For the past few years, I’ve been bothered by the strong influence that corporations and their lobbyists have had in our political system. It seems that these corporations are able to spend large amounts of money to insure that only their voices are heard in the halls of government. While many Tea Party members are worried about an encroaching big government, I share with many progressives a different worry about the growing power of corporations over our politics and personal choices. So last Summer I decided to attend a rally to limit corporate lobbying and sponsorship of politicians in Washington D.C. and to advocate the public financing of elections in front of San Jose’s City Hall. Along with this blog are photos I took of the event.
Many in the crowd were mad at the recent Supreme Court decision CITIZENS UNITED v. FEDERAL ELECTION COMMISSION that took away the restrictions of corporate donations to political campaigns that were put in place by reforms like the McCain-Feingold Act. The decision stated that companies have a free-speech right to spend as much as they wish to persuade voters to elect or defeat candidates for Congress and the White House. According to a January 21, 2010 article by David G. Savage for the Los Angeles Times:
Until now, corporations and unions have been barred from spending their own treasury funds on broadcast ads or billboards that urge the election or defeat of a federal candidate. This restriction dates back to 1907, when President Theodore Roosevelt called on Congress to forbid corporations, railroads and national banks from using their money in federal election campaigns. After World War II, Congress extended this ban to labor unions.
In today’s decision, the high court struck down that restriction and said the 1st Amendment gives corporations, just like individuals, a right to spend their own money on political ads.
“The 1st 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,” said Justice Anthony M. Kennedy for the court.
Two significant prohibitions on corporations were left standing. Corporations, and presumably unions, cannot give money directly to the campaigns of federal candidates. These “contribution” restrictions were not challenged in the case decided today. And secondly, the court affirmed current federal rules which require the sponsors of political ads to disclose who paid for them.
Most election-law expert have predicted a court decision freeing corporations will send millions of extra dollars flooding into this fall’s contests for Congress. And they predict Republicans will be the main beneficiaries.
This is an issue I’m only starting to learn about. The amount of money being spent on recent elections bothers me. During the summer, the San Jose Mercury ran some articles on lobbyists writing bills for the Assemblymen in Sacramento. These two things, plus my dislike of the recent Supreme Court ruling on corporations, inspired me to attend the rally to listen to what they had to say.
Many of the speakers talked about HR 1826, the Fair Elections Now Act, that was in Congress. I didn’t know about HR 1826, the Fair Elections Now Act, but many people in the rally supported bills like this that would set up a system of public financing for candidates, to try to weaken the influence of corporate donations on political candidates. I was recommended the website Public Campaign Action Fund to learn more about the issue. According to the link seven states and two cities have full public financing, for some political offices. Three states—Arizona, Connecticut, and Maine—provide full public financing for all statewide and legislative races. These laws have been approved through a combination of the ballot process and by legislatures.
That day, I saw around fifty people attend the rally in San Jose. Though it may have seemed a small rally compared to the demonstrations that have been seen in other events, I was inspired by the passion of the people who attended. They cared enough about their country to take time off to voice their opinions and try to be heard. It reminded me of a passage in Howard Zinn’s book You Can’t Be Neutral On A Moving Train. While reminiscing about his involvement in the Southern Civil Rights movement, Zinn wrote:
What took place in Atlanta was a combination of frontal assaults- sit-ins, demonstrations, arrests- and a persistent, stubborn wearing away of the encrusted rules of racial segregation. In that decade we heard the word “revolution” thrown about. To some people it meant armed rebellion. To me it came to mean just such a combination of daring forays and patient pushing-pushing-pushing as I saw in the South, “the long march through the institutions,” as someone described it- not a completed event, but an ongoing process.
As I began to realize, no pitifully small picket line, no poorly attended meeting, no tossing out of an idea to an audience or even to an individual should be scorned as insignificant.
The power of a bold idea uttered publicly in defiance of dominant opinion cannot be easily measured. Those special people who speak out in such a way as to shake up not only the self-assurance of their enemies, but the complacency of their friends, are precious catalysts for change.
I end this blog with lengthy excerpts of the dissent of Justice Stevens to the CITIZENS UNITED ruling:
Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STATES
CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[January 21, 2010]
JUSTICE STEVENS, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part.
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United maybe required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant.Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U. S. 197, 209 (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209–210. The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540
U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981).
In his landmark concurrence in Ashwander v. TVA, 297 U. S. 288, 346 (1936), Justice Brandeis stressed the importance of adhering to rules the Court has “developed . . . for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court’s analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally .1 I regret the length of what follows, but the importance and novelty of the Court’s opinion require a full response. Although I concur in the Court’s decision to sustain BCRA’s disclosure provisions and join Part IVof its opinion, I emphatically dissent from its principal holding.
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question.
Scope of the Case
The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell,” ante, at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a. In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge,1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id., Nos. 53 (May 22, 2008), 54 (May 23,2008), App. 6a. The District Court therefore resolved the case on alternative grounds, and in its jurisdictional statement to this Court, Citizens United properly advised us that it was raising only “an as-applied challenge to the constitutionality of . . . BCRA §203.” Juris. Statement 5. The jurisdictional statement never so much as cited Austin, the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United’s corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin, it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions; instead it argued only that the statute could not be applied to it because it was “funded overwhelmingly by individuals.” Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming “as applied” character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009)(counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that “we accept the Court’s decision in Wisconsin Right to Life”).
“‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’” Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)), and it is “only in the most exceptional cases” that we will consider issues outside the questions presented, Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976). The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.
Setting the case for reargument was a constructive step,but it did not cure this fundamental problem. Essentially,five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
As-Applied and Facial Challenges
This Court has repeatedly emphasized in recent years that “[f]acial challenges are disfavored.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 450 (2008); see also Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006) (“[T]he ‘normal rule’ is that ‘partial, rather than facial, invalidation is the required course,’ such that a ‘statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact’” (quoting Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); alteration in original)). By declaring §203 facially unconstitutional, our colleagues have turned an as-applied challenge into a facial challenge, in defiance of this principle.
