoid of any language that directly exhorted the public
to vote” for or against any particular candidate. They presented viewers “with the candidates’
views on homosexual rights and told [them] that [those views] sharply contrasted with those held
by the [Christian Action Network, but] the only immediate action called for by the commercial
116

was for viewers to contact CAN if they agreed with the [Network’s] opposition to a ‘gay rights
agenda. . . .’ ”
Yet, the FEC would have us confer power upon it to regulate these advertisements because,
in its assessment,

to the ordinary viewer in 1992, the CAN video unmistakably encourages voters to defeat Bill Clinton. The
video communicates the following: A group explicitly aligning itself with Christian, heterosexual, and
traditional family values graphically depicts a specific presidential candidate supporting homosexual men
vividly asserting their sexual preferences; the message attacks Clinton’s moral judgment and alleged
policy agenda; those positions involve steps that only a federal elected official could take; the message is
delivered to viewers who live in states where Governor Clinton has no contemporaneous authority to set
policy; the message is televised shortly before the presidential election; and the message employs powerful
symbolism and persuasive devices unique to the medium of video. . . . The video admittedly contains no
literal phrase such as “Defeat Bill Clinton.” But it contains a special kind of charged rhetoric and
symbolism that exhorts more forcefully and unambiguously than mere words.

* * * Even absent binding Supreme Court precedent, we would bridle at the power over
political speech that would reside in the FEC under such an interpretation. The American Civil
Liberties Union observes in its amicus brief in support of the Christian Action Network that if
the FEC’s interpretation were to prevail, “ads attacking an identified candidate’s political
positions during a campaign would virtually always, if not per se, amount to ‘express advocacy’
of that candidate’s defeat at the polls.” And, from the Commission’s argument that
advertisements which “make it absolutely clear that [the group sponsoring the ads] considers
homosexual behavior and the support of additional rights for gay men and lesbians to be
abhorrent” can “only reasonably” be interpreted as “asking others to join its fight to defeat
Clinton and thereby foreclose his asserted homosexual rights agenda,” this would appear to be
precisely the consequence of the agency’s interpretation.
[The Court went on to hold that the FEC’s position lacked “substantial justification,” and
remanded with instructions to the District Court to award attorney’s fees to CAN pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).]

Notes and Questions

1. As noted in Christian Action Network (CAN), the FEC’s efforts to expand the definition
of “express advocacy” beyond the types of explicit words (or as some have derisively called
them, “magic words”) of Buckley’s footnote 52 were uniformly unsuccessful with the exception
of Furgatch. Did the court in CAN believe that Furgatch was wrongly decided, or that it was
distinguishable from the other cases?
2. Read again the text of the Christian Action Network’s ad. Are there circumstances in
which CAN might have run this ad after President Clinton’s election?
3. Perhaps the most famous, or infamous, example of an “issue ad” was the following one,
aired during the heat of a campaign, about a candidate for Congress:
Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail’s
response? He only slapped her. But “her nose was not broken.” He talks law and order . . . but is himself a
convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child
support payments—then voted against child support enforcement. Call Bill Yellowtail. Tell him to support
family values.

See McConnell v. FEC, 540 U.S. 93, 194 (2003) [p. XXX]. Would it matter if the final lines,
 117

instead of urging voters to call Bill Yellowtail, said, “This November, vote against Bill
Yellowtail”? Are any First Amendment values served by the distinction? Recall the discussion of
vagueness in Buckley, 424 U.S. at 42-43, supra at [p. XXX]. Could a better distinction be drawn
between express advocacy and issue advocacy?g Although the issue became most heated in the
1990s, the controversy over how to distinguish campaign spending from general speech and
debate about issues long predates Buckley, and indeed has been a subject of debate almost from
the onset of federal campaign-finance legislation. See Allison R. Hayward, When Does an
Advertisement About Issues Become an “Issues Ad”?, 49 CATH. U. L. REV . 63, 65-70 (1999)
(citing activities by the Anti-Saloon League in the 1910 and 1920s, among several other pre-
Buckley examples).

D. CORPORATIONS
The earliest state laws regulating campaign expenditures, passed in the 1890s, prohibited
corporate contributions. The first federal campaign finance law was the Tillman Act, passed in
1907 and named for its primary Senate sponsor, the fiery, controversial South Carolina Senator
“Pitchfork” Ben Tillman. See BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN
FINANCE REFORM 23-24 (2001); ROBERT MUTCH, CAMPAIGNS, CONGRESSES AND COURTS: THE
MAKING OF FEDERAL CAMPAIGN FINANCE LAW 2-6 (1988). Corporations soon learned, however,
that they could escape the effects of the ban simply by making “expenditures” rather than
“contributions.” In 1947, Congress extended the ban to prohibit corporations (and unions) from
using general-treasury funds for campaign expenditures. Enforcement of these laws was lax,
however, and they were readily circumvented in any case. SMITH, supra at 24-30. The prohibition
on corporate and union spending from general-treasury funds was renewed as part of the 1974
amendments to FECA, 2 U.S.C. § 441b, but was not explicitly challenged in Buckley.h
Although the following cases deal specifically with corporations, as you read them you might
think about whether, given the constitutional justifications for limiting expenditures, Congress’s
parallel treatment of unions and corporations makes sense, or whether it is just a matter of
political expediency. Consider, as well, the extent to which the debate is shaped not only by the
principles of campaign finance, but by differing views of the role of corporations in American
life and, indeed, the legal status of corporations. Are corporations “creatures of the state,”
imbued with special rights granted by the state and therefore subject to limitation by the state, or
are they voluntary associations of individuals, whose legal protections are nothing less than
guarantees of individual rights of association, contract, property, and speech?

g
See Richard Briffault, Issue Advocacy: Redrawing the Election/Politics Line, 77 TEX. L. REV. 1751 (1999); Glenn
J. Moramarco, Beyond “Magic Words”: Using Self-Disclosure to Regulate Electioneering, 49 CATH. U. L. REV. 107
(1999); Michael D. Leffel, A More Sensible Approach to Regulating Independent Expenditures: Defending the
Constitutionality of the FEC’s New Express Advocacy Standard, 95 MICH. L. REV. 686 (1996). Vigorous defenses of
a strict demarcation between “issue advocacy” and “express advocacy” can be found in Kirk L. Jowers, Issue
Advocacy: If It Cannot Be Regulated When It Is Least Valuable, It Cannot Be Regulated When It Is Most Valuable,
50 CATH. U. L. REV. 65 (2001); and James Bopp, Jr. & Richard E. Colestrom, The First Amendment Needs No
Reform: Protecting Liberty From Campaign Finance “Reformers,” 51 CATH. U. L. REV. 785 (2002).
h
Buckley’s plaintiffs did include some corporations, however, and Buckley generally struck down limits on
independent spending.
118

FIRST NATIONAL BANK OF BOSTON v. BELLOTTI

Supreme Court of the United States
435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978)

MR. JUSTICE POWELL delivered the opinion of the Court [in which MR. CHIEF JUSTICE BURGER,
MR. JUSTICE STEWART, MR. JUSTICE BLACKMUN, and MR. JUSTICE STEVENS join]. * * *
The statute at issue, Mass. Gen. Laws Ann., ch. 55, § 8, prohibits appellants, two national
banking associations and three business corporations, 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.”
The statute further specifies that “[no] question submitted to the voters solely concerning the
taxation of the income, property or transactions of individuals shall be deemed materially to
affect the property, business or assets of the corporation.” A corporation that violates § 8 may
receive a maximum fine of $50,000; a corporate officer, director, or agent who violates the
section may receive a maximum fine of $10,000 or imprisonment for up to one year, or both.
Appellants wanted to spend money to publicize their views on a proposed constitutional
amendment that was to be submitted to the voters as a ballot question at a general election on
November 2, 1976. The amendment would have permitted the legislature to impose a graduated
tax on the income of individuals. [Appellants] brought this action seeking to have the statute
declared unconstitutional. [The Massachusetts Supreme Judicial Court upheld the statute.] * * *
The court below framed the principal question in this case as whether and to what extent
corporations have First Amendment rights.15 We believe that the court posed the wrong question.
The Constitution often protects interests broader than those of the party seeking their vindication.
The First Amendment, in particular, serves significant societal interests. The proper question
therefore is not whether corporations “have” First Amendment rights and, if so, whether they are
coextensive with those of natural persons.13 Instead, the question must be whether § 8 abridges
expression that the First Amendment was meant to protect. We hold that it does. * * *
If the speakers here were not corporations, no one would suggest that the State could silence
their proposed speech.14 It is the type of speech indispensable to decisionmaking in a democracy,

15
It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth
Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886). [Relocated. –Eds.]
13
[T]here [is no] occasion to consider in this case whether, under different circumstances, a justification for a
restriction on speech that would be inadequate as applied to individuals might suffice to sustain the same restriction
as applied to corporations, unions, or like entities. [Relocated. –Eds.]
14
The Massachusetts court did not go so far as to accept appellee’s argument that corporations, as creatures of the
State, have only those rights granted them by the State. The court below recognized that such an extreme position
could not be reconciled either with the many decisions holding state laws invalid under the Fourteenth Amendment
when they infringe protected speech by corporate bodies, * * * or with decisions affording corporations the
protection of constitutional guarantees other than the First Amendment. * * *
In cases where corporate speech has been denied the shelter of the First Amendment, there is no suggestion that
the reason was because a corporation rather than an individual or association was involved. * * * Corporate identity
has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege
against compulsory self-incrimination, * * * or equality with individuals in the enjoyment of a right to privacy, * * *
but this is not because the States are free to define the rights of their creatures without constitutional limit.
Otherwise, corporations could be denied the protection of all constitutional guarantees, including due process and
the equal protection of the laws. Certain “purely personal” guarantees, such as the privilege against compulsory self-
incrimination, are unavailable to corporations and other organizations because the “historic function” of the
particular guarantee has been limited to the protection of individuals. * * * Whether or not a particular guarantee is
“purely personal” or is unavailable to corporations for some other reason depends on the nature, history, and purpose
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and this is no less true because the speech comes from a corporation rather than an individual.
The inherent worth of the speech in terms of its capacity for informing the public does not
depend upon the identity of its source, whether corporation, association, union, or individual.
***
Yet appellee suggests that First Amendment rights generally have been afforded only to
corporations engaged in the communications business or through which individuals express
themselves, and the court below apparently accepted the “materially affecting” theory as the
conceptual common denominator between appellee’s position and the precedents of this Court. It
is true that the “materially affecting” requirement would have been satisfied in the Court’s
decisions affording protection to the speech of media corporations and corporations otherwise in
the business of communication or entertainment, and to the commercial speech of business
corporations. * * * In such cases, the speech would be connected to the corporation’s business
almost by definition. But the effect on the business of the corporation was not the governing
rationale in any of these decisions. None of them mentions, let alone attributes significance to,
the fact that the subject of the challenged communication materially affected the corporation’s
business. * * *
Nor do our recent commercial speech cases lend support to appellee’s business interest
theory. They illustrate that the First Amendment goes beyond protection of the press and the self-
expression of individuals to prohibit government from limiting the stock of information from
which members of the public may draw. A commercial advertisement is constitutionally
protected not so much because it pertains to the seller’s business as because it furthers the
societal interest in the “free flow of commercial information.” * * *20
We thus find no support in the First or Fourteenth 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. * * *
Section 8 permits a corporation to communicate to the public its views on certain referendum
subjects—those materially affecting its business—but not others. It also singles out one kind of
ballot question—individual taxation—as a subject about which corporations may never make
their ideas public. The legislature has drawn the line between permissible and impermissible
speech according to whether there is a sufficient nexus, as defined by the legislature, between the
issue presented to the voters and the business interests of the speaker.
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.
* * * If a legislature may direct business corporations to “stick to business,” it also may limit
other corporations—religious, charitable, or civic—to their respective “business” when
addressing the public. Such power in government to channel the expression of views is

of the particular constitutional provision. [Relocated. –Eds.]

20
It is somewhat ironic that appellee seeks to reconcile these decisions with the “materially affecting” concept by
noting that the commercial speaker would “have a direct financial interest in the speech.” Until recently, the “purely
commercial” nature of an advertisement was thought to undermine and even negate its entitlement to the sanctuary
of the First Amendment. Appellee would invert the debate by giving constitutional significance to a corporation’s
“hawking of wares” while approving criminal sanctions for a bank’s expression of opinion on a tax law of general
public interest.
In emphasizing the societal interest and the fact that this Court’s decisions have not turned on the effect upon the
speaker’s business interests, we do not say that such interests may not be relevant or important in a different context.
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unacceptable under the First Amendment.21 Especially 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. Yet the
State contends that its action is necessitated by governmental interests of the highest order. We
next consider these asserted interests.
* * * Especially where, as here, a prohibition is directed at speech itself, and the speech is
intimately related to the process of governing, “the State may prevail only upon showing a
subordinating interest which is compelling,” * * * “and the burden is on the government to show
the existence of such an interest.” * * * Even then, the State must employ means “closely drawn
to avoid unnecessary abridgment. . . .” * * *
* * * Appellee * * * advances two principal justifications for the prohibition of corporate
speech. The first is the State’s interest in sustaining the active role of the individual citizen in the
electoral process and thereby preventing diminution of the citizen’s confidence in government.
The second is the interest in protecting the rights of shareholders whose views differ from those
expressed by management on behalf of the corporation. However weighty these interests may be
in the context of partisan candidate elections,26 they either are not implicated in this case or are
not served at all, or in other than a random manner, by the prohibition in § 8.
Preserving the integrity of the electoral process, preventing corruption, and “[sustaining] the
active, alert responsibility of the individual citizen in a democracy for the wise conduct of
government” are interests of the highest importance. * * * Preservation of the individual citizen’s
confidence in government is equally important. * * *
Appellee advances a number of arguments in support of his view that these interests are
endangered by corporate participation in discussion of a referendum issue. They hinge upon the
assumption that such participation would exert an undue influence on the outcome of a
referendum vote, and—in the end—destroy the confidence of the people in the democratic
process and the integrity of government. According to appellee, corporations are wealthy and
powerful and their views may drown out other points of view. If appellee’s arguments were
supported by record or legislative findings that corporate advocacy threatened imminently to
undermine democratic processes, thereby denigrating rather than serving First Amendment
interests, these arguments would merit our consideration. Cf. Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367 (1969) [p. XXX]. But there has been no showing that the relative voice of
21
Even assuming that the rationale behind the “materially affecting” requirement itself were unobjectionable, the
limitation in § 8 would have an impermissibly restraining effect on protected speech. Much valuable information
which a corporation might be able to provide would remain unpublished because corporate management would not
be willing to risk the substantial criminal penalties—personal as well as corporate—provided for in § 8. * * *
[M]anagement never could be sure whether a court would disagree with its judgment as to the effect upon the
corporation’s business of a particular referendum issue. In addition, the burden and expense of litigating the issue—
especially when what must be established is a complex and amorphous economic relationship—would unduly
impinge on the exercise of the constitutional right. “[The] free dissemination of ideas [might] be the loser.” * * *
26
* * * Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to
political candidates or committees, or other means of influencing candidate elections. * * *
The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the
problem of corruption of elected representatives through the creation of political debts. See United States v.
Automobile Workers, [352 U.S. 567], 570-575 [(1957)] [p. XXX]. The importance of the governmental interest in
preventing this occurrence has never been doubted. The case before us presents no comparable problem, and 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. 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.
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corporations has been overwhelming or even significant in influencing referenda in

Massachusetts,28 or that there has been any threat to the confidence of the citizenry in
government.
Nor are appellee’s arguments inherently persuasive or supported by the precedents of this
Court. Referenda are held on issues, not candidates for public office. The risk of corruption
perceived in cases involving candidate elections simply is not present in a popular vote on a
public issue.29 To be sure, corporate advertising may influence the outcome of the vote; this
would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to
suppress it: The Constitution “protects expression which is eloquent no less than that which is
unconvincing.” * * * We noted only recently that “the 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. . . .” Buckley [v. Valeo], 424 U.S. [1], 48-49 [(1976)] [(per
curiam)].30 Moreover, the people in our democracy are entrusted with the responsibility for
judging and evaluating the relative merits of conflicting arguments.31 They may consider, in
making their judgment, the source and credibility of the advocate.32 But if there be any danger
28
In his dissenting opinion, M R. J USTICE WHITE relies on incomplete facts with respect to expenditures in the 1972
referendum election, in support of his perception as to the “domination of the electoral process by corporate wealth.”
The record shows only the extent of corporate and individual contributions to the two committees that were
organized to support and oppose, respectively, the constitutional amendment. * * * The dissenting opinion makes no
reference to the fact that amounts of money expended independently of organized committees need not be reported
under Massachusetts law, and therefore remain unknown.
Even if viewed as material, any inference that corporate contributions “dominated” the electoral process on this
issue is refuted by the 1976 election. There the voters again rejected the proposed constitutional amendment even in
the absence of any corporate spending, which had been forbidden by the decision below.
29
* * * Appellee contends that the State’s interest in sustaining the active role of the individual citizen is especially
great with respect to referenda because they involve the direct participation of the people in the lawmaking process.
But far from inviting greater restriction of speech, the direct participation of the people in a referendum, if anything,
increases the need for “the widest possible dissemination of information from diverse and antagonistic sources.”
30
MR. JUSTICE WHITE argues, without support in the record, that because corporations are given certain privileges by
law they are able to “amass wealth” and then to “dominate” debate on an issue. He concludes from this
generalization that the State has a subordinating interest in denying corporations access to debate and,
correspondingly, in denying the public access to corporate views. The potential impact of this argument, especially
on the news media, is unsettling. One might argue with comparable logic that the State may control the volume of
expression by the wealthier, more powerful corporate members of the press in order to “enhance the relative voices”
of smaller and less influential members.
Except in the special context of limited access to the channels of communication, see Red Lion Broadcasting Co.
v. FCC, this concept contradicts basic tenets of First Amendment jurisprudence. We rejected a similar notion in
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) [p. XXX]. There we held that the First Amendment
prohibits a State from requiring a newspaper to make space available at no cost for a reply from a candidate whom
the newspaper has criticized. The state court had held that “free speech was enhanced and not abridged by the
Florida right-of-reply statute, which in that court’s view, furthered the ‘broad societal interest in the free flow of
information to the public.’ ” Far more than in the instant case, allegations were there made and substantiated of a
concentration in the hands of a few of “the power to inform the American people and shape public opinion,” and that
“the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues.”
31
* * * The State’s paternalism evidenced by this statute is illustrated by the fact that Massachusetts does not
prohibit lobbying by corporations, which are free to exert as much influence on the people’s representatives as their
resources and inclinations permit. * * * If the First Amendment protects the right of corporations to petition
legislative and administrative bodies, see California MotorTransp. Co. v. Trucking Unlimited, 404 U.S. 508, 510-
511 (1972); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138 (1961), there
hardly can be less reason for allowing corporate views to be presented openly to the people when they are to take
action in their sovereign capacity.
32
Corporate advertising, unlike some methods of participation in political campaigns, is likely to be highly visible.
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that the people cannot evaluate the information and arguments advanced by appellants, it is a
danger contemplated by the Framers of the First Amendment. * * *
Finally, appellee argues that § 8 protects corporate shareholders, an interest that is both
legitimate and traditionally within the province of state law. The statute is said to serve this
interest by preventing the use of corporate resources in furtherance of views with which some
shareholders may disagree. This purpose is belied, however, by the provisions of the statute,
which are both underinclusive and overinclusive.
The underinclusiveness of the statute is self-evident. Corporate expenditures with respect to a
referendum are prohibited, while corporate activity with respect to the passage or defeat of
legislation is permitted, even though corporations may engage in lobbying more often than they
take positions on ballot questions submitted to the voters. Nor does § 8 prohibit a corporation
from expressing its views, by the expenditure of corporate funds, on any public issue until it
becomes the subject of a referendum, though the displeasure of disapproving shareholders is
unlikely to be any less.
The fact that a particular kind of ballot question has been singled out for special treatment
undermines the likelihood of a genuine state interest in protecting shareholders. It suggests
instead that the legislature may have been concerned with silencing corporations on a particular
subject. * * *
Nor is the fact that § 8 is limited to banks and business corporations without relevance.
Excluded from its provisions and criminal sanctions are entities or organized groups in which
numbers of persons may hold an interest or membership, and which often have resources
comparable to those of large corporations. Minorities in such groups or entities may have
interests with respect to institutional speech quite comparable to those of minority shareholders
in a corporation. Thus the exclusion of Massachusetts business trusts, real estate investment
trusts, labor unions, and other associations undermines the plausibility of the State’s purported
concern for the persons who happen to be shareholders in the banks and corporations covered by
§ 8.
The overinclusiveness of the statute is demonstrated by the fact that § 8 would prohibit a
corporation from supporting or opposing a referendum proposal even if its shareholders
unanimously authorized the contribution or expenditure. Ultimately shareholders may decide,
through the procedures of corporate democracy, whether their corporation should engage in
debate on public issues.34 Acting through their power to elect the board of directors or to insist
upon protective provisions in the corporation’s charter, shareholders normally are presumed
competent to protect their own interests. In addition to intracorporate remedies, minority
shareholders generally have access to the judicial remedy of a derivative suit to challenge
corporate disbursements alleged to have been made for improper corporate purposes or merely to
further the personal interests of management.
Assuming, arguendo, that protection of shareholders is a “compelling” interest under the
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. In addition, we emphasized in Buckley the prophylactic
effect of requiring that the source of communication be disclosed.
34
Appellee does not explain why the dissenting shareholder’s wishes are entitled to such greater solicitude in this
context than in many others where equally important and controversial corporate decisions are made by management
or by a predetermined percentage of the shareholders. MR. JUSTICE WHITE’s repeatedly expressed concern for
corporate shareholders who may be “coerced” into supporting “causes with which they disagree” apparently is not
shared by appellants’ shareholders. Not a single shareholder has joined appellee in defending the Massachusetts
statute or, so far as the record shows, has interposed any objection to the right asserted by the corporations to make
the proscribed expenditures. * * *
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circumstances of this case, we find “no substantially relevant correlation between the
governmental interest asserted and the State’s effort” to prohibit appellants from speaking. * * *
Because that portion of § 8 challenged by appellants prohibits protected speech in a manner
unjustified by a compelling state interest, it must be invalidated. The judgment of the Supreme
Judicial Court is
Reversed.

MR. CHIEF JUSTICE BURGER, concurring. * * *

A disquieting aspect of Massachusetts’ position is that it may carry the risk of impinging on
the First Amendment rights of those who employ the corporate form—as most do—to carry on
the business of mass communications, particularly the large media conglomerates. * * *
In terms of “unfair advantage in the political process” and “corporate domination of the
electoral process,” it could be argued that such media conglomerates * * * pose a much more
realistic threat to valid interests than do appellants and similar entities not regularly concerned
with shaping popular opinion on public issues. * * *
In terms of Massachusetts’ other concern, the interests of minority shareholders, I perceive
no basis for saying that the managers and directors of the media conglomerates are more or less
sensitive to the views and desires of minority shareholders than are corporate officers generally.
* * * Thus, no factual distinction has been identified as yet that would justify government
restraints on the right of appellants to express their views without, at the same time, opening the
door to similar restraints on media conglomerates with their vastly greater influence.
Because the First Amendment was meant to guarantee freedom to express and communicate
ideas, I can see no difference between the right of those who seek to disseminate ideas by way of
a newspaper and those who give lectures or speeches and seek to enlarge the audience by
publication and wide dissemination. * * *
In short, the First Amendment does not “belong” to any definable category of persons or
entities: it belongs to all who exercise its freedoms.

MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join,
dissenting. * * *
By holding that Massachusetts may not prohibit corporate expenditures or contributions
made in connection with referenda involving issues having no material connection with the
corporate business, the Court not only invalidates a statute which has been on the books in one
form or another for many years, but also casts considerable doubt upon the constitutionality of
legislation passed by some 31 States restricting corporate political activity, as well as upon the
Federal Corrupt Practices Act.

I
There is now little doubt that corporate communications come within the scope of the First
Amendment. This, however, is merely the starting point of analysis, because an examination of
the First Amendment values that corporate expression furthers and the threat to the functioning
of a free society it is capable of posing reveals that it is not fungible with communications
emanating from individuals and is subject to restrictions which individual expression is not.
Indeed, what some have considered to be the principal function of the First Amendment, the use
of communication as a means of self-expression, self-realization, and self-fulfillment, is not at all
furthered by corporate speech. It is clear that the communications of profitmaking corporations
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are not “an integral part of the development of ideas, of mental exploration and of the affirmation
of self.” They do not represent a manifestation of individual freedom or choice. Undoubtedly, as
this Court has recognized, NAACP v. Button, 371 U.S. 415 (1963), there are some corporations
formed for the express purpose of advancing certain ideological causes shared by all their
members, or, as in the case of the press, of disseminating information and ideas. Under such
circumstances, association in a corporate form may be viewed as merely a means of achieving
effective self-expression. But this is hardly the case generally with corporations operated for the
purpose of making profits. Shareholders in such entities do not share a common set of political or
social views, and they certainly have not invested their money for the purpose of advancing
political or social causes or in an enterprise engaged in the business of disseminating news and
opinion. In fact, as discussed infra, the government has a strong interest in assuring that
investment decisions are not predicated upon agreement or disagreement with the activities of
corporations in the political arena.
Of course, it may be assumed that corporate investors are united by a desire to make money,
for the value of their investment to increase. Since even communications which have no purpose
other than that of enriching the communicator have some First Amendment protection, activities
such as advertising and other communications integrally related to the operation of the
corporation’s business may be viewed as a means of furthering the desires of individual
shareholders. This unanimity of purpose breaks down, however, when corporations make
expenditures or undertake activities designed to influence the opinion or votes of the general
public on political and social issues that have no material connection with or effect upon their
business, property, or assets. Although it is arguable that corporations make such expenditures
because their managers believe that it is in the corporations’ economic interest to do so, there is
no basis whatsoever for concluding that these views are expressive of the heterogeneous beliefs
of their shareholders whose convictions on many political issues are undoubtedly shaped by
considerations other than a desire to endorse any electoral or ideological cause which would tend
to increase the value of a particular corporate investment. This is particularly true where, as in
this case, whatever the belief of the corporate managers may be, they have not been able to
demonstrate that the issue involved has any material connection with the corporate business.
Thus when a profitmaking corporation contributes to a political candidate this does not further
the self-expression or self-fulfillment of its shareholders in the way that expenditures from them
as individuals would.6
The self-expression of the communicator is not the only value encompassed by the First
Amendment. One of its functions, often referred to as the right to hear or receive information, is
to protect the interchange of ideas. Any communication of ideas, and consequently any
expenditure of funds which makes the communication of ideas possible, it can be argued,
furthers the purposes of the First Amendment. This proposition does not establish, however, that
the right of the general public to receive communications financed by means of corporate
expenditures is of the same dimension as that to hear other forms of expression. In the first place,
as discussed supra, corporate expenditures designed to further political causes lack the
6
This distinguishes the regulation of corporate speech from the limitations upon individual political campaign
expenditures invalidated in Buckley v. Valeo. The Court there struck down the limitations upon individual
expenditures because they impermissibly restricted the right of individuals to speak their minds and make their
views known. At the same time, however, the Court sustained limitations upon political contributions on the ground
that such provisions entail a much lesser restriction upon the individual’s ability to engage in free communication
than expenditure restrictions. In the case of corporate political activities, we are not at all concerned with the self-
expression of the communicator.
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connection with individual self-expression which is one of the principal justifications for the
constitutional protection of speech provided by the First Amendment. Ideas which are not a
product of individual choice are entitled to less First Amendment protection. Secondly, the
restriction of corporate speech concerned with political matters impinges much less severely
upon the availability of ideas to the general public than do restrictions upon individual speech.
Even the complete curtailment of corporate communications concerning political or ideological
questions not integral to day-to-day business functions would leave individuals, including
corporate shareholders, employees, and customers, free to communicate their thoughts.
Moreover, it is unlikely that any significant communication would be lost by such a prohibition.
These individuals would remain perfectly free to communicate any ideas which could be
conveyed by means of the corporate form. Indeed, such individuals could even form associations
for the very purpose of promoting political or ideological causes.
I recognize that there may be certain communications undertaken by corporations which
could not be restricted without impinging seriously upon the right to receive information. In the
absence of advertising and similar promotional activities, for example, the ability of consumers
to obtain information relating to products manufactured by corporations would be significantly
impeded. There is also a need for employees, customers, and shareholders of corporations to be
able to receive communications about matters relating to the functioning of corporations. Such
communications are clearly desired by all investors and may well be viewed as an associational
form of self-expression. * * * Moreover, it is unlikely that such information would be
disseminated by sources other than corporations. It is for such reasons that the Court has
extended a certain degree of First Amendment protection to activities of this kind.8 None of these
considerations, however, are implicated by a prohibition upon corporate expenditures relating to
referenda concerning questions of general public concern having no connection with corporate
business affairs.
It bears emphasis here that the Massachusetts statute forbids the expenditure of corporate
funds in connection with referenda but in no way forbids the board of directors of a corporation
from formulating and making public what it represents as the views of the corporation even
though the subject addressed has no material effect whatsoever on the business of the
corporation. These views could be publicized at the individual expense of the officers, directors,
stockholders, or anyone else interested in circulating the corporate view on matters irrelevant to
its business.
The governmental interest in regulating corporate political communications, especially those
relating to electoral matters, also raises considerations which differ significantly from those
governing the regulation of individual speech. Corporations are artificial entities created by law
for the purpose of furthering certain economic goals. In order to facilitate the achievement of
such ends, special rules relating to such matters as limited liability, perpetual life, and the
accumulation, distribution, and taxation of assets are normally applied to them. States have

8
In addition, newspapers and other forms of literature obviously do not lose their First Amendment protection
simply because they are produced or distributed by corporations. It is, of course, impermissible to restrict any
communication, corporate or otherwise, because of displeasure with its content. I need not decide whether
newspapers have a First Amendment right to operate in a corporate form. It may be that for a State which generally
permits businesses to operate as corporations to prohibit those engaged in the dissemination of information and
opinion from taking advantage of the corporate form would constitute a departure from neutrality prohibited by the
free press guarantee of the First Amendment. There can be no doubt, however, that the First Amendment does not
immunize media corporations any more than other types of corporations from restrictions upon electoral
contributions and expenditures.
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provided corporations with such attributes in order to increase their economic viability and thus
strengthen the economy generally. It has long been recognized, however, that the special status
of corporations has placed them in a position to control vast amounts of economic power which
may, if not regulated, dominate not only the economy but also the very heart of our democracy,
the electoral process. Although Buckley v. Valeo provides support for the position that the desire
to equalize the financial resources available to candidates does not justify the limitation upon the
expression of support which a restriction upon individual contributions entails, the interest of
Massachusetts and the many other States which have restricted corporate political activity is
quite different. It is not one of equalizing the resources of opposing candidates or opposing
positions, but rather of preventing institutions which have been permitted to amass wealth as a
result of special advantages extended by the State for certain economic purposes from using that
wealth to acquire an unfair advantage in the political process, especially where, as here, the issue
involved has no material connection with the business of the corporation. The State need not
permit its own creation to consume it. Massachusetts could permissibly conclude that not to
impose limits upon the political activities of corporations would have placed it in a position of
departing from neutrality and indirectly assisting the propagation of corporate views because of
the advantages its laws give to the corporate acquisition of funds to finance such activities. Such
expenditures may be viewed as seriously threatening the role of the First Amendment as a
guarantor of a free marketplace of ideas. Ordinarily, the expenditure of funds to promote political
causes may be assumed to bear some relation to the fervency with which they are held.
Corporate political expression, however, is not only divorced from the convictions of individual
corporate shareholders, but also, because of the ease with which corporations are permitted to
accumulate capital, bears no relation to the conviction with which the ideas expressed are held by
the communicator.
The Court’s opinion appears to recognize at least the possibility that fear of corporate
domination of the electoral process would justify restrictions upon corporate expenditures and
contributions in connection with referenda but brushes this interest aside by asserting that “there
has been no showing that the relative voice of corporations has been overwhelming or even
significant in influencing referenda in Massachusetts,” and by suggesting that the statute in issue
represents an attempt to give an unfair advantage to those who hold views in opposition to
positions which would otherwise be financed by corporations. It fails even to allude to the fact,
however, that Massachusetts’ most recent experience with unrestrained corporate expenditures in
connection with ballot questions establishes precisely the contrary. In 1972, a proposed
amendment to the Massachusetts Constitution which would have authorized the imposition of a
graduated income tax on both individuals and corporations was put to the voters. The Committee
for Jobs and Government Economy, an organized political committee, raised and expended
approximately $120,000 to oppose the proposed amendment, the bulk of it raised through large
corporate contributions. * * * In contrast, the Coalition for Tax Reform, Inc., the only political
committee organized to support the 1972 amendment, was able to raise and expend only
approximately $7,000. Perhaps these figures reflect the Court’s view of the appropriate role
which corporations should play in the Massachusetts electoral process, but it nowhere explains
why it is entitled to substitute its judgment for that of Massachusetts and other States,11 as well as
11
California had the same experience in connection with a 1976 referendum measure which would have required
legislative approval of nuclear generating plant sites. Two hundred and three corporations contributed approximately
$2,530,000 in opposition to the amendment, which was defeated. Supporters of the measure collected altogether
only approximately $1,600,000. Later in the same year a similar initiative measure was placed on the ballot in
Montana. Corporations contributed approximately $144,000 in opposition to the measure, while its supporters were
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the United States, which have acted to correct or prevent similar domination of the electoral
process by corporate wealth.
This Nation has for many years recognized the need for measures designed to prevent
corporate domination of the political process. The Corrupt Practices Act, first enacted in 1907,
has consistently barred corporate contributions in connection with federal elections. This Court
has repeatedly recognized that one of the principal purposes of this prohibition is “to avoid the
deleterious influences on federal elections resulting from the use of money by those who exercise
control over large aggregations of capital.” United States v. Automobile Workers, 352 U.S. 567,
585 (1957). * * * Although this Court has never adjudicated the constitutionality of the Act,
there is no suggestion in its cases construing it that this purpose is in any sense illegitimate or
deserving of other than the utmost respect; indeed, the thrust of its opinions, until today, has been
to the contrary. See [ibid].

II
There is an additional overriding interest related to the prevention of corporate domination
which is substantially advanced by Massachusetts’ restrictions upon corporate contributions:
assuring that shareholders are not compelled to support and financially further beliefs with which
they disagree where, as is the case here, the issue involved does not materially affect the
business, property, or other affairs of the corporation. * * *
The Court assumes that the interest in preventing the use of corporate resources in
furtherance of views which are irrelevant to the corporate business and with which some
shareholders may disagree is a compelling one, but concludes that the Massachusetts statute is
nevertheless invalid because the State has failed to adopt the means best suited, in its opinion, for
achieving this end. It proposes that the aggrieved shareholder assert his interest in preventing the
expenditure of funds for nonbusiness causes he finds unconscionable through the channels
provided by “corporate democracy” and purports to be mystified as to “why the dissenting
shareholder’s wishes are entitled to such greater solicitude in this context than in many others
where equally important and controversial corporate decisions are made by management or by a
predetermined percentage of the shareholders.” * * * In most contexts, of course, the views of
the dissenting shareholder have little, if any, First Amendment significance. By purchasing
interests in corporations shareholders accept the fact that corporations are going to make
decisions concerning matters such as advertising integrally related to their business operations
according to the procedures set forth in their charters and bylaws. Otherwise, corporations could
not function. First Amendment concerns of stockholders are directly implicated, however, when
a corporation chooses to use its privileged status to finance ideological crusades which are
unconnected with the corporate business or property and which some shareholders might not
wish to support. Once again, we are provided no explanation whatsoever by the Court as to why
the State's interest is of less constitutional weight than that of corporations to participate
financially in the electoral process and as to why the balance between two First Amendment
interests should be struck by this Court. Moreover, the Court offers no reason whatsoever for
constitutionally imposing its choice of means to achieve a legitimate goal and invalidating those
chosen by the State.13 * * *
able to collect only $451. This measure was also defeated.
13
* * * The Court also asserts that Massachusetts’ interest in protecting dissenting shareholders is “belied” by its
failure to prohibit corporate activity with respect to the passage or defeat of legislation or to include business trusts,
real estate investment trusts, and labor unions in its prohibition upon electoral expenditures. It strongly implies that
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Finally, even if corporations developed an effective mechanism for rebating to shareholders

that portion of their investment used to finance political activities with which they disagreed, a
State may still choose to restrict corporate political activity irrelevant to business functions on
the grounds that many investors would be deterred from investing in corporations because of a
wish not to associate with corporations propagating certain views. The State has an interest not
only in enabling individuals to exercise freedom of conscience without penalty but also in
eliminating the danger that investment decisions will be significantly influenced by the
ideological views of corporations. While the latter concern may not be of the same constitutional
magnitude as the former, it is far from trivial. Corporations, as previously noted, are created by
the State as a means of furthering the public welfare. One of their functions is to determine, by
their success in obtaining funds, the uses to which society’s resources are to be put. A State may
legitimately conclude that corporations would not serve as economically efficient vehicles for
such decisions if the investment preferences of the public were significantly affected by their
ideological or political activities. It has long been recognized that such pursuits are not the proper
business of corporations. The common law was generally interpreted as prohibiting corporate
political participation. Indeed, the Securities and Exchange Commission’s rules permit
corporations to refuse to submit for shareholder vote any proposal which concerns a general
economic, political, racial, religious, or social cause that is not significantly related to the
business of the corporation or is not within its control. * * *
I would affirm the judgment of the Supreme Judicial Court for the Commonwealth of
Massachusetts.

MR. JUSTICE REHNQUIST, dissenting. * * *

There can be little doubt that, when a State creates a corporation with the power to acquire
and utilize property, it necessarily and implicitly guarantees that the corporation will not be
deprived of that property absent due process of law. Likewise, when a State charters a
corporation for the purpose of publishing a newspaper, it necessarily assumes that the
corporation is entitled to the liberty of the press essential to the conduct of its business. * * *4

what it views as “underinclusiveness” weakens the consideration to which the interest asserted by Massachusetts is
entitled by this Court. Such a conclusion, however, is without justification. No basis whatsoever is offered by the
Court for rejecting the conclusion reached by the court below in dismissing appellants’ equal protection challenge
that the state legislature could permissibly find on the basis of experience, which this Court lacks, that other
activities and forms of association do not present problems of the same type or the same dimension. Indeed, the
Court declines to consider appellants’ equal protection challenge.
The Court’s further claim that “[the] fact that a particular kind of ballot question has been singled out for special
treatment undermines the likelihood of a genuine state interest in protecting shareholders [and] suggests instead that
the legislature may have been concerned with silencing corporations on a particular subject,” ignores the fact that, as
earlier acknowledged by the majority, the statutory provision stating that the personal income tax does not materially
affect the business of corporations was enacted in response to prior judicial decisions construing the “materially
affecting” requirement as not prohibiting corporate expenditures in connection with income tax referenda. To find
evidence of hostility toward corporations on the basis of a decision of a legislature to clarify its intent following
judicial rulings interpreting the scope of a statute is to elevate 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.
4
It does not necessarily follow that such a corporation would be entitled to all the rights of free expression enjoyed
by natural persons. Although a newspaper corporation must necessarily have the liberty to endorse a political
candidate in its editorial columns, it need have no greater right than any other corporation to contribute money to
that candidate’s campaign. Such a right is no more “incidental to its very existence” than it is to any other business
corporation.
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* * * Although the Court has never explicitly recognized a corporation’s right of commercial
speech, such a right might be considered necessarily incidental to the business of a commercial
corporation.
It cannot be so readily concluded that the right of political expression is equally necessary to
carry out the functions of a corporation organized for commercial purposes. A State grants to a
business corporation the blessings of potentially perpetual life and limited liability to enhance its
efficiency as an economic entity. It might reasonably be concluded that those properties, so
beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it
might be argued that liberties of political expression are not at all necessary to effectuate the
purposes for which States permit commercial corporations to exist. So long as the Judicial
Branches of the State and Federal Governments remain open to protect the corporation’s interest
in its property, it has no need, though it may have the desire, to petition the political branches for
similar protection. Indeed, the States might reasonably fear that the corporation would use its
economic power to obtain further benefits beyond those already bestowed. I would think that any
particular form of organization upon which the State confers special privileges or immunities
different from those of natural persons would be subject to like regulation, whether the
organization is a labor union, a partnership, a trade association, or a corporation.
One need not adopt such a restrictive view of the political liberties of business corporations
to affirm the judgment of the Supreme Judicial Court in this case. * * * I can see no basis for
concluding that the liberty of a corporation to engage in political activity with regard to matters
having no material effect on its business is necessarily incidental to the purposes for which the
Commonwealth permitted these corporations to be organized or admitted within its boundaries.
***
It is true, as the Court points out, that recent decisions of this Court have emphasized the
interest of the public in receiving the information offered by the speaker seeking protection. The
free flow of information is in no way diminished by the Commonwealth’s decision to permit the
operation of business corporations with limited rights of political expression. All natural persons,
who owe their existence to a higher sovereign than the Commonwealth, remain as free as before
to engage in political activity.
I would affirm the judgment of the Supreme Judicial Court.

