540 U.S. 93


Syllabus

Mv. FEDERAL ELECTION COMM’N ( Nos. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734; 02-1740, 02-1747, 02-1753, 02-1755, <font scaps="1">and<font> 02-1756 )
251 F. Supp. 2d 176, 251 F. Supp. 2d 948, affirmed in part and reversed in part.

M c CONNELL, UNITED STATES SENATOR, et al. v. FEDERAL ELECTION COMMISSION et al.

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


No. 02–1674. Argued September 8, 2003—Decided December 10, 2003 *

The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code, is the most recent of nearly a century of federal enactments designed “to purge national politics of what [is] conceived to be the pernicious influence of ‘big money’ campaign contributions.” United States v. Automobile Workers, 352 U. S. 567. In enacting BCRA, Congress sought to address three important developments in the years since this Court’s landmark decision in Buckley v. Valeo, 424 U. S. 1 (per curiam): 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.

With regard to the first development, prior to BCRA, FECA’s disclosure requirements and source and amount limitations extended only to so-called “hard money” contributions made for the purpose of influencing an election for federal office. Political parties and candidates were able to circumvent FECA’s limitations by contributing “soft money”—money as yet unregulated under FECA—to be used for activities intended to influence state or local elections; for mixed-purpose activities such as get-out-the-vote (GOTV) drives and generic party advertising; and for legislative advocacy advertisements, even if they mentioned a federal candidate’s name, so long as the ads did not expressly advocate the candidate’s election or defeat. With regard to the second development, parties and candidates circumvented FECA by using “issue ads” that were specifically intended to affect election results, but did not contain “magic words,” such as “Vote Against Jane Doe,” which would have subjected the ads to FECA’s restrictions. Those developments were detailed in a 1998 Senate Committee Report summarizing an investigation into the 1996 federal elections, which concluded that the soft-money loophole had led to a meltdown of the campaign finance system; and discussed potential reforms, including a soft-money ban and restrictions on sham issue advocacy by nonparty groups.

Congress enacted many of the committee’s proposals in BCRA: Title I regulates the use of soft money by political parties, officeholders, and candidates; Title II primarily prohibits corporations and unions from using general treasury funds for communications that are intended to, or have the effect of, influencing federal election outcomes; and Titles III, IV, and V set out other requirements. Eleven actions challenging BCRA’s constitutionality were filed. A three-judge District Court held some parts of BCRA unconstitutional and upheld others. The parties challenging the law are referred to here as plaintiffs, and those who intervened in support of the law are intervenor-defendants.

Held : The judgment is affirmed in part and reversed in part.

251 F. Supp. 2d 176, 251 F. Supp. 2d 948, affirmed in part and reversed in part.

Justice Stevens and Justice O’Connor delivered the Court’s opinion with respect to BCRA Titles I and II, concluding that the statute’s two principal, complementary features—Congress’ effort to plug the soft-money loophole and its regulation of electioneering communications—must be upheld in the main. Pp. 23–118.

1. New FECA §323 survives plaintiffs’ facial First Amendment challenge. Pp. 23–77.

(a) In evaluating §323, the Court applies the less rigorous standard of review applicable to campaign contribution limits under Buckley and its progeny. Such limits are subject only to “closely drawn” scrutiny, see 424 U. S., at 25, rather than to strict scrutiny, because, unlike restrictions on campaign expenditures, contribution limits “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication,” e.g., id., at 20–21. Moreover, contribution limits are grounded in the important governmental interests in 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.” E.g., Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197. The less rigorous review standard shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise, and provides it with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the political process’ integrity. Finally, because Congress, in its lengthy deliberations leading to BCRA’s enactment, properly relied on Buckley and its progeny, stare decisis considerations, buttressed by the respect that the Legislative and Judicial Branches owe one another, provide additional powerful reasons for adhering to the analysis of contribution limits the Court has consistently followed since Buckley. The Court rejects plaintiffs’ argument that the type of speech and associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley ’s contribution limits. Pp. 24–32.