This is not merely a technical defect in the Court’s decision.
The unnecessary resort to a facial inquiry”run[s] contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange, 552 U. S., at 450 (internal quotation marks omitted). Scanting that principle “threaten[s] to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id., at 451. These concerns are heightened when judges overrule settled doctrine upon which the legislature has relied. The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.
The problem goes still deeper, for the Court does all of this on the basis of pure speculation. Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed,through the normal process of litigation, a record about the actual effects of §203, its actual burdens and its actual benefits, on all manner of corporations and unions.
“Claims of facial invalidity often rest on speculation,” and consequently “raise the risk of premature interpretation of statutes on the basis of factually bare bones records.” Id., at 450 (internal quotation marks omitted). In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent. Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert. The Court now negates Congress’ efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting any entity other than Citizens United.
Faced with this gaping empirical hole, the majority throws up its hands. Were we to confine our inquiry to Citizens United’s as-applied challenge, it protests, we would commence an “extended” process of “draw[ing], and then redraw[ing], constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” Ante, at 9. While tacitly acknowledging that some applications of §203might be found constitutional, the majority thus posits a future in which novel First Amendment standards must be devised on an ad hoc basis, and then leaps from this unfounded prediction to the unfounded conclusion that such complexity counsels the abandonment of all normal restraint. Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies,may raise some unanticipated difficulties at the margins. The fluid nature of electioneering communications does not make this case special. The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge.6
The majority proposes several other justifications for the sweep of its ruling. It suggests that a facial ruling is necessary because, if the Court were to continue on its normal course of resolving as-applied challenges as they present themselves, that process would itself run afoul of the First Amendment. See, e.g., ante, at 9 (as-applied review process “would raise questions as to the courts’ own lawful authority”); ibid. (“Courts, too, are bound by the First Amendment”). This suggestion is perplexing. Our colleagues elsewhere trumpet “our duty ‘to say what the law is,’” even when our predecessors on the bench and our counterparts in Congress have interpreted the law differently. Ante, at 49 (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). We do not typically say what the law is not as a hedge against future judicial error. The possibility that later courts will misapply a constitutional provision does not give us a basis for pretermitting litigation relating to that provision.
The majority suggests that a facial ruling is necessary because anything less would chill too much protected speech. See ante, at 9–10, 12, 16–20. In addition to begging the question what types of corporate spending are constitutionally protected and to what extent, this claim rests on the assertion that some significant number of corporations have been cowed into quiescence by FEC”‘censor[ship].’” Ante, at 18–19. That assertion is unsubstantiated, and it is hard to square with practical experience. It is particularly hard to square with the legal landscape following WRTL, which held that a corporate communication could be regulated under §203 only if it was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 551 U. S., at 470 (opinion of ROBERTS, C. J.) (emphasis added). The whole point of this test was to make §203 as simple and speech-protective as possible. The Court does not explain how, in the span of a single election cycle, it has determined THE CHIEF JUSTICE’s project to be a failure. In this respect, too, the majority’s critique of line-drawing collapses into a critique of the as-applied review method generally.
The majority suggests that, even though it expressly dismissed its facial challenge, Citizens United nevertheless preserved it-not as a freestanding “claim,” but as a potential argument in support of “a claim that the FEC has violated its First Amendment right to free speech.” Ante, at 13; see also ante, at 4 (ROBERTS, C. J., concurring) (describing Citizens United’s claim as: “[T]he Act violates the First Amendment”). By this novel logic, virtually any submission could be reconceptualized as “a claim that the Government has violated my rights,” and it would then be available to the Court to entertain any conceivable issue that might be relevant to that claim’s disposition. Not only the as-applied/facial distinction, but the basic relationship between litigants and courts, would be upended if the latter had free rein to construe the former’s claims at such high levels of generality. There would be no need for plaintiffs to argue their case; they could just cite the constitutional provisions they think relevant, and leave the rest to us.
Finally, the majority suggests that though the scope of Citizens United’s claim may be narrow, a facial ruling is necessary as a matter of remedy. Relying on a law review article, it asserts that Citizens United’s dismissal of the facial challenge does not prevent us “‘from making broader pronouncements of invalidity in properly “as applied” cases.’” Ante, at 14 (quoting Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon)); accord, ante, at 5 (opinion of ROBERTS, C. J.) (“Regardless whether we label Citizens United’s claim a ‘facial’ or ‘as applied’ challenge, the consequences of the Court’s decision are the same”). The majority is on firmer conceptual ground here. Yet even if one accepts this part of Professor Fallon’s thesis, one must proceed to ask which as-applied challenges, if successful, will “properly” invite or entail invalidation of the underlying statute.10 The paradigmatic case is a judicial determination that the legislature acted with an impermissible purpose in enacting a provision, as this carries the necessary implication that all future as applied challenges to the provision must prevail. See Fallon 1339–1340.
Citizens United’s as-applied challenge was not of this sort. Until this Court ordered reargument, its contention was that BCRA §203 could not lawfully be applied to a feature-length video-on-demand film (such as Hillary) or to a nonprofit corporation exempt from taxation under 26 U. S. C. §501(c)(4)11 and funded overwhelmingly by individuals (such as itself). See Brief for Appellant 16–41.Success on either of these claims would not necessarily carry any implications for the validity of §203 as applied to other types of broadcasts, other types of corporations, or unions. It certainly would not invalidate the statute as applied to a large for-profit corporation. See Tr. of Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens United emphasizing that appellant is “a small, nonprofit organization, which is very much like [an MCFL corporation],”and affirming that its argument “definitely would not be the same” if Hillary were distributed by General Motors).12 There is no legitimate basis for resurrecting a facial challenge that dropped out of this case 20 months ago.