Notes and Questions

1. Do corporations have First Amendment rights? Bellotti argued that that was not the
proper question; rather, it focused on the public’s right to hear, perhaps in an effort to avoid
abstract questions of corporate personhood and First Amendment rights (but see footnote 15).
What individuals have a right to hear, according to the Court, may not be denied them simply
due to the identity of the speaker. This reasoning has been criticized: After all, the people of
Massachusetts, through their legislature, decided they did not wish to hear from corporations.
See Carl E. Schneider, Free Speech and Corporate Freedom: A Comment on First National Bank
of Boston v. Bellotti, 59 S. CAL. L. REV. 1227, 1235 (1986). But the Constitution protects
minority rights—even if only a minority of Massachusetts citizens wanted to hear from
corporations, were they not entitled, under the First Amendment, to do so? Does it matter if
courts focus on the speakers or the listeners?
2. In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court held that public
employees could not be compelled to contribute to a union’s political activities as a condition of
their employment. In other words, the employees could be required to contribute an amount
equal to union dues even if they did not wish to join the union, but whatever portion of those
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funds were used for political purposes had to be refunded to dissenting employees. In an omitted
portion of his Bellotti dissent, Justice White analogized the situation facing dissenting corporate
shareholders to that facing the dissenting employees in Abood. He argued that just as the
dissenting employees were not required to give up their jobs as a condition of exercising their
First Amendment rights, states should be able to protect shareholders from having “to choose
between supporting the propagation of views with which they disagree and passing up
investment opportunities.” Bellotti, 435 U.S. at 818 (White, J., dissenting). The majority
distinguished Abood on the ground that, unlike the compulsory contributions at issue in Abood, a
“shareholder invests in a corporation of his own volition and is free to withdraw his investment
at any time and for any reason.” Id. at 794 n.34 (opinion of the Court). Is it right to view the
decision to own corporate shares as “voluntary” and the decision to hold a government job as
“involuntary”? Should the First Amendment protection afforded to corporate speech turn on such
semantics? The interests of minority shareholders will be discussed more thoroughly later in this
Chapter, see infra [pp. XXX-XXX].
3. At the core of Bellotti is its rejection of the equality rationale for limiting campaign
spending. You will recall that Buckley had earlier rejected the same rationale, and Bellotti relied
on Buckley in coming to the same conclusion. Yet Bellotti rejected the equality rationale only
after a head-fake toward it; citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) [p.
XXX], the Court suggested equality arguments would “merit our consideration” if supported by
legislative or record findings. The Court then seemed to suggest that in ballot initiatives, where
there is no candidate to be corrupted, there could never be a compelling state interest in limiting
spending—by corporations or anyone else. Combined with CARC, supra at [p. XXX], Bellotti’s
bottom line is that a state may not limit spending in ballot-initiative campaigns.
4. Are there other compelling reasons, however, that might justify limits on corporate (and
union) independent expenditures in candidate races? Recall that the federal government
instituted a prohibition on corporate expenditures in candidates races in 1947, and at the
beginning of 2010, twenty-three states also had bans on corporate spending in candidate races.
National Conference of State Legislatures, Life After Citizens United, Jan. 28, 2010 (available at
http://www.ncsl.org/default.aspx?tabid=19607). The question of corporate spending in candidate
races reached the Court in the following cases:

FEDERAL ELECTION COMMISSION v. MASSACHUSETTS

CITIZENS FOR LIFE, INC.
Supreme Court of the United States
479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986)

JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court
with respect to Parts I, II, III-B, and III-C, and an opinion with respect to Part III-A, in which
JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE SCALIA join. [The Court is unanimous as to Parts I
and II. JUSTICE MARSHALL, JUSTICE POWELL, JUSTICE O’CONNOR, and JUSTICE SCALIA join Parts III-B
and III-C.] * * *

I
[Appellee Massachusetts Citizens for Life, Inc. (MCFL)] was incorporated in January 1973
as a nonprofit, nonstock corporation under Massachusetts law. Its corporate purpose, as stated in
its articles of incorporation, is:
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“To foster respect for human life and to defend the right to life of all human beings, born and unborn,
through educational, political and other forms of activities and in addition to engage in any other lawful act
or activity for which corporations may be organized. . . .”

MCFL does not accept contributions from business corporations or unions. Its resources come
from voluntary donations from “members,” and from various fund-raising activities such as
garage sales, bake sales, dances, raffles, and picnics. The corporation considers its “members”
those persons who have either contributed to the organization in the past or indicated support for
its activities. * * *
MCFL began publishing a newsletter in January 1973. It was distributed as a matter of course
to contributors, and, when funds permitted, to noncontributors who had expressed support for the
organization. The total distribution of any one issue has never exceeded 6,000. The newsletter
was published irregularly from 1973 through 1978: three times in 1973, five times in 1974, eight
times in 1975, eight times in 1976, five times in 1977, and four times in 1978. Each of the
newsletters bore a masthead identifying it as the “Massachusetts Citizens for Life Newsletter,” as
well as a volume and issue number. * * *
In September 1978, MCFL prepared and distributed a “Special Edition” prior to the
September 1978 primary elections. While the May 1978 newsletter had been mailed to 2,109
people and the October 1978 newsletter to 3,119 people, more than 100,000 copies of the
“Special Edition” were printed for distribution. The front page of the publication was headlined
“EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE,” and readers were
admonished that “[n]o pro-life candidate can win in November without your vote in September.”
“VOTE PRO-LIFE” was printed in large bold-faced letters on the back page, and a coupon was
provided to be clipped and taken to the polls to remind voters of the name of the “pro-life”
candidates. Next to the exhortation to vote “pro-life” was a disclaimer: “This special election
edition does not represent an endorsement of any particular candidate.”
To aid the reader in selecting candidates, the flyer listed the candidates for each state and
federal office in every voting district in Massachusetts, and identified each one as either
supporting or opposing what MCFL regarded as the correct position on three issues. A “y”
indicated that a candidate supported the MCFL view on a particular issue and an “n” indicated
that the candidate opposed it. An asterisk was placed next to the names of those incumbents who
had made a “special contribution to the unborn in maintaining a 100% pro-life voting record in
the state house by actively supporting MCFL legislation.” While some 400 candidates were
running for office in the primary, the “Special Edition” featured the photographs of only 13.
These 13 had received a triple “y” rating, or were identified either as having a 100% favorable
voting record or as having stated a position consistent with that of MCFL. No candidate whose
photograph was featured had received even one “n” rating.
The “Special Edition” was edited by an officer of MCFL who was not part of the staff that
prepared the MCFL newsletters. The “Special Edition” was mailed free of charge and without
request to 5,986 contributors, and to 50,674 others whom MCFL regarded as sympathetic to the
organization’s purposes. The Commission asserts that the remainder of the 100,000 issues were
placed in public areas for general distribution, but MCFL insists that no copies were made
available to the general public. The “Special Edition” was not identified on its masthead as a
special edition of the regular newsletter, although the MCFL logotype did appear at its top. * * *
The corporation spent $9,812.76 to publish and circulate the “Special Edition,” all of which was
taken from its general treasury funds.
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A complaint was filed with the Commission alleging that the “Special Edition” was a
violation of [2 U.S.C.] § 441b. [That section prohibits corporations from using treasury funds to
make an expenditure “in connection with” any federal election, and requires that any expenditure
for such purpose be financed by voluntary contributions to a separate segregated fund.] * * *
[T]he Court of Appeals for the First Circuit held that the statute was applicable to MCFL, but
affirmed the District Court’s holding that the statute as so applied was unconstitutional. We
granted certiorari [sic; the Court actually granted probable jurisdiction –Eds.], and now affirm.

II * * *
Appellee * * * argues that the definition of an expenditure under § 441b necessarily
incorporates the requirement that a communication “expressly advocate” the election of
candidates, and that its “Special Edition” does not constitute express advocacy. * * *
Buckley [v. Valeo, 424 U.S. 1 (1976)] [p. XXX] [(per curiam)] adopted the “express
advocacy” requirement to distinguish discussion of issues and candidates from more pointed
exhortations to vote for particular persons. We therefore concluded in that case that a finding of
“express advocacy” depended upon the use of language such as “vote for,” “elect,” “support,”
etc., Buckley, supra, at 44, n.52. Just such an exhortation appears in the “Special Edition.” The
publication not only urges voters to vote for “pro-life” candidates, but also identifies and
provides photographs of specific candidates fitting that description. The Edition cannot be
regarded as a mere discussion of public issues that by their nature raise the names of certain
politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates.
The fact that this message is marginally less direct than “Vote for Smith” does not change its
essential nature. The Edition goes beyond issue discussion to express electoral advocacy. * * *
Finally, MCFL argues that it is entitled to the press exemption under 2 U.S.C. § 431(9)(B)(i)
reserved for
“any news story, commentary, or editorial distributed through the facilities of any . . . newspaper,
magazine, or other periodical publication, unless such facilities are owned or controlled by any political
party, political committee, or candidate.”

MCFL maintains that its regular newsletter is a “periodical publication” within this
definition, and that the “Special Edition” should be regarded as just another issue in the
continuing newsletter series. * * *
We need not decide whether the regular MCFL newsletter is exempt under this provision,
because, even assuming that it is, the “Special Edition” cannot be considered comparable to any
single issue of the newsletter. It was not published through the facilities of the regular newsletter,
but by a staff which prepared no previous or subsequent newsletters. It was not distributed to the
newsletter’s regular audience, but to a group 20 times the size of that audience, most of whom
were members of the public who had never received the newsletter. No characteristic of the
Edition associated it in any way with the normal MCFL publication. The MCFL masthead did
not appear on the flyer, and * * * the Edition contained no volume and issue number identifying
it as one in a continuing series of issues.
MCFL protests that determining the scope of the press exemption by reference to such
factors inappropriately focuses on superficial considerations of form. However, it is precisely
such factors that in combination permit the distinction of campaign flyers from regular
publications. We regard such an inquiry as essential, since we cannot accept the notion that the
distribution of such flyers by entities that happen to publish newsletters automatically entitles
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such organizations to the press exemption. A contrary position would open the door for those
corporations and unions with in-house publications to engage in unlimited spending directly
from their treasuries to distribute campaign material to the general public, thereby eviscerating
§ 441b’s prohibition.
In sum, we hold that MCFL’s publication and distribution of the “Special Edition” is in
violation of § 441(b). We therefore turn to the constitutionality of that provision as applied to
appellee.

III-A
Independent expenditures constitute expression “at the core of our electoral process and of
the First Amendment freedoms.” We must therefore determine whether the prohibition
of § 441b burdens political speech, and, if so, whether such a burden is justified by a compelling
state interest. * * *
The FEC minimizes the impact of the legislation upon MCFL’s First Amendment rights by
emphasizing that the corporation remains free to establish a separate segregated fund, composed
of contributions earmarked for that purpose by the donors, that may be used for unlimited
campaign spending. However, the corporation is not free to use its general funds for campaign
advocacy purposes. While that is not an absolute restriction on speech, it is a substantial one.
Moreover, even to speak through a segregated fund, MCFL must make very significant efforts.
If it were not incorporated, MCFL’s obligations under the Act would be those specified by
§ 434(c), the section that prescribes the duties of “[e]very person (other than a political
committee).” Section 434(c) provides that any such person that during a year makes independent
expenditures exceeding $250 must: (1) identify all contributors who contribute in a given year
over $200 in the aggregate in funds to influence elections; (2) disclose the name and address of
recipients of independent expenditures exceeding $200 in the aggregate, along with an indication
of whether the money was used to support or oppose a particular candidate; and (3) identify any
persons who make contributions over $200 that are earmarked for the purpose of furthering
independent expenditures. All unincorporated organizations whose major purpose is not
campaign advocacy, but who occasionally make independent expenditures on behalf of
candidates, are subject only to these regulations.
Because it is incorporated, however, MCFL must establish a “separate segregated fund” if it
wishes to engage in any independent spending whatsoever. §§ 441b(a), (b)(2)(C). Since such a
fund is considered a “political committee” under the Act, § 431(4)(B), all MCFL independent
expenditure activity is, as a result, regulated as though the organization’s major purpose is to
further the election of candidates. This means that MCFL must comply with several requirements
in addition to those mentioned. Under § 432, it must appoint a treasurer; ensure that
contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the
amount of contribution; see that its treasurer keeps an account of every contribution regardless of
amount, the name and address of any person who makes a contribution in excess of $50, all
contributions received from political committees, and the name and address of any person to
whom a disbursement is made regardless of amount; and preserve receipts for all disbursements
over $200 and all records for three years. Under § 433, MCFL must file a statement of
organization containing its name, address, the name of its custodian of records, and its banks,
safety deposit boxes, or other depositories; must report any change in the above information
within 10 days; and may dissolve only upon filing a written statement that it will no longer
receive any contributions nor make disbursements, and that it has no outstanding debts or
134

obligations.
Under § 434, MCFL must file either monthly reports with the FEC or reports on the
following schedule: quarterly reports during election years, a pre-election report no later than the
12th day before an election, a postelection report within 30 days after an election, and reports
every 6 months during nonelection years. 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. § 434(b). In addition, MCFL may solicit contributions for its separate
segregated fund only from its “members,” §§ 441b(b)(4)(A), (C), which does not include those
persons who have merely contributed to or indicated support for the organization in the past.
See FEC v. National Right to Work Committee, 459 U.S. 197, 204 (1982) [p. XXX].
It is evident from this survey that MCFL is subject to more extensive requirements and more
stringent restrictions than it would be if it were not incorporated. These additional regulations
may create a disincentive for such organizations to engage in political speech. Detailed
recordkeeping and disclosure obligations, along with the duty to appoint a treasurer and
custodian of the records, impose administrative costs that many small entities may be unable to
bear. Furthermore, such duties require a far more complex and formalized organization than
many small groups could manage. Restriction of solicitation of contributions to “members”
vastly reduces the sources of funding for organizations with either few or no formal members,
directly limiting the ability of such organizations to engage in core political speech. It is not
unreasonable to suppose that, as in this case, an incorporated group of like-minded persons might
seek donations to support the dissemination of their political ideas and their occasional
endorsement of political candidates, by means of garage sales, bake sales, and raffles. Such
persons might well be turned away by the prospect of complying with all the requirements
imposed by the Act. Faced with the need to assume a more sophisticated organizational form, to
adopt specific accounting procedures, to file periodic detailed reports, and to monitor garage
sales lest nonmembers take a fancy to the merchandise on display, it would not be surprising if at
least some groups decided that the contemplated political activity was simply not worth it.
Thus, while § 441b does not remove all opportunities for independent spending by
organizations such as MCFL, the avenue it leaves open is more burdensome than the one it
forecloses. The fact that the statute’s practical effect may be to discourage protected speech is
sufficient to characterize § 441b as an infringement on First Amendment activities. * * *

B
When a statutory provision burdens First Amendment rights, it must be justified by a
compelling state interest. * * * The FEC first insists that justification for § 441b’s expenditure
restriction is provided by this Court’s acknowledgment that “the special characteristics of the
corporate structure require particularly careful regulation.” National Right to Work Committee,
supra, at 209-210. * * *
Direct corporate spending on political activity raises the prospect that resources amassed in
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the economic marketplace may be used to provide an unfair advantage in the political
marketplace. Political “free trade” does not necessarily require that all who participate in the
political marketplace do so with exactly equal resources. * * * Relative availability of funds is
after all a rough barometer of public support. The resources in the treasury of a business
corporation, however, are not an indication of popular support for the corporation’s political
ideas. 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. * * *
Regulation of corporate political activity thus has reflected concern not about use of the
corporate form per se, but about the potential for unfair deployment of wealth for political
purposes. Groups such as MCFL, however, do not pose that danger of corruption. MCFL was
formed to disseminate political ideas, not to amass capital. The resources it has available are not
a function of its success in the economic marketplace, but its popularity in the political
marketplace. While MCFL may derive some advantages from its corporate form, those are
advantages that redound to its benefit as a political organization, not as a profit-making
enterprise. In short, MCFL is not the type of “traditional corporatio[n] organized for economic
gain,” that has been the focus of regulation of corporate political activity.
National Right to Work Committee does not support the inclusion of MCFL within § 441b’s
restriction on direct independent spending. That case upheld the application to a nonprofit
corporation of a different provision of § 441b: the limitation on who can be solicited for
contributions to a political committee. However, the political activity at issue in that case was
contributions, as the committee had been established for the purpose of making direct
contributions to political candidates. We have consistently held that restrictions on contributions
require less compelling justification than restrictions on independent spending. * * *
The Commission next argues in support of § 441b that it prevents an organization from using
an individual’s money for purposes that the individual may not support. We acknowledged the
legitimacy of this concern as to the dissenting stockholder and union member in National Right
to Work Committee, 459 U.S., at 208 and in Pipefitters [v. United States], 407 U.S. [385], 414-
415 [(1972)]. But such persons, as noted, contribute investment funds or union dues for
economic gain, and do not necessarily authorize the use of their money for political ends.
Furthermore, because such individuals depend on the organization for income or for a job, it is
not enough to tell them that any unhappiness with the use of their money can be redressed simply
by leaving the corporation or the union. It was thus wholly reasonable for Congress to require the
establishment of a separate political fund to which persons can make voluntary contributions.
This rationale for regulation is not compelling with respect to independent expenditures by
appellee. Individuals who contribute to appellee are fully aware of its political purposes, and in
fact contribute precisely because they support those purposes. * * *
Finally, the FEC maintains that the inapplicability of § 441b to MCFL would open the door
to massive undisclosed political spending by similar entities, and to their use as conduits for
undisclosed spending by business corporations and unions. We see no such danger. Even if
§ 441b is inapplicable, an independent expenditure of as little as $250 by MCFL will trigger the
disclosure provisions of § 434(c). * * *

C***
* * * MCFL has three features essential to our holding that it may not constitutionally be
bound by § 441b’s restriction on independent spending. First, it was formed for the express
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purpose of promoting political ideas, and cannot engage in business activities. If political
fundraising events are expressly denominated as requests for contributions that will be used for
political purposes, including direct expenditures, these events cannot be considered business
activities. This ensures that political resources reflect political support. Second, it has no
shareholders or other persons affiliated so as to have a claim on its assets or earnings. This
ensures that persons connected with the organization will have no economic disincentive for
disassociating with it if they disagree with its political activity. Third, MCFL was not established
by a business corporation or a labor union, and it is its policy not to accept contributions from
such entities. This prevents such corporations from serving as conduits for the type of direct
spending that creates a threat to the political marketplace. * * *
The judgment of the Court of Appeals is
Affirmed.

JUSTICE O’CONNOR, concurring in part and concurring in the judgment. * * *

In my view, the significant burden on MCFL in this case comes not from the disclosure
requirements that it must satisfy, but from the additional organizational restraints imposed upon
it by the Act. As the Court has described, engaging in campaign speech requires MCFL to
assume a more formalized organizational form and significantly reduces or eliminates the
sources of funding for groups such as MCFL with few or no “members.” These additional
requirements do not further the Government’s informational interest in campaign disclosure, and,
for the reasons given by the Court, cannot be justified by any of the other interests identified by
the Federal Election Commission. Although the organizational and solicitation restrictions are
not invariably an insurmountable burden on speech, see, e.g., NRWC, in this case the
Government has failed to show that groups such as MCFL pose any danger that would justify
infringement of its core political expression. On that basis, I join in the Court’s judgment that
§ 441b is unconstitutional as applied to MCFL.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS
join, concurring in part and dissenting in part. * * *
I do not dispute that the threat from corporate political activity will vary depending on the
particular characteristics of a given corporation; it is obvious that large and successful
corporations with resources to fund a political war chest constitute a more potent threat to the
political process than less successful business corporations or nonprofit corporations. It may also
be that those supporting some nonbusiness corporations will identify with the corporations’
political views more frequently than the average shareholder of General Motors would support
the political activities of that corporation. These distinctions among corporations, however, are
“distinctions in degree” that do not amount to “differences in kind.” Buckley, 424 U.S. [at] 30.
As such, they are more properly drawn by the Legislature than by the Judiciary. Congress
expressed its judgment in § 441b that the threat posed by corporate political activity warrants a
prophylactic measure applicable to all groups that organize in the corporate form. Our previous
cases have expressed a reluctance to fine-tune such judgments; I would adhere to that counsel
here. * * *

JUSTICE WHITE, while joining THE CHIEF JUSTICE’s opinion, adheres to his dissenting views in
Buckley v. Valeo, First National Bank v. Bellotti, 435 U.S. 765 (1978) [p. XXX], and FEC v.
National Conservative Political Action Committee, 470 U.S. 480 (1985) [p. XXX].
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Notes and Questions

1. Most newspapers and other publishers are incorporated, and would therefore be
prohibited from political endorsements without the “press exemption” provided in the law. In
MCFL the Court determined that the organization’s “Special Edition” did not qualify for the
press exemption and did not reach the question whether the regular newsletter was covered by
the exemption. Would MCFL’s regular newsletter have been covered by the press exemption?
Cf. Phillips Publishing v. Federal Election Commission, 517 F. Supp. 1308 (D.D.C. 1981). In
2004, the National Rifle Association launched its own satellite radio station, “NRA News,”
specifically to take advantage of the exemption for the press. Many overtly political magazines
are published with little intent to make a profit, and are subsidized by wealthy individuals,
foundations (which sometimes accept corporate contributions), or corporations. Would the
exemption extend to a book or movie published or produced by a pro-life or pro-choice
organization? See Bradley A. Smith, The John Roberts Salvage Company: After McConnell, A
New Court Looks to Repair the Constitution, 68 OHIO ST. L.J. 891, 895-899 (2007). Does the
exemption for the press cover activities outside of direct publication, such as paid advertising by
the publisher? See Readers Digest Association v. Federal Election Commission, 509 F. Supp.
1210 (S.D.N.Y. 1981). Read the language of the federal press exemption at 2 U.S.C. § 431(9)(B)
(i). Does it cover books and movies? If not, would the Constitution require it to do so? See
Federal Election Commission, Advisory Op. 2004-30 (Citizens United) (Sep. 9, 2004) (Smith,
Comm’r, concurring). Note that the Supreme Court has never held that the institutional press is
constitutionally entitled to protections not available to all citizens wishing to publish their views.
2. MCFL struck down a restriction on the ability of certain corporations to make
independent expenditures. Does the rationale of that case extend to protecting such corporations’
ability to contribute to candidates? In Federal Election Commission v. Beaumont, 539 U.S. 146
(2003), the Supreme Court relied on Federal Election Commission v. National Right to Work
Committee, 459 U.S. 197 (1982) [p. XXX], to hold that, notwithstanding MCFL, contributions
by a nonprofit advocacy corporation could be banned.

AUSTIN v. MICHIGAN STATE CHAMBER OF COMMERCE

Supreme Court of the United States
494 U.S. 652, 110 S. Ct. 1391, 108 L. Ed. 2d 652 (1990)

JUSTICE MARSHALL delivered the opinion of the Court [in which CHIEF JUSTICE REHNQUIST, JUSTICE
BRENNAN, JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS join]. * * *
Section 54(1) of the Michigan Campaign Finance Act prohibits corporations from making
* * * independent expenditures in connection with state candidate elections. * * * The Act
exempts from this general prohibition against corporate political spending any expenditure made
from a segregated fund. A corporation may solicit contributions to its political fund only from an
enumerated list of persons associated with the corporation.
The Chamber, a nonprofit Michigan corporation, challenges the constitutionality of this
statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom
are for-profit corporations. The Chamber’s general treasury is funded through annual dues
required of all members. Its purposes, as set out in the bylaws, are to promote economic
conditions favorable to private enterprise; to analyze, compile, and disseminate information
about laws of interest to the business community and to publicize to the government the views of
the business community on such matters; to train and educate its members; to foster ethical
business practices; to collect data on, and investigate matters of, social, civic, and economic
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importance to the State; to receive contributions and to make expenditures for political purposes
and to perform any other lawful political activity; and to coordinate activities with other similar
organizations.
In June 1985 Michigan scheduled a special election to fill a vacancy in the Michigan House
of Representatives. Although the Chamber had established and funded a separate political fund,
it sought to use its general treasury funds to place in a local newspaper an advertisement
supporting a specific candidate. As the Act made such an expenditure punishable as a felony, the
Chamber brought suit in District Court for injunctive relief against enforcement of the Act,
arguing that the restriction on expenditures is unconstitutional under both the First and the
Fourteenth Amendments. * * *
To determine whether Michigan’s restriction on corporate political expenditures may
constitutionally be applied to the Chamber, we must ascertain whether it burdens the exercise of
political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest.
* * * Certainly, the use of funds to support a political candidate is “speech”; independent
campaign expenditures constitute “political expression ‘at the core of our electoral process and
of the First Amendment freedoms.’ ” The mere fact that the Chamber is a corporation does not
remove its speech from the ambit of the First Amendment. See, e.g., First National Bank of
Boston v. Bellotti, 435 U.S. 765, 777 (1978) [p. XXX].
This Court concluded in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)
[p. XXX] (MCFL), that a federal statute requiring corporations to make independent political
expenditures only through special segregated funds burdens corporate freedom of expression.
MCFL, 479 U.S., at 252 (plurality opinion). * * *
Despite the Chamber’s success in administering its separate political fund ([the] Chamber [is]
expected to have over $140,000 in its segregated fund available for use in the 1986 elections),
Michigan’s segregated fund requirement still burdens the Chamber’s exercise of expression
because “the corporation is not free to use its general funds for campaign advocacy purposes.”
The Act imposes requirements similar to those in the federal statute involved in MCFL: a
segregated fund must have a treasurer; and its administrators must keep detailed accounts of
contributions, and file with state officials a statement of organization. In addition, a nonprofit
corporation like the Chamber may solicit contributions to its political fund only from members,
stockholders of members, officers or directors of members, and the spouses of any of these
persons. Although these requirements do not stifle corporate speech entirely, they do burden
expressive activity. Thus, they must be justified by a compelling state interest.
The State contends that the unique legal and economic characteristics of corporations
necessitate some regulation of their political expenditures to avoid corruption or the appearance
of corruption. See FEC v. National Conservative Political Action Committee, 470 U.S. 480, 496-
497 (1985) (NCPAC) (“[P]reventing corruption or the appearance of corruption are the only
legitimate and compelling government interests thus far identified for restricting campaign
finances”). State law grants corporations special advantages—such as limited liability, perpetual
life, 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. These state-created advantages not only allow corporations to play a
dominant role in the Nation’s economy, but also permit them to use “resources amassed in the
economic marketplace” to obtain “an unfair advantage in the political marketplace.” MCFL, 479
U.S., at 257. As the Court explained in MCFL, the political advantage of corporations is unfair
because
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“[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the
corporation’s political ideas. 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.” Id., at 258.

We therefore have recognized that “the compelling governmental interest in preventing

corruption support[s] the restriction of the influence of political war chests funneled through the
corporate form.” NCPAC, supra, at 500-501 * * *.
The Chamber argues that this concern about corporate domination of the political process is
insufficient to justify a restriction on independent expenditures. Although this Court has
distinguished these expenditures from direct contributions in the context of federal laws
regulating individual donors, Buckley [v. Valeo], 424 U.S. [1], 47 [(1976)] [p. XXX] [(per
curiam)], it has also recognized that a legislature might demonstrate a danger of real or apparent
corruption posed by such expenditures when made by corporations to influence candidate
elections, Bellotti, supra, at 788, n.26. Regardless of whether this danger of “financial quid pro
quo” corruption may be sufficient to justify a restriction on independent expenditures,
Michigan’s regulation aims at a different type of corruption in the political arena: the corrosive
and distorting effects of immense aggregations of wealth that are accumulated with the help of
the corporate form and that have little or no correlation to the public’s support for the
corporation’s political ideas. The Act does not attempt “to equalize the relative influence of
speakers on elections”; rather, it ensures that expenditures reflect actual public support for the
political ideas espoused by corporations. We emphasize that the mere fact that corporations may
accumulate large amounts of wealth is not the justification for § 54; rather, the unique state-
conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on
independent expenditures. Corporate wealth can unfairly influence elections when it is deployed
in the form of independent expenditures, just as it can when it assumes the guise of political
contributions. We therefore hold that the State has articulated a sufficiently compelling rationale
to support its restriction on independent expenditures by corporations.
We next turn to the question whether the Act is sufficiently narrowly tailored to achieve its
goal. We find that the Act is precisely targeted to eliminate the distortion caused by corporate
spending while also allowing corporations to express their political views. Contrary to the
dissents’ critical assumptions, the Act does not impose an absolute ban on all forms of corporate
political spending but permits corporations to make independent political expenditures through
separate segregated funds. Because persons contributing to such funds understand that their
money will be used solely for political purposes, the speech generated accurately reflects
contributors’ support for the corporation’s political views.
The Chamber argues that § 54(1) is substantially overinclusive, because it includes within its
scope closely held corporations that do not possess vast reservoirs of capital. We rejected a
similar argument in FEC v. National Right to Work Committee, 459 U.S. 197 (1982) [p. XXX],
in the context of federal restrictions on the persons from whom corporations could solicit
contributions to their segregated funds. The Court found that the federal campaign statute, 2
U.S.C. § 441b, “reflect[ed] a legislative judgment that the special characteristics of the corporate
structure require particularly careful regulation. While § 441b restricts the solicitation of
corporations and labor unions without great financial resources, as well as those more fortunately
situated, we accept Congress’ judgment that it is the potential for such influence that demands
regulation.” Although some closely held corporations, just as some publicly held ones, may not
have accumulated significant amounts of wealth, they receive from the State the special benefits
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conferred by the corporate structure and present the potential for distorting the political process.
This potential for distortion justifies § 54(1)’s general applicability to all corporations. The
section therefore is not substantially overbroad. * * *
The Chamber also attacks § 54(1) as underinclusive because it does not regulate the
independent expenditures of unincorporated labor unions. Whereas unincorporated unions, and
indeed individuals, may be able to amass large treasuries, they do so without the significant
state-conferred advantages of the corporate structure; corporations are “by far the most
prominent example of entities that enjoy legal advantages enhancing their ability to accumulate
wealth.” The desire to counterbalance those advantages unique to the corporate form is the
State’s compelling interest in this case; thus, excluding from the statute’s coverage
unincorporated entities that also have the capacity to accumulate wealth “does not undermine its
justification for regulating corporations.”
Moreover, labor unions differ from corporations in that union members who disagree with a
union’s political activities need not give up full membership in the organization to avoid
supporting its political activities. Although a union and an employer may require that all
bargaining unit employees become union members, a union may not compel those employees to
support financially “union activities beyond those germane to collective bargaining, contract
administration, and grievance adjustment.” Communications Workers v. Beck, 487 U.S. 735, 745
(1988). See also Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) (holding that compelling
nonmember employees to contribute to union’s political activities infringes employees’ First
Amendment rights). An employee who objects to a union’s political activities thus can decline to
contribute to those activities, while continuing to enjoy the benefits derived from the union’s
performance of its duties as the exclusive representative of the bargaining unit on labor-
management issues. As a result, the funds available for a union’s political activities more
accurately reflects members’ support for the organization’s political views than does a
corporation’s general treasury. Michigan’s decision to exclude unincorporated labor unions from
the scope of § 54(1) is therefore justified by the crucial differences between unions and
corporations.
Because we hold that § 54(1) does not violate the First Amendment, we must address the
Chamber’s contention that the provision infringes its rights under the Fourteenth Amendment.
The Chamber argues that the statute treats similarly situated entities unequally. Specifically, it
contends that the State should also restrict the independent expenditures of unincorporated
associations with the ability to accumulate large treasuries and of corporations engaged in the
media business.
Because the right to engage in political expression is fundamental to our constitutional
system, statutory classifications impinging upon that right must be narrowly tailored to serve a
compelling governmental interest. * * * We find that, even under such strict scrutiny, the
statute’s classifications pass muster under the Equal Protection Clause. As we explained in the
context of our discussions of whether the statute was overinclusive or underinclusive, the State’s
decision to regulate only corporations is precisely tailored to serve the compelling state interest
of eliminating from the political process the corrosive effect of political “war chests” amassed
with the aid of the legal advantages given to corporations.
Similarly, we find that the Act’s exemption of media corporations from the expenditure
restriction does not render the statute unconstitutional. The “media exception” excludes from the
definition of “expenditure” any “expenditure by a broadcasting station, newspaper, magazine, or
other periodical or publication for any news story, commentary, or editorial in support of or
 141

opposition to a candidate for elective office . . . in the regular course of publication or

broadcasting,” § 169.206(3)(d). * * * It is true that the exemption does not refer expressly to
“media corporations.” Nevertheless, the exception will undoubtedly result in the imposition of
fewer restrictions on the expression of corporations that are in the media business. Thus, it
cannot be regarded as neutral, and the distinction must be justified by a compelling state purpose.
Although all corporations enjoy the same state-conferred benefits inherent in the corporate
form, media corporations differ significantly from other corporations in that their resources are
devoted to the collection of information and its dissemination to the public. We have consistently
recognized the unique role that the press plays in “informing and educating the public, offering
criticism, and providing a forum for discussion and debate.” Bellotti, 435 U.S., at 781. The Act’s
definition of “expenditure” conceivably could be interpreted to encompass election-related news
stories and editorials. The Act’s restriction on independent expenditures therefore might
discourage incorporated news broadcasters or publishers from serving their crucial societal role.
The media exception ensures that the Act does not hinder or prevent the institutional press from
reporting on, and publishing editorials about, newsworthy events. * * * A valid distinction thus
exists between corporations that are part of the media industry and other corporations that are not
involved in the regular business of imparting news to the public. Although the press’ unique
societal role may not entitle the press to greater protection under the Constitution, it does provide
a compelling reason for the State to exempt media corporations from the scope of political
expenditure limitations. We therefore hold that the Act does not violate the Equal Protection
Clause.
Michigan identified as a serious danger the significant possibility that corporate political
expenditures will undermine the integrity of the political process, and it has implemented a
narrowly tailored solution to that problem. By requiring corporations to make all independent
political expenditures through a separate fund made up of money solicited expressly for political
purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries
amassed with the aid of favorable state laws will be used to influence unfairly the outcome of
elections. The Michigan Chamber of Commerce does not exhibit the characteristics identified in
MCFL that would require the State to exempt it from a generally applicable restriction on
independent corporate expenditures. We therefore reverse the decision of the Court of Appeals.
It is so ordered.

JUSTICE BRENNAN, concurring. * * *

The majority today persuasively demonstrates that the situation in this case is markedly
different from that in MCFL. The Chamber is first and foremost a business association, not a
political advocacy organization. The Michigan statute advances the interest identified in MCFL
in two distinct ways, by preventing both the Chamber and other business corporations from using
the funds of other persons for purposes that those persons may not support. First, the state law
protects the small businessperson who does not wish his or her dues to be spent in support of
political candidates, but who nevertheless wishes to maintain an association with the Chamber
because of the myriad benefits it provides that are unrelated to its political activities. * * * To
attract new members, Chamber advertisements promise a wide variety of services, including
“regular and special publications, legislative briefings, group insurance, a business hot-line, and
seminars.” * * * A member faces significant disincentives to withdraw, even if he disagrees with
the Chamber’s expenditures in support of a particular candidate.
In addition, the Michigan law protects dissenting shareholders of business corporations that
142

are members of the Chamber to the extent that such shareholders oppose the use of their money,
paid as dues to the Chamber out of general corporate treasury funds, for political campaigns. The
Michigan law prevents the Chamber from “serv[ing] as a conduit for corporate political
spending.” * * *

JUSTICE STEVENS, concurring.

In my opinion, the distinction between individual expenditures and individual contributions
that the Court identified in Buckley v. Valeo should have little, if any, weight in reviewing
corporate participation in candidate elections. In that context, I believe the danger of either the
fact, or the appearance, of quid pro quo relationships provides an adequate justification for state
regulation of both expenditures and contributions. Moreover, as we recognized in First National
Bank of Boston v. Bellotti, there is a vast difference between lobbying and debating public issues
on the one hand, and political campaigns for election to public office on the other. Accordingly, I
join the Court’s opinion and judgment.

JUSTICE SCALIA, dissenting.