(b) New FECA §323(a)—which forbids national party committees and their agents to “solicit, receive, … direct … , or spend any funds … that are not subject to [FECA’s] limitations, prohibitions, and reporting requirements,” 2 U. S. C. A. §§441i(a)(1), (2)—does not violate the First Amendment. Pp. 32–52.

(1) The governmental interest underlying §323(a)—preventing the actual or apparent corruption of federal candidates and officeholders—constitutes a sufficiently important interest to justify contribution limits. That interest is not limited to the elimination of quid pro quo, cash-for-votes exchanges, see Buckley, supra , at 28, but extends also to “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 (Colorado II) . These interests are sufficient to justify not only contribution limits themselves, but also laws preventing the circumvention of such limits. Id., at 456. While the quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments varies with the novelty or plausibility of the justification raised, Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, the idea that large contributions to a national party can corrupt or create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible, see, e.g., Buckley , supra, at 38. There is substantial evidence in these cases to support Congress’ determination that such contributions of soft money give rise to corruption and the appearance of corruption. For instance, the record is replete with examples of national party committees’ peddling access to federal candidates and officeholders in exchange for large soft-money donations. Pp. 32–45.

(2) Section §323(a) is not impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA’s hard-money source and amount limits, including, e.g., funds spent on purely state and local elections in which no federal office is at stake. The record demonstrates that the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, have made all large soft-money contributions to national parties suspect, regardless of how those funds are ultimately used. The Government’s strong interests in preventing corruption, and particularly its appearance, are thus sufficient to justify subjecting all donations to national parties to FECA’s source, amount, and disclosure limitations. Pp. 45–47.

(3) Nor is §323(a)’s prohibition on national parties’ soliciting or directing soft-money contributions substantially overbroad. That prohibition’s reach is limited, in that it bars only soft-money solicitations by national party committees and party officers acting in their official capacities; the committees themselves remain free to solicit hard money on their own behalf or that of state committees and state and local candidates and to contribute hard money to state committees and candidates. Plaintiffs argue unpersuasively that the solicitation ban’s overbreadth is demonstrated by §323(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. The differences between §§323(a) and 323(e) are without constitutional significance, see National Right to Work , 459 U. S., at 210, reflecting Congress’ reasonable and expert judgments about national committees’ functions and their interactions with officeholders. Pp. 47–48.

(4) Section 323(a) is not substantially overbroad with respect to the speech and associational rights of minor parties, even though the latter may have slim prospects for electoral success. It is reasonable to require that all parties and candidates follow the same rules designed to protect the electoral process’s integrity. Buckley, 424 U. S., at 34–35. A nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from amassing the resources necessary to engage in effective advocacy. Id., at 21. Pp. 48–51.

(5) Plaintiffs’ argument that §323(a) unconstitutionally interferes with the ability of national committees to associate with state and local committees is unpersuasive because it hinges on an unnaturally broad reading of the statutory terms “spend,” “receive,” “direct,” and “solicit.” Nothing on §323(a)’s face prohibits national party officers from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money, so long as the national officers do not personally spend, receive, direct, or solicit soft money. Pp. 51–52.

(c) On its face, new FECA §323(b)—which prohibits state and local party committees from using soft money for activities affecting federal elections, 2 U. S. C. A. §442i(b)—is closely drawn to match the important governmental interest of preventing corruption and its appearance. Pp. 52–66.