It is all the more distressing that our colleagues have manufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutes and precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “[I]f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).
Consider just three of the narrower grounds of decision that the majority has bypassed. First, the Court could have ruled, on statutory grounds, that a feature-length film distributed through video-on-demand does not qualify as an “electioneering communication” under §203 ofBCRA, 2 U. S. C. §441b. BCRA defines that term to encompass certain communications transmitted by “broadcast, cable, or satellite.” §434(f)(3)(A). When Congress was developing BCRA, the video-on-demand medium was still in its infancy, and legislators were focused on a very different sort of programming: short advertisements run on television or radio. See McConnell, 540 U. S., at 207. The sponsors of BCRA acknowledge that the FEC’s implementing regulations do not clearly apply to video-on demand transmissions. See Brief for Senator John McCain et al. as Amici Curiae 17–19. In light of this ambiguity, the distinctive characteristics of video-on demand, and “[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657 (1895), the Court could have reasonably ruled that §203 does not apply to Hillary.13
Second, the Court could have expanded the MCFL exemption to cover §501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations.Citizens United professes to be such a group: Its brief says it “is funded predominantly by donations from individuals who support [its] ideological message.” Brief for Appellant
5. Numerous Courts of Appeal have held that de minimis business support does not, in itself, remove an otherwise qualifying organization from the ambit of MCFL.14 This Court could have simply followed their lead.
Finally, let us not forget Citizens United’s as-applied constitutional challenge. Precisely because Citizens United looks so much like the MCFL organizations we have exempted from regulation, while a feature-length video-on-demand film looks so unlike the types of electoral advocacy Congress has found deserving of regulation, this challenge is a substantial one. As the appellant’s own arguments show, the Court could have easily limited the breadth of its constitutional holding had it declined to adopt the novel notion that speakers and speech acts must always be treated identically-and always spared expenditures restrictions-in the political realm. Yet the Court nonetheless turns its back on the as-applied review process that has been a staple of campaign finance litigation since Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and that was affirmed and expanded just two Terms ago in WRTL, 551 U. S. 449.
This brief tour of alternative grounds on which the case could have been decided is not meant to show that any of these grounds is ideal, though each is perfectly “valid,” ante, at 12 (majority opinion).16 It is meant to show that there were principled, narrower paths that a Court that was serious about judicial restraint could have taken.There was also the straightforward path: applying Austin and McConnell, just as the District Court did in holding that the funding of Citizens United’s film can be regulated under them. The only thing preventing the majority from affirming the District Court, or adopting a narrower ground that would retain Austin, is its disdain for Austin.
II The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any other. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine. “[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” Planned Parenthood of South-eastern Pa. v. Casey, 505 U. S. 833, 864 (1992). No such justification exists in this case, and to the contrary there are powerful prudential reasons to keep faith with our precedents.17 The Court’s central argument for why stare decisis ought to be trumped is that it does not like Austin. The opinion “was not well reasoned,” our colleagues assert, and it conflicts with First Amendment principles. Ante, at 47–
This, of course, is the Court’s merits argument, the many defects in which we will soon consider. I am perfectly willing to concede that if one of our precedents were dead wrong in its reasoning or irreconcilable with the rest of our doctrine, there would be a compelling basis for revisiting it. But neither is true of Austin, as I explain at length in Parts III and IV, infra, at 23–89, and restating a merits argument with additional vigor does not give it extra weight in the stare decisis calculus.
Perhaps in recognition of this point, the Court supplements its merits case with a smattering of assertions. The Court proclaims that “Austin is undermined by experience since its announcement.” Ante, at 48. This is a curious claim to make in a case that lacks a developed record. The majority has no empirical evidence with which to substantiate the claim; we just have its ipse dixit that the real world has not been kind to Austin. Nor does the majority bother to specify in what sense Austin has been “undermined.” Instead it treats the reader to a string of nonsequiturs: “Our Nation’s speech dynamic is changing,” ante, at 48; “[s]peakers have become adept at presenting citizens with sound bites, talking points, and scripted messages,” ibid.; “[c]orporations . . . do not have monolithic views,” ibid. How any of these ruminations weakens the force of stare decisis, escapes my comprehension.
The majority also contends that the Government’s hesitation to rely on Austin’s antidistortion rationale “diminishe[s]” “the principle of adhering to that precedent.” Ante, at 48; see also ante, at 11 (opinion of ROBERTS, C. J.) (Government’s litigating position is “most importan[t]” factor undermining Austin). Why it diminishes the value of stare decisis is left unexplained. We have never thought fit to overrule a precedent because a litigant has taken any particular tack. Nor should we. Our decisions can often be defended on multiple grounds, and a litigant may have strategic or case-specific reasons for emphasizing only a subset of them. Members of the public, moreover,often rely on our bottom-line holdings far more than our precise legal arguments; surely this is true for the legislatures that have been regulating corporate electioneering since Austin. The task of evaluating the continued viability of precedents falls to this Court, not to the parties.
Although the majority opinion spends several pages making these surprising arguments, it says almost nothing about the standard considerations we have used to determine stare decisis value, such as the antiquity of the precedent, the workability of its legal rule, and the reliance interests at stake. It is also conspicuously silent about McConnell, even though the McConnell Court’s decision to uphold BCRA §203 relied not only on the antidistortion logic of Austin but also on the statute’s historical pedigree, see, e.g., 540 U. S., at 115–132, 223–224, and the need to preserve the integrity of federal campaigns, see id., at 126–129, 205–208, and n. 88.