“Attention all citizens. To assure the fairness of elections by preventing disproportionate
expression of the views of any single powerful group, your Government has decided that the
following associations of persons shall be prohibited from speaking or writing in support of any
candidate: ___.” In permitting Michigan to make private corporations the first object of this
Orwellian announcement, the Court today endorses the principle that too much speech is an evil
that the democratic majority can proscribe. I dissent because that principle is contrary to our case
law and incompatible with the absolutely central truth of the First Amendment: that government
cannot be trusted to assure, through censorship, the “fairness” of political debate.
The Court’s opinion says that political speech of corporations can be regulated because
“[s]tate law grants [them] special advantages,” and because this “unique state-conferred
corporate structure . . . facilitates the amassing of large treasuries.” This analysis seeks to create
one good argument by combining two bad ones. Those individuals who form that type of
voluntary association known as a corporation are, to be sure, given special advantages—notably,
the immunization of their personal fortunes from liability for the actions of the association—that
the State is under no obligation to confer. But so are other associations and private individuals
given all sorts of special advantages that the State need not confer, ranging from tax breaks to
contract awards to public employment to outright cash subsidies. It is rudimentary that the State
cannot exact as the price of those special advantages the forfeiture of First Amendment rights.
* * * The categorical suspension of the right of any person, or of any association of persons, to
speak out on political matters must be justified by a compelling state need. * * * That is why the
Court puts forward its second bad argument, the fact that corporations “amas[s] large treasuries.”
But that alone is also not sufficient justification for the suppression of political speech, unless
one thinks it would be lawful to prohibit men and women whose net worth is above a certain
figure from endorsing political candidates. Neither of these two flawed arguments is improved
by combining them and saying, as the Court in effect does, that “since the State gives special
advantages to these voluntary associations, and since they thereby amass vast wealth, they may
be required to abandon their right of political speech.”*
*
The Court’s assertion that the Michigan law “does not impose an absolute ban on all forms of corporate political
spending” is true only in a respect that is irrelevant for purposes of First Amendment analysis. A corporation is
absolutely prohibited from spending its own funds on this form of political speech, and would be guilty of
misrepresentation if it asserted that a particular candidate was supported or opposed by the corporation. This is to
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The Court’s extensive reliance upon the fact that the objects of this speech restriction,
corporations, receive “special advantages” is in stark contrast to our opinion issued just six years
ago in FCC v. League of Women Voters of California, 468 U.S. 364 (1984)[, which] str[uck]
down a congressionally imposed ban upon editorializing by noncommercial broadcasting stations
that receive federal funds[.] * * * Commercial corporations may not have a public persona as
sympathetic as that of public broadcasters, but they are no less entitled to this Court’s concern.
As for the second part of the Court’s argumentation, the fact that corporations (or at least
some of them) possess “massive wealth”: Certain uses of “massive wealth” in the electoral
process—whether or not the wealth is the result of “special advantages” conferred by the State—
pose a substantial risk of corruption which constitutes a compelling need for the regulation of
speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to
be used under his direction and control. We held in Buckley v. Valeo, however, that independent
expenditures to express the political views of individuals and associations do not raise a
sufficient threat of corruption to justify prohibition. Neither the Court’s opinion nor either of the
concurrences makes any effort to distinguish that case * * *. Section 608(e)(1) of the Federal
Election Campaign Act of 1971, which we found unconstitutional in Buckley, was directed, like
the Michigan law before us here, to expenditures made for the purpose of advocating the election
or defeat of a particular candidate. It limited to $1,000 (a lesser restriction than the absolute
prohibition at issue here) such expenditures not merely by “individuals,” but by “persons,”
specifically defined to include corporations. The plaintiffs in the case included corporations, and
we specifically discussed § 608(e)(1) as a restriction addressed not just to individuals but to
“individuals and groups,” “persons and groups,” “persons and organizations,” “person[s] [and]
association[s].” In support of our determination that the restriction was “wholly at odds with the
guarantees of the First Amendment” we cited Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241 (1974) [p. XXX], which involved limitations upon a corporation. * * *
Buckley v. Valeo should not be overruled, because it is entirely correct. The contention that
prohibiting overt advocacy for or against a political candidate satisfies a “compelling need” to
avoid “corruption” is easily dismissed. As we said in Buckley, * * * [i]ndependent advocacy,
* * * unlike contributions, “may well provide little assistance to the candidate’s campaign and
indeed may prove counterproductive,” thus reducing the danger that it will be exchanged “as a
quid pro quo for improper commitments from the candidate.” The latter point seems even more
plainly true with respect to corporate advocates than it is with respect to individuals. I expect I
could count on the fingers of one hand the candidates who would generally welcome, much less
negotiate for, a formal endorsement by AT&T or General Motors. The advocacy of such entities
that have “amassed great wealth” will be effective only to the extent that it brings to the people’s
attention ideas which—despite the invariably self-interested and probably uncongenial source—
strike them as true.
The Court does not try to defend the proposition that independent advocacy poses a
substantial risk of political “corruption,” as English speakers understand that term. Rather, it

say that the corporation as a corporation is prohibited from speaking. What the Michigan law permits the
corporation to do is to serve as the founder and treasurer of a different association of individuals that can endorse or
oppose political candidates. The equivalent, where an individual rather than an association is concerned, would be to
prohibit John D. Rockefeller from making political endorsements, but to permit him to form an association to which
others (though not he himself) can contribute for the purpose of making political endorsements. Just as political
speech by that association is not speech by John D. Rockefeller, so also speech by a corporate PAC that the
Michigan law allows is not speech by the corporation itself.
144

asserts that that concept (which it defines as “ ‘financial quid pro quo’ corruption”) is really just
a narrow subspecies of a hitherto unrecognized genus of political corruption. “Michigan’s
regulation,” we are told, “aims at a different type of corruption in the political arena: the
corrosive and distorting effects of immense aggregations of wealth that are accumulated with the
help of the corporate form and that have little or no correlation to the public’s support for the
corporation’s political ideas.” Under this mode of analysis, virtually anything the Court deems
politically undesirable can be turned into political corruption—by simply describing its effects as
politically “corrosive,” which is close enough to “corruptive” to qualify. It is sad to think that the
First Amendment will ultimately be brought down not by brute force but by poetic metaphor.
The Court’s opinion ultimately rests upon that proposition whose violation constitutes the
“New Corruption”: Expenditures must “reflect actual public support for the political ideas
espoused.” This illiberal free-speech principle of “one man, one minute” was proposed and
soundly rejected in Buckley. * * * But it can be said that I have not accurately quoted today’s
decision. It does not endorse the proposition that government may ensure that expenditures
“reflect actual public support for the political ideas espoused,” but only the more limited
proposition that government may ensure that expenditures “reflect actual public support for the
political ideas espoused by corporations.” The limitation is of course entirely irrational. Why is it
perfectly all right if advocacy by an individual billionaire is out of proportion with “actual public
support” for his positions? There is no explanation, except the effort I described at the outset of
this discussion to make one valid proposition out of two invalid ones: When the vessel labeled
“corruption” begins to founder under weight too great to be logically sustained, the
argumentation jumps to the good ship “special privilege”; and when that in turn begins to go
down, it returns to “corruption.” Thus hopping back and forth between the two, the
argumentation may survive but makes no headway towards port, where its conclusion waits in
vain.
[Likewise, the government interest in shareholder protection does] not suffice as a
“compelling need” to support this blatant restriction upon core political speech. A person
becomes a member of that form of association known as a for-profit corporation in order to
pursue economic objectives, i.e., to make money. Some corporate charters may specify the line
of commerce to which the company is limited, but even that can be amended by shareholder
vote. Thus, in joining such an association, the shareholder knows that management may take any
action that is ultimately in accord with what the majority (or a specified supermajority) of the
shareholders wishes, so long as that action is designed to make a profit. That is the deal. The
corporate actions to which the shareholder exposes himself, therefore, include many things that
he may find politically or ideologically uncongenial: investment in South Africa, operation of an
abortion clinic, publication of a pornographic magazine, or even publication of a newspaper that
adopts absurd political views and makes catastrophic political endorsements. His only
protections against such assaults upon his ideological commitments are (1) his ability to persuade
a majority (or the requisite minority) of his fellow shareholders that the action should not be
taken, and ultimately (2) his ability to sell his stock. * * * It seems to me entirely fanciful, in
other words, to suggest that the Michigan statute makes any significant contribution toward
insulating the exclusively profit-motivated shareholder from the rude world of politics and
ideology.
But even if that were not fanciful, it would be fanciful to think, as JUSTICE BRENNAN’s opinion
assumes, that there is any difference between for-profit and not-for-profit corporations insofar as
the need for protection of the individual member’s ideological psyche is concerned. Would it be
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any more upsetting to a shareholder of General Motors that it endorsed the election of Henry
Wallace (to stay comfortably in the past) than it would be to a member of the American Civil
Liberties Union that it endorsed the election of George Wallace? I should think much less so. Yet
in the one case as in the other, the only protection against association-induced trauma is the will
of the majority and, in the last analysis, withdrawal from membership. * * *
Th[e] state interest [in “eliminating from the political process the corrosive effect of political
‘war chests’ amassed with the aid of the legal advantages given to corporations”] (assuming it is
compelling) does indeed explain why the State chose to silence “only corporations” rather than
wealthy individuals as well. But it does not explain (what “narrow tailoring” pertains to) why the
State chose to silence all corporations, rather than just those that possess great wealth. If narrow
tailoring means anything, surely it must mean that action taken to counter the effect of amassed
“war chests” must be targeted, if possible, at amassed “war chests.” And surely such targeting is
possible—either in the manner accomplished by the provision that we invalidated in Buckley,
i.e., by limiting the prohibition to independent expenditures above a certain amount, or in some
other manner, e.g., by limiting the expenditures of only those corporations with more than a
certain amount of net worth or annual profit. * * *
Finally, a few words are in order concerning the Court’s approval of the Michigan law’s
exception for “media corporations.” This is all right, we are told, because of “the unique role that
the press plays in ‘informing and educating the public, offering criticism, and providing a forum
for discussion and debate.’ ” But if one believes in the Court’s rationale of “compelling state
need” to prevent amassed corporate wealth from skewing the political debate, surely that “unique
role” of the press does not give Michigan justification for excluding media corporations from
coverage, but provides especially strong reason to include them. Amassed corporate wealth that
regularly sits astride the ordinary channels of information is much more likely to produce the
New Corruption (too much of one point of view) than amassed corporate wealth that is generally
busy making money elsewhere. Such media corporations not only have vastly greater power to
perpetrate the evil of overinforming, they also have vastly greater opportunity. General Motors,
after all, will risk a stockholder suit if it makes a political endorsement that is not plausibly tied
to its ability to make money for its shareholders. But media corporations make money by making
political commentary, including endorsements. For them, unlike any other corporations, the
whole world of politics and ideology is fair game. Yet the Court tells us that it is reasonable to
exclude media corporations, rather than target them specially.
Members of the institutional press, despite the Court’s approval of their illogical exemption
from the Michigan law, will find little reason for comfort in today’s decision. The theory of New
Corruption it espouses is a dagger at their throats. The Court today holds merely that media
corporations may be excluded from the Michigan law, not that they must be. * * * One must
hope, I suppose, that Michigan will continue to provide this generous and voluntary exemption.
I would not do justice to the significance of today’s decision to discuss only its lapses from
case precedent and logic. Infinitely more important than that is its departure from long-accepted
premises of our political system regarding the benevolence that can be expected of government
in managing the arena of public debate, and the danger that is to be anticipated from powerful
private institutions that compete with government, and with one another, within that arena.
Perhaps the Michigan law before us here has an unqualifiedly noble objective—to “equalize”
the political debate by preventing disproportionate expression of corporations’ points of view.
But governmental abridgment of liberty is always undertaken with the very best of announced
objectives (dictators promise to bring order, not tyranny), and often with the very best of
146

genuinely intended objectives (zealous policemen conduct unlawful searches in order to put
dangerous felons behind bars). The premise of our Bill of Rights, however, is that there are some
things—even some seemingly desirable things—that government cannot be trusted to do. The
very first of these is establishing the restrictions upon speech that will assure “fair” political
debate. The incumbent politician who says he welcomes full and fair debate is no more to be
believed than the entrenched monopolist who says he welcomes full and fair competition.
Perhaps the Michigan Legislature was genuinely trying to assure a “balanced” presentation of
political views; on the other hand, perhaps it was trying to give unincorporated unions (a not
insubstantial force in Michigan) political advantage over major employers. Or perhaps it was
trying to assure a “balanced” presentation because it knows that with evenly balanced speech
incumbent officeholders generally win. The fundamental approach of the First Amendment, I
had always thought, was to assume the worst, and to rule the regulation of political speech “for
fairness’ sake” simply out of bounds. * * *
Despite all the talk about “corruption and the appearance of corruption”—evils that are not
significantly implicated and that can be avoided in many other ways—it is entirely obvious that
the object of the law we have approved today is not to prevent wrongdoing but to prevent speech.
Since those private associations known as corporations have so much money, they will speak so
much more, and their views will be given inordinate prominence in election campaigns. This is
not an argument that our democratic traditions allow—neither with respect to individuals
associated in corporations nor with respect to other categories of individuals whose speech may
be “unduly” extensive (because they are rich) or “unduly” persuasive (because they are movie
stars) or “unduly” respected (because they are clergymen). The premise of our system is that
there is no such thing as too much speech—that the people are not foolish but intelligent, and
will separate the wheat from the chaff. As conceded in Lincoln’s aphorism about fooling “all of
the people some of the time,” that premise will not invariably accord with reality; but it will
assuredly do so much more frequently than the premise the Court today embraces: that a healthy
democratic system can survive the legislative power to prescribe how much political speech is
too much, who may speak, and who may not. * * *
Because today’s decision is inconsistent with unrepudiated legal judgments of our Court, but
even more because it is incompatible with the unrepealable political wisdom of our First
Amendment, I dissent.

JUSTICE KENNEDY, with whom JUSTICE O’CONNOR and JUSTICE SCALIA join, dissenting.
* * * [T]he Court upholds a direct restriction on the independent expenditure of funds for
political speech for the first time in its history. * * *
The State has conceded that among those communications prohibited by its statute are the
publications by a nonprofit corporation of its own assessment of a candidate’s voting record.
* * * In both practice and theory, the prohibition aims at the heart of political debate. * * *
To create second-class speakers that can be stifled on the subject of candidate qualifications
is to silence some of the most significant participants in the American public dialogue, as
evidenced by the amici briefs filed on behalf of the Chamber of Commerce by the American
Civil Liberties Union, the Center for Public Interest Law, the American Medical Association, the
National Association of Realtors, the American Insurance Association, the National Organization
for Women, Greenpeace Action, the National Abortion Rights Action League, the National Right
to Work Committee, the Planned Parenthood Federation of America, the Fund for the Feminist
Majority, the Washington Legal Foundation, and the Allied Educational Foundation. I reject any
 147

argument based on the idea that these groups and their views are not of importance and value to
the self-fulfillment and self-expression of their members, and to the rich public dialogue that
must be the mark of any free society. To suggest otherwise is contrary to the American political
experience and our own judicial knowledge. * * *
By deciding to operate as a nonprofit corporation rather than an unincorporated association, a
group does not forfeit its First Amendment protection to participate in political discourse. * * *
By constructing a rationale for the jurisprudence of this Court that prevents distinguished
organizations in public affairs from announcing that a candidate is qualified or not qualified for
public office, the Court imposes its own model of speech, one far removed from economic and
political reality. It is an unhappy paradox that this Court, which has the role of protecting speech
and of barring censorship from all aspects of political life, now becomes itself the censor. In the
course of doing so, the Court reveals a lack of concern for speech rights that have the full
protection of the First Amendment. I would affirm the judgment.

APPENDIX A
148

Notes and Questions

1. Austin held that the state ban on corporate expenditures was an attempt to address a
“different type of corruption”: “the corrosive and distortive effects of immense aggregations of
wealth.” What does that mean? When people refer to government corruption, do you think this is
usually what they have in mind?
2. The Court suggested that there is something wrong when political spending has “little or
no correlation to the to the public’s support for the corporation’s political ideas.” Is there any
reason to think political spending should regularly correlate with the public’s support for the
donors’ ideas? See Bradley A. Smith, Searching for Corruption in All the Wrong Places, 2002-
2003 CATO SUP. CT. REV . 187, 204 (2003). Historically, unpopular causes are most reliant on
large contributions. BRADLEY A. SMITH , UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM
66-67 (2001).
 149

As of early 2010, the Idaho Legislature was dominated by Republicans, 52-18 in the House
and 28-7 in the Senate. In the last twenty years, no Democratic gubernatorial candidate has
received over 45% of the vote. No Democrat has been elected to the U.S. Senate since 1974, or
carried the state in a presidential race since 1964. Suppose the state adopted a public-funding
program that provided each major-party candidate with the same amount of funds. Would this be
problematic on the ground that the funds did not correspond to the public’s demonstrated support
for the two parties’ political ideas?
3. Professor Elizabeth Garrett, a clerk for Justice Marshall at the time of Austin, has noted
that Justice Marshall approved of the equality rationale rejected in Buckley. His majority opinion
in Austin, according to Professor Garrett, “appropriated the language used to describe an
egalitarian justification for campaign finance regulation, but * * * expressed that state interest in
the acceptable corruption terminology.” Elizabeth Garrett, New Voices in Politics: Justice
Marshall’s Jurisprudence on Law and Politics, 52 HOW. L.J. 655, 670-71, 675 (2009).
4. Is the Court’s distinction between unions and corporations for equal-protection purposes
persuasive? The majority argued that while unions may amass large treasuries, they do so
“without the significant state-conferred advantages of the corporate structure.” Is that true?
Consider the many legislatively imposed rules governing labor relations that have, since the
1930s, replaced many common-law doctrines in an open effort to confer advantages on unions.
Examples include the statutory prohibition on “yellow dog” contracts, which required a worker
to agree not to join a union as a condition of employment; limits on the use of injunctions against
picketing that threatens violence; requirements that corporations recognize and negotiate with
unions; and prohibitions on retaliation against employees for union activity. See Richard A.
Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92
YALE L.J. 1357 (1983).
5. Do “state-conferred advantages” really help companies amass large sums that can be used
for political purposes? Not according to one corporate scholar:
[M]anagers who divert corporate resources from profitmaking activities towards funding political
campaigns on such a grand level as to warrant the characterization “corrosive and distorting” will find their
firm’s “large treasuries” shrinking as the firm becomes less competitive in its product and the capital
markets. And perpetual life cuts in precisely the opposite direction than the Court supposed * * *. As a
class, managers must always look forward to tomorrow’s product and capital market competition.
True, limited liability does help managers obtain capital. But it does so only by capping investors’
personal liability to creditors of the corporation at the amount of the investors’ investment. Limited liability
does not shield the corporation itself from liability for its debts. So to suppose that limited liability will help
an incorporated firm amass a huge treasury for use in electoral campaigns is to suppose investor
irrationality. Who would invest in a company that, rather than promising handsome returns, merely hands
over the corporate treasury to political candidates?

Robert H. Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for
Corporate Charters, 69 U. CHI. L. REV. 1103, 1109-10 (2002).
6. Only about 40 percent of firms in the Fortune 500 maintain PACs. Does this shed any
light on the perceived value of corporate political spending? See Stephen D. Ansolabehere et al.,
Why Is There So Little Money in American Politics, 17 J. ECON. PERSPECTIVES 105 (2003).
7. Justice Scalia argued that speech by a corporate PAC is not speech by the corporation.
But if corporate rights derive from shareholder rights, is there any reason that this should matter?
Would Justice Scalia’s logic apply to the ban on corporate contributions as well?
150

E. THE BIPARTISAN CAMPAIGN REFORM ACT AND ITS AFTERMATH

With the Supreme Court’s decision in Austin, a rough equilibrium was established in
campaign-finance law. Although lower courts and, occasionally, the Supreme Court were called
upon to address rough edges of the law, a set of basic constitutional rules had been established.
These rules were not entirely consistent—Professor Lowenstein referred to them as a “patternless
mosaic,” Daniel H. Lowenstein, A Patternless Mosaic: Campaign Finance and the First
Amendment After Austin, 21 CAP. U. L. REV. 381 (1992)—but they were generally readily
understood, at least in their basics, by both lawyers and political consultants working in the field.
The basic rules were as follows: 1) contributions to candidates, to parties (at least insofar as
those contributions were used to support candidates through express advocacy) and to
committees making contributions to candidates were subject to limitation; 2) limitations on
spending, whether in candidate races or ballot initiatives, were constitutionally prohibited, except
as part of a voluntary system of public campaign financing; 3) expenditures from a corporation’s
general treasury, however, could be completely banned from use for express advocacy in
candidate races; 4) mandatory disclosure of campaign contributions and expenditures was
permitted; and 5) issue ads that avoided use of “magic words” of express advocacy, whether
funded by corporations, unions, or individuals, were outside the reach of the statute, both for
purposes of contribution limits and mandatory disclosure.
Though lasting for over a decade, this rough legal equilibrium was subjected to sustained
assault on one side by creative political entrepreneurs who pushed the boundaries of “issue
advocacy” to their limits, and on the other by a concerted effort to remake the legislative and
constitutional landscape to support greater regulation. One researcher calculated that in the three
years from 1997 to 1999, reform organizations spent in excess of $73 million to promote
campaign-finance reform; another estimated that approximately $140 million was spent from
1994 to 2004, mostly by a handful of large foundations. Cleta Mitchell, Who’s Buying
Campaign Finance Reform 7 (American Conservative Union 2001); Ryan Sager, Buying
Reform, N.Y. POST, Mar. 17, 2005, at 33.
In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), commonly known
as “McCain-Feingold” for its principal Senate sponsors. The bill was an effort to close perceived
loopholes in the law, and to rein in what many saw as abuses of the federal campaign-finance
system. As with the original FECA, BCRA was immediately subjected to a broad challenge in
federal court. In December 2003 the Court upheld the major components of the Act.

MCCONNELL V. FEDERAL ELECTION COMMISSION

Supreme Court of the United States
540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003)

JUSTICE STEVENS and JUSTICE O’CONNOR delivered the opinion of the Court with respect to
BCRA Titles I and II.*

I
The Bipartisan Campaign Reform Act of 2002 (BCRA) * * * is the most recent federal
enactment designed “to purge national politics of what was conceived to be the pernicious
influence of ‘big money’ campaign contributions.” * * *
Three important developments in the years after our decision in Buckley [v. Valeo, 424 U.S.
*
JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join this opinion in its entirety.
 151

1 (1976)] [p. XXX] persuaded Congress that further legislation was necessary to regulate the role
that corporations, unions, and wealthy contributors play in the electoral process. As a preface to
our discussion of the specific provisions of BCRA, we comment briefly on the increased
importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a
Senate investigation into campaign practices related to the 1996 federal elections.

Soft Money
Under FECA, “contributions” must be made with funds that are subject to the Act’s
disclosure requirements and source and amount limitations. Such funds are known as “federal”
or “hard” money. FECA defines the term “contribution,” however, to include only the gift or
advance of anything of value “made by any person for the purpose of influencing any election
for Federal office.” * * * Donations made solely for the purpose of influencing state or local
elections are therefore unaffected by FECA’s requirements and prohibitions. As a result, prior to
the enactment of BCRA, federal law permitted corporations and unions, as well as individuals
who had already made the maximum permissible contributions to federal candidates, to
contribute “nonfederal money”—also known as “soft money”—to political parties for activities
intended to influence state or local elections.
Shortly after Buckley was decided, questions arose concerning the treatment of contributions
intended to influence both federal and state elections. Although a literal reading of FECA’s
definition of “contribution” would have required such activities to be funded with hard money,
the FEC ruled that political parties could fund mixed-purpose activities—including get-out-the-
vote drives and generic party advertising—in part with soft money. In 1995 the FEC concluded
that the parties could also use soft money to defray the costs of “legislative advocacy media
advertisements,” even if the ads mentioned the name of a federal candidate, so long as they did
not expressly advocate the candidate’s election or defeat.
As the permissible uses of soft money expanded, the amount of soft money raised and spent
by the national political parties increased exponentially. Of the two major parties’ total spending,
soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80
million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000. The national
parties transferred large amounts of their soft money to the state parties, which were allowed to
use a larger percentage of soft money to finance mixed-purpose activities under FEC rules. In the
year 2000, for example, the national parties diverted $280 million—more than half of their soft
money—to state parties.
Many contributions of soft money were dramatically larger than the contributions of hard
money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave,
in total, more than $9 million in nonfederal funds to the two national party committees. In the
most recent election cycle the political parties raised almost $300 million—60% of their total
soft-money fundraising—from just 800 donors, each of which contributed a minimum of
$120,000. Moreover, the largest corporate donors often made substantial contributions to both
parties.12 Such practices corroborate evidence indicating that many corporate contributions were
motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the
legislative process relative to other contributors, rather than by ideological support for the
candidates and parties.13
12
In the 2000 election cycle, 35 of the 50 largest soft-money donors gave to both parties; 28 of the 50 gave more
than $100,000 to both parties.
13
A former chief executive officer of [United Airlines] explained:
“Business and labor leaders believe, based on their experience, that disappointed Members, and their party
152

Not only were such soft-money contributions often designed to gain access to federal
candidates, but they were in many cases solicited by the candidates themselves. Candidates often
directed potential donors to party committees and tax-exempt organizations that could legally
accept soft money. * * *
The solicitation, transfer, and use of soft money thus enabled parties and candidates to
circumvent FECA’s limitations on the source and amount of contributions in connection with
federal elections.

Issue Advertising
In Buckley we construed FECA’s disclosure and reporting requirements, as well as its
expenditure limitations, “to reach only funds used for communications that expressly advocate
the election or defeat of a clearly identified candidate.” As a result of that strict reading of the
statute, the use or omission of “magic words” such as “Elect John Smith” or “Vote Against Jane
Doe” marked a bright statutory line separating “express advocacy” from “issue advocacy.”
Express advocacy was subject to FECA’s limitations and could be financed only using hard
money. The political parties, in other words, could not use soft money to sponsor ads that used
any magic words, and corporations and unions could not fund such ads out of their general
treasuries. So-called issue ads, on the other hand, not only could be financed with soft money,
but could be aired without disclosing the identity of, or any other information about, their
sponsors.
While the distinction between “issue” and express advocacy seemed neat in theory, the two
categories of advertisements proved functionally identical in important respects. Both were used
to advocate the election or defeat of clearly identified federal candidates, even though the so-
called issue ads eschewed the use of magic words. Little difference existed, for example,
between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s
record on a particular issue before exhorting viewers to “call Jane Doe and tell her what you
think.” Indeed, campaign professionals testified that the most effective campaign ads, like the
most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the
magic words. Moreover, the conclusion that such ads were specifically intended to affect
election results was confirmed by the fact that almost all of them aired in the 60 days
immediately preceding a federal election. Corporations and unions spent hundreds of millions of
dollars of their general funds to pay for these ads,20 and those expenditures, like soft-money
donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive
to organizations and candidates precisely because they were beyond FECA’s reach, enabling
candidates and their parties to work closely with friendly interest groups to sponsor so-called
issue ads when the candidates themselves were running out of money.
Because FECA’s disclosure requirements did not apply to so-called issue ads, sponsors of
such ads often used misleading names to conceal their identity. “Citizens for Better Medicare,”
colleagues, may shun or disfavor them because they have not contributed. Equally, these leaders fear that if they
refuse to contribute (enough), competing interests who do contribute generously will have an advantage in gaining
access to and influencing key Congressional leaders on matters of importance to the company or union.”
Amici Curiae Committee for Economic Development and various business leaders attest that corporate soft-
money contributions are “coerced and, at bottom, wholly commercial” in nature, and that “[b]usiness leaders
increasingly wish to be freed from the grip of a system in which they fear the adverse consequences of refusing to
fill the coffers of the major parties.”
20
* * * In the 1996 election cycle, $135 to $150 million was spent on multiple broadcasts of about 100 ads. In the
next cycle (1997-1998), 77 organizations aired 423 ads at a total cost between $270 and $340 million. By the 2000
election, 130 groups spent over an estimated $500 million on more than 1,100 different ads. * * *
 153

for instance, was not a grassroots organization of citizens, as its name might suggest, but was
instead a platform for an association of drug manufacturers. And “Republicans for Clean Air,”
which ran ads in the 2000 Republican Presidential primary, was actually an organization
consisting of just two individuals—brothers who together spent $25 million on ads supporting
their favored candidate.
While the public may not have been fully informed about the sponsorship of so-called issue
ads, the record indicates that candidates and officeholders often were. A former Senator
confirmed that candidates and officials knew who their friends were and “sometimes suggest[ed]
that corporations or individuals make donations to interest groups that run ‘issue ads.’ ” As with
soft-money contributions, political parties and candidates used the availability of so-called issue
ads to circumvent FECA’s limitations, asking donors who contributed their permitted quota of
hard money to give money to nonprofit corporations to spend on “issue” advocacy.

Senate Committee Investigation

In 1998 the Senate Committee on Governmental Affairs issued a six-volume report
summarizing the results of an extensive investigation into the campaign practices in the 1996
federal elections. * * * The report was critical of both parties’ methods of raising soft money, as
well as their use of those funds. It concluded that both parties promised and provided special
access to candidates and senior Government officials in exchange for large soft-money
contributions. * * *

III
Title I is Congress’ effort to plug the soft-money loophole. The cornerstone of Title I is new
FECA § 323(a), which prohibits national party committees and their agents from soliciting,
receiving, directing, or spending any soft money. In short, § 323(a) takes national parties out of
the soft-money business. * * *

A
In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to
closer scrutiny than limits on campaign contributions. * * * In these cases we have recognized
that contribution limits, unlike limits on expenditures, “entai[l] only a marginal restriction upon
the contributor’s ability to engage in free communication.” * * *
* * * Like the contribution limits we upheld in Buckley, § 323’s restrictions have only a
marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in
effective political speech. * * * Complex as its provisions may be, § 323, in the main, does little
more than regulate the ability of wealthy individuals, corporations, and unions to contribute large
sums of money to influence federal elections, federal candidates, and federal officeholders.
Plaintiffs contend that we must apply strict scrutiny to § 323 because many of its provisions
restrict not only contributions but also the spending and solicitation of funds raised outside of
FECA’s contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant
that Congress chose in § 323 to regulate contributions on the demand rather than the supply side.
* * * The relevant inquiry is whether the mechanism adopted to implement the contribution
limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction
on the contribution itself would not. That is not the case here.
For example, while § 323(a) prohibits national parties from receiving or spending nonfederal
money, and § 323(b) prohibits state party committees from spending nonfederal money on
154

federal election activities, neither provision in any way limits the total amount of money parties
can spend. Rather, they simply limit the source and individual amount of donations. That they do
so by prohibiting the spending of soft money does not render them expenditure limitations.
Similarly, the solicitation provisions of § 323(a) and § 323(e), which restrict the ability of
national party committees, federal candidates, and federal officeholders to solicit nonfederal
funds, leave open ample opportunities for soliciting federal funds on behalf of entities subject to
FECA’s source and amount restrictions. Even § 323(d), which on its face enacts a blanket ban on
party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to
solicit funds to the organizations’ federal PACs. As for those organizations that cannot or do not
administer PACs, parties remain free to donate federal funds directly to such organizations, and
may solicit funds expressly for that purpose. * * * And as with § 323(a), § 323(d) places no
limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations
by party officers acting in their individual capacities.
Section 323 thus shows “due regard for the reality that solicitation is characteristically
intertwined with informative and perhaps persuasive speech seeking support for particular causes
or for particular views.” * * * The fact that party committees and federal candidates and
officeholders must now ask only for limited dollar amounts or request that a corporation or union
contribute money through its PAC in no way alters or impairs the political message
“intertwined” with the solicitation. And rather than chill such solicitations, * * * the restriction
here tends to increase the dissemination of information by forcing parties, candidates, and
officeholders to solicit from a wider array of potential donors. As with direct limits on
contributions, therefore, § 323’s spending and solicitation restrictions have only a marginal
impact on political speech.
* * * With these principles in mind, we apply the less rigorous scrutiny applicable to
contribution limits to evaluate the constitutionality of new FECA § 323. Because the five
challenged provisions of § 323 implicate different First Amendment concerns, we discuss them
separately. We are mindful, however, that Congress enacted § 323 as an integrated whole to
vindicate the Government’s important interest in preventing corruption and the appearance of
corruption.

New FECA § 323(a)’s Restrictions on National Party Committees

The core of Title I is new FECA § 323(a), which provides that “national committee[s] of a
political party . . . may not solicit, receive, or direct to another person a contribution, donation, or
transfer of funds or any other thing of value, or spend any funds, that are not subject to the
limitations, prohibitions, and reporting requirements of this Act.” The prohibition extends to
“any officer or agent acting on behalf of such a national committee, and any entity that is directly
or indirectly established, financed, or maintained, or controlled by such a national committee.”
The main goal of § 323(a) is modest. In large part, it simply effects a return to the scheme
that was approved in Buckley and that was subverted by the creation of the FEC’s allocation
regime, which permitted the political parties to fund federal electioneering efforts with a
combination of hard and soft money. Under that allocation regime, national parties were able to
use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long
as they directed the money to the political parties, donors could contribute large amounts of soft
money for use in activities designed to influence federal elections.44 New § 323(a) is designed to

44
The fact that the post-1990 explosion in soft-money spending on federal electioneering was accompanied by a
series of efforts in Congress to clamp down on such uses of soft money (culminating, of course, in BCRA)
 155

put a stop to that practice.

1. Governmental Interests Underlying New FECA § 323(a)

The Government defends § 323(a)’s ban on national parties’ involvement with soft money as
necessary to prevent the actual and apparent corruption of federal candidates and officeholders.
Our cases have made clear that the prevention of corruption or its appearance constitutes a
sufficiently important interest to justify political contribution limits. We have not limited that
interest to the elimination of cash-for-votes exchanges. * * *
The question for present purposes is whether large soft-money contributions to national party
committees have a corrupting influence or give rise to the appearance of corruption. Both
common sense and the ample record in these cases confirm Congress’ belief that they do. As set
forth above, the FEC’s allocation regime has invited widespread circumvention of FECA’s limits
on contributions to parties for the purpose of influencing federal elections. Under this system,
corporate, union, and wealthy individual donors have been free to contribute substantial sums of
soft money to the national parties, which the parties can spend for the specific purpose of
influencing a particular candidate’s federal election. It is not only plausible, but likely, that
candidates would feel grateful for such donations and that donors would seek to exploit that
gratitude.
The evidence in the record shows that candidates and donors alike have in fact exploited the
soft-money loophole, the former to increase their prospects of election and the latter to create
debt on the part of officeholders, with the national parties serving as willing intermediaries. * * *
Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder
has actually switched a vote (or, presumably, evidence of a specific instance where the public
believes a vote was switched), Congress has not shown that there exists real or apparent
corruption. But the record is to the contrary. The evidence connects soft money to manipulations
of the legislative calendar, leading to Congress’ failure to enact, among other things, generic
drug legislation, tort reform, and tobacco legislation. * * *
More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly
established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes
corruption to curbing “undue influence on an officeholder’s judgment, and the appearance of
such influence.” [Federal Election Comm’n v. Colorado Republican Federal Campaign Comm.,
533 U.S. 431, 441 (2001)] [p. XXX] [(Colorado II)]. Many of the “deeply disturbing examples”
of corruption cited by this Court in Buckley to justify FECA’s contribution limits were not
episodes of vote buying, but evidence that various corporate interests had given substantial
donations to gain access to high-level government officials. Even if that access did not secure
actual influence, it certainly gave the “appearance of such influence.” Colorado II, supra, at 441.
The record in the present case is replete with similar examples of national party committees
peddling access to federal candidates and officeholders in exchange for large soft-money
donations. * * * So pervasive is this practice that the six national party committees furnish their
own menus of opportunities for access to would-be soft-money donors, with increased prices
reflecting an increased level of access. * * *
* * * Just as troubling to a functioning democracy as classic quid pro quo corruption is the
danger that officeholders will decide issues not on the merits or the desires of their
constituencies, but according to the wishes of those who have made large financial contributions
valued by the officeholder. Even if it occurs only occasionally, the potential for such undue

underscores the fact that the FEC regulations permitted more than Congress, in enacting FECA, had ever intended.
156

influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither
easily detected nor practical to criminalize. The best means of prevention is to identify and to
remove the temptation. [S]oft-money contributions to political parties carry with them just such
temptation.
* * * To be sure, mere political favoritism or opportunity for influence alone is insufficient to
justify regulation. As the record demonstrates, it is the manner in which parties have sold access
to federal candidates and officeholders that has given rise to the appearance of undue influence.
Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that
money buys influence. It is no surprise then that purchasers of such access unabashedly admit
that they are seeking to purchase just such influence. It was not unwarranted for Congress to
conclude that the selling of access gives rise to the appearance of corruption. * * *

2. New FECA § 323(a)’s Restriction on Spending and Receiving Soft Money

Plaintiffs and THE CHIEF JUSTICE contend that § 323(a) is impermissibly overbroad because it
subjects all funds raised and spent by national parties to FECA’s hard-money source and amount
limits, including, for example, funds spent on purely state and local elections in which no federal
office is at stake. Such activities, THE CHIEF JUSTICE asserts, pose “little or no potential to
corrupt . . . federal candidates or officeholders.” This observation is beside the point. Section
323(a), like the remainder of § 323, regulates contributions, not activities. As the record
demonstrates, it is the close relationship between federal officeholders and the national parties,
as well as the means by which parties have traded on that relationship, that have made all large
soft-money contributions to national parties suspect.
* * * The national committees of the two major parties are both run by, and largely
composed of, federal officeholders and candidates. Indeed, of the six national committees of the
two major parties, four are composed entirely of federal officeholders. * * * Given this close
connection and alignment of interests, large soft-money contributions to national parties are
likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of
how those funds are ultimately used.
This close affiliation has also placed national parties in a position to sell access to federal
officeholders in exchange for soft-money contributions that the party can then use for its own
purposes. Access to federal officeholders is the most valuable favor the national party
committees are able to give in exchange for large donations. The fact that officeholders comply
by donating their valuable time indicates either that officeholders place substantial value on the
soft-money contribution themselves, without regard to their end use, or that national committees
are able to exert considerable control over federal officeholders. * * * [L]arge soft-money
donations to national party committees are likely to buy donors preferential access to federal
officeholders no matter the ends to which their contributions are eventually put. As discussed
above, Congress had sufficient grounds to regulate the appearance of undue influence associated
with this practice. The Government’s strong interests in preventing corruption, and in particular
the appearance of corruption, are thus sufficient to justify subjecting all donations to national
parties to the source, amount, and disclosure limitations of FECA.51
51
The close relationship of federal officeholders and candidates to their parties answers not only THE CHIEF JUSTICE’s
concerns about § 323(a), but also his fear that our analysis of § 323’s remaining provisions bespeaks no limiting
principle. As set forth in our discussion of those provisions, the record demonstrates close ties between federal
officeholders and the state and local committees of their parties. That close relationship makes state and local parties
effective conduits for donors desiring to corrupt federal candidates and officeholders. Thus, in upholding §§ 323(b),
(d), and (f), we rely not only on the fact that they regulate contributions used to fund activities influencing federal
 157

3. New FECA § 323(a)’s Restriction on Soliciting or Directing Soft Money

Plaintiffs also contend that § 323(a)’s prohibition on national parties’ soliciting or directing
soft-money contributions is substantially overbroad. The reach of the solicitation prohibition,
however, is limited. It bars only solicitations of soft money by national party committees and by
party officers in their official capacities. The committees remain free to solicit hard money on
their own behalf, as well as to solicit hard money on behalf of state committees and state and
local candidates. They also can contribute hard money to state committees and to candidates. In
accordance with FEC regulations, furthermore, officers of national parties are free to solicit soft
money in their individual capacities, or, if they are also officials of state parties, in that capacity.
This limited restriction on solicitation follows sensibly from the prohibition on national
committees’ receiving soft money. The same observations that led us to approve the latter
compel us to reach the same conclusion regarding the former. A national committee is likely to
respond favorably to a donation made at its request regardless of whether the recipient is the
committee itself or another entity. This principle accords with common sense and appears
elsewhere in federal laws. E.g., 18 U.S.C. § 201(b)(2) (prohibition on public officials
“demand[ing] [or] seek[ing] . . . anything of value personally or for any other person or
entity . . .” (emphasis added)); 5 CFR § 2635.203(f)(2) (restriction on gifts to federal employees
encompasses gifts “[g]iven to any other person, including any charitable organization, on the
basis of designation, recommendation, or other specification by the employee”). * * *

New FECA § 323(b)’s Restrictions on State and Local Party Committees

In constructing a coherent scheme of campaign finance regulation, Congress recognized that,
given the close ties between federal candidates and state party committees, BCRA’s restrictions
on national committee activity would rapidly become ineffective if state and local committees
remained available as a conduit for soft-money donations. Section 323(b) is designed to
foreclose wholesale evasion of § 323(a)’s anticorruption measures by sharply curbing state
committees’ ability to use large soft-money contributions to influence federal elections. The core
of § 323(b) is a straightforward contribution regulation: It prevents donors from contributing
nonfederal funds to state and local party committees to help finance “Federal election activity.”
The term “Federal election activity” encompasses four distinct categories of electioneering: (1)
voter registration activity during the 120 days preceding a regularly scheduled federal election;
(2) voter identification, get-out-the-vote (GOTV), and generic campaign activity54 that is
“conducted in connection with an election in which a candidate for Federal office appears on the
ballot”; (3) any “public communication” that “refers to a clearly identified candidate for Federal
office” and “promotes,” “supports,” “attacks,” or “opposes” a candidate for that office; and (4)
the services provided by a state committee employee who dedicates more than 25% of his or her
time to “activities in connection with a Federal election.” The Act explicitly excludes several
categories of activity from this definition: public communications that refer solely to nonfederal
candidates; contributions to nonfederal candidates; state and local political conventions; and the
cost of grassroots campaign materials like bumper stickers that refer only to state candidates. All

elections, but also that they regulate contributions to or at the behest of entities uniquely positioned to serve as
conduits for corruption. We agree with THE CHIEF JUSTICE that Congress could not regulate financial contributions to
political talk show hosts or newspaper editors on the sole basis that their activities conferred a benefit on the
candidate.
54
Generic campaign activity promotes a political party rather than a specific candidate.
158

activities that fall within the statutory definition must be funded with hard money. * * *
Like the rest of Title I, § 323(b) is premised on Congress’ judgment that if a large donation is
capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption
or the appearance of corruption. [Section] 323(b) is narrowly focused on regulating contributions
that pose the greatest risk of this kind of corruption: those contributions to state and local parties
that can be used to benefit federal candidates directly. Further, these regulations all are
reasonably tailored, with various temporal and substantive limitations designed to focus the
regulations on the important anti-corruption interests to be served. We conclude that § 323(b) is a
closely-drawn means of countering both corruption and the appearance of corruption. * * *
[P]laintiffs contend that § 323(b) is unconstitutional because its restrictions on soft-money
contributions to state and local party committees will prevent them from engaging in effective
advocacy. * * * If the history of campaign finance regulation discussed above proves anything,
[however,] it is that political parties are extraordinarily flexible in adapting to new restrictions on
their fundraising abilities. Moreover, the mere fact that § 323(b) may reduce the relative amount
of money available to state and local parties to fund federal election activities is largely
inconsequential. The question is not whether § 323(b) reduces the amount of funds available
over previous election cycles, but whether it is “so radical in effect as to . . . drive the sound of
[the recipient’s] voice below the level of notice.” [Nixon v.] Shrink Missouri [Government PAC],
528 U.S. [377], 397 [(2000)] [p. XXX]. If indeed state or local parties can make such a showing,
as-applied challenges remain available.
We accordingly conclude that § 323(b), on its face, is closely drawn to match the important
governmental interests of preventing corruption and the appearance of corruption. * * *

C
Finally, plaintiffs argue that Title I violates the equal protection component of the Due
Process Clause of the Fifth Amendment because it discriminates against political parties in favor
of special interest groups * * *. As explained earlier, BCRA imposes numerous restrictions on
the fundraising abilities of political parties, of which the soft-money ban is only the most
prominent. Interest groups, however, remain free to raise soft money to fund voter registration,
GOTV activities, mailings, and broadcast advertising (other than electioneering
communications). We conclude that this disparate treatment does not offend the Constitution.
As an initial matter, we note that BCRA actually favors political parties in many ways. Most
obviously, party committees are entitled to receive individual contributions that substantially
exceed FECA’s limits on contributions to nonparty political committees; individuals can give
$25,000 to political party committees whereas they can give a maximum of $5,000 to nonparty
political committees. In addition, party committees are entitled in effect to contribute to
candidates by making coordinated expenditures, and those expenditures may greatly exceed the
contribution limits that apply to other donors.
More importantly, however, Congress is fully entitled to consider the real-world differences
between political parties and interest groups when crafting a system of campaign finance
regulation. * * * Interest groups do not select slates of candidates for elections. Interest groups
do not determine who will serve on legislative committees, elect congressional leadership, or
organize legislative caucuses. Political parties have influence and power in the legislature that
vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation
is the primary way by which voters identify candidates, or that parties in turn have special access
to and relationships with federal officeholders. Congress’ efforts at campaign finance regulation
 159

may account for these salient differences. Taken seriously, appellants’ equal protection
arguments would call into question not just Title I of BCRA, but much of the pre-existing
structure of FECA as well. We therefore reject those arguments. * * *

IV
Title II of BCRA, entitled “Noncandidate Campaign Expenditures,” is divided into two
subtitles: “Electioneering Communications” and “Independent and Coordinated Expenditures.”
We consider each challenged section of these subtitles in turn.