(1) Recognizing that the close ties between federal candidates and state party committees would soon render §323(a)’s anticorruption measures ineffective if state and local committees remained available as a conduit for soft-money donations, Congress designed §323(b) to prevent donors from contributing nonfederal funds to such committees to help finance “Federal election activity,” which is defined to encompass (1) voter registration activity during the 120 days before a federal election; (2) voter identification, GOTV, and generic campaign activity “conducted in connection with an election in which a [federal] candidate … appears on the ballot”; (3) any “public communication” that “refers to a clearly identified [federal] candidate” and “promotes,” “supports,” “attacks,” or “opposes” such a candidate; and (4) the services of a state committee employee who dedicates more than 25% of his or her compensated time to “activities in connection with a Federal election,” 2 U. S. C. A. §§431(20)(A)(i–iv). All activities that fall within this definition must be funded with hard money. §441i(b)(1). The Levin Amendment carves out an exception to this general rule, allowing state and local party committees to pay for certain federal election activities—namely, activities falling within categories (1) and (2) above that either do not refer to “a clearly identified candidate for Federal office,” or, if they involve broadcast communications, refer “solely to a clearly identified candidate for State or local office,” §§441i(b)(2)(B)(i)–(ii)—with an allocated ratio of hard money and so-called “Levin funds.” Levin funds are subject only to state regulation, but for two additional restrictions. First, no contributor can donate more than $10,000 per year to a single committee’s Levin account. §441i(b)(2)(B)(iii). Second, both Levin funds and the allocated portion of hard money to pay for such activities must be raised by the state or local committee that spends them, though the committee can team up with other national, state, or local committees to solicit the hard-money portion. §§441i(b)(2)(B)(iv), 441i(b)(2)(C). Pp. 52–55.

(2) In addressing soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. It concluded from the record that soft money’s corrupting influence insinuates itself into the political process not only through national party committees, but also through state committees, which function as an alternate avenue for precisely the same corrupting forces. Indeed, the evidence shows that both candidates and parties already ask donors who have reached their direct contribution limit to donate to state committees. Congress’ reasonable prediction, based on the history of campaign finance regulation, was that donors would react to §323(a) by directing soft-money contributions to state committees for the purpose of influencing federal candidates and elections, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. Pp. 55–57.

(3) Plaintiffs argue unpersuasively that, even if §323(b) serves a legitimate interest, its restrictions are so unjustifiably burdensome and overbroad that they cannot be considered “closely drawn” to match the Government’s objectives. Pp. 57–66.

(i) Section 323(b) is not substantially overbroad. Although §323(b) captures some activities that affect state campaigns for nonfederal offices, these are the same activities that were covered by the FEC’s pre-BCRA allocation rules, and so had to be funded in part by hard money because they affected both federal and state elections. As a practical matter, BCRA merely codifies the FEC’s allocation regime principles while justifiably adjusting the applicable formulas in order to restore the efficacy of FECA’s longstanding restriction on contributions to state and local committees for the purpose of influencing federal elections. By limiting its reach to “Federal election activities,” §323(b) is narrowly focused on regulating contributions that directly benefit federal candidates and thus pose the greatest risk of corruption or its appearance. The first two categories of “Federal election activity”—voter registration efforts and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election—clearly capture activities that confer a substantial benefit on federal candidates by getting like-minded voters to the polls. If a voter registration drive does not specifically mention a federal candidate, state committees can take advantage of the Levin Amendment’s higher contribution limits and relaxed source restrictions. Moreover, because the record demonstrates abundantly that the third category of “Federal election activity,” “public communication[s]” that promote or attack a federal candidate, directly affects the election in which that candidate is participating, application of §323(b)’s contribution caps to such communications is closely drawn to the anticorruption interest it is intended to address. Finally, Congress’ interest in preventing circumvention of §323(b)’s other restrictions justifies the requirement of the fourth category of “Federal election activity” that federal funds be used to pay any state or local party employee who spends more than 25% of his or her compensated time on activities connected with a federal election. Pp. 58–63.

(ii) The Levin Amendment does not unjustifiably burden association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. While preserving parties’ associational freedom is important, not every minor restriction on parties’ otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II , 533 U. S., at 450, n. 11. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. Pp. 63–65.

(iii) The evidence supporting the argument that the Levin Amendment prevents parties from amassing the resources needed to engage in effective advocacy is speculative. The history of campaign finance regulation proves 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 money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether the amount available over previous election cycles is reduced, but whether the reduction is so radical as to drive the sound of the recipient’s voice below the level of notice. Shrink Missouri , 528 U. S., at 397. If state or local parties can make such a showing, as-applied challenges remain available. Pp. 65–66.

(d) New FECA §323(d)—which forbids national, state, and local party committees and their agents to “solicit any funds for, or make or direct any donations” to §501(c) tax exempt organizations that make expenditures in connection with a federal election, and to §527 political organizations “other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office,” 2 U. S. C. A. §441i(d)—is not facially invalid. Pp. 66–73.