We have recognized that “[s]tare decisis has special force when legislators or citizens ‘have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.’” Hubbard v. United States, 514 U. S. 695, 714 (1995) (quoting Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991)). Stare decisis protects not only personal rights involving property or contract but also the ability of the elected branches to shape their laws in an effective and coherent fashion. Today’s decision takes away a power that we have long permitted these branches to exercise.State legislatures have relied on their authority to regulate corporate electioneering, confirmed in Austin, for more than a century.20 The Federal Congress has relied on this authority for a comparable stretch of time, and it specifically relied on Austin throughout the years it spent developing and debating BCRA. The total record it compiled was 100,000 pages long.21 Pulling out the rug beneath Congress after affirming the constitutionality of §203 six years ago shows great disrespect for a coequal branch.
By removing one of its central components, today’s ruling makes a hash out of BCRA’s “delicate and interconnected regulatory scheme.” McConnell, 540 U. S., at 172. Consider just one example of the distortions that will follow: Political parties are barred under BCRA from soliciting or spending “soft money,” funds that are not subject to the statute’s disclosure requirements or its source and amount limitations. 2 U. S. C. §441i; McConnell, 540 U. S., at 122–126. Going forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind. The Court’s ruling thus dramatically enhances the role of corporations and unions-and the narrow interests they represent-vis-à-vis the role of political parties-and the broad coalitions they represent-in determining who will hold public office.
Beyond the reliance interests at stake, the other stare decisis factors also cut against the Court. Considerations of antiquity are significant for similar reasons. McConnell is only six years old, but Austin has been on the books for two decades, and many of the statutes called into question by today’s opinion have been on the books for a half century or more. The Court points to no intervening change in circumstances that warrants revisiting Austin. Certainly nothing relevant has changed since we decided WRTL two Terms ago. And the Court gives no reason to think that Austin and McConnell are unworkable.
In fact, no one has argued to us that Austin’s rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the business community,23 organized labor,24 and the nonprofit sector,25 together with more than half of the States,26 urge that we preserve Austin. As for McConnell, the portions of BCRAit upheld may be prolix, but all three branches of Government have worked to make §203 as user-friendly as possible. For instance, Congress established a special mechanism for expedited review of constitutional challenges, see note following 2 U. S. C. §437h; the FEC has established a standardized process, with clearly defined safe harbors, for corporations to claim that a particular electioneering communication is permissible under WRTL, see 11 CFR §114.15 (2009);27 and, as noted above, THE CHIEF JUSTICE crafted his controlling opinion in WRTL with the express goal of maximizing clarity and administrability, 551 U. S.,at 469–470, 473–474. The case for stare decisis may be bolstered, we have said, when subsequent rulings “have reduced the impact” of a precedent “while reaffirming the decision’s core ruling.” Dickerson v. United States, 530 U. S. 428, 443 (2000).28 In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court.Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.” Vasquez v. Hillery, 474
U. S. 254, 265 (1986).
III The novelty of the Court’s procedural dereliction and its approach to stare decisis is matched by the novelty of its ruling on the merits. The ruling rests on several premises.First, the Court claims that Austin and McConnell have “banned” corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker’s identity as a corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment tradition and our campaign finance jurisprudence. Each of these claims is wrong.
The So-Called “Ban”
Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate speech. Ante, at 45. Indeed, the majority invokes the specter of a “ban” onnearly every page of its opinion. Ante, at 1, 4, 7, 10, 11, 12, 13, 16, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 33, 35, 38, 40, 42, 45, 46, 47, 49, 54, 56. This characterization is highly misleading, and needs to be corrected.
In fact it already has been. Our cases have repeatedly pointed out that, “[c]ontrary to the [majority's] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending.” Austin, 494 U. S., at 660; see also McConnell, 540 U. S., at 203–204; Beaumont, 539 U. S., at 162–163. For starters, both statutes provide exemptions for PACs, separate segregated funds established by a corporation for political purposes. See 2 U. S. C. §441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West 2005). “The ability to form and administer separate segregated funds,” we observed in McConnell, “has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view.” 540 U. S., at 203.
Under BCRA, any corporation’s “stockholders and their families and its executive or administrative personnel and their families” can pool their resources to finance electioneering communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of corporations availthemselves of this option;29 during the most recent election cycle, corporate and union PACs raised nearly a billion dollars.30 Administering a PAC entails some administrative burden, but so does complying with the disclaimer,disclosure, and reporting requirements that the Court today upholds, see ante, at 51, and no one has suggested that the burden is severe for a sophisticated for-profit corporation. To the extent the majority is worried about this issue, it is important to keep in mind that we have no record to show how substantial the burden really is, just the majority’s own unsupported factfinding, see ante, at 21–22. Like all other natural persons, every shareholder of every corporation remains entirely free under Austin and McConnell to do however much electioneering she pleases outside of the corporate form. The owners of a “mom & pop” store can simply place ads in their own names, rather than the store’s. If ideologically aligned individuals wish to make unlimited expenditures through the corporate form, they may utilize an MCFL organization that has policies in place to avoid becoming a conduit for business or union interests. See MCFL, 479 U. S., at 263–264.
The laws upheld in Austin and McConnell leave openmany additional avenues for corporations’ political speech.Consider the statutory provision we are ostensibly evaluating in this case, BCRA §203. It has no application togenuine issue advertising-a category of corporate speech Congress found to be far more substantial than electionrelated advertising, see McConnell, 540 U. S., at 207-or to Internet, telephone, and print advocacy. Like numerous statutes, it exempts media companies’ news stories, commentaries, and editorials from its electioneering restrictions, in recognition of the unique role played by theinstitutional press in sustaining public debate.