BCRA § 201’s Definition of “Electioneering Communication”

The first section of Title II, § 201, comprehensively amends FECA § 304, which requires
political committees to file detailed periodic financial reports with the FEC. The amendment
coins a new term, “electioneering communication,” to replace the narrowing construction of
FECA’s disclosure provisions adopted by this Court in Buckley. As discussed further below, that
construction limited the coverage of FECA’s disclosure requirement to communications
expressly advocating the election or defeat of particular candidates. By contrast, the term
“electioneering communication” is not so limited, but is defined to encompass any “broadcast,
cable, or satellite communication” that

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

“(II) is made within—
“(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
“(bb) 30 days before a primary or preference election, or a convention or caucus of a political party
that has authority to nominate a candidate, for the office sought by the candidate; and
“(III) in the case of a communication which refers to a candidate other than President or Vice President, is
targeted to the relevant electorate.” 2 U.S.C. § 434(f)(3)(A)(i).

New FECA § 304(f)(3)(C) further provides that a communication is “targeted to the relevant
electorate” if it “can be received by 50,000 or more persons” in the district or State the candidate
seeks to represent. 2 U.S.C. § 434(f )(3)(C).
In addition to setting forth this definition, BCRA’s amendments to FECA § 304 specify
significant disclosure requirements for persons who fund electioneering communications.
BCRA’s use of this new term is not, however, limited to the disclosure context: A later section of
the Act (BCRA § 203, which amends FECA § 316(b)(2)) restricts corporations’ and labor
unions’ funding of electioneering communications. Plaintiffs challenge the constitutionality of
the new term as it applies in both the disclosure and the expenditure contexts.
The major premise of plaintiffs’ challenge to BCRA’s use of the term “electioneering
communication” is that Buckley drew a constitutionally mandated line between express advocacy
and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to
engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot
constitutionally require disclosure of, or regulate expenditures for, “electioneering
communications” without making an exception for those “communications” that do not meet
Buckley’s definition of express advocacy.
That position misapprehends our prior decisions, for the express advocacy restriction was an
endpoint of statutory interpretation, not a first principle of constitutional law. In Buckley we
began by examining then-18 U.S.C. § 608(e)(1), which restricted expenditures “relative to a
clearly identified candidate,” and we found that the phrase “relative to” was impermissibly
vague. We concluded that the vagueness deficiencies could “be avoided only by reading § 608(e)
160

(1) as limited to communications that include explicit words of advocacy of election or defeat of
a candidate.” We provided examples of words of express advocacy, such as “ ‘vote for,’ ‘elect,’
‘support,’ . . . ‘defeat,’ [and] ‘reject,’ ” and those examples eventually gave rise to what is now
known as the “magic words” requirement.
We then considered FECA’s disclosure provisions. * * * “To insure that the reach” of the
disclosure requirement was “not impermissibly broad, we construe[d] ‘expenditure’ for purposes
of that section in the same way we construed the terms of § 608(e)—to reach only funds used for
communications that expressly advocate the election or defeat of a clearly identified candidate.”
Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the
expenditure and the disclosure contexts, was the product of statutory interpretation rather than a
constitutional command. In narrowly reading the FECA provisions in Buckley to avoid problems
of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor
overbroad would be required to toe the same express advocacy line. * * *
Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid
barrier between express advocacy and so-called issue advocacy. That notion cannot be squared
with our longstanding recognition that the presence or absence of magic words cannot
meaningfully distinguish electioneering speech from a true issue ad. Indeed, the unmistakable
lesson from the record in this litigation * * * is that Buckley’s magic-words requirement is
functionally meaningless. * * * Not only can advertisers easily evade the line by eschewing the
use of magic words, but they would seldom choose to use such words even if permitted. And
although the resulting advertisements do not urge the viewer to vote for or against a candidate in
so many words, they are no less clearly intended to influence the election. 78 Buckley’s express
advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption,
and Congress enacted BCRA to correct the flaws it found in the existing system.
Finally we observe that new FECA § 304(f)(3)’s definition of “electioneering
communication” raises none of the vagueness concerns that drove our analysis in Buckley. The
term “electioneering communication” applies only (1) to a broadcast (2) clearly identifying a
candidate for federal office, (3) aired within a specific time period, and (4) targeted to an
identified audience of at least 50,000 viewers or listeners. These components are both easily
understood and objectively determinable. * * * Thus, the constitutional objection that persuaded
the Court in Buckley to limit FECA’s reach to express advocacy is simply inapposite here. * * *

BCRA § 203’s Prohibition of Corporate and Labor Disbursements for Electioneering

Communications
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. The ability to
form and administer separate segregated funds authorized by FECA § 316, 2 U.S.C. § 441b, has
provided corporations and unions with a constitutionally sufficient opportunity to engage in

78
One striking example is an ad that a group called “Citizens for Reform” sponsored during the 1996 Montana
congressional race, in which Bill Yellowtail was a candidate. The ad stated:
“Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail’s response? He
only slapped her. But ‘her nose was not broken.’ He talks law and order . . . but is himself a convicted felon. And
though he talks about protecting children, Yellowtail failed to make his own child support payments—then voted
against child support enforcement. Call Bill Yellowtail. Tell him to support family values.”
The notion that this advertisement was designed purely to discuss the issue of family values strains credulity.
 161

express advocacy. That has been this Court’s unanimous view, and it is not challenged in this
litigation.
Section 203 of BCRA amends FECA § 316(b)(2) to extend this rule, which previously
applied only to express advocacy, to all “electioneering communications” covered by the
definition of that term in amended FECA § 304(f)(3), discussed above. Thus, under BCRA,
corporations and unions may not use their general treasury funds to finance electioneering
communications, but they remain free to organize and administer segregated funds, or PACs, for
that purpose. Because corporations can still fund electioneering communications with PAC
money, it is “simply wrong” to view the provision as a “complete ban” on expression rather than
a regulation. * * *
In light of our precedents, plaintiffs do not contest that the Government has a compelling
interest in regulating advertisements that expressly advocate the election or defeat of a candidate
for federal office. Nor do they contend that the speech involved in so-called issue advocacy is
any more core political speech than are words of express advocacy. After all, “the constitutional
guarantee has its fullest and most urgent application precisely to the conduct of campaigns for
political office,” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), and “[a]dvocacy of the
election or defeat of candidates for federal office is no less entitled to protection under the First
Amendment than the discussion of political policy generally or advocacy of the passage or defeat
of legislation,” Buckley, 424 U.S., at 48. Rather, plaintiffs argue that the justifications that
adequately support the regulation of express advocacy do not apply to significant quantities of
speech encompassed by the definition of electioneering communications.
This argument fails to the extent that the issue ads broadcast during the 30- and 60-day
periods preceding federal primary and general elections are the functional equivalent of express
advocacy. The justifications for the regulation of express advocacy apply equally to ads aired
during those periods if the ads are intended to influence the voters’ decisions and have that
effect. The precise percentage of issue ads that clearly identified a candidate and were aired
during those relatively brief preelection time spans but had no electioneering purpose is a matter
of dispute between the parties and among the judges on the District Court. Nevertheless, the vast
majority of ads clearly had such a purpose. Moreover, whatever the precise percentage may have
been in the past, in the future corporations and unions may finance genuine issue ads during those
time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases
by paying for the ad from a segregated fund.
We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that
amended FECA § 316(b)(2) is overbroad. * * *
Plaintiffs also argue that FECA § 316(b)(2)’s segregated-fund requirement for electioneering
communications is underinclusive because it does not apply to advertising in the print media or
on the Internet. The records developed in this litigation and by the Senate Committee adequately
explain the reasons for this legislative choice. Congress found that corporations and unions used
soft money to finance a virtual torrent of televised election-related ads during the periods
immediately preceding federal elections, and that remedial legislation was needed to stanch that
flow of money. * * * As we held in Buckley, “reform may take one step at a time, addressing
itself to the phase of the problem which seems most acute to the legislative mind.” One might
just as well argue that the electioneering communication definition is underinclusive because it
leaves advertising 61 days in advance of an election entirely unregulated. The record amply
justifies Congress’ line drawing.
In addition to arguing that § 316(b)(2)’s segregated-fund requirement is underinclusive, some
162

plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA

§ 304(f)(3)(B)(i) excludes from the definition of electioneering communications any
“communication appearing in a news story, commentary, or editorial distributed through the
facilities of any broadcasting station, unless such facilities are owned or controlled by any
political party, political committee, or candidate.” 2 U.S.C. § 434(f)(3)(B)(i). Plaintiffs argue this
provision gives free rein to media companies to engage in speech without resort to PAC money.
Section 304(f)(3)(B)(i)’s effect, however, is much narrower than plaintiffs suggest. The
provision excepts news items and commentary only; it does not afford carte blanche to media
companies generally to ignore FECA’s provisions. The statute’s narrow exception is wholly
consistent with First Amendment principles. “A valid distinction . . . exists between corporations
that are part of the media industry and other corporations that are not involved in the regular
business of imparting news to the public.” Austin [v. Michigan Chamber of Commerce], 494
U.S. [652], 668 [(1990)] [p. XXX]. Numerous federal statutes have drawn this distinction to
ensure that the law “does not hinder or prevent the institutional press from reporting on, and
publishing editorials about, newsworthy events.” * * *

BCRA § 214’s Changes in FECA’s Provisions Covering Coordinated Expenditures

* * * Sections 214(b) and (c) direct the FEC to repeal its current regulations and to
promulgate new regulations dealing with “coordinated communications” paid for by persons
other than candidates or their parties. Subsection (c) provides that the new “regulations shall not
require agreement or formal collaboration to establish coordination.” 2 U.S.C. § 441a(a).
Plaintiffs do not dispute that Congress may apply the same coordination rules to parties as to
candidates. They argue instead that new FECA § 315(a)(7)(B)(ii) and its implementing
regulations are overbroad and unconstitutionally vague because they permit a finding of
coordination even in the absence of an agreement. Plaintiffs point out that political supporters
may be subjected to criminal liability if they exceed the contribution limits with expenditures
that ultimately are deemed coordinated. Thus, they stress the importance of a clear definition of
“coordination” and argue that any definition that does not hinge on the presence of an agreement
cannot provide the “precise guidance” that the First Amendment demands. As plaintiffs readily
admit, that argument reaches beyond BCRA, calling into question FECA’s pre-existing
provisions governing expenditures coordinated with candidates.
We are not persuaded that the presence of an agreement marks the dividing line between
expenditures that are coordinated—and therefore may be regulated as indirect contributions—
and expenditures that truly are independent. We repeatedly have struck down limitations on
expenditures “made totally independently of the candidate and his campaign,” on the ground that
such limitations “impose far greater restraints on the freedom of speech and association” than do
limits on contributions and coordinated expenditures, while “fail[ing] to serve any substantial
governmental interest in stemming the reality or appearance of corruption in the electoral
process.” * * *
[T]he rationale for affording special protection to wholly independent expenditures has
nothing to do with the absence of an agreement and everything to do with the functional
consequences of different types of expenditures. Independent expenditures “are poor sources of
leverage for a spender because they might be duplicative or counterproductive from a
candidate’s point of view.” Colorado II, 533 U.S., at 446. By contrast, expenditures made after a
“wink or nod” often will be “as useful to the candidate as cash.” Id., at 442. For that reason,
Congress has always treated expenditures made “at the request or suggestion of” a candidate as
 163

coordinated. A supporter easily could comply with a candidate’s request or suggestion without
first agreeing to do so, and the resulting expenditure would be “virtually indistinguishable from
[a] simple contributio[n],” Colorado II, supra, at 444-445. Therefore, we cannot agree with the
submission that new FECA § 315(a)(7)(B)(ii) is overbroad because it permits a finding of
coordination or cooperation notwithstanding the absence of a pre-existing agreement.
Nor are we persuaded that the absence of an agreement requirement renders § 315(a)(7)(B)
(ii) unconstitutionally vague. An agreement has never been required to support a finding of
coordination with a candidate under § 315(a)(7)(B)(i), which refers to expenditures made “in
cooperation, consultation, or concer[t] with, or at the request or suggestion of” a candidate.
Congress used precisely the same language in new § 315(a)(7)(B)(ii) to address expenditures
coordinated with parties. FECA’s longstanding definition of coordination “delineates its reach in
words of common understanding.” Not surprisingly, therefore, the relevant statutory language
has survived without constitutional challenge for almost three decades. Although that fact does
not insulate the definition from constitutional scrutiny, it does undermine plaintiffs’ claim that
the language of § 315(a)(7)(B)(ii) is intolerably vague. Plaintiffs do not present any evidence that
the definition has chilled political speech, whether between candidates and their supporters or by
the supporters to the general public. * * * And, although plaintiffs speculate that the FEC could
engage in intrusive and politically motivated investigations into alleged coordination, they do not
even attempt to explain why an agreement requirement would solve that problem. Moreover, the
only evidence plaintiffs have adduced regarding the enforcement of the coordination provision
during its 27-year history concerns three investigations in the late 1990’s into groups on different
sides of the political aisle. Such meager evidence does not support the claim that § 315(a)(7)(B)
(ii) will “foster ‘arbitrary and discriminatory application.’ ” * * * We conclude that FECA’s
definition of coordination gives “fair notice to those to whom [it] is directed,” and is not
unconstitutionally vague. * * *

V
Many years ago we observed 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.” We abide by
that conviction in considering Congress’ most recent effort to confine the ill effects of
aggregated wealth on our political system. We are under no illusion that BCRA will be the last
congressional statement on the matter. Money, like water, will always find an outlet. What
problems will arise, and how Congress will respond, are concerns for another day. In the main
we uphold BCRA’s two principal, complementary features: the control of soft money and the
regulation of electioneering communications.
[Affirmed in part and reversed in part.]

CHIEF JUSTICE REHNQUIST, [with whom JUSTICE SCALIA and JUSTICE KENNEDY join,] dissenting[.]
***
The issue presented by Title I is not, as the Court implies, whether Congress can permissibly
regulate campaign contributions to candidates, de facto or otherwise, or seek to eliminate
corruption in the political process. Rather, the issue is whether Congress can permissibly regulate
much speech that has no plausible connection to candidate contributions or corruption to achieve
those goals. * * *
* * * [Section] 323(a) does not regulate only donations given to influence a particular federal
164

election; it regulates all donations to national political committees, no matter the use to which
the funds are put.
The Court attempts to sidestep the unprecedented breadth of this regulation by stating that the
“close relationship between federal officeholders and the national parties” makes all donations to
the national parties “suspect.” But a close association with others, especially in the realm of
political speech, is not a surrogate for corruption; it is one of our most treasured First
Amendment rights. * * * The Court’s willingness to impute corruption on the basis of a
relationship greatly infringes associational rights and expands Congress’ ability to regulate
political speech. And there is nothing in the Court’s analysis that limits congressional regulation
to national political parties. In fact, the Court relies in part on this closeness rationale to regulate
nonprofit organizations. Who knows what association will be deemed too close to federal
officeholders next. When a donation to an organization has no potential to corrupt a federal
officeholder, the relationship between the officeholder and the organization is simply irrelevant.
The Court fails to recognize that the national political parties are exemplars of political
speech at all levels of government, in addition to effective fundraisers for federal candidates and
officeholders. For sure, national political party committees exist in large part to elect federal
candidates, but * * * they also promote coordinated political messages and participate in public
policy debates unrelated to federal elections, promote, even in off-year elections, state and local
candidates and seek to influence policy at those levels, and increase public participation in the
electoral process. Indeed, some national political parties exist primarily for the purpose of
expressing ideas and generating debate.
As these activities illustrate, political parties often foster speech crucial to a healthy
democracy, and fulfill the need for like-minded individuals to ban together and promote a
political philosophy. When political parties engage in pure political speech that has little or no
potential to corrupt their federal candidates and officeholders, the government cannot
constitutionally burden their speech any more than it could burden the speech of individuals
engaging in these same activities. Notwithstanding the Court’s citation to the numerous abuses of
FECA, under any definition of “exacting scrutiny,” the means chosen by Congress, restricting all
donations to national parties no matter the purpose for which they are given or are used, are not
“closely drawn to avoid unnecessary abridgment of associational freedoms.”
BCRA’s overinclusiveness is not limited to national political parties. To prevent the
circumvention of the ban on the national parties’ use of nonfederal funds, BCRA extensively
regulates state parties, primarily state elections, and state candidates. For example, new FECA
§ 323(b) * * * prohibits state parties from using nonfederal funds for general partybuilding
activities such as voter registration, voter identification, and get out the vote for state candidates
even if federal candidates are not mentioned. New FECA § 323(d) prohibits state and local
political party committees, like their national counterparts, from soliciting and donating “any
funds” to nonprofit organizations such as the National Rifle Association or the National
Association for the Advancement of Colored People (NAACP). And, new FECA § 323(f)
requires a state gubernatorial candidate to abide by federal funding restrictions when airing a
television ad that tells voters that, if elected, he would oppose the President’s policy of increased
oil and gas exploration within the State because it would harm the environment. See 2 U.S.C.
§§ 441i(f), 431(20)(A)(iii) (regulating “public communication[s] that refe[r] to a clearly
identified candidate for Federal office (regardless of whether a candidate for State or local office
is also mentioned or identified) and that . . . attacks or opposes a candidate for that office”).
Although these provisions are more focused on activities that may affect federal elections,
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there is scant evidence in the record to indicate that federal candidates or officeholders are
corrupted or would appear corrupted by donations for these activities. * * * Nonetheless, the
Court concludes that because these activities benefit federal candidates and officeholders, or
prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 it must
defer to the “predictive judgments of Congress.”
Yet the Court cannot truly mean what it says. Newspaper editorials and political talk shows
benefit federal candidates and officeholders every bit as much as a generic voter registration
drive conducted by a state party; there is little doubt that the endorsement of a major newspaper
affects federal elections, and federal candidates and officeholders are surely “grateful” for
positive media coverage. I doubt, however, the Court would seriously contend that we must defer
to Congress’ judgment if it chose to reduce the influence of political endorsements in federal
elections.
It is also true that any circumvention rationale ultimately must rest on the circumvention
itself leading to the corruption of federal candidates and officeholders. * * * All political speech
that is not sifted through federal regulation circumvents the regulatory scheme to some degree or
another, and thus by the Court’s standard would be a “loophole” in the current system. Unless
the Court would uphold federal regulation of all funding of political speech, a rationale
dependent on circumvention alone will not do. By untethering its inquiry from corruption or the
appearance of corruption, the Court has removed the touchstone of our campaign finance
precedent and has failed to replace it with any logical limiting principle.
But such an untethering is necessary to the Court’s analysis. Only by using amorphous
language to conclude a federal interest, however vaguely defined, exists can the Court avoid the
obvious fact that new FECA §§ 323(a), (b), (d), and (f ) are vastly overinclusive. Any campaign
finance law aimed at reducing corruption will almost surely affect federal elections or prohibit
the circumvention of federal law, and if broad enough, most laws will generally reduce some
appearance of corruption. Indeed, it is precisely because broad laws are likely to nominally
further a legitimate interest that we require Congress to tailor its restrictions; requiring all federal
candidates to self-finance their campaigns would surely reduce the appearance of donor
corruption, but it would hardly be constitutional. In allowing Congress to rely on general
principles such as affecting a federal election or prohibiting the circumvention of existing law,
the Court all but eliminates the “closely drawn” tailoring requirement and meaningful judicial
review. * * *

JUSTICE SCALIA, * * * dissenting * * *.

This is a sad day for the freedom of speech. Who could have imagined that the same Court
which, within the past four years, has sternly disapproved of restrictions upon such
inconsequential forms of expression as virtual child pornography, tobacco advertising,
dissemination of illegally intercepted communications, and sexually explicit cable programming,
would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to
protect: the right to criticize the government. For that is what the most offensive provisions of
this legislation are all about. We are governed by Congress, and this legislation prohibits the
2
Ironically, in the Court’s view, Congress cannot be trusted to exercise judgment independent of its parties’ large
donors in its usual voting decisions because donations may be used to further its members’ reelection campaigns,
but yet must be deferred to when it passes a comprehensive regulatory regime that restricts election-related speech.
It seems to me no less likely that Congress would create rules that favor its Members’ reelection chances, than be
corrupted by the influx of money to its political parties, which may in turn be used to fund a portion of the
Members’ reelection campaigns.
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criticism of Members of Congress by those entities most capable of giving such criticism loud
voice: national political parties and corporations, both of the commercial and the not-for-profit
sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit
corporations, by use of their general funds; and forbids national-party use of “soft” money to
fund “issue ads” that incumbents find so offensive.
To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates
who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area
in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited,
incumbents would have an enormous advantage. Likewise, if incumbents and challengers are
limited to the same quantity of electioneering, incumbents are favored. In other words, any
restriction upon a type of campaign speech that is equally available to challengers and
incumbents tends to favor incumbents.
Beyond that, however, the present legislation targets for prohibition certain categories of
campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that
incumbents raise about three times as much “hard money”—the sort of funding generally not
restricted by this legislation—as do their challengers? Or that lobbyists (who seek the favor of
incumbents) give 92 percent of their money in “hard” contributions? Is it an oversight, do you
suppose, that the so-called “millionaire provisions” raise the contribution limit for a candidate
running against an individual who devotes to the campaign (as challengers often do) great
personal wealth, but do not raise the limit for a candidate running against an individual who
devotes to the campaign (as incumbents often do) a massive election “war chest”?i And is it mere
happenstance, do you estimate, that national-party funding, which is severely limited by the Act,
is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? Was
it unintended, by any chance, that incumbents are free personally to receive some soft money and
even to solicit it for other organizations, while national parties are not?
I wish to address three fallacious propositions that might be thought to justify some or all of
the provisions of this legislation—only the last of which is explicitly embraced by the principal
opinion for the Court, but all of which underlie, I think, its approach to these cases.

(a) Money is Not Speech * * *

In any economy operated on even the most rudimentary principles of division of labor,
effective public communication requires the speaker to make use of the services of others. An
author may write a novel, but he will seldom publish and distribute it himself. A freelance
reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a
government bent on suppressing speech, this mode of organization presents opportunities:
Control any cog in the machine, and you can halt the whole apparatus. License printers, and it
matters little whether authors are still free to write. Restrict the sale of books, and it matters little
who prints them. Predictably, repressive regimes have exploited these principles by attacking all
levels of the production and dissemination of ideas. In response to this threat, we have
interpreted the First Amendment broadly.
Division of labor requires a means of mediating exchange, and in a commercial society, that
means is supplied by money. The publisher pays the author for the right to sell his book; it pays
its staff who print and assemble the book; it demands payments from booksellers who bring the
book to market. This, too, presents opportunities for repression: Instead of regulating the various

i
These provisions are the subject of Davis v. Federal Election Commission, 554 U.S. __, 128 S. Ct. 2759 (2008),
which appears as a principal case infra at p. XXX. [-Eds.]
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parties to the enterprise individually, the government can suppress their ability to coordinate by
regulating their use of money. What good is the right to print books without a right to buy works
from authors? Or the right to publish newspapers without the right to pay deliverymen? The right
to speak would be largely ineffective if it did not include the right to engage in financial
transactions that are the incidents of its exercise. * * *
History and jurisprudence bear this out. The best early examples derive from the British
efforts to tax the press after the lapse of licensing statutes by which the press was first regulated.
The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each
advertisement. It was a response to unfavorable war coverage, * * * [and] succeeded in killing
off approximately half the newspapers in England in its first year. In 1765, Parliament applied a
similar Act to the Colonies. * * * The founding generation saw these taxes as grievous incursions
on the freedom of the press.
We have kept faith with the Founders’ tradition by prohibiting the selective taxation of the
press. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983)
(ink and paper tax); Grosjean [v. American Press Co., 297 U.S. 233 (1936)] (advertisement tax).
And we have done so whether the tax was the product of illicit motive or not. These press-
taxation cases belie the claim that regulation of money used to fund speech is not regulation of
speech itself. A tax on a newspaper’s advertising revenue does not prohibit anyone from saying
anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That
is even a step short of totally prohibiting advertising revenue—which would be analogous to the
total prohibition of certain campaign-speech contributions in the present cases. Yet it is
unquestionably a violation of the First Amendment.
Many other cases exemplify the same principle that an attack upon the funding of speech is
an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U.S. 620
(1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991), we
held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for
payment to the victims. And in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819
(1995), we held unconstitutional a university’s discrimination in the disbursement of funds to
speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), holding that paid advertisements in a newspaper
were entitled to full First Amendment protection[.] * * *
It should be obvious, then, that a law limiting the amount a person can spend to broadcast his
political views is a direct restriction on speech. That is no different from a law limiting the
amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is
equally clear that a limit on the amount a candidate can raise from any one individual for the
purpose of speaking is also a direct limitation on speech. That is no different from a law limiting
the amount a publisher can accept from any one shareholder or lender, or the amount a
newspaper can charge any one advertiser or customer.

(b) Pooling Money is Not Speech

Another proposition which could explain at least some of the results of today’s opinion is
that the First Amendment right to spend money for speech does not include the right to combine
with others in spending money for speech. Such a proposition fits uncomfortably with the
concluding words of our Declaration of Independence: “And for the support of this
Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred
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Honor.” (Emphasis added.) The freedom to associate with others for the dissemination of ideas
—not just by singing or speaking in unison, but by pooling financial resources for expressive
purposes—is part of the freedom of speech. * * *
If it were otherwise, Congress would be empowered to enact legislation requiring
newspapers to be sole proprietorships, banning their use of partnership or corporate form. That
sort of restriction would be an obvious violation of the First Amendment, and it is
incomprehensible why the conclusion should change when what is at issue is the pooling of
funds for the most important (and most perennially threatened) category of speech: electoral
speech. The principle that such financial association does not enjoy full First Amendment
protection threatens the existence of all political parties.

(c) Speech by Corporations Can Be Abridged

The last proposition that might explain at least some of today’s casual abridgment of free-
speech rights is this: that the particular form of association known as a corporation does not
enjoy full First Amendment protection. Of course the text of the First Amendment does not limit
its application in this fashion, even though “[b]y the end of the eighteenth century the
corporation was a familiar figure in American economic life.” Nor is there any basis in reason
why First Amendment rights should not attach to corporate associations—and we have said so.
[See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)] [p. XXX]. * * *
* * * In the modern world, giving the government power to exclude corporations from the
political debate enables it effectively to muffle the voices that best represent the most significant
segments of the economy and the most passionately held social and political views. People who
associate—who pool their financial resources—for purposes of economic enterprise
overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is
chosen by those who associate to defend and promote particular ideas—such as the American
Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a
government that wished to suppress nuclear power—or oil and gas exploration, or automobile
manufacturing, or gun ownership, or civil liberties—and that had the power to prohibit corporate
advertising against its proposals. To be sure, the individuals involved in, or benefited by, those
industries, or interested in those causes, could (given enough time) form political action
committees or other associations to make their case. But the organizational form in which those
enterprises already exist, and in which they can most quickly and most effectively get their
message across, is the corporate form. The First Amendment does not in my view permit the
restriction of that political speech. And the same holds true for corporate electoral speech: A
candidate should not be insulated from the most effective speech that the major participants in
the economy and major incorporated interest groups can generate.
* * * But let us not be deceived. While the Government’s briefs and arguments before this
Court focused on the horrible “appearance of corruption,” the most passionate floor statements
during the debates on this legislation pertained to so-called attack ads, which the Constitution
surely protects, but which Members of Congress analogized to “crack cocaine,” “drive-by
shooting[s],” and “air pollution.” There is good reason to believe that the ending of negative
campaign ads was the principal attraction of the legislation. A Senate sponsor said, “I hope that
we will not allow our attention to be distracted from the real issues at hand—how to raise the
tenor of the debate in our elections and give people real choices. No one benefits from negative
ads. They don’t aid our Nation’s political dialog” (remarks of Sen. McCain). He assured the
body that “[y]ou cut off the soft money, you are going to see a lot less of that [attack ads].
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Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure
for those who pay for those ads, you are going to see a lot less of that. . . .”
Another theme prominent in the legislative debates was the notion that there is too much
money spent on elections. The first principle of “reform” was that “there should be less money in
politics.” “The enormous amounts of special interest money that flood our political system have
become a cancer in our democracy.” “[L]arge sums of money drown out the voice of the average
voter.” The system of campaign finance is “drowning in money.” And most expansively:
“Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign
discourse, issue discussion or voter education. More money does not mean more ideas, more substance or
more depth. Instead, it means more of what voters complain about most. More 30-second spots, more
negativity and an increasingly longer campaign period.”

Perhaps voters do detest these 30-second spots—though I suspect they detest even more hour-
long campaign-debate interruptions of their favorite entertainment programming. Evidently,
however, these ads do persuade voters, or else they would not be so routinely used by
sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of
those who govern us to judge which campaign speech has “substance” and “depth” (do you think
it might be that which is least damaging to incumbents?) and to abridge the rest.
And what exactly are these outrageous sums frittered away in determining who will govern
us? A report prepared for Congress concluded that the total amount, in hard and soft money,
spent on the 2000 federal elections was between $2.4 and $2.5 billion. All campaign spending in
the United States, including state elections, ballot initiatives, and judicial elections, has been
estimated at $3.9 billion for 2000, which was a year that “shattered spending and contribution
records.” Even taking this last, larger figure as the benchmark, it means that Americans spent
about half as much electing all their Nation’s officials, state and federal, as they spent on movie
tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8
billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8
billion). If our democracy is drowning from this much spending, it cannot swim.
Which brings me back to where I began: This litigation is about preventing criticism of the
government. I cannot say for certain that many, or some, or even any, of the Members of
Congress who voted for this legislation did so not to produce “fairer” campaigns, but to mute
criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted
for the Act believed they were acting for the good of the country. There remains the problem of
the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General
Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary
of Defense that “what’s good for General Motors is good for the country.” Those in power, even
giving them the benefit of the greatest good will, are inclined to believe that what is good for
them is good for the country. Whether in prescient recognition of the Charlie Wilson
Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, “[t]he
fundamental approach of the First Amendment . . . was to assume the worst, and to rule the
regulation of political speech ‘for fairness’ sake’ simply out of bounds.” Having abandoned that
approach to a limited extent in Buckley, we abandon it much further today.
We will unquestionably be called upon to abandon it further still in the future. * * *
The first instinct of power is the retention of power, and, under a Constitution that requires
periodic elections, that is best achieved by the suppression of election-time speech. * * * The
federal election campaign laws, which are already (as today’s opinions show) so voluminous, so
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detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant
sum, without hiring an expert adviser in the field, can be expected to grow more voluminous,
more detailed, and more complex in the years to come—and always, always, with the objective
of reducing the excessive amount of speech.

JUSTICE THOMAS, * * * concurring in the judgment in part and dissenting in part[.] * * *

* * * The joint opinion not only continues the errors of Buckley v. Valeo by applying a low
level of scrutiny to contribution ceilings, but also builds upon these errors by expanding the
anticircumvention rationale beyond reason. * * *
It is not difficult to see where this leads. Every law has limits, and there will always be
behavior not covered by the law but at its edges; behavior easily characterized as
“circumventing” the law’s prohibition. Hence, speech regulation will again expand to cover new
forms of “circumvention,” only to spur supposed circumvention of the new regulations, and so
forth. Rather than permit this never-ending and self-justifying process, I would require that the
Government explain why proposed speech restrictions are needed in light of actual Government
interests, and, in particular, why the bribery laws are not sufficient. * * *
* * * Today’s holding continues a disturbing trend: the steady decrease in the level of
scrutiny applied to restrictions on core political speech. Although this trend is most obvious in
the review of contribution limits, it has now reached what even this Court today would
presumably recognize as a direct restriction on core political speech: limitations on independent
expenditures. * * *
The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation
of the press. None of the rationales offered by the defendants, and none of the reasoning
employed by the Court, exempts the press. * * * Media companies can run pro-candidate
editorials as easily as non-media corporations can pay for advertisements. Candidates can be just
as grateful to media companies as they can be to corporations and unions. In terms of “the
corrosive and distorting effects” of wealth accumulated by corporations that has “little or no
correlation to the public’s support for the corporation’s political ideas,” Austin, 494 U.S., at 660,
there is no distinction between a media corporation and a non-media corporation. Media
corporations are influential. There is little doubt that the editorials and commentary they run can
affect elections. Nor is there any doubt that media companies often wish to influence elections.
One would think that the New York Times fervently hopes that its endorsement of Presidential
candidates will actually influence people. What is to stop a future Congress from determining
that the press is “too influential,” and that the “appearance of corruption” is significant when
media organizations endorse candidates or run “slanted” or “biased” news stories in favor of
candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the
availability of unregulated media corporations creates a loophole that allows for easy
“circumvention” of the limitations of the current campaign finance laws? * * *
* * * Although today’s opinion does not expressly strip the press of First Amendment
protection, there is no principle of law or logic that would prevent the application of the Court’s
reasoning in that setting. The press now operates at the whim of Congress.

JUSTICE KENNEDY, [with whom THE CHIEF JUSTICE and JUSTICE SCALIA join] dissenting in part[.] *
**
Our precedents teach, above all, that Government cannot be trusted to moderate its own rules
for suppression of speech. The dangers posed by speech regulations have led the Court to insist
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upon principled constitutional lines and a rigorous standard of review. The majority now
abandons these distinctions and limitations. * * *
The Court * * * in effect interprets the anticorruption rationale to allow regulation not just of
“actual or apparent quid pro quo arrangements,” but of any conduct that wins goodwill from or
influences a Member of Congress. * * * Access, in the Court’s view, has the same legal
ramifications as actual or apparent corruption of officeholders. This new definition of corruption
sweeps away all protections for speech that lie in its path.
* * * Access in itself * * * shows only that in a general sense an officeholder favors someone
or that someone has influence on the officeholder. There is no basis, in law or in fact, to say
favoritism or influence in general is the same as corrupt favoritism or influence in particular. By
equating vague and generic claims of favoritism or influence with actual or apparent corruption,
the Court adopts a definition of corruption that dismantles basic First Amendment rules, permits
Congress to suppress speech in the absence of a quid pro quo threat, and moves beyond the
rationale that is Buckley’s very foundation.
The generic favoritism or influence theory articulated by the Court is at odds with standard
First Amendment analyses because it is unbounded and susceptible to no limiting principle. Any
given action might be favored by any given person, so by the Court’s reasoning political loyalty
of the purest sort can be prohibited. There is no remaining principled method for inquiring
whether a campaign finance regulation does in fact regulate corruption in a serious and
meaningful way. We are left to defer to a congressional conclusion that certain conduct creates
favoritism or influence.
Though the majority cites common sense as the foundation for its definition of corruption, in
the context of the real world only a single definition of corruption has been found to identify
political corruption successfully and to distinguish good political responsiveness from bad—that
is quid pro quo. Favoritism and influence are not, as the Government’s theory suggests,
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. Quid pro quo corruption has been, until now, the only agreed upon conduct that
represents the bad form of responsiveness and presents a justiciable standard with a relatively
clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship
between an official and a quid.
The majority attempts to mask its extension of Buckley under claims that BCRA prevents the
appearance of corruption, even if it does not prevent actual corruption, since some assert that any
donation of money to a political party is suspect. Under Buckley’s holding that Congress has a
valid “interest in stemming the reality or appearance of corruption,” however, the inquiry does
not turn on whether some persons assert that an appearance of corruption exists. Rather, the
inquiry turns on whether the Legislature has established that the regulated conduct has inherent
corruption potential, thus justifying the inference that regulating the conduct will stem the
appearance of real corruption. Buckley was guided and constrained by this analysis. In striking
down expenditure limits the Court in Buckley did not ask whether people thought large election
expenditures corrupt, because clearly at that time many persons, including a majority of
Congress and the President, did. Instead, the Court asked whether the Government had proved
that the regulated conduct, the expenditures, posed inherent quid pro quo corruption potential.
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The Buckley decision made this analysis even clearer in upholding contribution limitations. It
stated that even if actual corrupt contribution practices had not been proved, Congress had an
interest in regulating the appearance of corruption that is “inherent in a regime of large
individual financial contributions.” The quid pro quo nature of candidate contributions justified
the conclusion that the contributions pose inherent corruption potential; and this in turn justified
the conclusion that their regulation would stem the appearance of real corruption.
From that it follows that the Court today should not ask, as it does, whether some persons,
even Members of Congress, conclusorily assert that the regulated conduct appears corrupt to
them. Following Buckley, it should instead inquire whether the conduct now prohibited
inherently poses a real or substantive quid pro quo danger, so that its regulation will stem the
appearance of quid pro quo corruption. * * *
The Government’s premise is also unsupported by the record before us. The record confirms
that soft money party contributions, without more, do not create quid pro quo corruption
potential. As a conceptual matter, generic party contributions may engender good will from a
candidate or officeholder because, as the Government says: “[A] Member of Congress can be
expected to feel a natural temptation to favor those persons who have helped the ‘team.’ ” Still,
no Member of Congress testified this favoritism changed voting behavior.
The piece of record evidence the Government puts forward on this score comes by way of
deposition testimony from former Senator Simon and Senator Feingold. Senator Simon reported
an unidentified colleague indicated frustration with Simon’s opposition to legislation that would
benefit a party contributor on the grounds that “we’ve got to pay attention to who is buttering our
bread” and testified he did not think there was any question “this” (i.e., “donors getting their
way”) was why the legislation passed. Senator Feingold, too, testified an unidentified colleague
suggested he support the legislation because “they [i.e., the donor] just gave us [i.e., the party]
$100,000.”
That evidence in fact works against the Government. These two testifying Senators expressed
disgust toward the favoring of a soft money giver, and not the good will one would have
expected under the Government’s theory. That necessarily undercuts the inference of corruption
the Government would have us draw from the evidence. * * *
The majority permits a new and serious intrusion on speech when it upholds § 203, the key
provision in Title II that prohibits corporations and labor unions from using money from their
general treasury to fund electioneering communications. The majority compounds the error made
in Austin v. Michigan Chamber of Commerce, and silences political speech central to the civic
discourse that sustains and informs our democratic processes. Unions and corporations, including
nonprofit corporations, now face severe criminal penalties for broadcasting advocacy messages
that “refe[r] to a clearly identified candidate” in an election season. Instead of extending Austin
to suppress new and vibrant voices, I would overrule it and return our campaign finance
jurisprudence to principles consistent with the First Amendment.
* * * I surmise that even the majority, along with the Government, appreciates [the]
problems with Austin. That is why it invents a new justification. We are now told that “the
government also has a compelling interest in insulating federal elections from the type of
corruption arising from the real or apparent creation of political debts.”
This rationale has no limiting principle. Were we to accept it, Congress would have the
authority to outlaw even pure issue ads, because they, too, could endear their sponsors to
candidates who adopt the favored positions. Taken to its logical conclusion, the alleged
Government interest “in insulating federal elections from . . . the real or apparent creation of
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political debts” also conflicts with Buckley. If a candidate feels grateful to a faceless, impersonal
corporation for making independent expenditures, the gratitude cannot be any less when the
money came from the CEO’s own pocket. Buckley, however, struck down limitations on
independent expenditures and rejected the Government’s corruption argument absent evidence of
coordination. The Government’s position would eviscerate the line between expenditures and
contributions and subject both to the same “complaisant review under the First Amendment.”
FEC v. Beaumont, 539 U.S. [146], 161 [(2003)]. Complaisant or otherwise, we cannot cede
authority to the Legislature to do with the First Amendment as it pleases. Since Austin is
inconsistent with the First Amendment, its extension diminishes the First Amendment even
further. For this reason § 203 should be held unconstitutional.
Even under Austin, BCRA § 203 could not stand. All parties agree strict scrutiny applies;
§ 203, however, is far from narrowly tailored. * * *
[T]he practical difficulties corporations face when they are limited to communicating through
PACs * * * are more than minor clerical requirements. Rather, they create major disincentives
for speech, with the effect falling most heavily on smaller entities that often have the most
difficulty bearing the costs of compliance. Even worse, for an organization that has not yet set up
a PAC, spontaneous speech that “refers to a clearly identified candidate for Federal office”
becomes impossible, even if the group’s vital interests are threatened by a piece of legislation
pending before Congress on the eve of a federal election. Couple the litany of administrative
burdens with the categorical restriction limiting PACs’ solicitation activities to “members,” and
it is apparent that PACs are inadequate substitutes for corporations in their ability to engage in
unfettered expression.
Even if the newly formed PACs manage to attract members and disseminate their messages
against these heavy odds, they have been forced to assume a false identity while doing so. * * *
Forcing speech through an artificial “secondhand endorsement structure . . . debases the value of
the voice of nonprofit corporate speakers . . . [because] PAC’s are interim, ad hoc organizations
with little continuity or responsibility.” In contrast, their sponsoring organizations “have a
continuity, a stability, and an influence” that allows “their members and the public at large to
evaluate their . . . credibility.”
The majority can articulate no compelling justification for imposing this scheme of
compulsory ventriloquism. If the majority is concerned about corruption and distortion of the
political process, it makes no sense to diffuse the corporate message and, under threat of criminal
penalties, to compel the corporation to spread the blame to its ad hoc intermediary. * * *
Once we turn away from the distraction of the PAC option, the provision cannot survive
strict scrutiny. * * *
The prohibition, with its crude temporal and geographic proxies, is a severe and
unprecedented ban on protected speech. [S]uppose a few Senators want to show their
constituents in the logging industry how much they care about working families and propose a
law, 60 days before the election, that would harm the environment by allowing logging in
national forests. Under § 203, a nonprofit environmental group would be unable to run an ad
referring to these Senators in their districts. The suggestion that the group could form and fund a
PAC in the short time required for effective participation in the political debate is fanciful. For
reasons already discussed, moreover, an ad hoc PAC would not be as effective as the
environmental group itself in gaining credibility with the public. Never before in our history has
the Court upheld a law that suppresses speech to this extent.
The group would want to refer to these Senators, either by name or by photograph, not
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necessarily because an election is at stake. It might be supposed the hypothetical Senators have
had an impeccable environmental record, so the environmental group might have no previous or
present interest in expressing an opinion on their candidacies. Or, the election might not be hotly
contested in some of the districts, so whatever the group says would have no practical effect on
the electoral outcome. The ability to refer to candidates and officeholders is important because it
allows the public to communicate with them on issues of common concern. Section 203’s
sweeping approach fails to take into account this significant free speech interest. Under any
conventional definition of overbreadth, it fails to meet strict scrutiny standards. It forces
electioneering communications sponsored by an environmental group to contend with faceless
and nameless opponents and consign their broadcast, as the NRA well puts it, to a world where
politicians who threaten the environment must be referred to as “He Whose Name Cannot Be
Spoken.” * * *
We are supposed to find comfort in the knowledge that the ad is banned under § 203 only if it
“is targeted to the relevant electorate,” defined as communications that can be received by
50,000 or more persons in the candidate’s district. This Orwellian criterion, however, is
analogous to a law, unconstitutional under any known First Amendment theory, that would allow
a speaker to say anything he chooses, so long as his intended audience could not hear him. * * *
A central purpose of issue ads is to urge the public to pay close attention to the candidate’s
platform on the featured issues. By banning broadcast in the very district where the candidate is
standing for election, § 203 shields information at the heart of the First Amendment from
precisely those citizens who most value the right to make a responsible judgment at the voting
booth. * * *
In the end the Government and intervenor-defendants cannot dispute the looseness of the
connection between § 203 and the Government’s proffered interest in stemming corruption. * * *
Instead, they defend § 203 on the ground that the targeted ads “may influence,” are “likely to
influence,” or “will in all likelihood have the effect of influencing” a federal election. The mere
fact that an ad may, in one fashion or another, influence an election is an insufficient reason for
outlawing it. I should have thought influencing elections to be the whole point of political
speech. Neither strict scrutiny nor any other standard the Court has adopted to date permits
outlawing speech on the ground that it might influence an election, which might lead to greater
access to politicians by the sponsoring organization, which might lead to actual corruption or the
appearance of corruption. Settled law requires a real and close connection between end and
means. The attenuated causation the majority endorses today is antithetical to the concept of
narrow tailoring. * * *
* * * As communities have grown and technology has evolved, concerted speech not only
has become more effective than a single voice but also has become the natural preference and
efficacious choice for many Americans. The Court, upholding multiple laws that suppress both
spontaneous and concerted speech, leaves us less free than before. Today’s decision breaks faith
with our tradition of robust and unfettered debate.