(1) Section 323(d)’s restriction on solicitations is a valid anti-circumvention measure. Absent this provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates. All of the corruption and the appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Plaintiffs’ argument that §323(d)’s solicitations ban cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited soft-money donations to tax-exempt organizations engaged in federal election activities, is not persuasive. If §323(d)’s solicitation restriction is otherwise valid, it is not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work, 459 U. S., at 210. Furthermore, the difference between the two provisions is explained by the fact that national party officers, unlike federal candidates and officeholders, remain free to solicit soft money on behalf of nonprofit organizations in their individual capacities. Given §323(e)’s tight content, source, and amount restrictions on soft-money solicitations by federal candidates and officeholders, as well as the less rigorous standard of review, §323(e)’s greater solicitation allowances do not render §323(d)’s solicitation restriction facially invalid. Pp. 67–71.

(2) Section 323(d)’s restriction on donations to qualifying §501(c) or §527 organizations is a valid anticircumvention measure insofar as it prohibits donations of funds not already raised in compliance with FECA. Absent such a restriction, state and local party committees could accomplish directly what the antisolicitation restrictions prevent them from doing indirectly—raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Although the ban raises overbreadth concerns if read to restrict donations from a party’s federal account— i.e. , funds already raised in compliance with FECA’s source, amount, and disclosure limitations—these concerns do not require that the facial challenge be sustained, given this Court’s obligation to construe a statute, if possible, in such a way as to avoid constitutional questions, see, e.g., Crowell v. Benson , 285 U. S. 22. Because the record does not compel the conclusion that Congress intended “donations” to include donations from a party’s hard-money account, and because of the constitutional infirmities such an interpretation would raise, the Court narrowly construes §323(d)’s ban to apply only to donations of funds not raised in compliance with FECA. Pp. 71–73.

(e) New FECA §323(e)—which, with many exceptions, forbids federal candidates and officeholders to “solicit, receive, direct, transfer, or spend” soft money in connection with federal elections, 2 U. S. C. A. §441i(e)(1)(A), and limits their ability to do so for state and local elections, §441i(e)(1)(B)—does not violate the First Amendment. No party seriously questions the constitutionality of the general ban on soft-money donations directly to federal candidates and officeholders and their agents. By severing the most direct link to the soft-money donor, the ban is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders. The solicitation restrictions are valid anticircumvention measures. Even before BCRA’s passage, federal candidates and officeholders solicited donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party’s, electoral cause. See Colorado II , 533 U. S., at 458. The incentives to do so will only increase with Title I’s restrictions on the raising and spending of soft money by national, state, and local parties. Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Pp. 74–77.

(f) New FECA §323(f)—which forbids state and local candidates or officeholders to raise and spend soft money to fund ads and other “public communications” that promote or attack federal candidates, 2 U. S. C. §442i(f)—is a valid anticircumvention provision. The section places no cap on the funds that such candidates can spend on any activity, but, rather, limits only the source and amount of contributions that they can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund “public communications,” the section focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and officeholders. Plaintiffs’ principal arguments against the section—(1) that the definition of “public communications” as communications that support or attack a clearly identified federal candidate is unconstitutionally vague and overbroad; and (2) that soft-money contributions to state and local candidates for “public communications” do not corrupt or appear to corrupt federal candidates—are rejected. Pp. 77–78.

2. Several plaintiffs argue unpersuasively that BCRA Title I exceeds Congress’ Election Clause authority to “make or alter” rules governing federal elections, U. S. Const., Art. I, §4, and violates constitutional federalism principles by impairing the States’ authority to regulate their own elections. In examining federal Acts for Tenth Amendment infirmity, the Court focuses on whether States and state officials are commandeered to carry out federal regulatory schemes. See, e.g., Printz v. United States , 521 U. S. 898. By contrast, Title I only regulates private parties’ conduct, imposing no requirements upon States or state officials. And, because it does not expressly pre-empt state legislation, Title I leaves States free to enforce their own restrictions on state electoral campaign financing. Moreover, while this Court has policed the absolute boundaries of Congress’ Article I power, see, e.g., United States v. Morrison, 529 U. S. 598, plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Indeed, as already found, Title I is closely drawn to match Congress’ important interest in preventing the corruption or the appearance of corruption of federal candidates and officeholders. That interest is sufficient to ground Congress’ exercise of its Elections Clause power. Pp. 79–80.