See 2U. S. C. §434(f)(3)(B)(i); McConnell, 540 U. S., at 208–209; see also Austin, 494 U. S., at 666–668. It also allows corporations to spend unlimited sums on political communications with their executives and shareholders, §441b(b)(2)(A); 11 CFR §114.3(a)(1), to fund additional PAC activity through trade associations, 2 U. S. C. §441b(b)(4)(D), to distribute voting guides and voting records, 11 CFR §§114.4(c)(4)–(5), to underwrite voter registration and voter turnout activities, §114.3(c)(4);§114.4(c)(2), to host fundraising events for candidates within certain limits, §114.4(c); §114.2(f)(2), and to publicly endorse candidates through a press release and press conference, §114.4(c)(6).
At the time Citizens United brought this lawsuit, the only types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications;33
(2) capable of reaching at least 50,000 persons in the relevant electorate;34 (3) made within 30 days of a primaryor 60 days of a general federal election;35 (4) by a labor union or a non-MCFL, nonmedia corporation;36 (5) paid for with general treasury funds;37 and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”38 The category of communications meeting all of these criteria is not trivial,but the notion that corporate political speech has been “suppress[ed] . . . altogether,” ante, at 2, that corporations have been “exclu[ded] . . . from the general public dialogue,” ante, at 25, or that a work of fiction such as Mr. Smith Goes to Washington might be covered, ante, at 56– 57, is nonsense.39 Even the plaintiffs in McConnell, who had every incentive to depict BCRA as negatively as possible, declined to argue that §203′s prohibition on certain uses of general treasury funds amounts to a complete ban. See 540 U. S., at 204.
In many ways, then, §203 functions as a source restriction or a time, place, and manner restriction. It applies Ina viewpoint-neutral fashion to a narrow subset of advocacy messages about clearly identified candidates for federal office, made during discrete time periods through discrete channels. In the case at hand, all Citizens United needed to do to broadcast Hillary right before the primary was to abjure business contributions or use the funds in its PAC,which by its own account is “one of the most active conservative PACs in America,” Citizens United Political Victory Fund, http://www.cupvf.org/.40
So let us be clear: Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue. Laws such as §203 target a class of communications that is especially likely to corrupt the political process, that is at least one degree removed from the views of individual citizens, and that may not even reflect the views of those who pay for it. Such laws burden political speech, and that is always a serious matter, demanding careful scrutiny. But the majority’s incessant talk of a “ban” aims at a straw man.
The second pillar of the Court’s opinion is its assertion that “the Government cannot restrict political speechbased on the speaker’s . . . identity.” Ante, at 30; accord, ante, at 1, 24, 26, 30, 31, 32, 33, 34, 49, 50. The case on which it relies for this proposition is First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). As I shall explain, infra, at 52–55, the holding in that case was far narrower than the Court implies. Like its paeans to unfettered discourse, the Court’s denunciation of identity-based distinctions may have rhetorical appeal but it obscures reality.
“Our jurisprudence over the past 216 years has rejected an absolutist interpretation” of the First Amendment. WRTL, 551 U. S., at 482 (opinion of ROBERTS, C. J.). The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students,41 prisoners,42 members of the Armed Forces,43 foreigners,44 and its own employees.45 When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.46 In our cases recognize that the Government’s interests maybe more or less compelling with respect to different classes of speakers,47 cf. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983) (“[D]ifferential treatment” is constitutionally suspect”unless justified by some special characteristic” of the regulated class of speakers (emphasis added)), and that the constitutional rights of certain categories of speakers, in certain contexts, “‘are not automatically coextensive with the rights’” that are normally accorded to members of our society, Morse v. Frederick, 551 U. S. 393, 396–397, 404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)).
The free speech guarantee thus does not render every other public interest an illegitimate basis for qualifying a speaker’s autonomy; society could scarcely function if it did. It is fair to say that our First Amendment doctrine has “frowned on” certain identity-based distinctions, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 47, n. 4 (1999) (STEVENS, J., dissenting),particularly those that may reflect invidious discrimination or preferential treatment of a politically powerful group. But it is simply incorrect to suggest that we have prohibited all legislative distinctions based on identity or content. Not even close.
The election context is distinctive in many ways, and the Court, of course, is right that the First Amendment closely guards political speech. But in this context, too, the authority of legislatures to enact viewpoint-neutral regulations based on content and identity is well settled. We have, for example, allowed state-run broadcasters to exclude independent candidates from televised debates. Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 (1998).48 We have upheld statutes that prohibit the distribution or display of campaign materials near a polling place. Burson v. Freeman, 504 U. S. 191 (1992).49 Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. See, e.g., 2 U. S. C. §441e(a)(1). And we have consistently approved laws that bar Government employees, but not others, from contributing to or participating in political activities. See n. 45, supra. These statutes burden the political expression of one class of speakers, namely, civil servants. Yet we have sustained them on the basis of longstanding practice and Congress’ reasoned judgment that certain regulations which leave “untouched full participation . . . in political decisions at the ballot box,” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 556 (1973) (internal quotation marks omitted), help ensure that public officials are “sufficiently free from improper influences,” id., at 564, and that “confidence in the system of representative Government is not . . . eroded to a disastrous extent,” id., at 565.
The same logic applies to this case with additional force because it is the identity of corporations, rather than individuals, that the Legislature has taken into account.As we have unanimously observed, legislatures are entitled to decide “that the special characteristics of the corporate structure require particularly careful regulation” in an electoral context. NRWC, 459 U. S., at 209–210.50 Not only has the distinctive potential of corporations to corrupt the electoral process long been recognized, but within the area of campaign finance, corporate spending is also “furthest from the core of political expression, since corporations’ First Amendment speech and association interests are derived largely from those of their members and of the public in receiving information,” Beaumont, 539 U. S., at 161, n. 8 (citation omitted). Campaign finance distinctions based on corporate identity tend to be less worrisome, in other words, because the “speakers” are not natural persons, much less members of our political community, and the governmental interests are of the highest order. Furthermore, when corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser risk that regulatory distinctions will reflect invidious discrimination or political favoritism.
If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by”Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Ante, at 33 (quoting Buckley, 424 U. S., at 49).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.