Notes and Questions

1. Perhaps the most significant element of the McConnell opinion is its holding that
contributors’ mere preferential access to legislators was enough to justify the ban on party soft
money. Richard Briffault, McConnell v. FEC and the Transformation of Campaign Finance
Law, 3 ELECTION L.J. 147, 162-63 (2004), has noted the effect:
By focusing on special access, McConnell reframed the corruption analysis from the consideration of
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contributions on formal decisions to their effect on the opportunity to influence government actions. . . .
[T]he Court treated preferential access as a problem in itself, and found that Congress could take steps to
eliminate a campaign finance device that created special incentives to officeholders to give special access
to donors.

The Court argued that contributions to parties could be limited, “[e]ven if that access did not
secure actual influence.” Since Buckley, of course, the Court had recognized a legitimate state
interest that went beyond preventing quid pro quo corruption to include the “appearance of
corruption.” But in McConnell, the Court moved one step further to hold that the state could limit
access that created the opportunity for the appearance of corruption. See Lillian R. BeVier,
McConnell v. FEC: Not Senator Buckley’s First Amendment, 3 ELECTION L.J. 127 (2004), for a
critique of this and other elements of the decision.
2. How big a problem is access? Consider:
You get back from lunch. You’ve got fourteen phone message on your desk. Thirteen of them are from
constituents you’ve never heard of, and one of them is from a guy who just came to your fundraiser two
weeks earlier and gave you $2,000. Which phone call are you going to return first?

PHILIP M. STERN, THE BEST CONGRESS MONEY CAN BUY 101 (1988) (quoting former congressman
Michael Barnes). Certainly the idea that money buys access has a common-sense appeal, and the
McConnell Court relied heavily on anecdotal tales from BCRA’s congressional supporters about
money and access. See also MARTIN SCHRAM, SPEAKING FREELY (1995).
Several recent works, however, have challenged whether this common-sense notion is
empirically true. While there are no doubt anecdotal stories of access, these researchers argue
that in fact constituents are more likely to gain access to members of Congress than are
contributors. See John Samples, Against Deference, 12 NEXUS J. OP. 21, 28-31 (2007); Marie
Hojnakni & David Kimball, PAC Contributions and Lobbying Contacts in Congressional
Committees, 54 POL. RES. Q. 176 (2001); Michelle L. Chin et al., A Foot in the Door: An
Experimental Study of PAC and Constituency Influence on Access, 62 J. POL. 543 (2000). But
see Richard Hall & Frank Wyman, Buying Time: Moneyed Interests and the Mobilization of Bias
in Congressional Committees, 84 AM. POL. SCI. REV. 797 (1990). See also Bradley A. Smith,
Money Talks: Speech, Corruption Equality and Campaign Finance, 86 GEO. L.J. 45, 92-93
(1997) (arguing that eliminating access based on campaign contributions would not increase
political equality or decrease the appearance of corruption).
3. Contrary to many expectations, the national political parties were largely able to replace
the soft money lost due to BCRA. Gary Jacobson, A Collective Dilemma Solved: The
Distribution of Party Campaign Resources in the 2006 and 2008 Congressional Elections,
(paper presented at UCLA Election Law Symposium, Jan. 29, 2010).
4. McConnell upheld the restrictions on “electioneering communications” in part on the
grounds that the distinction between “express advocacy” and “issue advocacy” was “functionally
meaningless.” Recall, however, that one reason the Buckley Court struck down limits on
independent expenditures was that, having held that the term “expenditure” should be interpreted
as applying only to express advocacy, the state had no interest in limiting expenditures; “[i]t
would naively underestimate the ingenuity and resourcefulness of persons and groups . . . to
believe that they would have much difficulty devising expenditures that skirted the restriction on
express advocacy . . . but nevertheless benefitted a candidate’s campaign.” 424 U.S. at 45. What,
if anything, changed in the intervening years?
McConnell’s description of the distinction between issue advocacy and express advocacy as
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“functionally meaningless” is one of the opinion’s most notable phrases. The phrase actually
appears twice in the opinion. The second appearance, however, is qualified: “the line between
express advocacy and other types of election-influencing expression is, for Congress’ purposes,
functionally meaningless.” 540 U.S. at 217 (emphasis added). Did the distinction serve any
purpose outside of Congress? Imagine that you are a lawyer seeking to advise your client as to
whether a particular ad is subject to regulation under FECA. Would the express-advocacy
standard be functionally meaningless?
The distinction between issue advocacy and express advocacy was designed to remove the
vagueness problem facing the speaker. BCRA handled this vagueness problem by establishing a
bright line based on the number of days prior to an election that an ad was run, and whether it
clearly identified a candidate. This shifted the question from one of vagueness to one of
overbreadth. The litigants hotly debated the meaning of two studies relied on by the government:
CRAIG B. HOLMAN & LUKE P. MCLOUGHLIN, BUYING TIME 2000: TELEVISION ADVERTISEMENTS IN
THE 2000 F EDERAL E LECTIONS (Brennan Center for Justice 2001), and JONATHAN S. K RASNO &
DANIEL E. SELTZ, BUYING TIME 1998: TELEVISION ADVERTISEMENTS IN THE 1998 CONGRESSIONAL
ELECTIONS (Brennan Center for Justice 2000), but in the end the Court was comfortable that most
issue ads run within BCRA’s electioneering communications time frame “clearly had such [an
electioneering] purpose.” The plaintiffs’ expert has criticized the Court for “ignor[ing] the data
and empirical issues.” James L. Gibson, BCRA’s Assault on the First Amendment: The Death of
the Overbreadth Doctrine?, 3 ELECTION L.J. 245, 249 (2004). Professor David Magelby, who
served as an expert for the government, countered that McConnell is unique in the attention paid
by the Court to the record evidence. David B. Magleby, The Importance of the Record in
McConnell v. FEC, 3 ELECTION L.J. 285 (2004).
Did McConnell underestimate the scope of BCRA’s electioneering-communications
prohibitions? While the law’s electioneering-communications window appears to be limited to
ninety days (thirty days before the primary and sixty days before the general election), the fact
that many media markets lap into multiple states means that in many metropolitan areas the
prohibition extends far beyond those time frames during presidential campaigns. See Bradley A.
Smith & Jason Robert Owen, Boundary-Based Restrictions in Boundless Broadcast Media
Markets: McConnell v. FEC’s Underinclusive Overbreadth Analysis, 18 STAN. L. & POL’Y REV .
240 (2007) (studying numerous multi-state media markets and finding that in presidential
elections the electioneering-communications limitations applied for more than 120 days in all
markets, and upwards of 200 days in many).
4. Note that the distinction between express advocacy and issue advocacy remained an
important part of the law after McConnell, because it would still determine the level of regulation
outside the “electioneering-communications” windows of BCRA.
5. As the Court noted in footnote 44, BCRA was passed after nearly a decade of vote
trading and revisions aimed at attracting the votes of specific legislators. See JOHN SAMPLES, THE
FALLACY OF CAMPAIGN FINANCE REFORM 238-254 (2006). Does this decade-plus of unsuccessful
efforts to amend the statute truly indicate that the regulations permitted more than Congress had
intended in FECA, or does it indicate that perhaps the FEC was correct in Congress’s original
intent?
6. McConnell, following close on the heels of Shrink PAC, Colorado Republican II, and
Federal Election Commission v. Beaumont, marked the apogee of judicial deference to
congressional decision making. The majority argued that given Congress’s particular expertise in
elections and in witnessing the effects of money on legislative behavior, judicial deference to
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congressional decisions in this area was particularly appropriate. Justice Scalia, dissenting,
argued that given Congress’s particular vested interest in elections, and thus the potential for
witting or unwitting self-dealing, judicial deference to congressional decisions in this area was
particularly inappropriate. Who was more persuasive?
Are legislators more knowledgeable, for better or worse, about campaign-finance legislation
than other bills? A co-author of this casebook, who was then serving as a member of the Federal
Election Commission, recalls that shortly after BCRA took effect the Chairman of the House
Committee on Rules and Administration, which has jurisdiction over campaign-finance
legislation, inquired as to whether the FEC might develop a program to explain the Act to
members of Congress.
7. The McConnell opinion’s strongly deferential tone suggested to many that the Court was
prepared to accept campaign-finance regulation going far beyond even that of BCRA. Yet within
months, litigation was already underway that would soon cause the new McConnell paradigm to
begin to unravel. The first of these lawsuits reached the Supreme Court in the fall of 2005. In
Wisconsin Right to Life v. Federal Election Commission, 546 U.S. 410 (2006) (WRTL I), the
Supreme Court held, in a brief, 9-0 per curiam opinion, that McConnell did not preclude as-
applied challenges to BCRA’s electioneering-communications provisions. After remand, the case
quickly worked its way back to the Supreme Court, resulting in the decision below.

FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT

TO LIFE, INC. (WRTL II)
Supreme Court of the United States
551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007)

CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which
JUSTICE ALITO joins.
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) makes it a federal
crime for any corporation to broadcast, shortly before an election, any communication that
names a federal candidate for elected office and is targeted to the electorate. In McConnell v.
Federal Election Comm’n, 540 U.S. 93 (2003) [p. XXX], this Court considered whether § 203
was facially overbroad under the First Amendment because it captured within its reach not only
campaign speech, or “express advocacy,” but also speech about public issues more generally, or
“issue advocacy,” that mentions a candidate for federal office. The Court concluded that there
was no overbreadth concern to the extent the speech in question was the “functional equivalent”
of express campaign speech. On the other hand, the Court “assume[d]” that the interests it had
found to “justify the regulation of campaign speech might not apply to the regulation of genuine
issue ads.” The Court nonetheless determined that § 203 was not facially overbroad. Even
assuming § 203 “inhibit[ed] some constitutionally protected corporate and union speech,” the
Court concluded that those challenging the law on its face had failed to carry their “heavy
burden” of establishing that all enforcement of the law should therefore be prohibited.
Last Term, we reversed a lower court ruling, arising in the same litigation before us now, that
our decision in McConnell left “no room” for as-applied challenges to § 203. We held on the
contrary that “[i]n upholding § 203 against a facial challenge, we did not purport to resolve
future as-applied challenges.” Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546
U.S. 410, 412 (2006) (per curiam) (WRTL I).
178

We now confront such an as-applied challenge. Resolving it requires us first to determine

whether the speech at issue is the “functional equivalent” of speech expressly advocating the
election or defeat of a candidate for federal office, or instead a “genuine issue a[d].” We have
long recognized that the distinction between campaign advocacy and issue advocacy “may often
dissolve in practical application. Candidates, especially incumbents, are intimately tied to public
issues involving legislative proposals and governmental actions.” Buckley v. Valeo, 424 U.S. 1,
42 (1976) [p. XXX] (per curiam). Our development of the law in this area requires us, however,
to draw such a line, because we have recognized that the interests held to justify the regulation of
campaign speech and its “functional equivalent” “might not apply” to the regulation of issue
advocacy.
In drawing that line, the First Amendment requires us to err on the side of protecting political
speech rather than suppressing it. We conclude that the speech at issue in this as-applied
challenge is not the “functional equivalent” of express campaign speech. We further conclude
that the interests held to justify restricting corporate campaign speech or its functional equivalent
do not justify restricting issue advocacy, and accordingly we hold that BCRA § 203 is
unconstitutional as applied to the advertisements at issue in these cases.

I
Prior to BCRA, corporations were free under federal law to use independent expenditures to
engage in political speech so long as that speech did not expressly advocate the election or defeat
of a clearly identified federal candidate. * * *
BCRA significantly cut back on corporations’ ability to engage in political speech. BCRA
§ 203, at issue in these cases, makes it a crime for any labor union or incorporated entity—
whether the United Steelworkers, the American Civil Liberties Union, or General Motors—to
use its general treasury funds to pay for any “electioneering communication.” BCRA’s definition
of “electioneering communication” is clear and expansive. It encompasses any broadcast, cable,
or satellite communication that refers to a candidate for federal office and that is aired within 30
days of a federal primary election or 60 days of a federal general election in the jurisdiction in
which that candidate is running for office.
Appellee Wisconsin Right to Life, Inc. (WRTL), is a nonprofit, nonstock, ideological
advocacy corporation recognized by the Internal Revenue Service as tax exempt under § 501(c)
(4) of the Internal Revenue Code. On July 26, 2004, * * * WRTL began broadcasting a radio
advertisement entitled “Wedding.” The transcript of “Wedding” reads as follows:

“PASTOR: And who gives this woman to be married to this man?

“BRIDE’S FATHER: Well, as father of the bride, I certainly could. But instead, I’d like to share a few
tips on how to properly install drywall. Now you put the drywall up . . .
“VOICE-OVER: Sometimes it’s just not fair to delay an important decision.
“But in Washington it’s happening. A group of Senators is using the filibuster delay tactic to block
federal judicial nominees from a simple “yes” or “no” vote. So qualified candidates don’t get a chance to
serve.
“It’s politics at work, causing gridlock and backing up some of our courts to a state of emergency.
“Contact Senators Feingold and Kohl and tell them to oppose the filibuster.
“Visit: BeFair.org
“Paid for by Wisconsin Right to Life (befair.org), which is responsible for the content of this
advertising and not authorized by any candidate or candidate’s committee.”

On the same day, WRTL aired a similar radio ad entitled “Loan.” It had also invested treasury
funds in producing a television ad entitled “Waiting,” which is similar in substance and format to
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“Wedding” and “Loan.”

WRTL planned on running “Wedding,” “Waiting,” and “Loan” throughout August 2004 and
financing the ads with funds from its general treasury. It recognized, however, that as of August
15, 30 days prior to the Wisconsin primary [in which Senator Feingold was running
(unopposed)], the ads would be illegal “electioneering communication[s]” under BCRA § 203.
***

III * * *
* * * [The FEC contends that an ad should be considered the functional equivalent of express
advocacy if it is intended to influence elections and has that effect. We disagree.] After noting
the difficulty of distinguishing between discussion of issues on the one hand and advocacy of
election or defeat of candidates on the other, the Buckley Court explained that analyzing the
question in terms “of intent and of effect” would afford “no security for free discussion.” It
therefore rejected such an approach, and McConnell did not purport to overrule Buckley on this
point—or even address what Buckley had to say on the subject.
For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied
challenges turning on the speaker’s intent to affect an election. The test to distinguish
constitutionally protected political speech from speech that BCRA may proscribe should provide
a safe harbor for those who wish to exercise First Amendment rights. The test should also
“reflec[t] our ‘profound national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open.’ ” A test turning on the intent of the speaker does not
remotely fit the bill.
Far from serving the values the First Amendment is meant to protect, an intent-based test
would chill core political speech by opening the door to a trial on every ad within the terms of
§ 203, on the theory that the speaker actually intended to affect an election, no matter how
compelling the indications that the ad concerned a pending legislative or policy issue. No
reasonable speaker would choose to run an ad covered by BCRA if its only defense to a criminal
prosecution would be that its motives were pure. An intent-based standard “blankets with
uncertainty whatever may be said,” and “offers no security for free discussion.” Buckley, supra,
at 43. The FEC does not disagree. In its brief filed in the first appeal in this litigation, it argued
that a “constitutional standard that turned on the subjective sincerity of a speaker’s message
would likely be incapable of workable application; at a minimum, it would invite costly, fact-
dependent litigation.”5
A test focused on the speaker’s intent could lead to the bizarre result that identical ads aired
at the same time could be protected speech for one speaker, while leading to criminal penalties
for another. “First Amendment freedoms need breathing space to survive.” An intent test
provides none.
Buckley also explains the flaws of a test based on the actual effect speech will have on an
election or on a particular segment of the target audience. Such a test “puts the speaker . . .
wholly at the mercy of the varied understanding of his hearers.” It would also typically lead to a
burdensome, expert-driven inquiry, with an indeterminate result. Litigation on such a standard
may or may not accurately predict electoral effects, but it will unquestionably chill a substantial
5
Consider what happened in these cases. The District Court permitted extensive discovery on the assumption that
WRTL’s intent was relevant. As a result, the defendants deposed WRTL’s executive director, its legislative director,
its political action committee director, its lead communications consultant, and one of its fundraisers. WRTL also
had to turn over many documents related to its operations, plans, and finances. Such litigation constitutes a severe
burden on political speech.
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amount of political speech.

“The freedom of speech . . . guaranteed by the Constitution embraces at the least the liberty
to discuss publicly and truthfully all matters of public concern without previous restraint or fear
of subsequent punishment.” [First National Bank of Boston v.] Bellotti, 435 U.S. [765], 776
[(1978)] [p. XXX]. To safeguard this liberty, the proper standard for an as-applied challenge to
BCRA § 203 must be objective, focusing on the substance of the communication rather than
amorphous considerations of intent and effect. It must entail minimal if any discovery, to allow
parties to resolve disputes quickly without chilling speech through the threat of burdensome
litigation. And it must eschew “the open-ended rough-and-tumble of factors,” which “invit[es]
complex argument in a trial court and a virtually inevitable appeal.” In short, it must give the
benefit of any doubt to protecting rather than stifling speech.
In light of these considerations, a court should find that an ad is the functional equivalent of
express advocacy only if the ad is susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate. Under this test, WRTL’s three ads are plainly
not the functional equivalent of express advocacy. First, their content is consistent with that of a
genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the
public to adopt that position, and urge the public to contact public officials with respect to the
matter. Second, their content lacks indicia of express advocacy: The ads do not mention an
election, candidacy, political party, or challenger; and they do not take a position on a
candidate’s character, qualifications, or fitness for office.
Despite these characteristics, appellants assert that the content of WRTL’s ads alone betrays
their electioneering nature. Indeed, the FEC suggests that any ad covered by § 203 that includes
“an appeal to citizens to contact their elected representative” is the “functional equivalent” of an
ad saying defeat or elect that candidate. We do not agree. * * * Issue advocacy conveys
information and educates. An issue ad’s impact on an election, if it exists at all, will come only
after the voters hear the information and choose—uninvited by the ad—to factor it into their
voting decisions.6
The FEC and intervenors try to turn this difference to their advantage, citing McConnell’s
statements “that the most effective campaign ads, like the most effective commercials for
products . . ., avoid the [Buckley] magic words [expressly advocating the election or defeat of a
candidate],” and that advertisers “would seldom choose to use such words even if permitted.” An
expert for the FEC in these cases relied on those observations to argue that WRTL’s ads are
especially effective electioneering ads because they are “subtl[e],” focusing on issues rather than
simply exhorting the electorate to vote against Senator Feingold. Rephrased a bit, the argument
perversely maintains that the less an issue ad resembles express advocacy, the more likely it is to
be the functional equivalent of express advocacy. This “heads I win, tails you lose” approach
cannot be correct. It would effectively eliminate First Amendment protection for genuine issue
ads, contrary to our conclusion in WRTL I that as-applied challenges to § 203 are available, and

6
For these reasons, we cannot agree with JUSTICE SOUTER’s assertion that “anyone who heard the Feingold ads . . .
would know that WRTL’s message was to vote against Feingold.” The dissent supports this assertion by likening
WRTL’s ads to the “Jane Doe” example identified in McConnell. But that ad “condemned Jane Doe’s record on a
particular issue.” WRTL’s ads do not do so; they instead take a position on the filibuster issue and exhort
constituents to contact Senators Feingold and Kohl to advance that position. Indeed, one would not even know from
the ads whether Senator Feingold supported or opposed filibusters. JUSTICE SOUTER is confident Wisconsinites
independently knew Senator Feingold’s position on filibusters, but we think that confidence misplaced. A prominent
study found, for example, that during the 2000 election cycle, 85 percent of respondents to a survey were not even
able to name at least one candidate for the House of Representatives in their own district.
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our assumption in McConnell that “the interests that justify the regulation of campaign speech
might not apply to the regulation of genuine issue ads.” Under appellants’ view, there can be no
such thing as a genuine issue ad during the blackout period—it is simply a very effective
electioneering ad.
Looking beyond the content of WRTL’s ads, the FEC and intervenors argue that several
“contextual” factors prove that the ads are the equivalent of express advocacy. First, appellants
cite evidence that during the same election cycle, WRTL and its Political Action Committee
(PAC) actively opposed Senator Feingold’s reelection and identified filibusters as a campaign
issue. This evidence goes to WRTL’s subjective intent in running the ads, and we have already
explained that WRTL’s intent is irrelevant in an as-applied challenge. Evidence of this sort is
therefore beside the point, as it should be—WRTL does not forfeit its right to speak on issues
simply because in other aspects of its work it also opposes candidates who are involved with
those issues.
Next, the FEC and intervenors seize on the timing of WRTL’s ads. They observe that the ads
were to be aired near elections but not near actual Senate votes on judicial nominees, and that
WRTL did not run the ads after the elections. To the extent this evidence goes to WRTL’s
subjective intent, it is again irrelevant. To the extent it nonetheless suggests that the ads should
be interpreted as express advocacy, it falls short. That the ads were run close to an election is
unremarkable in a challenge like this. Every ad covered by BCRA § 203 will by definition air
just before a primary or general election. If this were enough to prove that an ad is the functional
equivalent of express advocacy, then BCRA would be constitutional in all of its applications.
This Court unanimously rejected this contention in WRTL I.
That the ads were run shortly after the Senate had recessed is likewise unpersuasive.
Members of Congress often return to their districts during recess, precisely to determine the
views of their constituents; an ad run at that time may succeed in getting more constituents to
contact the Representative while he or she is back home. In any event, a group can certainly
choose to run an issue ad to coincide with public interest rather than a floor vote. Finally, WRTL
did not resume running its ads after the BCRA blackout period because, as it explains, the debate
had changed. The focus of the Senate was on whether a majority would vote to change the
Senate rules to eliminate the filibuster—not whether individual Senators would continue
filibustering. Given this change, WRTL’s decision not to continue running its ads after the
blackout period does not support an inference that the ads were the functional equivalent of
electioneering.
The last piece of contextual evidence the FEC and intervenors highlight is the ads’ “specific
and repeated cross-reference” to a website. In the middle of the website’s homepage, in large
type, were the addresses, phone numbers, fax numbers, and email addresses of Senators Feingold
and Kohl. Wisconsinites who viewed “Wedding,” “Loan,” or “Waiting” and wished to contact
their Senators—as the ads requested—would be able to obtain the pertinent contact information
immediately upon visiting the website. This is fully consistent with viewing WRTL’s ads as
genuine issue ads. The website also stated both Wisconsin Senators’ positions on judicial
filibusters, and allowed visitors to sign up for “e-alerts,” some of which contained exhortations to
vote against Senator Feingold. These details lend the electioneering interpretation of the ads
more credence, but again, WRTL’s participation in express advocacy in other aspects of its work
is not a justification for censoring its issue-related speech. Any express advocacy on the website,
already one step removed from the text of the ads themselves, certainly does not render an
interpretation of the ads as genuine issue ads unreasonable.
182

Given the standard we have adopted for determining whether an ad is the “functional
equivalent” of express advocacy, contextual factors of the sort invoked by appellants should
seldom play a significant role in the inquiry. Courts need not ignore basic background
information that may be necessary to put an ad in context—such as whether an ad “describes a
legislative issue that is either currently the subject of legislative scrutiny or likely to be the
subject of such scrutiny in the near future”—but the need to consider such background should
not become an excuse for discovery or a broader inquiry of the sort we have just noted raises
First Amendment concerns.
At best, appellants have shown what we have acknowledged at least since Buckley: that “the
distinction between discussion of issues and candidates and advocacy of election or defeat of
candidates may often dissolve in practical application.” Under the test set forth above, that is not
enough to establish that the ads can only reasonably be viewed as advocating or opposing a
candidate in a federal election. * * * Discussion of issues cannot be suppressed simply because
the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie
goes to the speaker, not the censor.7 * * *
Because WRTL’s ads may reasonably be interpreted as something other than as an appeal to
vote for or against a specific candidate, we hold they are not the functional equivalent of express
advocacy, and therefore fall outside the scope of McConnell’s holding.

IV
BCRA § 203 can be constitutionally applied to WRTL’s ads only if it is narrowly tailored to
further a compelling interest. * * * This Court has never recognized a compelling interest in
regulating ads, like WRTL’s, that are neither express advocacy nor its functional equivalent.
* * *9 * * *
7
JUSTICE SCALIA thinks our test impermissibly vague. As should be evident, we agree with JUSTICE SCALIA on the
imperative for clarity in this area; that is why our test affords protection unless an ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1)
there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort
of “contextual” factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely
because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of
protecting speech. And keep in mind this test is only triggered if the speech meets the brightline requirements of
BCRA § 203 in the first place. * * *
9
The dissent stresses a number of points that, while not central to our decision, nevertheless merit a response. First,
the dissent overstates its case when it asserts that the “PAC alternative” gives corporations a constitutionally
sufficient outlet to speak. PACs impose well-documented and onerous burdens, particularly on small nonprofits. See
[FEC v.] MCFL, 479 U.S. 238, 253-55 (1986) [p. XXX] (plurality opinion). McConnell did conclude that
segregated funds “provid[e] corporations and unions with a constitutionally sufficient opportunity to engage in
express advocacy” and its functional equivalent, but that holding did not extend beyond functional equivalents—and
if it did, the PAC option would justify regulation of all corporate speech, a proposition we have rejected, see Bellotti.
Second, the response that a speaker should just take out a newspaper ad, or use a website, rather than complain that
it cannot speak through a broadcast communication, is too glib. Even assuming for the sake of argument that the
possibility of using a different medium of communication has relevance in determining the permissibility of a
limitation on speech, newspaper ads and websites are not reasonable alternatives to broadcast speech in terms of
impact and effectiveness. Third, we disagree with the dissent’s view that corporations can still speak by changing
what they say to avoid mentioning candidates. That argument is akin to telling Cohen that he cannot wear his jacket
because he is free to wear one that says “I disagree with the draft,” cf. Cohen v. California, 403 U.S. 15 (1971), or
telling 44 Liquormart that it can advertise so long as it avoids mentioning prices, cf. 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484 (1996). Such notions run afoul of “the fundamental rule of protection under the First
Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).
 183

This Court has long recognized “the governmental interest in preventing corruption and the
appearance of corruption” in election campaigns. This interest has been invoked as a reason for
upholding contribution limits. * * * We have suggested that this interest might also justify limits
on electioneering expenditures because it may be that, in some circumstances, “large
independent expenditures pose the same dangers of actual or apparent quid pro quo
arrangements as do large contributions.”
McConnell arguably applied this interest—which this Court had only assumed could justify
regulation of express advocacy—to ads that were the “functional equivalent” of express
advocacy. But to justify regulation of WRTL’s ads, this interest must be stretched yet another
step to ads that are not the functional equivalent of express advocacy. Enough is enough. Issue
ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption
interest cannot justify regulating them. To equate WRTL’s ads with contributions is to ignore
their value as political speech.
Appellants argue that an expansive definition of “functional equivalent” is needed to ensure
that issue advocacy does not circumvent the rule against express advocacy, which in turn helps
protect against circumvention of the rule against contributions. But such a prophylaxis-upon-
prophylaxis approach to regulating expression is not consistent with strict scrutiny. “[T]he desire
for a bright-line rule . . . hardly constitutes the compelling state interest necessary to justify any
infringement on First Amendment freedom.” * * * See Buckley, supra, at 44 (expenditure
limitations “cannot be sustained simply by invoking the interest in maximizing the effectiveness
of the less intrusive contribution limitations”).
A second possible compelling interest recognized by this Court lies in addressing a “different
type of corruption in the political arena: the corrosive and distorting effects of immense
aggregations of wealth that are accumulated with the help of the corporate form and that have
little or no correlation to the public’s support for the corporation’s political ideas.” * * * Austin
[v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)] [p. XXX] invoked this interest to
uphold a state statute making it a felony for corporations to use treasury funds for independent
expenditures on express election advocacy. McConnell also relied on this interest in upholding
regulation not just of express advocacy, but also its “functional equivalent.”
These cases did not suggest, however, that the interest in combating “a different type of
corruption” extended beyond campaign speech. Quite the contrary. Two of the Justices who
joined the 6-to-3 majority in Austin relied, in upholding the constitutionality of the ban on
campaign speech, on the fact that corporations retained freedom to speak on issues as distinct
from election campaigns. See 494 U.S., at 675-678 (Brennan, J., concurring) (describing fact that
campaign speech ban “does not regulate corporate expenditures in referenda or other corporate
expression” as “reflect[ing] the requirements of our decisions”); id., at 678 (STEVENS, J.,
concurring) (“[T]here is a vast difference between lobbying and debating public issues on the
one hand, and political campaigns for election to public office on the other”). The McConnell
Court similarly was willing to “assume that the interests that justify the regulation of campaign
speech might not apply to the regulation of genuine issue ads.” And our decision in WRTL I
reinforced the validity of that assumption by holding that BCRA § 203 is susceptible to as-
applied challenges.
Accepting the notion that a ban on campaign speech could also embrace issue advocacy
would call into question our holding in Bellotti that the corporate identity of a speaker does not
strip corporations of all free speech rights. It would be a constitutional “bait and switch” to
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conclude that corporate campaign speech may be banned in part because corporate issue
advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant
to the same asserted compelling interest, through a broad conception of what constitutes the
functional equivalent of campaign speech, or by relying on the inability to distinguish campaign
speech from issue advocacy.
* * * We hold that the interest recognized in Austin as justifying regulation of corporate
campaign speech and extended in McConnell to the functional equivalent of such speech has no
application to issue advocacy of the sort engaged in by WRTL.
Because WRTL’s ads are not express advocacy or its functional equivalent, and because
appellants identify no interest sufficiently compelling to justify burdening WRTL’s speech, we
hold that BCRA § 203 is unconstitutional as applied to WRTL’s “Wedding,” “Loan,” and
“Waiting” ads. * * *
These cases are about political speech. The importance of the cases to speech and debate on
public policy issues is reflected in the number of diverse organizations that have joined in
supporting WRTL before this Court: the American Civil Liberties Union, the National Rifle
Association, the American Federation of Labor and Congress of Industrial Organizations, the
Chamber of Commerce of the United States of America, Focus on the Family, the Coalition of
Public Charities, the Cato Institute, and many others.
Yet, as is often the case in this Court’s First Amendment opinions, we have gotten this far in
the analysis without quoting the Amendment itself: “Congress shall make no law . . . abridging
the freedom of speech.” The Framers’ actual words put these cases in proper perspective. Our
jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but
when it comes to drawing difficult lines in the area of pure political speech—between what is
protected and what the Government may ban—it is worth recalling the language we are
applying. McConnell held that express advocacy of a candidate or his opponent by a corporation
shortly before an election may be prohibited, along with the functional equivalent of such
express advocacy. We have no occasion to revisit that determination today. But when it comes to
defining what speech qualifies as the functional equivalent of express advocacy subject to such a
ban—the issue we do have to decide—we give the benefit of the doubt to speech, not censorship.
The First Amendment’s command that “Congress shall make no law . . . abridging the freedom
of speech” demands at least that.
The judgment of the United States District Court for the District of Columbia is affirmed.
It is so ordered.

JUSTICE ALITO, concurring.

[B]ecause § 203 is unconstitutional as applied to the advertisements before us, it is
unnecessary to go further and decide whether § 203 is unconstitutional on its face. If it turns out
that the implementation of the as-applied standard set out in the principal opinion impermissibly
chills political speech, we will presumably be asked in a future case to reconsider the holding in
McConnell that § 203 is facially constitutional.

JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in part and
concurring in the judgment. * * *
The question is whether WRTL meets the standard for prevailing in an as-applied challenge
to BCRA § 203. Answering that question obviously requires the Court to articulate the standard.
The most obvious one, and the one suggested by the Federal Election Commission and
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intervenors, is the standard set forth in McConnell itself: whether the advertisement is the
“functional equivalent of express advocacy.” * * * Intervenors flesh out the standard somewhat
further: “[C]ourts should ask whether the ad’s audience would reasonably understand the ad, in
the context of the campaign, to promote or attack the candidate.” The District Court instead
articulated a five-factor test that looks to whether the ad under review “(1) describes a legislative
issue that is either currently the subject of legislative scrutiny or likely to be the subject of such
scrutiny in the near future; (2) refers to the prior voting record or current position of the named
candidate on the issue described; (3) exhorts the listener to do anything other than contact the
candidate about the described issue; (4) promotes, attacks, supports, or opposes the named
candidate; and (5) refers to the upcoming election, candidacy, and/or political party of the
candidate.” The backup definition of “electioneering communications” contained in BCRA itself
offers another possibility. It covers any communication that “promotes or supports a candidate
for that office . . . (regardless of whether the communication expressly advocates a vote for or
against a candidate) and which also is suggestive of no plausible meaning other than an
exhortation to vote for or against a specific candidate.” And the principal opinion in these cases
offers a variation of its own (one bearing a strong likeness to BCRA’s backup definition):
whether “the ad is susceptible of no reasonable interpretation other than as an appeal to vote for
or against a specific candidate.”
There is a fundamental and inescapable problem with all of these various tests. Each of them
(and every other test that is tied to the public perception, or a court’s perception, of the import,
the intent, or the effect of the ad) is impermissibly vague and thus ineffective to vindicate the
fundamental First Amendment rights of the large segment of society to which § 203 applies.
Consider the application of these tests to WRTL’s ads: There is not the slightest doubt that these
ads had an issue-advocacy component. They explicitly urged lobbying on the pending legislative
issue of appellate-judge filibusters. The question before us is whether something about them
caused them to be the “functional equivalent” of express advocacy, and thus constitutionally
subject to BCRA’s criminal penalty. Do any of the tests suggested above answer this question
with the degree of clarity necessary to avoid the chilling of fundamental political discourse? I
think not.
The “functional equivalent” test does nothing more than restate the question (and make clear
that the electoral advocacy need not be express). The test which asks how the ad’s audience
“would reasonably understand the ad” provides ample room for debate and uncertainty. The
District Court’s five-factor test does not (and could not possibly) specify how much weight is to
be given to each factor—and includes the inherently vague factor of whether the ad “promotes,
attacks, supports, or opposes the named candidate.” (Does attacking the king’s position attack the
king?) The tests which look to whether the ad is “susceptible of no plausible meaning” or
“susceptible of no reasonable interpretation” other than an exhortation to vote for or against a
specific candidate seem tighter. They ultimately depend, however, upon a judicial judgment (or
is it—worse still—a jury judgment?) concerning “reasonable” or “plausible” import that is far
from certain, that rests upon consideration of innumerable surrounding circumstances which the
speaker may not even be aware of, and that lends itself to distortion by reason of the
decisionmaker’s subjective evaluation of the importance or unimportance of the challenged
speech. In this critical area of political discourse, the speaker cannot be compelled to risk felony
prosecution with no more assurance of impunity than his prediction that what he says will be
found susceptible of some “reasonable interpretation other than as an appeal to vote for or
against a specific candidate.” Under these circumstances, “[m]any persons, rather than undertake
186

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.”
It will not do to say that this burden must be accepted—that WRTL’s anti-filibustering,
constitutionally protected speech can be constrained—in the necessary pursuit of electoral
“corruption.” We have rejected the “can’t-make-an-omelet-without-breaking-eggs” approach to
the First Amendment, even for the infinitely less important (and less protected) speech category
of virtual child pornography. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the
* * * Court rejected the principle that protected speech may be banned because it is difficult to
distinguish from unprotected speech. “[T]hat protected speech may be banned as a means to ban
unprotected speech,” it said, “turns the First Amendment upside down.” Id., at 255. The same
principle must be applied here. Indeed, it must be applied a fortiori, since laws targeting political
speech are the principal object of the First-Amendment guarantee. The fact that the line between
electoral advocacy and issue advocacy dissolves in practice is an indictment of the statute, not a
justification of it. * * *
What, then, is to be done? We could adopt WRTL’s proposed test, under which § 203 may
not be applied to any ad (1) that “focuses on a current legislative branch matter, takes a position
on the matter, and urges the public to ask a legislator to take a particular position or action with
respect to the matter,” and (2) that “does not mention any election, candidacy, political party, or
challenger, or the official’s character, qualifications, or fitness for office,” (3) whether or not it
“say[s] that the public official is wrong or right on the issue,” so long as it does not expressly say
he is “wrong for [the] office.” Or we could of course adopt the Buckley test of express advocacy.
The problem is that, although these tests are [clear,] they are incompatible with McConnell’s
holding that § 203 is facially constitutional, which was premised on the finding that a vast
majority of ads proscribed by § 203 are “sham issue ads” that fall outside the First Amendment’s
protection. Indeed, any clear rule that would protect all genuine issue ads would cover such a
substantial number of ads prohibited by § 203 that § 203 would be rendered substantially
overbroad. The Government claims that even the amorphous test adopted by the District Court
“call[s] into question a substantial percentage of the statute’s applications,” 7 and that any test
providing relief to WRTL is incompatible with McConnell’s facial holding because WRTL’s ads
are in the “heartland” of what Congress meant to prohibit. If that is so, then McConnell cannot be
sustained.
Like the Buckley Court and the parties to these cases, I recognize the practical reality that
corporations can evade the express-advocacy standard. * * * But the [solution] consisten[t] with
the First Amendment is either to eliminate restrictions on independent expenditures altogether or
to confine them to * * * express-advocacy, [as] Buckley [did], several decades ago. Section 203’s
7
The same must be said, I think, of the test proposed by the principal opinion. While its coverage is not entirely
clear, it would apparently protect even McConnell’s paradigmatic example of the functional equivalent of express
advocacy—the so-called “Jane Doe ad,” which “condemned Jane Doe’s record on a particular issue before exhorting
viewers to ‘call Jane Doe and tell her what you think,’ ” 540 U.S., at 126-127. Indeed, it at least arguably protects
the most “striking” example of a so-called sham issue ad in the McConnell record, the notorious “Yellowtail ad,”
which accused Bill Yellowtail of striking his wife and then urged listeners to call him and “[t]ell him to support
family values.” The claim that § 203 on its face does not reach a substantial amount of speech protected under the
principal opinion’s test—and that the test is therefore compatible with McConnell—seems to me indefensible.
Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the
law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the
constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying
so. This faux judicial restraint is judicial obfuscation.
 187

line is bright, but it bans vast amounts of political advocacy indistinguishable from hitherto
protected speech.
The foregoing analysis shows that McConnell was mistaken in its belief that as-applied
challenges could eliminate the unconstitutional applications of § 203. They can do so only if a
test is adopted which contradicts the holding of McConnell—that § 203 is facially valid because
the vast majority of pre-election issue ads can constitutionally be proscribed. In light of the
weakness in Austin’s rationale, and in light of the longstanding acceptance of the clarity of
Buckley’s express-advocacy line, it was adventurous for McConnell to extend Austin beyond
corporate speech constituting express advocacy. Today’s cases make it apparent that the
adventure is a flop, and that McConnell’s holding concerning § 203 was wrong.8 * * *
* * * It is perhaps our most important constitutional task to ensure freedom of political
speech. And when a statute creates a regime as unworkable and unconstitutional as today’s effort
at as-applied review proves § 203 to be, it is our responsibility to decline enforcement. * * *