In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
Our First Amendment Tradition
A third fulcrum of the Court’s opinion is the idea that Austin and McConnell are radical outliers, “aberration[s],”in our First Amendment tradition. Ante, at 39; see also ante, at 45, 56 (professing fidelity to “our law and our tradition”). The Court has it exactly backwards. It is today’s holding that is the radical departure from what had been settled First Amendment law. To see why, it is useful to take a long view.
1. Original Understandings Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 1 (internal quotation marks omitted), and original understandings, ante, at 37–38, to defend today’s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified
the Amendment. Perhaps this is because there is not a scintilla of evidence to support the notion that anyone believed it would preclude regulatory distinctions based on the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case,they would appear to cut strongly against the majority’s position.
This is not only because the Framers and their contemporaries conceived of speech more narrowly than we now think of it, see Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 22 (1971), but also because they held very different views about the nature of the First Amendment right and the role of corporations in society. Those few corporations that existed at the founding were authorized by grant of a special legislative charter.53 Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charter that specified the corporation’s powers and purposes and “authoritatively fixed the scope and content of corporate organization,” including “the internal structure of the corporation.” J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780–1970,pp. 15–16 (1970) (reprint 2004). Corporations were created, supervised, and conceptualized as quasi-public entities, “designed to serve a social function for the state.”Handlin & Handlin, Origin of the American BusinessCorporation, 5 J. Econ. Hist. 1, 22 (1945). It was “assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare.” R. Seavoy, Origins of the American Business Corporation, 1784–1855, p. 5 (1982).
The individualized charter mode of incorporation reflected the “cloud of disfavor under which corporations labored” in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006); see also Louis K. Liggett Co. v. Lee, 288 U. S. 517, 548–549 (1933) (Brandeis, J., dissenting) (discussing fearsof the “evils” of business corporations); L. Friedman, A History of American Law 194 (2d ed. 1985) (“The word ‘soulless’ constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentratethe worst urges of whole groups of men”). Thomas Jefferson famously fretted that corporations would subvert the Republic.54 General incorporation statutes, and widespread acceptance of business corporations as socially useful actors, did not emerge until the 1800′s. See Hansmann & Kraakman, The End of History for Corporate Law, 89 Geo. L. J. 439, 440 (2001) (hereinafter Hansmann& Kraakman) (“[A]ll general business corporation statutesappear to date from well after 1800″).
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.
Unlike our colleagues, they had little trouble distinguishing corporations from human beings,and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even “the notion that business corporations could invoke the First Amendment would probably have been quite a novelty,”given that “at the time, the legitimacy of every corporateactivity was thought to rest entirely in a concession of thesovereign.” Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trus-tees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall, C. J.) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129(“The framers of the First Amendment could scarcely have anticipated its application to the corporation form. That, of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to be the beneficiary of the free speech guaranty-the individual”). In light of these background practices and understandings, it seems to me implausible that the Framers believed “the freedom of speech” would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections.
The Court observes that the Framers drew on diverse intellectual sources, communicated through newspapers, and aimed to provide greater freedom of speech than had existed in England. Ante, at 37. From these (accurate)observations, the Court concludes that “[t]he First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media.” Ibid. This conclusion is far from certain, given that many historians believe the Framers were focused onprior restraints on publication and did not understand the First Amendment to “prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare.” Near v. Minnesota ex rel. Olson, 283 U. S. 697, 714 (1931). Yet, even if the majority’s conclusionwere correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent.
As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy. As a matter of original meaning, it likewise seems baseless-unless one evaluates the First Amendment’s “principles,” ante, at 1, 48, or its “purpose,” ante, at 5 (opinion of ROBERTS, C. J.), at such a high level of generality that the historical understandings of the Amendment cease to be a meaningful constraint on the judicial task. This case sheds a revelatory light on the assumption of some that an impartial judge’s application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in the decisional process, than his or her views about sound policy.
The Anticorruption Interest
Undergirding the majority’s approach to the merits is the claim that the only “sufficiently important governmental interest in preventing corruption or the appearance of corruption” is one that is “limited to quid pro quo corruption.” Ante, at 43. This is the same “crabbed view of corruption” that was espoused by JUSTICE KENNEDY in McConnell and squarely rejected by the Court in that case.540 U. S., at 152. While it is true that we have not alwaysspoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment. It disregards our constitutional history and the fundamental demands of a democratic society.
On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an “‘undue influence on an officeholder’s judgment’” and from creating “‘the appearance of such influence,’” beyond the sphere of quid pro quo relationships. Id., at 150; see also, e.g., id., at 143–144, 152–154; Colorado II, 533 U. S., at 441; Shrink Missouri, 528 U. S., at 389. Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improperinfluences 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 asa remarkable testament to the energy and ingenuity withwhich corporations, unions, lobbyists, and politicians maygo about scratching each other’s backs-and which amply supported Congress’ determination to target a limited setof especially destructive practices.
The District Court that adjudicated the initial challenge to BCRA pored over this record. In a careful analysis,Judge Kollar-Kotelly made numerous findings about the corrupting consequences of corporate and union independent expenditures in the years preceding BCRA’s passage. See McConnell, 251 F. Supp. 2d, at 555–560, 622–625; see also id., at 804–805, 813, n. 143 (Leon, J.) (indicating agreement). As summarized in her own words:
“The factual findings of the Court illustrate that corporations and labor unions routinely notify Members of Congress as soon as they air electioneering communications relevant to the Members’ elections. The record also indicates that Members express appreciation to organizations for the airing of these election-related advertisements. Indeed, Members of Congress are particularly grateful when negative issue advertisements are run by these organizations,leaving the candidates free to run positive advertisements and be seen as ‘above the fray.’ Political consultants testify that campaigns are quite aware of who is running advertisements on the candidate’s behalf, when they are being run, and where they are being run. Likewise, a prominent lobbyist testifies thatthese organizations use issue advocacy as a means to influence various Members of Congress.
“The Findings also demonstrate that Members of Congress seek to have corporations and unions run these advertisements on their behalf. The Findings show that Members suggest that corporations or individuals make donations to interest groups with theunderstanding that the money contributed to these groups will assist the Member in a campaign. After the election, these organizations often seek credit fortheir support. . . . Finally, a large majority of Americans (80%) are of the view that corporations and other organizations that engage in electioneering communications, which benefit specific elected officials, receivespecial consideration from those officials when matters arise that affect these corporations and organizations.” Id., at 623–624 (citations and footnote omitted).
Many of the relationships of dependency found by JudgeKollar-Kotelly seemed to have a quid pro quo basis, but other arrangements were more subtle. Her analysisshows the great difficulty in delimiting the precise scope ofthe 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 ademocratic society than the odd bribe. Yet the majority’s understanding of corruption would leave lawmakers impotent to address all but the most discrete abuses.
Our “undue influence” cases have allowed the American people to cast a wider net through legislative experiments designed to ensure, to some minimal extent, “that officeholders will decide issues . . . on the merits or the desires of their constituencies,” and not “according to the wishes ofthose who have made large financial contributions”-or expenditures-”valued by the officeholder.” McConnell, 540 U. S., at 153.63 When private interests are seen toexert outsized control over officeholders solely on account of the money spent on (or withheld from) their campaigns, the result can depart so thoroughly “from what is pure or correct” in the conduct of Government, Webster’s Third New International Dictionary 512 (1966) (defining “corruption”), that it amounts to a “subversion . . . of the electoral process,” Automobile Workers, 352 U. S., at 575. At stake in the legislative efforts to address this threat is therefore not only the legitimacy and quality of Government but also the public’s faith therein, not only “the capacity of this democracy to represent its constituents[but also] the confidence of its citizens in their capacity togovern themselves,” WRTL, 551 U. S., at 507 (Souter, J., dissenting). “Take away Congress’ authority to regulate the appearance of undue influence and ‘the cynical assumption that large donors call the tune could jeopardizethe willingness of voters to take part in democratic governance.’” McConnell, 540 U. S., at 144 (quoting Shrink Missouri, 528 U. S., at 390).
The cluster of interrelated interests threatened by such undue influence and its appearance has been well captured under the rubric of “democratic integrity.” WRTL, 551 U. S., at 522 (Souter, J., dissenting). This value has underlined a century of state and federal efforts to regulate the role of corporations in the electoral process.
Unlike the majority’s myopic focus on quid pro quoscenarios and the free-floating “First Amendment principles” on which it rests so much weight, ante, at 1, 48, this broader understanding of corruption has deep roots in the Nation’s history. “During debates on the earliest [campaign finance] reform acts, the terms ‘corruption’ and‘undue influence’ were used nearly interchangeably.” Pasquale, Reclaiming Egalitarianism in the Political Theory of Campaign Finance Reform, 2008 U. Ill. L. Rev. 599, 601. Long before Buckley, we appreciated that “[t]osay that Congress is without power to pass appropriate legislation to safeguard . . . an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” Burroughs v. United States, 290 U. S. 534, 545 (1934).And whereas we have no evidence to support the notion that the Framers would have wanted corporations to havethe same rights as natural persons in the electoral context, we have ample evidence to suggest that they wouldhave been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that theCourt today discounts to irrelevance. It is fair to say that”[t]he Framers were obsessed with corruption,” Teachout348, which they understood to encompass the dependency of public officeholders on private interests, see id., at 373– 374; see also Randall, 548 U. S., at 280 (STEVENS, J., dissenting). They discussed corruption “more often in the Constitutional Convention than factions, violence, or instability.” Teachout 352. When they brought our constitutional order into being, the Framers had their mindstrained on a threat to republican self-government that this Court has lost sight of.
Quid Pro Quo Corruption
There is no need to take my side in the debate over the scope of the anticorruption interest to see that the Court’s merits holding is wrong. Even under the majority’s “crabbed view of corruption,” McConnell, 540 U. S., at 152, the Government should not lose this case.
“The importance of the governmental interest in preventing [corruption through the creation of political debts] has never been doubted.” Bellotti, 435 U. S., at 788, n. 26. Even in the cases that have construed the anticorruptioninterest most narrowly, we have never suggested thatsuch quid pro quo debts must take the form of outrightvote buying or bribes, which have long been distinctcrimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of,some outlay of money the parties have made or will make on behalf of the officeholder. See McConnell, 540 U. S., at 143 (“We have not limited [the anticorruption] interest tothe elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws ‘deal[t] with only the most blatant and specific attempts of those with money toinfluence governmental action’” (quoting 424 U. S., at 28; alteration in original)). It has likewise never been doubted that “[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption.” Id., at 27. Congress may “legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.” Ibid. (internal quotation marks omitted; alteration in original). A democracy cannot function effectively when its constituent members believe laws are being bought and sold.
In theory, our colleagues accept this much. As appliedto BCRA §203, however, they conclude “[t]he anticorruption interest is not sufficient to displace the speech here inquestion.” Ante, at 41.