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join,
dissenting. * * *
The corporate appellee in these cases, Wisconsin Right to Life (WRTL), is a nonprofit
corporation funded to a significant extent by contributions from other corporations. In 2004,
WRTL accepted over $315,000 in corporate donations, and of its six general fund contributions
of $50,000 or more between 2002 and 2005, three, including the largest (for $140,000), came
from corporate donors.
WRTL also runs a PAC, funded by individual donations, which has been active over the
years in making independent campaign expenditures, as in the previous two elections involving
Senator Feingold. During the 1998 campaign, for example, WRTL’s PAC spent $60,000 to
oppose him. In 2004, however, despite a sharp nationwide increase in PAC receipts, WRTL
focused its fundraising on its corporate treasury, not the PAC, and took in only $17,000 in PAC
contributions, as against over $150,000 during 2000.
Throughout the 2004 senatorial campaign, WRTL made no secret of its views about who
should win the election and explicitly tied its position to the filibuster issue. Its PAC issued at
least two press releases saying that its “Top Election Priorities” were to “Re-elect George W.
Bush” and “Send Feingold Packing!” In one of these, the Chair of WRTL’s PAC was quoted as
saying, “We do not want Russ Feingold to continue to have the ability to thwart President Bush’s
judicial nominees.” The Spring 2004 issue of the WRTL PAC’s quarterly magazine ran an article
headlined “Radically Pro-Abortion Feingold Must Go!”, which reported that “Feingold has been
active in his opposition to Bush’s judicial nominees” and said that “the defeat of Feingold must
be uppermost in the minds of Wisconsin’s pro-life community in the 2004 elections.”
It was under these circumstances that WRTL ran the three television and radio ads in
question. The bills for them were not paid by WRTL’s PAC, but out of the general treasury with
its substantial proportion of corporate contributions; in fact, corporations earmarked more than
$50,000 specifically to pay for the ads. Each one criticized an unnamed “group of Senators” for
8
* * * The dissent asserts that there is no reason “why substituting the phrase ‘Contact your Senators’ for the phrase
‘Contact Senators Feingold and Kohl’ would have denied WRTL a constitutionally sufficient . . . alternative.”
Surely that is not so. The purpose of the ad was to put political pressure upon Senator Feingold to change his
position on the filibuster—not only through the constituents who accepted the invitation to contact him, but also
through the very existence of an ad bringing to the public’s attention that he, Senator Feingold, stood athwart the
allowance of a vote on judicial nominees. (Unlike the principal opinion, I think that the fair import of the ad in
context.)
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“using the filibuster delay tactic to block federal judicial nominees from a simple ‘yes’ or ‘no’
vote,” and described the Senators’ actions as “politics at work, causing gridlock and backing up
some of our courts to a state of emergency.” They exhorted viewers and listeners to “[c]ontact
Senators Feingold and Kohl and tell them to oppose the filibuster,” but instead of providing a
phone number or e-mail address, they told the audience to go to BeFair.org, a Web site set up by
WRTL. A visit to this Web site would erase any doubt a listener or viewer might have as to
whether Senators Feingold and Kohl were part of the “group” condemned in the ads: it displayed
a document that criticized the two Senators for voting to filibuster “16 out of 16 times” and
accused them of “putting politics into the court system, creating gridlock, and costing taxpayers
money.”
WRTL’s planned airing of the ads had no apparent relation to any Senate filibuster vote but
was keyed to the timing of the senatorial election. WRTL began broadcasting the ads on July 26,
2004, four days after the Senate recessed for the summer, and although the filibuster controversy
raged on through 2005, WRTL did not resume running the ads after the election. During the
campaign period that the ads did cover, Senator Feingold’s support of the filibusters was a
prominent issue. His position was well known, and his Republican opponents, who vocally
opposed the filibusters, made the issue a major talking point in their campaigns against him.
In sum, any Wisconsin voter who paid attention would have known that Democratic Senator
Feingold supported filibusters against Republican presidential judicial nominees, that the
propriety of the filibusters was a major issue in the senatorial campaign, and that WRTL along
with the Senator’s Republican challengers opposed his reelection because of his position on
filibusters. Any alert voters who heard or saw WRTL’s ads would have understood that WRTL
was telling them that the Senator’s position on the filibusters should be grounds to vote against
him.
Given these facts, it is beyond all reasonable debate that the ads are constitutionally subject
to regulation under McConnell. There, we noted that BCRA was meant to remedy the problem of
“[s]o-called issue ads” being used “to advocate the election or defeat of clearly identified federal
candidates.” We then gave a paradigmatic example of these electioneering ads subject to
regulation, saying that “[l]ittle difference existed . . . between an ad that urged viewers to ‘vote
against Jane Doe’ and one that [condemned Jane Doe’s record on a particular issue] before
exhorting viewers to ‘call Jane Doe and tell her what you think.’ ”
The WRTL ads were indistinguishable from the Jane Doe ad; they “condemned [Senator
Feingold’s] record on a particular issue” and exhorted the public to contact him and “tell [him]
what you think.”16 And just as anyone who heard the Jane Doe ad would understand that the
point was to defeat Doe, [anyone who heard the Feingold ads (let alone anyone who went to the
Web site they named) would know that WRTL’s message was to vote against Feingold.] If it is
now unconstitutional to restrict WRTL’s Feingold ads, then it follows that § 203 can no longer
be applied constitutionally to McConnell’s Jane Doe paradigm.
McConnell’s holding that § 203 is facially constitutional is overruled. By what steps does the
principal opinion reach this unacknowledged result less than four years after McConnell was
decided?
First, it lays down a new test to identify a severely limited class of ads that may
constitutionally be regulated as electioneering communications, a test that is flatly contrary to

16
That the ads purported to target Senator Kohl as well as Senator Feingold is of little import; since the ads would
have run during the peak of the 2004 campaign, the audience’s focus would naturally fall more heavily on Senator
Feingold (who was up for reelection) rather than Senator Kohl (who was not).
 189

McConnell. An ad is the equivalent of express advocacy and subject to regulation, the opinion
says, only if it is “susceptible of no reasonable interpretation other than as an appeal to vote for
or against a specific candidate.” Since the Feingold ads could, in isolation, be read as at least
including calls to communicate views on filibusters to the two Senators, those ads cannot be
treated as the functional equivalent of express advocacy to elect or defeat anyone, and therefore
may not constitutionally be regulated at all.
But the same could have been said of the hypothetical Jane Doe ad. Its spoken message
ended with the instruction to tell Doe what the voter thinks. * * *
The principal opinion, in other words, simply inverts what we said in McConnell. While we
left open the possibility of a “genuine” or “pure” issue ad that might not be open to regulation
under § 203, we meant that an issue ad without campaign advocacy could escape the restriction.
The implication of the adjectives “genuine” and “pure” is unmistakable: if an ad is reasonably
understood as going beyond a discussion of issues (that is, if it can be understood as electoral
advocacy), then by definition it is not “genuine” or “pure.” But the principal opinion inexplicably
wrings the opposite conclusion from those words: if an ad is susceptible to any “reasonable
interpretation other than as an appeal to vote for or against a specific candidate,” then it must be
a “pure” or “genuine” issue ad. This stands McConnell on its head, and on this reasoning it is
possible that even some ads with magic words could not be regulated.
Second, the principal opinion seems to defend this inversion of McConnell as a necessary
alternative to an unadministrable subjective test for the equivalence of express (and regulable)
electioneering advocacy. * * *
If THE CHIEF JUSTICE were correct that McConnell made the constitutional application of § 203
contingent on whether a corporation’s “motives were pure,” or its issue advocacy “subjective[ly]
sincer[e],” then I, too, might be inclined to reconsider McConnell’s language. But McConnell did
not do that. It did not purport to draw constitutional lines based on the subjective motivations of
corporations (or their principals) sponsoring political ads, but merely described our test for
equivalence to express advocacy as resting on the ads’ “electioneering purpose,” which will be
objectively apparent from those ads’ content and context (as these cases and the examples cited
in McConnell readily show).17 We therefore held that § 203 was not substantially overbroad
because “the vast majority of ads clearly had such a purpose,” and consequently could be
regulated consistent with the First Amendment. * * *
* * * Although THE CHIEF JUSTICE ostensibly stops short of categorically foreclosing
consideration of context, the application of his test here makes it difficult to see how relevant
contextual evidence could ever be taken into account the way it was in McConnell, and it is hard
to imagine THE CHIEF JUSTICE would ever find an ad to be “susceptible of no reasonable
interpretation other than as an appeal to vote for or against a specific candidate,” unless it
contained words of express advocacy. THE CHIEF JUSTICE thus effectively reinstates the same
toothless “magic words” criterion of regulable electioneering that led Congress to enact BCRA

17
* * * THE CHIEF JUSTICE implies that considering the intent and effect of corporate advertising during as-applied
challenges to § 203 would [chill speech]. But * * * corporations can find refuge in constitutionally sufficient and
clearly delineated safe harbors by modifying the content of their ads (by omitting a candidate’s name) or by altering
the sources of their ads’ financing (from general treasuries to PACs). THE CHIEF JUSTICE thus wrongly jettisons our
conclusions about the constitutionality of regulating ads with electioneering purpose; we meant what we said in
McConnell, and we did not overlook First Amendment jurisprudence when we said it. Whereas THE CHIEF JUSTICE
says that BCRA “should provide a safe harbor for those who wish to exercise First Amendment rights,” we already
held in McConnell that the campaign finance law accomplishes precisely that. [Relocated. –Eds.]
190

in the first place.

Third, it may be that the principal opinion rejects McConnell on the erroneous assumption
that § 203 flatly bans independent electioneering communications by a corporation. THE CHIEF
JUSTICE argues that corporations must receive “the benefit of any doubt” whenever we undertake
the task of “separating . . . political speech protected under the First Amendment from that which
may be banned.” But this is a fundamental misconception of the task at hand: we have already
held that it is “ ‘simply wrong’ to view [§ 203] as a ‘complete ban’ on expression,” because PAC
financing provides corporations “with a constitutionally sufficient opportunity to engage in
express advocacy.” McConnell, 540 U.S., at 203-204. Thus, a successful as-applied challenger to
§ 203 should necessarily show, at the least, that it could not constitutionally be subjected to the
administrative rules that govern a PAC’s formation and operation. This would be an uphill fight,
after our repeated affirmations that the PAC structure does not impose excessive burdens, ibid.
(citing [FEC v.] National Right to Work Comm., 459 U.S. [197], 201-202 [(1982)] [p. XXX]),
and WRTL has a particularly weak position on this point: it set up its own PAC long before the
2004 election, used it to campaign openly against Senator Feingold in the past, and could have
raised noncorporate donations to it in the 2004 election cycle. * * *
For that matter, even without the PAC alternative, it would be untrue that § 203 “banned”
WRTL from saying anything a genuine issue ad would say, for WRTL could have availed itself
of either or both of the following additional options. It is undisputed that WRTL’s ads could
have been broadcast lawfully in the runup to the election (and bankrolled from WRTL’s general
treasury) if Senator Feingold’s name had been omitted and the Senator not otherwise singled out.
Since members of today’s majority apparently view WRTL’s broadcasts either as “genuine issue
ad[s]” or as “lobby[ing] Wisconsin voters concerning the filibustering of the President’s judicial
nominees,” a claim that omitting Senator Feingold’s name would “ban” WRTL’s message is
specious. Yet one searches my Brothers’ opinions in vain for any persuasive reason [why
substituting the phrase “Contact your Senators” for the phrase “Contact Senators Feingold and
Kohl” would have denied WRTL a constitutionally sufficient (and clearly lawful) alternative]
way to send its message. If WRTL is to be believed when it claims that the issue was the point of
the ads, it would have lost nothing by referring simply to the “Senators.”
Finally, the suggestion that § 203 is a ban on political speech is belied by MCFL’s safe
harbor for nonprofit advocacy corporations: under that rule, WRTL would have been free to
attack Senator Feingold by name at any time with ads funded from its corporate treasury, if it had
not also chosen to serve as a funnel for hundreds of thousands of dollars from other corporations.
Thus, what is called a “ban” on speech is a limit on the financing of electioneering broadcasts by
entities that refuse to take advantage of the PAC structure but insist on acting as conduits from
the campaign war chests of business corporations. * * *
In sum, McConnell does not graft a subjective standard onto campaign regulation, the context
of campaign advertising cannot sensibly be ignored, and § 203 is not a ban on speech. What
cannot be gainsaid, in any event, is that in treating these subjects as it does, the operative opinion
produces the result of overruling McConnell’s holding on § 203, less than four years in the
Reports. * * *
After today, the ban on contributions by corporations and unions and the limitation on their
corrosive spending when they enter the political arena are open to easy circumvention, and the
possibilities for regulating corporate and union campaign money are unclear. The ban on
contributions will mean nothing much, now that companies and unions can save candidates the
expense of advertising directly, simply by running “issue ads” without express advocacy, or by
 191

funneling the money through an independent corporation like WRTL.

But the understanding of the voters and the Congress that this kind of corporate and union
spending seriously jeopardizes the integrity of democratic government will remain. The facts are
too powerful to be ignored, and further efforts at campaign finance reform will come. It is only
the legal landscape that now is altered, and it may be that today’s departure from precedent will
drive further reexamination of the constitutional analysis: of the distinction between
contributions and expenditures, or the relation between spending and speech, which have given
structure to our thinking since Buckley itself was decided.
I cannot tell what the future will force upon us, but I respectfully dissent from this judgment
today.

Notes and Questions

1. Although Chief Justice Roberts’s more narrow opinion controls the case, note that seven
Justices—the four dissenters plus Justices Scalia, Kennedy, and Thomas—argued that WRTL had
the practical effect of overruling McConnell on the electioneering-communications issue. Do you
agree?
2. Barely three years after McConnell, WRTL II not only reached a different result, but
struck a remarkably different tone. McConnell discussed the need for regulation and concluded
that the Court had no illusions but that more regulation would be needed in the future. Chief
Justice Roberts’s controlling opinion in WRTL II conspicuously recited the First Amendment and
concluded, “enough is enough.” In tone, WRTL II evinced a skepticism of government not seen
since the Court’s early decisions in CARC, Bellotti, and Buckley itself, and certainly different
from McConnell:
In both tone and substance, Buckley is an affirmation of free political speech, an expression of skepticism
about legislative trustworthiness in regulating political campaign speech, and a concomitant rejection of all
but the narrowest rationales for its regulation. Its animating premises are that speech about issues and
candidates during election campaigns is of the utmost constitutional value; that limitations on contributions
to and expenditures on such speech are the functional equivalent of regulations of speech itself; that
limitations of both must be subjected to careful scrutiny. * * *
McConnell discarded Buckley’s underlying premises and almost entirely dismantled the limits it
imposed on the power of legislatures to regulate speech during political campaigns. It appeared to regard
the speech regulated by the BCRA as of negligible value, it expressed practically unconditional confidence
in the legislature’s trustworthiness in regulating it, and it embraced an expansive rationale for regulation.

See Lillian R. BeVier, McConnell v. FEC: Not Senator Buckley’s First Amendment, 3 ELECTION
L.J. 127, 128 (2004). Professor Hasen, from the other side of the debate, has expanded on the
point:
The McConnell opinion was full of language about legislative deference, flexibility, political reality, and
the need to give Congress the room to address campaign finance problems step-by-step. It gave a long and
fawning history tracing congressional efforts to limit big money, and especially corporate election
spending, in the federal electoral process. It spoke of the ease of evading campaign finance laws, and the
need for courts to take a functional, not formal, view of what counts as election-related speech. It
minimized First Amendment concerns by noting alternative means for corporate influence over the
electoral process, including PAC requirements, alternative means of communications, or even changing the
content of the electoral message such as by omitting the name of the candidate mentioned in the
advertisement.
The tone of the principal opinion in WRTL II is the polar opposite of McConnell. There is no nod to
legislative deference or recognition of Congress’s need to react to the “hydraulic” effect of money. Rather
than talk of a PAC alternative, the WRTL II principal opinion mentions a free speech “ban” (or variations
192

on the word “ban”) twelve times and a speech “blackout” seventeen times. It refers to corporate election
broadcasting paid for from treasury funds as a “crime” twice. * * *
The WRTL II principal opinion makes no mention of congressional deference (nor does it use the term
“loophole,” a term appearing ten times in the McConnell joint majority opinion), but the term “First
Amendment” appears eighteen times and variations on the word “censor” three times. In contrast, the
discussion of section 203 in McConnell’s joint majority opinion mentioned the First Amendment merely
three times, and never to celebrate the free speech principles behind the Amendment.”

Richard L. Hasen, 92 MINN. L. REV. 1064, 1086-87 (2008). The tone of opinions in campaign-
finance cases also seems, to at least some observers, to be growing sharper and more bitter:

[T]he nub of the controversy lies in this: the majority and the dissents in WRTL II (or in any of the
campaign finance cases that the Court has decided since Austin) occupy no common First Amendment
ground. Though they disagree in good faith, both of their points of view cannot be right, and the differences
that exist between them are at such a fundamental level that they leave scant room for compromise. * * *
Reading the differing opinions in search of an opening wedge for genuine engagement, one finds the
justices talking past one another. They share neither empirical assumptions nor theoretical premises.

Lillian R. BeVier, First Amendment Basics Redux: Buckley v. Valeo to FEC v. Wisconsin Right
to Life, 2006-07 CATO SUP. CT. REV. 77, 105 (2007).
3. The dissent argued explicitly that WRTL II was not faithful to McConnell. The controlling
opinion implied, and Justice Scalia’s opinion argued explicitly, that McConnell was not faithful
to Buckley. Do you agree? What impact should this have on the applicability of stare decisis?

DAVIS v. FEDERAL ELECTION COMMISSION

Supreme Court of the United States
554 U.S. __, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008)

JUSTICE ALITO delivered the opinion of the Court [in which CHIEF JUSTICE ROBERTS, JUSTICE
SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join]. * * *
Federal law limits the amount of money that a candidate for the House of Representatives
and the candidate’s authorized committee may receive from an individual, as well as the amount
that the candidate’s party may devote to coordinated campaign expenditures. 2 U.S.C. § 441a.
Under the usual circumstances, the same restrictions apply to all the competitors for a seat and
their authorized committees. Contributions from individual donors during a 2-year election cycle
are subject to a cap, which is currently set at $2,300. See §§ 441a(a)(1)(A), (c); 72 Fed. Reg.
5295 (2007). In addition, no funds may be accepted from an individual whose aggregate
contributions to candidates and their committees during the election cycle have reached the legal
limit, currently $42,700. See 2 U.S.C. §§ 441a(a)(3)(A), (c); 72 Fed. Reg. 5295. A candidate also
may not accept general election coordinated expenditures by national or state political party
committees that exceed an imposed limit. See 2 U.S.C. §§ 441a(c), (d). Currently, the limit for
candidates in States with more than one House seat is $40,900. 72 Fed. Reg. 5294.2
Section 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C.
§ 441a-1(a), part of the so-called “Millionaire’s Amendment,” fundamentally alters this scheme
when, as a result of a candidate’s expenditure of personal funds, the “opposition personal funds
amount” (OPFA) exceeds $350,000.4 The OPFA, in simple terms, is a statistic that compares the
expenditure of personal funds by competing candidates and also takes into account to some
2
These limits are adjusted for inflation every two years. 2 U.S.C. § 441a(c).
4
BCRA § 304 similarly regulates self-financed Senate bids. 2 U.S.C. § 441a(i).
 193

degree certain other fundraising.5 See § 441a-1(a). When a candidate’s expenditure of personal
funds causes the OPFA to pass the $350,000 mark (for convenience, such candidates will be
referred to as “self-financing”), a new, asymmetrical regulatory scheme comes into play. The
self-financing candidate remains subject to the limitations noted above, but the candidate’s
opponent (the “non-self-financing” candidate) may receive individual contributions at treble the
normal limit (e.g., $6,900 rather than the current $2,300), even from individuals who have
reached the normal aggregate contributions cap, and may accept coordinated party expenditures
without limit. See §§ 441a-1(a)(1)(A)-(C). Once the non-self-financing candidate’s receipts
exceed the OPFA, the prior limits are revived. § 441a-1(a)(3). * * *
Appellant Jack Davis was the Democratic candidate for the House of Representatives from
New York’s 26th Congressional District in 2004 and 2006. In both elections, he lost to the
incumbent. In his brief, Davis discloses having spent $1.2 million, principally his own funds, on
his 2004 campaign. He reports spending $2.3 million in 2006, all but $126,000 of which came
from personal funds. * * * Davis’ 2006 candidacy began in March 2006, when he filed with the
FEC a “Statement of Candidacy” and, in compliance with § 319(b), declared that he intended to
spend $1 million in personal funds during the general election. Two months later, in anticipation
of this expenditure and its § 319 consequences, Davis filed suit against the FEC, requesting that
§ 319 be declared unconstitutional and that the FEC be enjoined from enforcing it during the
2006 election. [The District Court granted summary judgment to the FEC, and Davis appealed
directly to the Supreme Court, as permitted by BCRA.] * * *
Davis contends that § 319(a) unconstitutionally burdens his exercise of his First Amendment
right to make unlimited expenditures of his personal funds because making expenditures that
create the imbalance has the effect of enabling his opponent to raise more money and to use that
money to finance speech that counteracts and thus diminishes the effectiveness of Davis’ own
speech. * * * We have never upheld the constitutionality of a law that imposes different
contribution limits for candidates who are competing against each other, and we agree with
Davis that this scheme impermissibly burdens his First Amendment right to spend his own
money for campaign speech. * * *
* * * While BCRA does not impose a cap on a candidate’s expenditure of personal funds
[like the one held unconstitutional in Buckley v. Valeo, 424 U.S. 1, 54-58 (1976) (per curiam)], it
imposes an unprecedented penalty on any candidate who robustly exercises that First
Amendment right. Section 319(a) requires a candidate to choose between the First Amendment
right to engage in unfettered political speech and subjection to discriminatory fundraising
limitations. Many candidates who can afford to make large personal expenditures to support their
campaigns may choose to do so despite § 319(a), but they must shoulder a special and potentially
significant burden if they make that choice. Under § 319(a), the vigorous exercise of the right to
use personal funds to finance campaign speech produces fundraising advantages for opponents in
the competitive context of electoral politics.
The resulting drag on First Amendment rights is not constitutional simply because it attaches
as a consequence of a statutorily imposed choice. In Buckley, we held that Congress “may
engage in public financing of election campaigns and may condition acceptance of public funds
on an agreement by the candidate to abide by specified expenditure limitations” even though we
found an independent limit on overall campaign expenditures to be unconstitutional. But the

5
The OPFA is calculated as follows. For each candidate, expenditures of personal funds are added to 50% of the
funds raised for the election at issue * * *. The resulting figures are compared, and if the difference is greater than
$350,000, the asymmetrical limits take effect. See §§ 441a-1(a)(1), (2).
194

choice involved in Buckley was quite different from the choice imposed by § 319(a). In Buckley,
a candidate, by forgoing public financing, could retain the unfettered right to make unlimited
personal expenditures. Here, § 319(a) does not provide any way in which a candidate can
exercise that right without abridgment. Instead, a candidate who wishes to exercise that right has
two choices: abide by a limit on personal expenditures or endure the burden that is placed on that
right by the activation of a scheme of discriminatory contribution limits. The choice imposed by
§ 319(a) is not remotely parallel to that in Buckley.
Because § 319(a) imposes a substantial burden on the exercise of the First Amendment right
to use personal funds for campaign speech, that provision cannot stand unless it is “justified by a
compelling state interest.” No such justification is present here.7
The burden imposed by § 319(a) on the expenditure of personal funds is not justified by any
governmental interest in eliminating corruption or the perception of corruption. The Buckley
Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore
§ 319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly,
given Congress’ judgment that liberalized limits for non-self-financing candidates do not unduly
imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-
financing candidates can be regarded as serving anticorruption goals sufficiently to justify the
resulting constitutional burden.
The Government maintains that § 319(a)’s asymmetrical limits are justified because they
“level electoral opportunities for candidates of different personal wealth.” Our prior decisions,
however, provide no support for the proposition that this is a legitimate government objective.
On the contrary, in Buckley, we held that “[t]he interest in equalizing the financial resources of
candidates” did not provide a “justification for restricting” candidates’ overall campaign
expenditures, particularly where equalization “might serve . . . to handicap a candidate who
lacked substantial name recognition or exposure of his views before the start of the campaign.”
424 U.S., at 56-57. We have similarly held that the interest “in equalizing the relative ability of
individuals and groups to influence the outcome of elections” cannot support a cap on
expenditures for “express advocacy of the election or defeat of candidates,” as “the 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.” Id., at 48-49.
The argument that a candidate’s speech may be restricted in order to “level electoral
opportunities” has ominous implications because it would permit Congress to arrogate the
voters’ authority to evaluate the strengths of candidates competing for office. Different
candidates have different strengths. Some are wealthy; others have wealthy supporters who are
willing to make large contributions. Some are celebrities; some have the benefit of a well-known
family name. 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, and it is a dangerous business for Congress to use the election
laws to influence the voters’ choices.
Finally, the Government contends that § 319(a) is justified because it ameliorates the
deleterious effects that result from the tight limits that federal election law places on individual
7
Even if § 319(a) were characterized as a limit on contributions rather than expenditures, it is doubtful whether it
would survive. A contribution limit involving “ ‘significant interference’ with associational rights” must be “closely
drawn” to serve a “sufficiently important interest.” McConnell v. Federal Election Comm’n, 540 U.S. 93, 136
(2003). For the reasons explained infra, the chief interest proffered in support of the asymmetrical contribution
scheme—leveling electoral opportunities—cannot justify the infringement of First Amendment interests.
 195

campaign contributions and coordinated party expenditures. These limits, it is argued, make it
harder for candidates who are not wealthy to raise funds and therefore provide a substantial
advantage for wealthy candidates. Accordingly, § 319(a) can be seen, not as a legislative effort to
interfere with the natural operation of the electoral process, but as a legislative effort to mitigate
the untoward consequences of Congress’ own handiwork and restore “the normal relationship
between a candidate’s financial resources and the level of popular support for his candidacy.”
Whatever the merits of this argument as an original matter, it is fundamentally at war with
the analysis of expenditure and contributions limits that this Court adopted in Buckley and has
applied in subsequent cases. The advantage that wealthy candidates now enjoy and that § 319(a)
seeks to reduce is an advantage that flows directly from Buckley’s disparate treatment of
expenditures and contributions. If that approach is sound—and the Government does not urge us
to hold otherwise8—it is hard to see how undoing the consequences of that decision can be
viewed as a compelling interest. If the normally applicable limits on individual contributions and
coordinated party contributions are seriously distorting the electoral process, if they are feeding a
“public perception that wealthy people can buy seats in Congress,” and if those limits are not
needed in order to combat corruption, then the obvious remedy is to raise or eliminate those
limits. But the unprecedented step of imposing different contribution and coordinated party
expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.
* * *9
* * * The judgment of the District Court is reversed, and the case is remanded for
proceedings consistent with this opinion.
It is so ordered.

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join as to
Part II, * * * dissenting * * *.
* * * [T]he Millionaire’s Amendment represents a modest, sensible, and plainly
constitutional attempt by Congress to minimize the advantages enjoyed by wealthy candidates
vis-á-vis those who must rely on the support of others to fund their pursuit of public office.

I***
In my view, a number of purposes, both legitimate and substantial, may justify the imposition
of reasonable limitations on the expenditures permitted during the course of any single
campaign. For one, such limitations would “free candidates and their staffs from the interminable
burden of fundraising.” Moreover, the imposition of reasonable limitations would likely have the
salutary effect of improving the quality of the exposition of ideas. After all, orderly debate is
always more enlightening than a shouting match that awards points on the basis of decibels
rather than reasons. Quantity limitations are commonplace in any number of other contexts in
which high-value speech occurs. Litigants in this Court pressing issues of the utmost importance
to the Nation are allowed only a fixed time for oral debate and a maximum number of pages for
written argument. As listeners and as readers, judges need time to reflect on the merits of an
8
JUSTICE STEVENS would revisit and reject Buckley’s treatment of expenditure limits. The Government has not urged
us to take that step, and in any event, JUSTICE STEVENS’ proposal is unsound. He suggests that restricting the quantity
of campaign speech would improve the quality of that speech, but it would be dangerous for the Government to
regulate core political speech for the asserted purpose of improving that speech. And in any event, there is no reason
to suppose that restricting the quantity of campaign speech would have the desired effect.
9
Because we conclude that §§ 319(a) * * * violate[s] the First Amendment, we need not address Davis’ claim that
[it] also violate[s] the equal protection component of the Fifth Amendment’s Due Process Clause.
196

issue; repetitious arguments are disfavored and are usually especially unpersuasive. * * * It
seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy
and the same opportunity to reflect as judges; flooding the airwaves with slogans and sound-bites
may well do more to obscure the issues than to enlighten listeners. At least in the context of
elections, the notion that rules limiting the quantity of speech are just as offensive to the First
Amendment as rules limiting the content of speech is plainly incorrect.3
If, as I have come to believe, Congress could attempt to reduce the millionaire candidate’s
advantage by imposing reasonable limits on all candidates’ expenditures, it follows a fortiori that
the eminently reasonable scheme before us today survives constitutional scrutiny.

II
Even accepting the Buckley Court’s holding that expenditure limits as such are uniquely
incompatible with the First Amendment, * * * the Millionaire’s Amendment represents a good-
faith attempt by Congress to regulate, within the bounds of the Constitution, one particularly
pernicious feature of many contemporary political campaigns. * * *
* * * Davis cannot show that the Millionaire’s Amendment causes him—or any other self-
funding candidate—any First Amendment injury whatsoever. The Millionaire’s Amendment
quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-
funding candidate in his attempts to make his voice heard; this amplification in no way mutes the
voice of the millionaire, who remains able to speak as loud and as long as he likes in support of
his campaign. Enhancing the speech of the millionaire’s opponent, far from contravening the
First Amendment, actually advances its core principles. If only one candidate can make himself
heard, the voter’s ability to make an informed choice is impaired. And the self-funding
candidate’s ability to engage meaningfully in the political process is in no way undermined by
this provision.
Even were we to credit Davis’ view that the benefit conferred on the self-funding candidate’s
opponent burdens the self-funder’s First Amendment rights, the purposes of the Amendment
surely justify its effects. The Court is simply wrong when it suggests that the “governmental
interest in eliminating corruption or the perception of corruption” is the sole governmental
interest sufficient to support campaign finance regulations. * * * [Rather], we have long
recognized the strength of an independent governmental interest in reducing both the influence
of wealth on the outcomes of elections, and the appearance that wealth alone dictates those
results. In case after case, we have held that statutes designed to protect against the undue
influence of aggregations of wealth on the political process—where such statutes are responsive
to the identified evil—do not contravene the First Amendment. See, e.g., Austin v. Michigan
Chamber of Commerce, 494 U.S. 652, 660 (1990) [p. XXX]; Federal Election Comm’n v.
Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257 (1986) [p. XXX]; cf. Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) [p. XXX].
Although the focus of our cases has been on aggregations of corporate rather than individual
wealth, 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. * * * Minimizing the effect of concentrated wealth on our political process,
3
The Court is of course correct that “it would be dangerous for the Government to regulate core political speech for
the asserted purpose of improving that speech.” But campaign expenditures are not themselves “core political
speech”; they merely may enable such speech (as well as its repetition ad nauseam). In my judgment, it is simply
not the case that the First Amendment “provides the same measure of protection” to the use of money to enable
speech as it does to speech itself.
 197

and the concomitant interest in addressing the dangers that attend the perception that political
power can be purchased, are, therefore, sufficiently weighty objectives to justify significant
congressional action. * * *
Davis’ equal protection argument, which the Court finds unnecessary to address, fares no
better. He claims that by permitting only the self-funder’s opponent to avail himself of the
increased contribution limits, the statute creates an unwarranted disparity between the self-funder
and his opponent. But * * * [i]t blinks reality to contend that the millionaire candidate is situated
identically to a nonmillionaire opponent, and Congress was under no obligation to indulge any
such fiction. Accordingly, Davis has failed to establish that he was deprived of the equal
protection guarantees of the Fifth Amendment. * * *

JUSTICE GINSBURG, with whom JUSTICE BREYER joins, * * * dissenting[.] * * *

* * * Appellee Federal Election Commission has not asked us to overrule Buckley;
consequently, the issue has not been briefed. Convinced that the challenged statute encounters no
constitutional shoal under our precedents, I would leave reconsideration of Buckley for a later
day and case.

Notes and Questions

1. Did the Millionaire’s Amendment advance speech or inhibit it?
2. Does the decision to allow a candidate to accept larger contributions at the moment when
he is being outspent and most in need of campaign funds undercut the anti-corruption rationale
for the $2300 contribution limit that usually applies? Is there any reason to believe that Mr.
Davis would have been any more corrupted by a $6900 contribution than his opponent would
have been? Is there any reason to believe that the corrupting influence of a contribution to Mr.
Davis’s opponent depends on Mr. Davis’s spending?
3. If the Millionaire’s Amendment had been upheld, could Congress have extended it to
other candidates in danger of being outspent? To candidates facing large independent
expenditures against them?
4. As Davis noted, and as we will see shortly (infra at p. XXX), Buckley upheld FECA’s
provisions establishing public-financing for presidential campaigns. Under that portion of FECA,
presidential candidates are offered a certain amount of campaign money, but they may not
receive the funds unless they agree to abide by expenditure limits. Thus, the Court permitted the
government to put candidates to a choice: Exercise your First Amendment right to spend money
on your campaign and waive the money, or take the money and forego your right to speak. Is
there a constitutional distinction between that choice, which the Court upheld, and the one posed
by the Millionaire’s Amendment, which the Court struck down? How did the Davis Court
distinguish Buckley?
5. Justice Stevens argued that limits on “the quantity of speech” are constitutional “[a]t least
in the context of elections.” In what other contexts might such limitations be unconstitutional? Is
there reason to accord election speech disfavored treatment?
6. Was Justice Stevens correct that the constitutionality of the Millionaire’s Amendment
follows a fortiori from his belief that expenditure limits are constitutional?

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

Supreme Court of the United States
558 U.S. __, 130 S. Ct. __, 175 L. Ed. 2d 753 (2010)
198

JUSTICE KENNEDY delivered the opinion of the Court [in which CHIEF JUSTICE ROBERTS, JUSTICE
SCALIA, JUSTICE THOMAS and JUSTICE ALITO join as to the portion excerpted here].
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) [p. XXX]. The holding of McConnell rested to a large extent on an
earlier case, Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) [p. XXX]. 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. * * *

I
Citizens United is a nonprofit corporation. It * * * 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.” 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. Citizens United desired to promote the
video-on-demand offering by running advertisements on broadcast and cable television.
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; 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) [p. XXX]. BCRA § 203
amended § 441b to prohibit any “electioneering communication” as well. 2 U.S.C. § 441b(b)(2).
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). * * * Corporations
and unions * * * may establish, however, a “separate segregated fund” (known as a political
action committee, or PAC) for [express advocacy or electioneering communications]. 2 U.S.C.
§ 441b(b)(2). The moneys received by the segregated fund are limited to donations from
 199

stockholders and employees of the corporation or, in the case of unions, members of the union.
Ibid.
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. * * *

II * * *
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). * * * 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. Thus, Hillary could have been received by 50,000 persons or more. * * *
Citizens United next argues that § 441b may not be applied to Hillary under the approach
taken in [Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 490 (2007)
(WRTL)] [p. XXX]. 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.” [551 U.S.], 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.
* * * 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.
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. 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.
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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. * * *
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. * * * Citizens United does not qualify for the
MCFL exemption, however, since some funds used to make the movie were donations from for-
profit corporations. * * *
* * * If the Court decided to create a de minimis exception to MCFL * * *, 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.
* * * In addition to those difficulties the Government’s suggestion is troubling for still
another reason. * * * Applying [a de minimis] standard would * * * require case-by-case
determinations. But archetypical political speech would be chilled in the meantime. * * * 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.
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. 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. * * *

III * * *
* * * 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.
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Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a
corporation can still speak. 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.
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.”
[McConnell,] 540 U.S., at 331-332 [(opinion of KENNEDY, J.)] (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. 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). * * * 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. 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. * * *
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.” * * * Premised on mistrust of governmental power,
the First Amendment stands against attempts to disfavor certain subjects or viewpoints.
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) [p.
XXX]. 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
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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
[such as schools, prisons, the military, and the civil service] to perform their functions. 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.
The Court has recognized that First Amendment protection extends to corporations. Bellotti,
supra, at 778, n.14 * * *.
This protection has been extended by explicit holdings to the context of political speech. See,
e.g., [NAACP v.] Button, 371 U.S. [415], 428-429 [(1963)]; 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.
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 (codified at 2 U.S.C. § 251). In passing this Act Congress
overrode the veto of President Truman, who warned that the expenditure ban was a “dangerous
intrusion on free speech.”
For almost three decades thereafter, the Court did not reach the question whether restrictions
on corporate and union expenditures are constitutional. * * *
In Buckley, 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), an
independent expenditure ban * * * that applied to individuals as well as corporations and labor
unions. * * *
The Buckley Court explained that the potential for quid pro quo corruption distinguished
direct contributions to candidates from independent expenditures. The Court emphasized that
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“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.
Buckley did not consider § 610’s separate ban on corporate and union independent
expenditures * * *. Had § 610 been challenged in the wake of Buckley, however, it could not
have been squared with the reasoning and analysis of that precedent. The expenditure ban
invalidated in Buckley, § 608(e), applied to corporations and unions; and some of the prevailing
plaintiffs in Buckley were corporations, id., at 8. * * *
Notwithstanding this precedent, Congress recodified § 610’s corporate and union expenditure
ban at 2 U.S.C. § 441b four months after Buckley was decided. Section 441b is the independent
expenditure restriction challenged here.
Less than two years after Buckley, Bellotti 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. * * *
“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.
Thus the law stood until Austin. * * * 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.
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. * * *
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
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reliance upon it. It argues instead that two other compelling interests support Austin’s holding
that corporate expenditure restrictions are constitutional: an anticorruption interest and a
shareholder-protection interest. We consider the three points in turn.
As for Austin’s antidistortion rationale, the Government does little to defend it. 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. 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.” This troubling
assertion of brooding governmental power cannot be reconciled with the confidence and stability
in civic discourse that the First Amendment must secure.
* * * 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. 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. * * * 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. 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. 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
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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.” [494 U.S.], at 691 (SCALIA, J., dissenting). 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. 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. 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. 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. 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. It
permits the Government to ban the political speech of millions of associations of citizens. Most
of these are small corporations without large amounts of wealth. See Congressional Research
Service Report for Congress, Business Organizational Choices 10 (2009) (more than 75% of
corporations whose income is taxed under federal law 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
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257-258 (opinion of SCALIA, J.). And “the electorate [has been] deprived of information,
knowledge and opinion vital to its function.” 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. * * *
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. 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.
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. * * *
* * * 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.
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. * * *
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.
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
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electorate that is not coordinated with a candidate. 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. * * *
The McConnell record was “over 100,000 pages” long, yet it “does not have any direct
examples of votes being exchanged for . . . expenditures.” 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.
Ingratiation and access, in any event, are not corruption. * * * 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.
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. * * * 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.
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.
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.” We have
also examined whether “experience has pointed up the precedent’s shortcomings.”
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These considerations counsel in favor of rejecting Austin, which itself contravened this
Court’s earlier precedents in Buckley and Bellotti. * * *
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. 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 [United States v.]
Automobile Workers [352 U.S. 567, 570-584 (1957)] Court’s flawed historical account of
campaign finance laws, see Brief for Campaign Finance Scholars as Amici Curiae; Hayward,
[Revisiting the Fable of Reform,] 45 Harv. J. Legis. 421 [(2008)].
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. Our Nation’s speech
dynamic is changing, and informative voices should not have to circumvent onerous restrictions
to exercise their First Amendment rights. * * * 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. Today, 30-second television ads may be the most effective way to convey a
political message. 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. 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. [R]eliance 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, [5 U.S.] 1 Cranch 137, 177 (1803).
Due consideration leads to this conclusion: Austin 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. * * *
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
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now overruled. * * *
[Part IV, upholding BCRA’s disclosure requirements for electioneering communications, is
reprinted in § H of this Chapter, infra.]

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. 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. * * *
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.

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. * * *
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. * * *
This approach is based on a false premise: that our practice of avoiding unnecessary (and
210

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,” sometimes it is necessary to
decide more. There is a difference between judicial restraint and judicial abdication. * * *
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) [p. XXX]; McConnell; and WRTL. Not so. Not a single party in any of those cases asked
us to overrule Austin, and as the dissent points out, 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. * * *
* * * 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. * * * 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.” 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.” 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.
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. 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, [435 U.S.], at 790-791; Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley, 454 U.S. 290, 295 (1981) [p. XXX]. 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.
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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. 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”—has
proved to be the consistent subject of dispute among Members of this Court ever since. 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.
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) [p. XXX] (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.” 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. 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.
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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. 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. 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. * * *
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 unprecedented. 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, I support the Court’s determination to
overrule that decision. * * *

JUSTICE SCALIA, with whom [JUSTICE THOMAS and] JUSTICE ALITO joi[n] * * *, concurring. * * *
I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings.” This
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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. * * *
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.” 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”).
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. There were
approximately 335 charters issued to business corporations in the United States by the end of the
18th century. * * * 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.
***
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. 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.4 There were also small unincorporated
business associations, which some have argued were the “true progenitors” of today’s business
corporations. 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
4
At times (though not always) the dissent seems to exclude such non-“business corporations” from its denial of free
speech rights. 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.
214

under the King’s charter, 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. The New York Sons of Liberty sent a circular to
colonies farther south in 1766. And the Society for the Relief and Instruction of Poor Germans
circulated a biweekly paper from 1755 to 1757. 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.
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. 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. 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.6 * * *
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.” 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.”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
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”). 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.”
As the Court’s opinion describes, our jurisprudence agrees with Noah Webster and contradicts the dissent. * * *
7
The dissent says that “speech” refers to oral communications of human beings, and since corporations are not
human beings they cannot speak. 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. * * *
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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.” 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.

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.” 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. * * *
* * * 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. * * * No such justification exists in this case, and to the contrary
there are powerful prudential reasons to keep faith with our precedents.
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. 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, * * * and restating a merits
argument with additional vigor does not give it extra weight in the stare decisis calculus.
* * * The Court proclaims that “Austin is undermined by experience since its
announcement.” * * * 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.” * * *18
18
THE CHIEF JUSTICE suggests that Austin has been undermined by subsequent dissenting opinions. 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.
Once again, the theory seems to be that the more we utilize a precedent, the more we call it into question. For those
216

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.” 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. * * *
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.’ ” 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. 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. 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.
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. * * * And the Court
gives no reason to think that Austin and McConnell are unworkable. * * *
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. * * *

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.
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The So-Called “Ban”

Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate
speech. * * * This characterization is highly misleading, and needs to be corrected.
* * * For starters, [the] statutes [upheld in Austin and McConnell] provide exemptions for
PACs, separate segregated funds established by a corporation for political purposes. * * * A
significant and growing number of corporations avail themselves of this option; during the most
recent election cycle, corporate and union PACs raised nearly a billion dollars. Administering a
PAC entails some administrative burden, but so does complying with the disclaimer, disclosure,
and reporting requirements that the Court today upholds [see infra pp. XXX-XXX], and no one
has suggested that the burden is severe for a sophisticated for-profit corporation. * * * 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.
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—or
to Internet, telephone, and print advocacy.31 Like numerous statutes, it exempts media
companies’ news stories, commentaries, and editorials from its electioneering restrictions, in
recognition of the unique role played by the institutional press in sustaining public debate. 32 See
2 U.S.C. § 434(f)(3)(B)(i). 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). * * *
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.”
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

31
Roaming far afield from the case at hand, the majority worries that the Government will use § 203 to ban books,
pamphlets, and blogs. Yet by its plain terms, § 203 does not apply to printed material. And in light of the ordinary
understanding of the terms “broadcast, cable, [and] satellite,” coupled with Congress’ clear aim of targeting “a
virtual torrent of televised election-related ads,” 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. If it should, the Government acknowledges “there would be quite [a] good as-applied challenge.”
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. Everyone knows and
expects that media outlets may seek to influence elections in this way.
218

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.” * * *
* * * The Government routinely places special restrictions on the speech rights of students,
prisoners, members of the Armed Forces, foreigners, and its own employees. When such
restrictions are justified by a legitimate governmental interest, they do not necessarily raise
constitutional problems.46 In contrast to the blanket rule that the majority espouses, our cases
recognize that the Government’s interests may be more or less compelling with respect to
different classes of speakers, 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.
* * * It is fair to say that our First Amendment doctrine has “frowned on” certain identity-
based distinctions, 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) [p. XXX].
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) [p. XXX]. 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. 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) [p. XXX], 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.”
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
46
The majority states that [these limitations on speech] 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.” 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.
 219

corporate structure require particularly careful regulation” in an electoral context. [Federal

Election Comm’n v. National Right to Work Comm.], 459 U.S. [197], 209-210 [(1982)]
[(NRWC)]. 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. 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).51 Under the majority’s
view, I suppose it may be a First Amendment problem that corporations are not permitted to
vote, given that voting is, among other things, a form of speech.52
In short, the Court dramatically overstates its critique of identity-based distinctions, without
ever explaining why corporate identity demands the same treatment as individual identity. Only
the most wooden approach to the First Amendment could justify the unprecedented line it seeks
to draw.

Our First Amendment Tradition

A third fulcrum of the Court’s opinion is the idea that Austin and McConnell are radical
outliers, “aberration[s]” in our First Amendment tradition. 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” and
original understandings 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

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.” * * * 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.” * * *
52
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.
220

would appear to cut strongly against the majority’s position.

This is not only because the Framers and their contemporaries conceived of speech more
narrowly than we now think of it, see Bork, Neutral Principles and Some First Amendment
Problems, 47 Ind. L.J. 1, 22 (1971), but also because they held very different views about the
nature of the First Amendment right and the role of corporations in society. Those few
corporations that existed at the founding were authorized by grant of a special legislative
charter.53 * * * Corporations were created, supervised, and conceptualized as quasi-public
entities, “designed to serve a social function for the state.” 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.” * * * General incorporation statutes,
and widespread acceptance of business corporations as socially useful actors, did not emerge
until the 1800’s.
The Framers thus took it as a given that corporations could be comprehensively regulated in
the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing
corporations from human beings, and when they constitutionalized the right to free speech in the
First Amendment, it was the free speech of individual Americans that they had in mind.55 * * *
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. 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.” 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.” 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” or its “purpose” 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
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. * * * [Moreover, m]ore than half of the century’s total
business charters were issued between 1796 and 1800[, after ratification of the First Amendment].
55
In normal usage then, as now, the term “speech” referred to oral communications by individuals. * * * 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.
 221

founding era showing that corporations were understood to be excluded from the First
Amendment’s free speech guarantee. 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, 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.” 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), 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.
JUSTICE SCALIA also emphasizes the unqualified nature of the First Amendment text. 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?57 * * * 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. 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. * * *
In fairness, our campaign finance jurisprudence has never attended very closely to the views
of the Framers, 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.j But “historical context is usually
relevant,” 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, banning all corporate contributions to candidates. * * *
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
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, 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.
j
According to the concession theory, corporations are created by, and delegated power from, the state to effectuate
public purposes, even when that purpose is the carrying on of business. [-Eds.]
222

practices that threatened to displace the commonweal. * * * 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. * * *
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, no one even bothered to argue that the bar as such was
unconstitutional. Buckley famously (or infamously) distinguished direct contributions from
independent expenditures, but its silence on corporations only reinforced the understanding that
corporate expenditures could be treated differently from individual expenditures. * * *
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. * * *
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, we * * * held by a 5-to-4 vote * * * 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’ ” did not apply to corporations that were structurally
insulated from those concerns. * * *
Four years later, in Austin, 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. * * * In light of the
corrupting effects such spending might have on the political process, 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. * * *
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, where we upheld the
provision challenged here, § 203 of BCRA.62 * * *
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. “Moreover, recent cases have recognized that certain restrictions on corporate electoral
62
According to THE CHIEF JUSTICE, we are “erroneou[s]” in claiming that McConnell and Beaumont “reaffirmed”
Austin. In both cases, the Court explicitly relied on Austin and quoted from it at length. The McConnell Court did so
in the teeth of vigorous protests by Justices in today’s majority that Austin should be overruled. Both Courts also
heard criticisms of Austin from parties or amici. If this does not qualify as reaffirmation of a precedent, then I do not
know what would.
 223

involvement permissibly hedge against ‘circumvention of [valid] contribution limits.’ ” Ibid.

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. 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

* * * 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.” 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. 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, 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,” but rather the need to confront the
distinctive corrupting potential of corporate electoral advocacy financed by general treasury
dollars.
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[.] * * *
The case on which the majority places even greater weight than Buckley, however, is Bellotti,
claiming it “could not have been clearer” that Bellotti’s holding forbade distinctions between
corporate and individual expenditures like the one at issue here. 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.
224

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. Yet the basis
for this distinction is perfectly coherent: The anticorruption interests that animate regulations of
corporate participation in candidate elections * * * 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. * * * 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,’ ” 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. 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.
Bellotti thus involved a viewpoint-discriminatory statute, created to effect a particular policy
outcome. * * * To make matters worse, the law at issue did not make any allowance for
corporations to spend money through PACs. This really was a complete ban on a specific,
preidentified subject.
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. 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. 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. * * *
Austin and McConnell, then, sit perfectly well with Bellotti. * * * 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. * * *
 225

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,” I come
at last to the interests that are at stake. * * *

The Anticorruption Interest * * *

* * * 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.
* * * As summarized [by one District Judge in the McConnell litigation]:
“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. * * * 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.”

* * * [This] 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. * * *
The majority appears to think it decisive that the BCRA record does not contain “direct
examples of votes being exchanged for . . . expenditures.” 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, 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. * * *
226

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.

1. Antidistortion
The fact that corporations are different from human beings might seem to need no
elaboration, except that the majority opinion almost completely elides it. Austin set forth some of
the basic differences. Unlike natural persons, corporations have “limited liability” for their
owners and managers, “perpetual life,” separation of ownership and control, “and favorable
treatment of the accumulation and distribution of assets . . . that enhance their ability to attract
capital and to deploy their resources in ways that maximize the return on their shareholders’
investments.” 494 U.S., at 658-659. Unlike voters in U.S. elections, corporations may be foreign
controlled.70 Unlike other interest groups, business corporations have been “effectively delegated
responsibility for ensuring society’s economic welfare”; 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).
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.” * * * 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. * * *
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

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.
 227

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. * * *
[S]ome 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. 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. * * *
* * * 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 * * *. 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. * * * 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 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. * * * Corporations, [by
contrast], 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. * * *
* * * 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.” 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.
* * * Austin’s “concern about corporate domination of the political process” 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, 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
228

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, it becomes necessary to consider how listeners will actually be affected.
* * * 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. * * *

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. * * *
The Court dismisses this interest on the ground that abuses of shareholder money can be
corrected “through the procedures of corporate democracy,” and, it seems, through Internet-
based disclosures.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.k 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, 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. 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
76
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.
k
The business-judgment rule insulates corporate directors from suit by presuming that corporate transactions have
been undertaken with due care, in good faith, and in the belief that they are in the corporation’s best interest. [-Eds.]
 229

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.” 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. * * *

V***
* * * At bottom, the Court’s opinion is * * * a rejection of the common sense of the
American people, who have recognized a need to prevent corporations from undermining self-
government since the founding, and who have fought against the distinctive corrupting potential
of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate
that common sense. While American democracy is imperfect, few outside the majority of this
Court would have thought its flaws included a dearth of corporate money in politics.
I would affirm the judgment of the District Court.

Notes and Questions

1. After Citizens United, is it constitutional for Congress to ban foreign-owned U.S.
corporations from making independent expenditures? (Note that another section of FECA
already prohibits foreign corporations from making contributions or expenditures, see 2 U.S.C.
§ 441e, 11 C.F.R. § 110.20). May a state impose a similar ban on independent expenditures by
corporations chartered in different states, or those corporations having a majority of shares
owned by out-of-state residents?
May Congress or the states prohibit foreign nationals (i.e., natural persons), for example,
exchange students legally residing in the United States or permanent resident aliens, from
making independent expenditures to influence U.S. elections? Is it constitutional to prohibit
foreign nationals living abroad from taking out political advertisements in American
newspapers? See 2 U.S.C. § 441e (banning contributions and expenditures by foreign nationals,
but exempting permanent-resident aliens from the definition of “foreign national”). Cf. United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (holding that the Fourth Amendment does not
apply to a search and seizure of property owned by a nonresident alien and located in a foreign
country).
2. May Congress ban only large corporations from making independent expenditures? That
is, if Congress made an exception for “mom-and-pop” corporations, would the rest of the ban be
constitutional?
3. Problem. After Citizens United, is anything left of the express advocacy/issue advocacy
distinction? Consider the following scenarios:
a) Pat is the founder, CEO, and largest shareholder of Acme, a publicly traded
corporation. Pat very much wishes to defeat Senator Block, who as Chairman of the Senate
Commerce Committee has stood in the way of legislation Pat believes is vital to her
company’s future. Pat wants Acme to make expenditures critical of Senator Block’s record,
but would prefer not to be subject to the reporting and disclaimer requirements of BCRA and
FECA. What would you advise her to do?
b) Ron is the head of Citizens for a Jogging Path in Our Town, a non-profit organization
230

that promotes the construction of jogging paths in your town. The unincorporated group,
which accepts no corporate donations, wants to help reelect Representative Green, who
supports a federal earmark for a proposed new jogging path, in her race against a well funded
challenger, Mr. Walker, who has vowed to oppose all federal earmarks. Ron estimates that an
effective independent-expenditure plan will cost approximately $150,000. Ron estimates that
he can raise approximately $75,000 in contributions under $5000 for the effort. Fortunately,
Mr. Rich, owner of Joggers’ World Shoes, has pledged $75,000 of his personal funds to the
effort. How would you advise Ron to proceed? Consider the definition of a “political
committee” at 2 U.S.C. § 431(4), and the restrictions of 2 U.S.C. § 441a. See SpeechNow.org
v. Federal Election Commission, 2009 U.S. Dist. LEXIS 89011 (D.D.C. 2009).
4. Does a ban on corporate electioneering actually benefit corporations, in that it protects
them from being pressured to support candidates? Compare our discussion of restrictions on the
political activities of government employees in Chapter 8, § G.
5. How significant should the Framing generation’s understanding of speech or corporations
be in assessing the First Amendment’s applicability to modern society? Has the world changed
too much for us to be able to assess the original understanding, even if we would deem such an
understanding to be valuable? If you do think original understanding is important, do you think
Justice Stevens or Justice Scalia had the better of the argument? Re-read Justice Stevens’s
majority opinion and Justice Scalia’s dissent in McIntyre v. Ohio Elections Commission, 514
U.S. 334 (1995) [p. XXX], and compare them to the Justices’ respective opinions in Citizens
United. Is either Justice being consistent in his originalist methodology?
6. One argument for preserving a ban on corporate spending is the protection of minority
shareholders, who may not want their funds spent to support candidates with whom they
disagree. While this issue was discussed in the opinions in Bellotti, MCFL, Austin, and WRTL II,
it received an unusual amount of attention in the immediate aftermath of Citizens United. One
view holds that unhappy shareholders can simply sell their stock. Others argue that this is not
always a viable alternative. Consider, for example, that selling stock at a particular time may
result in a major tax liability or a loss on the sale; or consider a public employee whose
retirement contributions are invested in the state retirement system, which then invests in a
company making political expenditures in support of candidates he opposes. Should such
individuals be protected from such corporate expenditures? Consider that corporations frequently
make charitable contributions or business decisions with which some stockholders disagree (for
example, skimping on pollution-control equipment to increase profits; or temporarily decreasing
profits by spending more on safety). Would a law prohibiting such actions interfere with the
rights of majority shareholders, either by muzzling their speech or creating management
inefficiencies that would detract from shareholder value?
One leading corporate scholar has argued that consideration of minority shareholders should
not affect the First Amendment rights of corporations:
[T]he shareholder-protection rationale for the current scheme of restrictions on corporate political
activity depends on a showing that (1) shareholders incur agency costs from permitting corporate political
activity * * * (2) that these costs outweigh benefits of permitting the managers to engage in corporate
speech through the corporation * * *; and (3) that the costs of leaving such protection to shareholder choice
outweigh the benefits of doing so. Such a showing would be extraordinarily difficult to make.

Larry E. Ribstein, Corporate Political Speech, 49 WASH. & LEE L. REV . 109 (1992). For other
commentary see Robert H. Sitkoff, Corporate Political Speech, Political Extortion, and the
Competition for Corporate Charters, 69 U. CHI. L. REV. 1103 (2002) (arguing that the theory of
 231

shareholder protection “assumes that shareholders are locked into their investment, and further
that in the absence of regulation all corporations will engage in political speech. But these
assumptions depend on a paucity of investment opportunities and/or opaque securities markets.
These assumptions are dubious.”). For an opposing view that argues exactly those assumptions,
see Victor Brudney, Business Corporations and Stockholders’ Rights under the First
Amendment, 91 YALE L.J. 235, 235-37 (1981). See also Adam Winkler, Corporate Personhood
and the Rights of Corporate Speech, 30 SEA. U. L. REV. 863 (2007).

F. PUBLIC FINANCING OF CAMPAIGNS

BUCKLEY v. VALEO
Supreme Court of the United States
424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)

PER CURIAM. [MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE WHITE, MR. JUSTICE
MARSHALL, MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join in this
portion of the opinion. MR. JUSTICE STEVENS took no part in the consideration or decision of these
cases.] * * *
* * * In the free society ordained by our Constitution it is not the government but the people
—individually as citizens and candidates and collectively as associations and political
committees—who must retain control over the quantity and range of debate on public issues in a
political campaign.65 * * *

III. PUBLIC FINANCING OF PRESIDENTIAL ELECTION CAMPAIGNS * * *

[Title 26 U.S.C. §] 9006 establishes a Presidential Election Campaign Fund (Fund), financed
from general revenues in the aggregate amount designated by individual taxpayers * * * who on
their income tax returns may authorize payment to the Fund of one dollar of their tax liability in
the case of an individual return or two dollars in the case of a joint return.l The Fund consists of
three separate accounts to finance (1) party nominating conventions, (2) general election
campaigns, and (3) primary campaigns. * * *
For expenses in the general election campaign, § 9004(a)(1) entitles each major-party
[Presidential] candidate to $20,000,000. This amount is * * * adjusted for inflation. To be
eligible for funds the candidate must pledge not to incur expenses in excess of the entitlement
under § 9004(a)(1) and not to accept private contributions except to the extent that the fund is
insufficient to provide the full entitlement. * * *
[T]he Presidential Primary Matching Payment Account * * * is intended to aid campaigns by
candidates seeking Presidential nomination “by a political party” in “primary elections.” * * *
[T]he candidate must agree to abide by the spending limits. Funding is provided according to a
matching formula: each qualified candidate is entitled to a sum equal to the total private
contributions received, disregarding contributions from any person to the extent that total
contributions to the candidate by that person exceed $250. Payments to any candidate * * * may

65
For the reasons discussed in Part III, infra, Congress may engage in public financing of election campaigns and
may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure
limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may
decide to forgo private fundraising and accept public funding.
l
Now $3 and $6, respectively. [–Eds.]
232

not exceed 50% of the overall expenditure ceiling accepted by the candidate.
Appellants * * * argue that “by analogy” to the Religion Clauses of the First Amendment
public financing of election campaigns, however meritorious, violates the First Amendment.
* * * [T]he analogy is patently inapplicable to our issue here. Although “Congress shall make no
law . . . abridging the freedom of speech, or of the press,” [the public-financing provision] is a
congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to
facilitate and enlarge public discussion and participation in the electoral process, goals vital to a
self-governing people. Thus, [the law] furthers, not abridges, pertinent First Amendment values.
***
It cannot be gainsaid that public financing as a means of eliminating the improper influence
of large private contributions furthers a significant governmental interest. In addition, the limits
on contributions necessarily increase the burden of fund-raising, and Congress properly regarded
public financing as an appropriate means of relieving major-party Presidential candidates from
the rigors of soliciting private contributions. * * *

MR. CHIEF JUSTICE BURGER, * * * dissenting in [relevant] part. * * *

Since the turn of this century when the idea of Government subsidies for political campaigns
first was broached, there has been no lack of realization that the use of funds from the public
treasury to subsidize political activity of private individuals would produce substantial and
profound questions about the nature of our democratic society. * * *
* * * The public monies at issue here are not being employed simply to police the integrity of
the electoral process or to provide a forum for the use of all participants in the political dialogue,
as would, for example, be the case if free broadcast time were granted. Rather, we are confronted
with the Government’s actual financing, out of general revenues, a segment of the political
debate itself. * * *
* * * [I]n my view, the inappropriateness of subsidizing, from general revenues, the actual
political dialogue of the people—the process which begets the Government itself—is as basic to
our national tradition as the separation of church and state also deriving from the First
Amendment, or the separation of civilian and military authority, neither of which is explicit in
the Constitution but both of which have developed through case-by-case adjudication of express
provisions of the Constitution. * * *

Notes and Questions

1. This portion of Buckley made clear that candidate participation in a public-funding
system must be voluntary and not compelled. Contrary to the promise of footnote 65, however,
Part III of the Buckley opinion never addressed why Congress could condition the receipt of
public funds on a candidate’s acceptance of expenditure limitations. Assuming that government
can provide incentives to a candidate to participate in a voluntary system of public funding, at
what point do those incentives become coercive in nature? For example, could a state set a
maximum contribution of just $50, but offer the opportunity to participate in a generous public
funding system as an alternative?
2. Recall that one of the rationales for prohibitions on corporate electioneering is the
protection of dissenting shareholders. The Presidential Election Campaign Fund avoided the
problem of forcing taxpayers to fund campaigns against their wishes by using funds designated
for that purpose by taxpayers. Should states be permitted to adopt public-financing schemes that
use general tax revenues?
 233

3. The Supreme Court has been relatively silent concerning public financing since Buckley.
Its recent decision in Davis v. Federal Election Commission, 554 U.S. __, 128 S. Ct. 2759 (2008)
[p. XXX], however, may have a significant impact on the constitutionality of public-financing
schemes, even though Davis itself involved only limits on private contributions. Davis, you will
recall, struck down the federal “Millionaire’s Amendment,” under which candidates facing a
self-financed opponent would be subject to much more lenient contribution limits to offset the
money spent by the opponent on his or her own campaign. Davis reasoned that the Millionaire’s
Amendment discouraged the opponent’s speech because the effect of such self-financed speech
would be to provide a benefit to the other candidate.
The following two cases provide differing approaches to public-funding systems. In the first,
decided shortly before the Supreme Court’s decision in Davis, the Fourth Circuit upheld North
Carolina’s public-funding law. In the second, an obviously reluctant District Court relied on
Davis to strike down Arizona’s government-financing law.

NORTH CAROLINA RIGHT TO LIFE v. LEAKE

United States Court of Appeals for the Fourth Circuit
524 F.3d 427 (4th Cir.), cert. denied 129 S. Ct. 490, 172 L. Ed. 2d 357 (2008)

MICHAEL, Circuit Judge [with whom TRAXLER, Circuit Judge, and JONES, Chief District Judge
(sitting by designation), join]: * * *
North Carolina’s Judicial Campaign Reform Act creates a system of optional public funding
for candidates seeking election to the state’s supreme court and court of appeals. * * * [T]he Act
creates the North Carolina Public Campaign Fund (the Fund), which distributes public funds to
eligible candidates who choose to participate in the system (participating candidates). In
exchange for the public funds, participating candidates must agree to abide by restrictions on the
amount of contributions they accept and the amount of campaign expenditures they make. Those
candidates who decline participation (nonparticipating candidates) do not receive public funding
and are not bound by the additional restrictions accepted by participating candidates. * * *
As a threshold matter any candidate seeking to participate in the public funding system must
meet two statutory conditions. First, the candidate must satisfy the Act’s eligibility requirements,
which are designed to measure whether the candidate has a base of support in the electorate.
Specifically, a candidate must collect “qualifying contributions” from at least 350 registered
voters, and those contributions must total at least thirty but no more than sixty times the filing fee
for the office. In 2006 a supreme court candidate needed to raise between $37,140 and $74,280.
Second, each participating candidate must agree to certain restrictions on campaign
fundraising and expenditures, including a limitation of spending to the total of the amounts
disbursed from the Fund plus the amounts raised as qualifying contributions.
After satisfying these two conditions, a participating candidate becomes certified to receive
public funds. A certified candidate receives an automatic (base) disbursement of public funds if
the candidate is opposed in the general election. In 2006 the base amount of funding for a
contested state supreme court campaign was $216,650, which equaled 175 times the filing fee for
that office. A certified candidate does not receive an automatic disbursement of funds for a
primary election, but the candidate may spend in a primary the amounts raised to satisfy the
statute’s eligibility requirements.
Participating candidates are also eligible to receive “matching funds” in specified
circumstances. [N.C. Gen. Stat.] § 163-278.67. Eligibility for these funds is triggered when a
participating candidate is opposed by a nonparticipating candidate whose “funds in opposition”
234

total more than the trigger amounts specified in the statute. “Funds in opposition” is defined to
include the amount any one nonparticipating candidate has raised or spent (whichever is greater)
plus the amount that independent entities have spent to support the nonparticipating candidate or
to oppose the participating candidate.
The Act provides separate trigger amounts for a primary and general election. In a primary
election the trigger amount is defined as sixty times the filing fee for the office sought; in 2006
the trigger equaled $74,280 for a supreme court campaign. In a general election the trigger
amount is equal to the initial disbursement, which in 2006 was $216,650 for a supreme court
campaign. The amount of matching funds disbursed equals the amount by which the
nonparticipating candidate’s “funds in opposition” exceed the trigger amount, though in both the
primary and the general the total amount of matching funds available is capped at two times the
trigger amount.
The Act contains several [reporting requirements for nonparticipating candidates and entities
making independent expenditures] designed to promote the effective administration of the
matching funds scheme. * * *
Finally, in certain defined circumstances the Act bars a nonparticipating candidate from
accepting contributions from third parties during the twenty-one days prior to a general election.
The purpose of this ban is “to make meaningful the provisions” of the Act by ensuring the timely
distribution of matching funds. For this reason, the ban applies only if a nonparticipating
candidate is opposing a participating candidate, and it applies only to contributions that would
cause the nonparticipating candidate to exceed the trigger amounts. The ban does not prevent
nonparticipating candidates from personally contributing or loaning money to their own
campaigns. * * *
Our analysis must begin with the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1
(1976) [p. XXX]. The Court made clear in Buckley that public financing of political campaigns
does not, in itself, violate the First Amendment. In fact, the Court observed that the Federal
Election Campaign Act’s (FECA’s) public financing scheme “furthers, not abridges, pertinent
First Amendment values” because it “facilitate[s] and enlarge[s] public discussion and
participation in the electoral process, goals vital to a self-governing people.” Id. at 92-93.
Since Buckley the circuit courts have generally held that public financing schemes are
permissible if they do not effectively coerce candidates to participate in the scheme. See Daggett
v. Comm’n on Governmental Ethics & Election Practices, 205 F.3d 445, 466-72 (1st Cir. 2000);
Gable v. Patton, 142 F.3d 940, 947-49 (6th Cir. 1998); Rosenstiel v. Rodriguez, 101 F.3d 1544,
1549-52 (8th Cir. 1996); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 38-39 (1st Cir. 1993). A
public financing system that effectively mandates participation (and thus effectively prohibits
candidates from spending their own funds) would violate Buckley’s holding that mandatory
limits on the amount a candidate can spend on his own campaign are unconstitutional. Gable,
142 F.3d at 948; see also Buckley, 424 U.S. at 57 n.65 (“Just as a candidate may voluntarily limit
the size of the contributions he chooses to accept, he may decide to forgo private fundraising and
accept public funding.” (emphasis added)). Nonetheless, courts recognize that a public financing
system may provide significant incentives for participation without crossing the line into
impermissible coercion. E.g., Gable, 142 F.3d at 949.
The plaintiffs do not make coercion a central aspect of their arguments, and, indeed, we
conclude that North Carolina’s public financing system is not unconstitutionally coercive. The
incentives to choose public funding, while not insubstantial, are rather modest in comparison to
those in similar systems that have been upheld against First Amendment challenges. For
 235

instance, the Sixth Circuit upheld a Kentucky campaign finance system that provides a
substantially greater advantage to participating candidates than does the North Carolina system.
See Gable, 142 F.3d at 948-49. Under Kentucky’s system a participating candidate can raise up
to $600,000 in contributions, which are then matched two-to-one with public dollars for a total
cap on campaign expenditures of $1.8 million. If, however, a nonparticipating candidate raises
more than $1.8 million, the cap is removed and every dollar in contributions received by the
participating candidate is again matched with two additional public dollars. The Sixth Circuit
reasoned that a candidate could make a “financially rational decision not to participate” in the
system only if the candidate “intends to exceed the $1.8 million threshold and believes he will
raise more than three times the funds his participating opponents can raise.” Nonetheless, the
court held that the significant “incentives for participation” did not “step over the line of
unconstitutional coercion.”
Unlike the Kentucky system at issue in Gable, the matching funds provided by North
Carolina are given in a one-to-one ratio and are subject to a cap equal to twice the initial trigger
amount, which for a 2006 supreme court campaign was $216,650. The incentive to opt for this
limited level of public funding (a maximum of $649,950 for a 2006 supreme court general
election campaign) is far from unconstitutional coercion, especially in light of the fact that
judicial campaigns in several other states have raised and spent multiple millions of dollars. * *
*
The thrust of the plaintiffs’ First Amendment argument against the matching funds provision
is that it “chill[s] and penalize[s] contributions and independent expenditures made on behalf of
[nonparticipating] candidates.” The plaintiffs argue that their political speech is chilled because
spending in excess of the specified trigger results in public funds being disbursed to a
participating candidate whom the plaintiffs do not support. Therefore, according to the plaintiffs,
they choose to spend less money (and thus engage in less political speech) in order to prevent
candidates they oppose from receiving public funds.
There is some conflict in the circuits as to whether the provision of matching funds burdens
or chills speech in a way that implicates the First Amendment. The Eighth Circuit struck down a
matching funds provision, reasoning that the potential “self-censorship” created by the scheme
“is no less a burden on speech . . . than is direct government censorship.” Day v. Holahan, 34
F.3d 1356, 1360 (8th Cir. 1994). The First Circuit, on the other hand, explicitly rejected the
“logic of Day” by holding that the provision of matching funds “does not create a burden” on the
First Amendment rights of nonparticipating candidates or independent entities. Daggett, 205
F.3d at 464-65; see also Gable, 142 F.3d at 947-49 (Sixth Circuit upholding a matching funds
scheme against a constitutional challenge without addressing the Day analysis).
We conclude that the state’s provision of matching funds does not burden the First
Amendment rights of nonparticipating candidates * * * or independent entities * * * that seek to
make expenditures on behalf of nonparticipating candidates. The plaintiffs remain free to raise
and spend as much money, and engage in as much political speech, as they desire. They will not
be jailed, fined, or censured if they exceed the trigger amounts. The only (arguably) adverse
consequence that will occur is the distribution of matching funds to any candidates participating
in the public financing system. But this does not impinge on the plaintiffs’ First Amendment
rights. To the contrary, the distribution of these funds “furthers, not abridges, pertinent First
Amendment values” by ensuring that the participating candidate will have an opportunity to
engage in responsive speech.
In reaching this conclusion, we reject as unpersuasive the Eighth Circuit’s decision in Day,
236

which concluded that a matching funds scheme created an impermissible chilling effect on
speech. Day’s key flaw is that it equates the potential for self-censorship created by a matching
funds scheme with “direct government censorship.” See Day, 34 F.3d at 1360. Day attempts to
support this flawed proposition with a citation to * * * City of Lakewood v. Plain Dealer Publ’g
Co., 486 U.S. 750, 757-58 (1988).
The principle underlying the Lakewood case, however, has no application in the context of a
matching funds provision. In Lakewood the Supreme Court was concerned that speakers would
be chilled from expressing criticism of a mayor because a city ordinance gave the mayor broad
discretion in granting or denying permits to place news racks on city sidewalks. This danger,
according to the Court, justified striking down the licensing scheme, which lacked clear
standards. 486 U.S. at 759-60. In the case before us, however, the chilling effect alleged by the
plaintiffs is different in kind because it stems not from any fear of direct government censorship
but rather from the realization that one group’s speech will enable another to speak in response.
In stark contrast to the licensing scheme challenged in Lakewood, North Carolina’s provision of
matching funds is likely to result in more, not less, speech. * * *
In sum, we conclude that North Carolina’s provision of matching funds under § 163-278.67
does not violate the First Amendment because the Act does not coerce candidates into opting
into the public financing system. We reject the plaintiffs’ argument that the chilling effect
allegedly caused by § 163-278.67 makes the statute unconstitutional. To the extent that the
plaintiffs (or those similarly situated) are in fact deterred by § 163-278.67 from spending in
excess of the trigger amounts, the deterrence results from a strategic, political choice, not from a
threat of government censure or prosecution. As the First Circuit observed in Daggett, the First
Amendment gives the plaintiffs neither a “right to outraise and outspend an opponent” nor a
“right to speak free from response.” 205 F.3d at 464. * * *
Accordingly, the district court’s judgment dismissing the plaintiffs’ claims is AFFIRMED.

McCOMISH v. BREWER
United States District Court for the District of Arizona
2010 U.S. Dist. LEXIS 4932 (D. Ariz. 2010)

SILVER, J.:
This case involves claims by Plaintiffs that the campaign finance regime adopted by the State
of Arizona violates their free speech and equal protection rights. In short, Plaintiffs believe the
campaign finance regime violates their rights because the state provides additional funds to
publicly-funded candidates in the event non-publicly-funded candidates exceed certain campaign
expenditure and fundraising limits. As set forth below, the regime burdens Plaintiffs’ First
Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and
is not the least restrictive alternative.
The November 1998 election contained the initiative measure known as the Citizens Clean
Elections Act. * * * The Act passed with approximately 51% of the vote.
The Act, as currently constituted, provides a voluntary system of campaign financing in
which all candidates for public office must decide whether to be a “participating candidate” or a
“non-participating candidate.” Participating candidates must collect a certain number of five-
dollar “qualifying contributions.” Once a participating candidate collects the minimum number
of “qualifying contributions,” he or she receives an initial grant for the primary. During the
primary campaign, the participating candidate will receive additional funds in the form of
“matching funds” if the participating candidate has a non-participating opponent that spends
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more than the initial grant. The participating candidate will also receive matching contributions if
there are “independent expenditures” against the participating candidate or in favor of the non-
participating opponent. Participating candidates cannot raise or spend money in addition to the
grant. In the general election, a participating candidate receives a second initial grant. Matching
funds are awarded if the non-participating candidate’s receipts (i.e. contributions), less
expenditures made during the primary campaign, exceed the second initial grant. Independent
expenditures trigger matching funds in the general campaign the same way they triggered
matching funds in the primary campaign. Matching funds cap out at three times the applicable
spending limit. Independent expenditures by Political Action Committees (“PACs”) made on
behalf of a candidate—non-participating or participating—or in opposition to the participating
opponent also count towards the spending limit.
Based on this structure, a candidate is faced with the initial choice of whether to participate
in public funding. If the candidate decides not to participate in public funding, he or she must
determine how much money to spend on the race and how much time to engaged in seeking
fundraising. Assuming the candidate has a publicly funded opponent, the candidate’s
expenditures and fundraising may result in additional funds granted to that opponent. Those
additional funds, however, are limited. Once a non-participating candidate has raised or spent
more than three times the initial grant, no additional matching funds will be given to the
participating opponent. Simply, there are no consequences once a nonparticipating candidate has
raised or spent more than three times the initial grant. * * *
Defendants argue the Act [should not be subject to strict scrutiny because it] “is
fundamentally a restriction on contributions.” This is an oversimplification. For a primary
campaign, matching contributions are explicitly tied to a candidate’s “expenditures.” While those
expenditures might consist of a candidate spending contributions from third parties, it is possible
for a candidate to trigger matching funds during the primary based on his or her expenditure of
personal funds. For the general campaign, matching funds are dependent on “contributions,” but
the expenditure of personal funds is also defined as a “contribution.” Accordingly, the Act has
the ability, if not always the effect, of regulating expenditures in both the primary and general
campaigns. * * *
In some respects the burden Plaintiffs allegedly suffer in this case is analogous to the burden
in Davis [v. Federal Election Commission, 554 U.S. __, 128 S. Ct. 2759 (2008)] [p. XXX].
Plaintiffs submit evidence that they have felt “chilled” and that but for the matching provisions
they would have spent or will spend more money on campaigns. Thus, it appears that in
Plaintiffs’ view, the “burden” is that an exercise of their First Amendment right to spend as much
as they wish will result in Arizona conferring an additional benefit on publicly-financed
candidates. Those candidates presumably will spend the matching funds, i.e. generate more
speech. In other words, the “burden” created by the Act is that Plaintiffs’ speech will lead
directly to more speech. Given that the purpose of the First Amendment is to “secure the widest
possible dissemination of information from diverse and antagonistic sources,” it seems illogical
to conclude that the Act creating more speech is a constitutionally prohibited “burden” on
Plaintiffs.
Another strange aspect of the alleged burden is that public financing of elections is permitted
by the Constitution. If the Act provided for a single lump sum award, instead of incremental
awards, the law would fall squarely within the regime blessed in Buckley [v. Valeo, 424 U.S. 1
(1976)] [p. XXX] and reaffirmed in Davis. Presumably the Act would also be permissible if the
incremental awards were linked to some occurrence other than a non-publicly financed
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candidate’s speech. Thus, Plaintiffs are left to argue their First Amendment rights are violated
not by the fact of public financing, or the level of that financing, but by the fact that Arizona
provides incremental grants linked to their activities. If a single lump sum award would not
burden Plaintiffs’ free speech rights in any cognizable way, finding a burden solely because of
the incremental nature of the awards seems difficult to establish.13
Despite the unsettling nature of Plaintiffs’ claims, Davis requires this Court find Plaintiffs
have established a cognizable burden. Plaintiffs face a choice very similar to that faced in Davis:
either “abide by a limit on personal expenditures” or face potentially serious negative
consequences. In Davis, the negative consequence was having one’s opponent subject to higher
contribution limits. Here, the negative consequence is having one’s opponent receive additional
funds. “Arguably the benefit conferred by [matching funds] is more constitutionally
objectionable than increasing an opponent’s individual contribution limits. In the latter scenario,
the opponent must still go out and raise the additional contributions . . . [Matching funds], by
contrast, ensure[] that there will be additional money to counteract the excess expenditures by
the non-participating candidate. . . .” Green Party of Connecticut v. Garfield, 648 F. Supp. 2d
298, 373 (D. Conn. 2009). Accordingly, if the statute in Davis constituted a burden, matching
funds must also constitute a burden.14
Determining that matching funds constitute a cognizable burden does not end the inquiry.
The weight of that burden must also be assessed. * * * If lifting a candidate’s opponent’s
fundraising limitations constitutes a “substantial burden,” awarding funds to a candidate’s
opponent must constitute a “substantial burden” as well. Accordingly, Arizona’s matching funds
constitute a substantial burden and are permissible only if they are supported by a compelling
government interest and are narrowly tailored to achieve that interest. * * *
Davis states the only legitimate and compelling interest is the elimination of corruption or the
perception of corruption. Based on earlier cases, the contours of this anticorruption concern are
far from clear. But the most recent Supreme Court cases seem to recognize corruption only in the
sense of “politicians [being] too compliant with the wishes of large contributors.” * * * In other

13
Using the amounts available for a general election for a legislative candidate as an example, the spending limit is
$19,382. Once a non-participating candidate spends more than that amount, the participating opponent receives
dollar-for-dollar matching funds, up to a maximum of approximately $54,000. Arizona could award an initial grant
of $54,000 to each legislative candidate who opted for public financing, and this award would constitute no
constitutionally prohibited “burden” on Plaintiffs’ rights. Thus, Plaintiffs’ argument is that an award under the
current regime of $25,000 (the initial grant plus some matching funds) violates their rights, but an award of twice
that amount (not based on matching funds) would not.
14
The pre-Davis precedents from other circuits no longer appear valid. In analyzing North Carolina’s matching
funds regime, the Fourth Circuit found matching funds impose no burden whatsoever. That court ruled that even
with matching funds, candidates “remain[ed] free to raise and spend as much money, and engage in as much
political speech, as they desire. They will not be jailed, fined or censured if they exceed the trigger amounts.” N.
Carolina Right to Life v. Leake, 524 F.3d 427, 437 (4th Cir. 2008) [p. XXX]. The distribution of matching funds
“furthers, not abridges, pertinent First Amendment values by ensuring that the participating candidate will have an
opportunity to engage in responsive speech.” Id. Of course, the same rationale could apply to the statute at issue in
Davis, but the Supreme Court decided otherwise. The First Circuit also concluded matching funds pose no burden.
Daggett v. Comm’n on Governmental Ethics and Election Practices, 205 F.3d 445, 464 (1st Cir. 2000). In so
holding, that court found plaintiffs had “misconstrue[d] the meaning of the First Amendment protection of their
speech. They have no right to speak free from response . . . [t]he public funding system in no way limits the quantity
of speech one can engage in or the amount of money one can spend engaging in political speech, nor does it threaten
censure or penalty for such expenditures.” Id. Again, this holding cannot be reconciled with Davis. If the mere
potential for your opponent to raise additional funds is a substantial burden, the granting of additional funds to your
opponent must also be a burden.
 239

words, the only legitimate anticorruption interest is in preventing the reality or appearance of
quid pro quo arrangements between politicians and contributors. This type of anticorruption
interest supports some aspects of the Act, but it does not support the Act’s application to self-
financed candidates.
Under the Act, if a candidate wishes to expend his or her own money, that expenditure will
trigger the “burden” of matching funds. Defendants have not identified any anticorruption
interest served by burdening self-financed candidates’ speech in this manner. In fact, the
Supreme Court has recognized that “reliance on personal funds reduces the threat of corruption”
and “discouraging use of personal funds disserves the anticorruption interest.” Davis, 128 S. Ct.
at 2773. Thus, there is no compelling interest served by the Act.
The conclusion that the Act is not serving a valid anticorruption interest also leads to the
conclusion that the Act is not narrowly tailored. * * * The Act allegedly seeks to target and
eliminate the “evil” of the appearance or reality of corruption. But the Act places a burden on a
candidate’s expenditure of personal funds even though there is no apparent and constitutionally
recognized anticorruption interest served by such a restriction. Thus, the Act “significantly
restrict[s] a substantial quantity of speech that does not create” the appearance of corruption.
* * * The Act is not narrowly tailored.
Finally, the Act is not the least restrictive alternative. At the very least, the Act could have
been structured such that it does not place a burden on a candidate’s expenditure of personal
funds. For example, the Act could tie matching funds solely to contributions made by third
parties to a candidate. Such a structure would achieve the anticorruption goal recognized by the
Supreme Court without burdening a candidate’s decision to expend personal funds.
The Act, in its current form, is not supported by a compelling interest, is not narrowly
tailored, and is not the least restrictive alternative. The Act is unconstitutional under the First
Amendment. * * *

Notes and Questions

1. If it would be legal for the government simply to provide a large grant (e.g., $54,000) to
participating candidates at the outset, why is it problematic to start participating candidates with
a small grant and then raise the amount to $54,000 only if the participating candidate is being
outspent? Isn’t the latter actually a better situation for the non-participating candidate?
Does the problem relate to the horserace nature of elections and the trigger for added
matching funds? A candidate must decide at the outset whether or not to participate. Once a
candidate has decided to forego the subsidy, however, his calculation may be upset not by his
own spending, but by the independent spending of others that may be of little advantage to him.
Or is it simply that the matching funds program (sometimes called “rescue” funds) simply looks
like government favoritism for the candidate who has decided not to exercise his or her First
Amendment rights?
2. Leake was decided shortly before the Supreme Court’s decision in Davis, which also
cited Day v. Holahan approvingly. Does Leake remain good law?
3. Although most government-financing systems are accompanied by restrictions on
contributions and expenditures, the government could simply provide funds to candidates with
no strings attached. What would be some of the advantages or disadvantages of such an
approach? See Joel Fleishman & Pope McCorkle, Level Up Rather Than Level Down: Towards
a New Theory of Campaign Finance, 52 J.L. & POLS. 211 (1984).
4. Not surprisingly, there is voluminous literature about whether or not public financing
240

addresses the problems it is intended to resolve. To a substantial extent, the many authors’ views
of public funding depend on the extent to which they see the present system as “corrupt” or
“unequal,” on their understanding of how politics does or should work in practice, and on their
normative views about equality and freedom. For a small taste of this literature, consider John
Samples, The Failure of Taxpayer Financing of Political Campaigns, in WELFARE FOR
POLITICIANS ? 213 (John Samples ed., 2005); Patrick Basham, Taxpayer Financing in
Comparative Perspective, in WELFARE FOR POLITICIANS ?, supra, at 275; BRUCE ACKERMAN & IAN
AYRES, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002); Richard
Briffault, Public Funding and Democratic Elections, 148 U. PA. L. REV. 563 (1999); and Bradley
A. Smith, Some Problems with Taxpayer Funded Political Campaigns, 148 U. PA. L. REV. 591
(1999).