Although the Court suggests that Buckley compels itsconclusion, ante, at 40–44, Buckley cannot sustain this reading. It is true that, in evaluating FECA’s ceiling on independent expenditures by all persons, the Buckley Court found the governmental interest in preventingcorruption “inadequate.” 424 U. S., at 45. But Buckley did not evaluate corporate expenditures specifically, nor did it rule out the possibility that a future Court might find otherwise. The opinion reasoned that an expenditure limitation covering only express advocacy (i.e., magicwords) would likely be ineffectual, ibid., a problem that Congress tackled in BCRA, and it concluded that “the independent advocacy restricted by [FECA §608(e)(1)] does not presently appear to pose dangers of real or apparentcorruption comparable to those identified with large campaign contributions,” id., at 46 (emphasis added). Buckleyexpressly contemplated that an anticorruption rationale might justify restrictions on independent expenditures at a later date, “because it may be that, in some circumstances, ‘large independent expenditures pose the samedangers of actual or apparent quid pro quo arrangementsas do large contributions.’” WRTL, 551 U. S., at 478 (opinion of ROBERTS, C. J.) (quoting Buckley, 424 U. S., at 45). Certainly Buckley did not foreclose this possibility with respect to electioneering communications made withcorporate general treasury funds, an issue the Court had no occasion to consider.
The Austin Court did not rest its holding on quid pro quo corruption, as it found the broader corruption implicated by the antidistortion and shareholder protectionrationales a sufficient basis for Michigan’s restriction oncorporate electioneering. 494 U. S., at 658–660. Concurring in that opinion, I took the position that “the danger of either the fact, or the appearance, of quid pro quo relationships [also] provides an adequate justification for state regulation” of these independent expenditures. Id., at 678. I did not see this position as inconsistent with Buckley’s analysis of individual expenditures. Corporations, as aclass, tend to be more attuned to the complexities of the legislative process and more directly affected by tax andappropriations measures that receive little public scrutiny;they also have vastly more money with which to try to buyaccess and votes. See Supp. Brief for Appellee 17 (statingthat the Fortune 100 companies earned revenues of $13.1trillion during the last election cycle). Business corporations must engage the political process in instrumentalterms if they are to maximize shareholder value. The unparalleled resources, professional lobbyists, and singleminded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.
It is with regret rather than satisfaction that I can now say that time has borne out my concerns. The legislative and judicial proceedings relating to BCRA generated a substantial body of evidence suggesting that, as corporations grew more and more adept at crafting “issue ads” tohelp or harm a particular candidate, these nominally independent expenditures began to corrupt the political process in a very direct sense. The sponsors of these ads were routinely granted special access after the campaign was over; “candidates and officials knew who their friends were,” McConnell, 540 U. S., at 129. Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements. In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.
Austin recognized that there are substantial reasons why a legislature might conclude that unregulated generaltreasury expenditures will give corporations “unfai[r]influence” in the electoral process, 494 U. S., at 660, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financialresources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and thepolitical preferences of the individuals associated with thecorporation; the corporation must engage the electoral process with the aim “to enhance the profitability of thecompany, no matter how persuasive the arguments for abroader or conflicting set of priorities,” Brief for AmericanIndependent Business Alliance as Amicus Curiae 11; see also ALI, Principles of Corporate Governance: Analysisand Recommendations §2.01(a), p. 55 (1992) (“[A] corporation . . . should have as its objective the conduct of business activities with a view to enhancing corporate profitand shareholder gain”). In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests oflocal voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or nocorrelation” to the ideas of natural persons or to anybroader notion of the public good, 494 U. S., at 660. The opinions of real people may be marginalized. “The expenditure restrictions of [2 U. S. C.] §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.” MCFL, 479 U. S., at 259.
In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering, Austin, 494 U. S., at 659, can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increasedperception that large spenders “‘call the tune’” and areduced “‘willingness of voters to take part in democratic governance.’” McConnell, 540 U. S., at 144 (quoting Shrink Missouri, 528 U. S., at 390). To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of thoseraces may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation.On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to “hold officialsaccountable to the people,” ante, at 23, and disserve the goal of a public debate that is “uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). At the least, I stress again, a legislatureis entitled to credit these concerns and to take tailored measures in response.
The majority’s unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm, Austin, 494 U. S., at 659, may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources onbehalf of their position. The corporate form, by contrast,”provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation.” Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for CorporateCharters, 69 U. Chi. L. Rev. 1103, 1113 (2002). Corporations, that is, are uniquely equipped to seek laws that favor their owners, not simply because they have a lot ofmoney but because of their legal and organizational structure. Remove all restrictions on their electioneering, andthe door may be opened to a type of rent seeking that is “far more destructive” than what noncorporations arecapable of. Ibid. It is for reasons such as these that our campaign finance jurisprudence has long appreciated that “the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order toprotect the integrity of the electoral process.’” NRWC, 459 U. S., at 210 (quoting California Medical Assn., 453 U. S., at 201).
The Court’s facile depiction of corporate electioneering assumes away all of these complexities. Our colleagues ridicule the idea of regulating expenditures based on”nothing more” than a fear that corporations have a special “ability to persuade,” ante, at 11 (opinion of ROBERTS, C. J.), as if corporations were our society’s ablest debatersand viewpoint-neutral laws such as §203 were created to suppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignorethe fundamental concerns of the Austin Court and the legislatures that have passed laws like §203: to safeguard the integrity, competitiveness, and democratic responsiveness of the electoral process. All of the majority’s theoretical arguments turn on a proposition with undeniablesurface appeal but little grounding in evidence or experience, “that there is no such thing as too much speech,” Austin, 494 U. S., at 695 (SCALIA, J., dissenting)).74 If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had nospecial 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 besound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.
None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns or in any other public forum (much less that a work of art such as Mr. Smith Goes to Washington may be banned), or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s “concern about corporate domination of the political process,” 494 U. S., at 659, reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral “marketplace” of ideas, ante, at 19, 34, 38, 52, 54, the marketplace in which the actual people of this Nation determine how they will govern themselves. The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakersagainst the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to “First Amendment principles” depends almost entirely on the listeners’ perspective, ante, at 1, 48, it becomes necessary to consider how listeners will actually be affected.
In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining selfgovernment 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 majorityof this Court would have thought its flaws included a dearth of corporate money in politics.
I would affirm the judgment of the District Court