A. MANDATORY DISCLOSURE OF CONTRIBUTIONS AND EXPENDITURES

New York passed the nation’s first law requiring disclosure of campaign contributions and
expenditures in 1890, and the first federal “publicity act” was passed in 1910. See EARL R. SIKES,
STATE AND FEDERAL CORRUPT PRACTICES LEGISLATION 122, 284-291 (1928). Mandatory disclosure
of campaign contributions and expenditures has been a mainstay of campaign-finance law both
in the United States and internationally ever since. See Joel W. Johnson, Democracy and
Disclosure: Electoral Systems and the Regulation of Political Finance, 7 ELECTION L.J. 325
(2008).
As of 2008, every U.S. state had adopted laws requiring campaign contributions to be
disclosed; only one state, North Dakota, did not require disclosure of campaign expenditures;
and only six states did not require disclosure of independent expenditures. CALIFORNIA VOTER
FOUNDATION, GRADING STATE DISCLOSURE 2, 19-20 (2008) (available at
http://www.campaigndisclosure.org/gradingstate/GSD08.pdf.). Even many of the staunchest
opponents of regulating campaign expenditures and contributions favor disclosure as an
acceptable alternative to greater regulation. See, e.g., JOHN SAMPLES, THE FALLACY OF CAMPAIGN
FINANCE REFORM 272-286 (2006); Kathleen M. Sullivan, Political Money and Freedom and
Speech, 30 U.C. DAVIS LAW REV. 1663, 1668 (1997); Nixon v. Shrink Missouri Government PAC,
528 U.S. 377, 430 (2000) (Thomas, J., dissenting). Indeed, so firmly rooted are disclosure laws
in the regulatory landscape that one congressional reform advocate is reported to have declared
that disclosure was “not regulation.” See Bradley A. Smith, In Defense of Political Anonymity,
20 CITY J. 74, 75 (2010).
Yet disclosure laws are not free from controversy. In fact the Supreme Court has a long
tradition of protecting anonymous speech, see Thomas v. Collins, 323 U.S. 516 (1945); Talley v.
California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) [p.
XXX]; Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002); see supra
Chapter 8, pp. XXX-XXX. It is not surprising then, that both Buckley v. Valeo, 424 U.S. 1
(1976) [p. XXX], and McConnell v. Federal Election Commission, 540 U.S. 93 (2003) [p.
XXX], included challenges to the disclosure provisions of the Federal Election Campaign Act.

BUCKLEY v. VALEO
Supreme Court of the United States
424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)

PER CURIAM. [MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, MR.
 241

JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join in this portion of the
opinion. MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.]
***

II
Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. § 608, the
disclosure requirements of the Act, 2 U.S.C. § 431 et seq., are not challenged by appellants as
per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and
association. Indeed, appellants argue that “narrowly drawn disclosure requirements are the
proper solution to virtually all of the evils Congress sought to remedy.” The particular
requirements embodied in the Act are attacked as overbroad—both in their application to minor-
party and independent candidates and in their extension to contributions as small as $11 or $101.
Appellants also challenge the provision for disclosure by those who make independent
contributions and expenditures, § 434(e). The Court of Appeals found no constitutional
infirmities in the provisions challenged here. We affirm the determination on overbreadth and
hold that § 434(e), if narrowly construed, also is within constitutional bounds. * * *
The Act presently under review replaced all prior disclosure laws. Its primary disclosure
provisions impose reporting obligations on “political committees” and candidates. “Political
committee” is defined in § 431(d) as a group of persons that receives “contributions” or makes
“expenditures” of over $1,000 in a calendar year. * * *
Each political committee is required to register with the Commission and to keep detailed
records of both contributions and expenditures. These records must include the name and address
of everyone making a contribution in excess of $10, along with the date and amount of the
contribution. If a person’s contributions aggregate more than $100, his occupation and principal
place of business are also to be included. These files are subject to periodic audits and field
investigations by the Commission.
Each committee and each candidate also is required to file quarterly reports. The reports are
to contain detailed financial information, including the full name, mailing address, occupation,
and principal place of business of each person who has contributed over $100 in a calendar year,
as well as the amount and date of the contributions. They are to be made available by the
Commission “for public inspection and copying.” Every candidate for federal office is required
to designate a “principal campaign committee,” which is to receive reports of contributions and
expenditures made on the candidate’s behalf from other political committees and to compile and
file these reports, together with its own statements, with the Commission.
Every individual or group, other than a political committee or candidate, who makes
“contributions” or “expenditures” of over $100 in a calendar year “other than by contribution to
a political committee or candidate” is required to file a statement with the Commission. Any
violation of these recordkeeping and reporting provisions is punishable by a fine of not more
than $1,000 or a prison term of not more than a year, or both.

A. General Principles
Unlike the overall limitations on contributions and expenditures, the disclosure requirements
impose no ceiling on campaign-related activities. But we have repeatedly found that compelled
disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the
First Amendment. E.g., Gibson v. Florida Legislative Comm., 372 U.S. 539 (1963); NAACP v.
Button, 371 U.S. 415 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361
U.S. 516 (1960); NAACP v. Alabama, 357 U.S. 449 (1958).
242

We long have recognized that significant encroachments on First Amendment rights of the
sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate
governmental interest. Since NAACP v. Alabama, we have required that the subordinating
interests of the State must survive exacting scrutiny. We also have insisted that there be a
“relevant correlation” or “substantial relation” between the governmental interest and the
information required to be disclosed. This type of scrutiny is necessary even if any deterrent
effect on the exercise of First Amendment rights arises, not through direct government action,
but indirectly as an unintended but inevitable result of the government’s conduct in requiring
disclosure.
Appellees argue that the disclosure requirements of the Act differ significantly from those at
issue in NAACP v. Alabama and its progeny because the Act only requires disclosure of the
names of contributors and does not compel political organizations to submit the names of their
members.
As we have seen, group association is protected because it enhances “[e]ffective advocacy.”
NAACP v. Alabama, supra, at 460. The right to join together “for the advancement of beliefs and
ideas,” ibid., is diluted if it does not include the right to pool money through contributions, for
funds are often essential if “advocacy” is to be truly or optimally “effective.” Moreover, the
invasion of privacy of belief may be as great when the information sought concerns the giving
and spending of money as when it concerns the joining of organizations, for “[f]inancial
transactions can reveal much about a person’s activities, associations, and beliefs.” Our past
decisions have not drawn fine lines between contributors and members but have treated them
interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and
reversed convictions for failure to comply with a city ordinance that required the disclosure of
“dues, assessments, and contributions paid, by whom and when paid.”
The strict test established by NAACP v. Alabama is necessary because compelled disclosure
has the potential for substantially infringing the exercise of First Amendment rights. But we have
acknowledged that there are governmental interests sufficiently important to outweigh the
possibility of infringement, particularly when the “free functioning of our national institutions” is
involved.
The governmental interests sought to be vindicated by the disclosure requirements are of this
magnitude. They fall into three categories. First, disclosure provides the electorate with
information “as to where political campaign money comes from and how it is spent by the
candidate” in order to aid the voters in evaluating those who seek federal office. It allows voters
to place each candidate in the political spectrum more precisely than is often possible solely on
the basis of party labels and campaign speeches. The sources of a candidate’s financial support
also alert the voter to the interests to which a candidate is most likely to be responsive and thus
facilitate predictions of future performance in office.
Second, disclosure requirements deter actual corruption and avoid the appearance of
corruption by exposing large contributions and expenditures to the light of publicity. This
exposure may discourage those who would use money for improper purposes either before or
after the election. A public armed with information about a candidate’s most generous supporters
is better able to detect any post-election special favors that may be given in return. And * * *
Congress could reasonably conclude that full disclosure during an election campaign tends “to
prevent the corrupt use of money to affect elections.” In enacting these requirements it may have
been mindful of Mr. Justice Brandeis’ advice: “Publicity is justly commended as a remedy for
social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the
 243

most efficient policeman.”

Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an
essential means of gathering the data necessary to detect violations of the contribution limitations
described above.
The disclosure requirements, as a general matter, directly serve substantial governmental
interests. In determining whether these interests are sufficient to justify the requirements we must
look to the extent of the burden that they place on individual rights.
It is undoubtedly true that public disclosure of contributions to candidates and political
parties will deter some individuals who otherwise might contribute. In some instances, disclosure
may even expose contributors to harassment or retaliation. These are not insignificant burdens on
individual rights, and they must be weighed carefully against the interests which Congress has
sought to promote by this legislation. In this process, we note and agree with appellants’
concession that disclosure requirements—certainly in most applications—appear to be the least
restrictive means of curbing the evils of campaign ignorance and corruption that Congress found
to exist. Appellants argue, however, that the balance tips against disclosure when it is required of
contributors to certain parties and candidates. We turn now to this contention.

B. Application to Minor Parties and Independents

Appellants contend that the Act’s requirements are overbroad insofar as they apply to
contributions to minor parties and independent candidates because the governmental interest in
this information is minimal and the danger of significant infringement on First Amendment
rights is greatly increased.
In NAACP v. Alabama, the organization had “made an uncontroverted showing that on past
occasions revelation of the identity of its rank-and-file members [had] exposed these members to
economic reprisal, loss of employment, threat of physical coercion, and other manifestations of
public hostility,” and the State was unable to show that the disclosure it sought had a “substantial
bearing” on the issues it sought to clarify. Under those circumstances, the Court held that
“whatever interest the State may have in [disclosure] has not been shown to be sufficient to
overcome petitioner’s constitutional objections.” * * * [However,] NAACP v. Alabama is
inapposite where, as here, any serious infringement on First Amendment rights brought about by
the compelled disclosure of contributors is highly speculative.
It is true that the governmental interest in disclosure is diminished when the contribution in
question is made to a minor party with little chance of winning an election. As minor parties
usually represent definite and publicized viewpoints, there may be less need to inform the voters
of the interests that specific candidates represent. Major parties encompass candidates of greater
diversity. In many situations the label “Republican” or “Democrat” tells a voter little. The
candidate who bears it may be supported by funds from the far right, the far left, or any place in
between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor
Party will represent interests that cannot be discerned from the party’s ideological position.
The Government’s interest in deterring the “buying” of elections and the undue influence of
large contributors on officeholders also may be reduced where contributions to a minor party or
an independent candidate are concerned, for it is less likely that the candidate will be victorious.
But a minor party sometimes can play a significant role in an election. Even when a minor-party
candidate has little or no chance of winning, he may be encouraged by major-party interests in
order to divert votes from other major-party contenders.
We are not unmindful that the damage done by disclosure to the associational interests of the
244

minor parties and their members and to supporters of independents could be significant. These
movements are less likely to have a sound financial base and thus are more vulnerable to falloffs
in contributions. In some instances fears of reprisal may deter contributions to the point where
the movement cannot survive. The public interest also suffers if that result comes to pass, for
there is a consequent reduction in the free circulation of ideas both within and without the
political arena.
There could well be a case, similar to those before the Court in NAACP v. Alabama and
Bates, where the threat to the exercise of First Amendment rights is so serious and the state
interest furthered by disclosure so insubstantial that the Act’s requirements cannot be
constitutionally applied. But no appellant in this case has tendered record evidence of the sort
proffered in NAACP v. Alabama. Instead, appellants primarily rely on “the clearly articulated
fears of individuals, well experienced in the political process.” At best they offer the testimony
of several minor-party officials that one or two persons refused to make contributions because of
the possibility of disclosure. On this record, the substantial public interest in disclosure identified
by the legislative history of this Act outweighs the harm generally alleged. * * *

C. Section 434(e)
Section 434(e) requires “[e]very person (other than a political committee or candidate) who
makes contributions or expenditures” aggregating over $100 in a calendar year “other than by
contribution to a political committee or candidate” to file a statement with the Commission. * * *
Section 434(e) is part of Congress’ effort to achieve “total disclosure” by reaching “every kind of
political activity” in order to insure that the voters are fully informed and to achieve through
publicity the maximum deterrence to corruption and undue influence possible. The provision is
responsive to the legitimate fear that efforts would be made, as they had been in the past, to
avoid the disclosure requirements by routing financial support of candidates through avenues not
explicitly covered by the general provisions of the Act.
In its effort to be all-inclusive, however, the provision raises serious problems of vagueness,
particularly treacherous where, as here, the violation of its terms carries criminal penalties and
fear of incurring these sanctions may deter those who seek to exercise protected First
Amendment rights.
Section 434(e) applies to “[e]very person . . . who makes contributions or expenditures.”
“Contributions” and “expenditures” are defined in parallel provisions in terms of the use of
money or other valuable assets “for the purpose of . . . influencing” the nomination or election of
candidates for federal office. It is the ambiguity of this phrase that poses constitutional problems.
***
In enacting the legislation under review Congress addressed broadly the problem of political
campaign financing. It wished to promote full disclosure of campaign-oriented spending to
insure both the reality and the appearance of the purity and openness of the federal election
process. Our task is to construe “for the purpose of . . . influencing,” incorporated in § 434(e)
through the definitions of “contributions” and “expenditures,” in a manner that precisely furthers
this goal.
In Part I we discussed what constituted a “contribution” for purposes of the contribution
limitations set forth in 18 U.S.C. § 608(b). We construed that term to include not only
contributions made directly or indirectly to a candidate, political party, or campaign committee,
and contributions made to other organizations or individuals but earmarked for political
purposes, but also all expenditures placed in cooperation with or with the consent of a candidate,
 245

his agents, or an authorized committee of the candidate. The definition of “contribution” in

§ 431(e) for disclosure purposes parallels the definition in Title 18 almost word for word, and we
construe the former provision as we have the latter. So defined, “contributions” have a
sufficiently close relationship to the goals of the Act, for they are connected with a candidate or
his campaign.
* * * The general requirement that “political committees” and candidates disclose their
expenditures could raise * * * vagueness problems, for “political committee” is defined only in
terms of amount of annual “contributions” and “expenditures,” and could be interpreted to reach
groups engaged purely in issue discussion. * * * To fulfill the purposes of the Act [“political
committee”] need only encompass organizations that are under the control of a candidate or the
major purpose of which is the nomination or election of a candidate. Expenditures of candidates
and of “political committees” so construed can be assumed to fall within the core area sought to
be addressed by Congress. They are, by definition, campaign related.
But when the maker of the expenditure is not within these categories—when it is an
individual other than a candidate or a group other than a “political committee”—the relation of
the information sought to the purposes of the Act may be too remote. To insure that the reach of
§ 434(e) is not impermissibly broad, we construe “expenditure” for purposes of that section in
the same way we construed the terms of § 608(e)—to reach only funds used for communications
that expressly advocate the election or defeat of a clearly identified candidate. This reading is
directed precisely to that spending that is unambiguously related to the campaign of a particular
federal candidate.
In summary, § 434(e), as construed, imposes independent reporting requirements on
individuals and groups that are not candidates or political committees only in the following
circumstances: (1) when they make contributions earmarked for political purposes or authorized
or requested by a candidate or his agent, to some person other than a candidate or political
committee, and (2) when they make expenditures for communications that expressly advocate
the election or defeat of a clearly identified candidate.
[Section] 434(e), as construed, bears a sufficient relationship to a substantial governmental
interest. As narrowed, § 434(e) * * * does not reach all partisan discussion for it only requires
disclosure of those expenditures that expressly advocate a particular election result. This might
have been fatal if the only purpose of § 434(e) were to stem corruption or its appearance by
closing a loophole in the general disclosure requirements. But the disclosure provisions,
including § 434(e), serve another, informational interest, and even as construed § 434(e)
increases the fund of information concerning those who support the candidates. It goes beyond
the general disclosure requirements to shed the light of publicity on spending that is
unambiguously campaign related but would not otherwise be reported because it takes the form
of independent expenditures or of contributions to an individual or group not itself required to
report the names of its contributors. By the same token, it is not fatal that § 434(e) encompasses
purely independent expenditures uncoordinated with a particular candidate or his agent. The
corruption potential of these expenditures may be significantly different, but the informational
interest can be as strong as it is in coordinated spending, for disclosure helps voters to define
more of the candidates’ constituencies. * * *

D. Thresholds
Appellants’ third contention, based on alleged overbreadth, is that the monetary thresholds in
the record-keeping and reporting provisions lack a substantial nexus with the claimed
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governmental interests, for the amounts involved are too low even to attract the attention of the
candidate, much less have a corrupting influence.
The provisions contain two thresholds. Records are to be kept by political committees of the
names and addresses of those who make contributions in excess of $10, § 432(c)(2), and these
records are subject to Commission audit. If a person’s contributions to a committee or candidate
aggregate more than $100, his name and address, as well as his occupation and principal place of
business, are to be included in reports filed by committees and candidates with the Commission,
§ 434(b)(2), and made available for public inspection, § 438(a)(4). * * *
The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are
likely to be especially sensitive to recording or disclosure of their political preferences. These
strict requirements may well discourage participation by some citizens in the political process, a
result that Congress hardly could have intended. Indeed, there is little in the legislative history to
indicate that Congress focused carefully on the appropriate level at which to require recording
and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar
disclosure laws since 1910. But we cannot require Congress to establish that it has chosen the
highest reasonable threshold. The line is necessarily a judgmental decision, best left in the
context of this complex legislation to congressional discretion. We cannot say, on this bare
record, that the limits designated are wholly without rationality. * * *
In summary, we find no constitutional infirmities in the recordkeeping, reporting, and
disclosure provisions of the Act.

MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part. * * *

Disclosure is, in principle, the salutary and constitutional remedy for most of the ills
Congress was seeking to alleviate. I therefore agree fully with the broad proposition that public
disclosure of contributions by individuals and by entities—particularly corporations and labor
unions—is an effective means of revealing the type of political support that is sometimes
coupled with expectations of special favors or rewards. That disclosure impinges on First
Amendment rights is conceded by the Court, but given the objectives to which disclosure is
directed, I agree that the need for disclosure outweighs individual constitutional claims.
* * * The Court’s theory, however, goes beyond permissible limits. Under the Court’s view,
disclosure serves broad informational purposes, enabling the public to be fully informed on
matters of acute public interest. Forced disclosure of one aspect of a citizen’s political activity,
under this analysis, serves the public right to know. This open-ended approach is the only
plausible justification for the otherwise irrationally low ceilings of $10 and $100 for anonymous
contributions. The burdens of these low ceilings seem to me obvious, and the Court does not try
to question this. With commendable candor, the Court acknowledges: “It is undoubtedly true that
public disclosure of contributions to candidates and political parties will deter some individuals
who otherwise might contribute.”
Examples come readily to mind. Rank-and-file union members or rising junior executives
may now think twice before making even modest contributions to a candidate who is disfavored
by the union or management hierarchy. Similarly, potential contributors may well decline to take
the obvious risks entailed in making a reportable contribution to the opponent of a well-
entrenched incumbent. * * *
The public right to know ought not be absolute when its exercise reveals private political
convictions. Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as
to political preferences and convictions are fundamental in a free society. * * *
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* * * I would therefore hold unconstitutional the provisions requiring reporting of

contributions of more than $10 and to make a public record of the name, address, and occupation
of a contributor of more than $100.

MCCONNELL v. FEDERAL ELECTION COMMISSION

Supreme Court of the United States
540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003)

JUSTICE STEVENS and JUSTICE O’CONNOR delivered the opinion of the Court * * * [in which
JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join]. * * *

IV * * *
* * * Under [FECA § 304, as amended by BCRA § 201], whenever any person makes
disbursements totaling more than $10,000 during any calendar year for the direct costs of
producing and airing electioneering communications, he must file a statement with the FEC
identifying the pertinent elections and all persons sharing the costs of the disbursements. If the
disbursements are made from a corporation’s or labor union’s segregated account, or by a single
individual who has collected contributions from others, the statement must identify all persons
who contributed $1,000 or more to the account or the individual during the calendar year. The
statement must be filed within 24 hours of each “disclosure date”—a term defined to include the
first date and all subsequent dates on which a person’s aggregate undisclosed expenses for
electioneering communications exceed $10,000 for that calendar year. Another subsection
further provides that the execution of a contract to make a disbursement is itself treated as a
disbursement for purposes of FECA’s disclosure requirements.
In addition to the failed argument that BCRA’s amendments to FECA § 304 improperly
extend to both express and issue advocacy, plaintiffs challenge amended FECA § 304’s
disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who
contributed $1,000 or more to the individual or group that paid for a communication, and (2)
mandating disclosure of executory contracts for communications that have not yet aired. The
District Court rejected the former submission but accepted the latter, finding invalid new FECA
§ 304(f)(5), which governs executory contracts. * * *
We agree with the District Court that the important state interests that prompted the Buckley
Court to uphold FECA’s disclosure requirements—providing the electorate with information,
deterring actual corruption and avoiding any appearance thereof, and gathering the data
necessary to enforce more substantive electioneering restrictions—apply in full to BCRA.
Accordingly, Buckley amply supports application of FECA § 304’s disclosure requirements to
the entire range of “electioneering communications.” * * *
The District Court was also correct that Buckley forecloses a facial attack on the new
provision in § 304 that requires disclosure of the names of persons contributing $1,000 or more
to segregated funds or individuals that spend more than $10,000 in a calendar year on
electioneering communications. Like our earlier decision in NAACP v. Alabama, 357 U.S. 449
(1958), Buckley recognized that compelled disclosures may impose an unconstitutional burden
on the freedom to associate in support of a particular cause. Nevertheless, Buckley rejected the
contention that FECA’s disclosure requirements could not constitutionally be applied to minor
parties and independent candidates because the Government’s interest in obtaining information
from such parties was minimal and the danger of infringing their rights substantial. In Buckley,
unlike NAACP, we found no evidence that any party had been exposed to economic reprisals or
248

physical threats as a result of the compelled disclosures. We acknowledged that such a case
might arise in the future, however, and addressed the standard of proof that would then apply:

“We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not
follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient
flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need
show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will
subject them to threats, harassment, or reprisals from either Government officials or private parties.” * * *

In this litigation the District Court applied Buckley’s evidentiary standard and found * * *
that the evidence did not establish the requisite “reasonable probability” of harm to any plaintiff
group or its members. The District Court noted that some parties had expressed such concerns,
but it found a “lack of specific evidence about the basis for these concerns.” We agree, but we
note that, like our refusal to recognize a blanket exception for minor parties in Buckley, our
rejection of plaintiffs’ facial challenge to the requirement to disclose individual donors does not
foreclose possible future challenges to particular applications of that requirement.
We also are unpersuaded by plaintiffs’ challenge to new FECA § 304(f)(5), which requires
disclosure of executory contracts for electioneering communications. * * *
In our view, this provision serves an important purpose the District Court did not advance.
BCRA’s amendments to FECA § 304 mandate disclosure only if and when a person makes
disbursements totaling more than $10,000 in any calendar year to pay for electioneering
communications. Plaintiffs do not take issue with the use of a dollar amount, rather than the
number or dates of the ads, to identify the time when a person paying for electioneering
communications must make disclosures to the FEC. Nor do they question the need to make the
contents of parties’ disclosure statements available to curious voters in advance of elections.
Given the relatively short time frames in which electioneering communications are made, the
interest in assuring that disclosures are made promptly and in time to provide relevant
information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure
statements based on the date when aggregate disbursements exceed $10,000 would open a
significant loophole if advertisers were not required to disclose executory contracts. In the
absence of that requirement, political supporters could avoid preelection disclosures concerning
ads slated to run during the final week of a campaign simply by making a preelection
downpayment of less than $10,000, with the balance payable after the election. Indeed, if the
advertiser waited to pay that balance until the next calendar year then, as long as the balance did
not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely.
The record contains little evidence identifying any harm that might flow from the
enforcement of § 304(f)(5)’s “advance” disclosure requirement. * * * It is no doubt true that
§ 304(f)(5) will sometimes require the filing of disclosure statements in advance of the actual
broadcast of an advertisement. But the same would be true in the absence of an advance
disclosure requirement, if a television station insisted on advance payment for all of the ads
covered by a contract. Thus, the possibility that amended § 304 may sometimes require
disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather
than the date of an ad) to trigger the disclosure requirement as it is a function of § 304(f)(5)’s
treatment of executory contracts.
As the District Court observed, amended FECA § 304’s disclosure requirements are
constitutional because they “d[o] not prevent anyone from speaking.” Moreover, the required
disclosures “would not have to reveal the specific content of the advertisements, yet they would
 249

perform an important function in informing the public about various candidates’ supporters
before election day.” Accordingly, we affirm the judgment of the District Court insofar as it
upheld the disclosure requirements in amended FECA § 304 and rejected the facial attack on the
provisions relating to donors of $1,000 or more, and reverse that judgment insofar as it
invalidated FECA § 304(f)(5).

JUSTICE KENNEDY, [with whom THE CHIEF JUSTICE (REHNQUIST) and JUSTICE SCALIA join,]
concurring in the judgment in part and dissenting in part[.] * * *
BCRA § 201, which requires disclosure of electioneering communications, including those
coordinated with the party but independent of the candidate, does not substantially relate to a
valid interest in gathering data about compliance with contribution limits or in deterring
corruption. * * * The regulation does substantially relate to the other interest the majority details,
however. This assures its constitutionality. For that reason, I agree with the Court’s judgment
upholding the disclosure provisions contained in § 201 of Title II, with one exception.
Section 201’s advance disclosure requirement—the aspect of the provision requiring those
who have contracted to speak to disclose their speech in advance—is, in my view,
unconstitutional. Advance disclosure imposes real burdens on political speech that post hoc
disclosure does not. It forces disclosure of political strategy by revealing where ads are to be run
and what their content is likely to be (based on who is running the ad). It also provides an
opportunity for the ad buyer’s opponents to dissuade broadcasters from running ads. Against
those tangible additional burdens, the Government identifies no additional interest uniquely
served by advance disclosure. If Congress intended to ensure that advertisers could not flout
these disclosure laws by running an ad before the election, but paying for it afterwards, then
Congress should simply have required the disclosure upon the running of the ad. Burdening the
First Amendment further by requiring advance disclosure is not a constitutionally acceptable
alternative. To the extent § 201 requires advance disclosure, it finds no justification in its
subordinating interests and imposes greater burdens than the First Amendment permits. * * *

JUSTICE THOMAS, * * *dissenting in part[.] * * *

The only plausible interest asserted by the defendants to justify the disclosure provisions is
the interest in providing “information” about the speaker to the public. But we have already held
that “[t]he simple interest in providing voters with additional relevant information does not
justify a state requirement that a writer make statements or disclosures she would otherwise
omit.” [McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348 (1995)] [p. XXX]. Of course,
Buckley upheld the disclosure requirement on expenditures for communications using words of
express advocacy based on this informational interest. And admittedly, McIntyre purported to
distinguish Buckley. But the two ways McIntyre distinguished Buckley—one, that the disclosure
of “an expenditure and its use, without more, reveals far less information [than a forced
identification of the author of a pamphlet]”; and two, that in candidate elections, the
“Government can identify a compelling state interest in avoiding the corruption that might result
from campaign expenditures”—are inherently implausible. The first is simply wrong. The
revelation of one’s political expenditures for independent communications about candidates can
be just as revealing as the revelation of one’s name on a pamphlet for a noncandidate election.
The second was outright rejected in Buckley itself, where the Court concluded that independent
expenditures did not create any substantial risk of real or apparent corruption. Hence, the only
reading of McIntyre that remains consistent with the principles it contains is that it overturned
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Buckley to the extent that Buckley upheld a disclosure requirement solely based on the
governmental interest in providing information to the voters.
The right to anonymous speech cannot be abridged based on the interests asserted by the
defendants. I would thus hold that the disclosure requirements of BCRA § 201 are
unconstitutional. Because of this conclusion, the so-called advance disclosure requirement of
§ 201 necessarily falls as well.

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION

Supreme Court of the United States
558 U.S. __, 130 S. Ct. __, 175 L. Ed. 2d 753 (2010)

JUSTICE KENNEDY delivered the opinion of the Court [in which CHIEF JUSTICE ROBERTS, JUSTICE
STEVENS, JUSTICE SCALIA, JUSTICE GINSBURG, JUSTICE BREYER, JUSTICE ALITO, and JUSTICE SOTOMAYOR
join as to the portion excerpted here]. * * *
* * * 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 [v. Valeo], 424 U.S. [1], 64 [(1976)] [p. XXX]
[(per curiam)], and “do not prevent anyone from speaking,” McConnell [v. Federal Election
Comm’n, 540 U.S. 93], 201 [(2003)] [p. XXX]. 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; 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. 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; see 540 U.S., at 231. * * *
For the reasons stated below, we find the statute valid as applied to the ads for the movie and
to the movie itself.
Citizens United sought to broadcast one 30-second and two 10-second ads to promote
Hillary. * * * 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. * * * At the very least, the
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disclaimers avoid confusion by making clear that the ads are not funded by a candidate or
political party. * * *
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. 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 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. * * * 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.” 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.
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.

JUSTICE THOMAS, concurring in part and dissenting in part. * * *

[JUSTICE THOMAS related examples provided by amici of threats against persons whose support
for a California anti-gay-marriage proposition was disclosed because of a California law similar
to §§ 201 and 311.] 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.’ ” 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.” Of course they do. Disclaimer and
disclosure requirements enable private citizens and elected officials to implement political
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strategies specifically calculated to curtail campaign-related activity and prevent the lawful,
peaceful exercise of First Amendment rights. * * *
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.’ ” Accordingly, I respectfully dissent from the Court’s judgment
upholding BCRA §§ 201 and 311.

Notes and Questions

1. Buckley and McConnell are two of the longest sets of opinions in Supreme Court history.
Yet the discussion of disclosure is relatively brief in each case, with very little discussion of the
evidence and arguments offered by the parties. How sound are the opinions?
The Buckley Court identified three government interests served by mandatory disclosure. To
what extent does disclosure truly serve these interests?
The first government interest is in preventing corruption that falls short of bribery. The
theory is that disclosure will embarrass both large donors and the candidates who accept them.
Perry Belmont, Publicity of Election Expenditures, 180 N. AMER. REV. 166, 182 (1905). But can
this justify the disclosure of modest contributions? How does this anti-corruption interest work?
According to two skeptics:
The theory of disclosure insists that voters will reject candidates at the polls when disclosure shows too
much spending, misdirected spending, unsavory or disfavored financial sources, or excessive contributions.
In elections, however, a citizen cannot express himself solely on campaign finance practices; his vote for a
candidate is a decision about many other issues as well ... . Voters do not and should not give campaign
finance practices heavy weight in making ballot choices, and therefore candidates rarely need fear that
disclosure of such practices will result in political penalties at the polls.

DAVID W. ADAMANY & GEORGE E. AGREE, POLITICAL MONEY: A STRATEGY FOR CAMPAIGN FINANCING
IN AMERICA 103-12 (1975). In 2000, before the Bipartisan Campaign Reform Act prohibited
unlimited soft money donations to parties, 800 individuals contributed an average of $375,000 to
the national political parties. Richard Briffault, The Future of Reform: Campaign Finance After
the Bipartisan Campaign Reform Act of 2002, 34 ARIZ. ST. L.J. 1179, 1183 (2002). Does this
prove that Adamany and Agree were correct? At the same time, others express the concern,
voiced by Chief Justice Burger in Buckley, than many laws set the disclosure threshold so low as
to capture contributions that are highly unlikely to have any improper influence on a candidate or
officeholder. See e.g. William McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of
Political Contribution Disclosure, 6 U. PENN. J. CONST. L. 1, 30 (2003).
A second government interest recognized in Buckley is in providing the electorate with
information. How valuable is the information provided by such disclosures? Certainly public
endorsements by interest groups and prominent individuals have value to voters. Does disclosure
of information about contributions and expenditures add to that knowledge? Low disclosure
thresholds may inhibit the effectiveness of disclosure laws in meeting the government’s
information interest by drowning voters with data of little informational value. Id. at 28-29; see
also Richard Briffault, Campaign Finance Disclosure 2.0 (paper presented at UCLA Law
School, Jan. 29, 2010). And voters, in fact, rarely seek out such information. Raymond J. LaRaja,
Sunshine Laws and the Press: The Effect of Campaign Disclosure on News Reporting, 6 ELECTION
L.J. 236, 237 (2007).
Finally, reporting of campaign contributions may aid the government in enforcing other
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limitations, such as those on contributions. Assuming that this is a valid government interest,
does it serve to justify public disclosure of the information so reported?
2. Another interest? Bob Bauer, a prominent practitioner who served as General Counsel to
the Obama for President campaign and later as White House Counsel, has suggested that in
practice, the primary purpose of disclosure has become to generate news stories and press
releases justifying further restrictions on contributions, spending, and other activity. Robert F.
Bauer, Not Just a Private Matter: The Purposes of Disclosure in an Expanded Regulatory
System, 6 ELECTION L.J. 38 (2007). Do you share Bauer’s skepticism that disclosure serves the
government interests identified in Buckley?
3. As recently as 1996, researchers and others interested in learning about donors to federal
campaigns typically had to visit the office of the Federal Election Commission and manually
pore over the records. Disclosure was overwhelmingly, therefore, a Washington, D.C. activity,
with distribution of the information to the broader public mediated by reporters and a small
number of public interest groups that sought to organize and publish the information. The rise of
the Internet, with electronic filing and on-line publication of reports, has dramatically changed
the nature of disclosure, making it possible for anyone with Internet access to pull up filing
information at virtually zero cost, often within hours of contributions being made. Some
prominent web sites, such as the Huffington Post and EightMaps.com, have linked the required
disclosure information to mapping services, so that an interested person can find, within seconds,
not only the names and addresses of donors, but maps to their homes. States have followed suit,
and forty-nine states now post information on campaign contributors on the Internet, forty within
two days of filing. CALIFORNIA VOTER FOUNDATION , GRADING STATE DISCLOSURE 20 (2008)
(available at http://www.campaigndisclosure.org/gradingstate/GSD08.pdf.).
As donor information has become widely available, tales of abuse of the information,
including lost employment, commercial boycotts, physical threats, vandalism, and even death
threats have surfaced with increasing frequency. See ProtectMarriage.com v. Bowen, 599 F.
Supp. 2d 1197 (E.D. Ca. 2009); Bradley A. Smith, In Defense of Political Anonymity, 20 CITY J.
74, 76-77 (2010). Does this change the calculus from that set forth by the Court in Buckley and
McConnell? In two recent cases not involving campaign finance, the Supreme Court has shown
some interest in the privacy issues of state disclosure of citizen political activity. See Doe v.
Reed, 586 F.3d 671 (9th Cir. 2009), cert. granted, 175 L. Ed. 2d 941 (2010) (public disclosure of
names of signers of a ballot petition); Hollingsworth v. Perry, 558 U.S. __, __, 130 S. Ct. 705,
707 (2010) (staying an order allowing cameras in the courtroom where evidence was expected to
reveal names of donors to California ballot initiative to prohibit same-sex marriage).
4. See Meyer v. Grant, 486 U.S. 414 (1988) [p. XXX], and Buckley v. American
Constitutional Law Foundation, 525 U.S. 182 (1999) [p. XXX], for the Court’s treatment of
compulsory disclosure in the context of ballot measures.
5. Although one longstanding justification for disclosure laws is that they assist in
preventing corruption, other commentators have noted that it is the very ability of candidates and
officeholders to identify contributors (and non-contributors) that creates many of the public
concerns about campaign contributions. Without the ability to identify donors (and non-donors),
officeholders can neither be influenced by donations, nor can they abuse their office to extract,
through threats of adverse government action, contributions from unwilling donors. In a much
discussed book, Yale Law School Professors Bruce Ackerman and Ian Ayres argue that rather
than compel disclosure of contributor information, the government should establish a system that
prevents candidates from knowing who their donors are, similar to a blind trust. BRUCE
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ACKERMAN & IAN AYRES, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE
(2002). Two law reviews held symposia, featuring many of the country’s leading campaign-
finance and election-law scholars, dedicated specifically to discussing the Ackerman/Ayres
book. See 91 CAL. L. REV. 641-768 (2003); 37 RICHMOND L. REV. 935-1184 (2003). A strong
critique of the Ackerman/Ayres proposal is offered in Lillian R. BeVier, What Ails Us? (book
review), 112 YALE L.J. 1135 (2003).
6. Recall McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), and Brown v.
Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982) [p. XXX], discussed in Chapter
8, supra. Can you harmonize these cases with those portions of Buckley, McConnell, and
Citizens United set forth above? See Majors v. Abell, 361 F.3d 349, 355 (7th Cir. 2004); id. at
356 (Easterbrook, J., dubitante); Kentucky Right to Life, Inc. v. Terry, 108 F. 3d 637 (6th Cir.),
cert. denied, 522 U.S. 860 (1997).