3. Also rejected is the argument that BCRA Title I violates equal protection by discriminating against political parties in favor of special interest groups, which remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications). First, BCRA actually favors political parties in many ways, e.g., by allowing party committees to receive individual contributions substantially exceeding FECA limits on contributions to nonparty political committees. More importantly, Congress is fully entitled to consider the salient, real-world differences between parties and interest groups when crafting a campaign finance regulation system, see National Right to Work , 459 U. S., at 210, including the fact that parties have influence and power in the legislature vastly exceeding any interest group’s. Taken seriously, plaintiffs’ equal protection arguments would call into question not just BCRA Title I, but much of FECA’s pre-existing structure. Pp. 82–85.

4. Accordingly, the judgment below is affirmed insofar as it upheld §§323(e) and 323(f) and reversed insofar as it invalidated §§323(a), 323(b), and 323(d). P. 82.

5. The District Court’s judgment is affirmed to the extent that 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, but reversed to the extent that it invalidated FECA §304(f)(5). Pp. 82–95.

(a) BCRA §201 comprehensively amends FECA §304, which requires political committees to file detailed periodic financial reports with the FEC. The narrowing construction adopted in Buckley limited FECA’s disclosure requirement to communications expressly advocating the election or defeat of particular candidates. BCRA adopts a new term, “electioneering communication,” which encompasses any “broadcast, cable, or satellite communication” that clearly identifies a candidate for federal office, airs within a specific time period ( e.g., within 60 days of a general election and 30 days of a primary), and is targeted to the relevant electorate. 2 U. S. C. A. §434(f)(3)(A)(i). BCRA also amends §304 to provide disclosure requirements for persons who fund electioneering communications (and BCRA §203 amends FECA §316(b)(2) to extend those requirements to corporations and labor unions).

Plaintiffs challenge the new term’s constitutionality as it applies to both disclosures and expenditures, arguing primarily that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers have an inviolable First Amendment right to engage in the latter category of speech. However, a plain reading of Buckley and Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (MCFL), shows that the express advocacy restriction is a product of statutory interpretation, not a constitutional command. Both the concept of express advocacy and the class of magic words were born of an effort to avoid constitutional problems of vagueness and overbreadth in the statute before the Buckley Court. Consistent with the principle that a constitutional rule should never be formulated more broadly than required by the facts to which it is to be applied, Buckley and MCFL were specific to the statutory language before the Court and in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech. The notion that the First Amendment erects a rigid barrier between express and issue advocacy also cannot be squared with this Court’s longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. Buckley ’s express advocacy line has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found. Finally, because the components of new FECA §304(f)(3)’s definition of “electioneering communication” are both easily understood and objectively determinable, the vagueness objection that persuaded the Buckley Court to limit FECA’s reach to express advocacy is inapposite here. Pp. 82–88.

(b) With regard to plaintiffs’ other concerns about the use of the phrase “electioneering communication,” the District Court correctly rejected their submission that new FECA §304 unnecessarily requires disclosure of the names of persons who contributed $1,000 or more to the individual or group paying for the communication, but erred in finding §304(f)(5) invalid because it mandates disclosure of executory contracts for communications that have not yet aired. Because the important state interests identified in Buckley —providing the electorate with information, deterring actual corruption and avoiding its appearance, and gathering data necessary to enforce more substantive electioneering restrictions—apply in full to BCRA, Buckley amply supports application of FECA §304’s disclosure requirements to the entire range of “electioneering communications.” Buckley also forecloses a facial attack on the new §304 provision that requires disclosure of the names of persons who contribute $1,000 or more to segregated funds or spend more than $10,000 in a calendar year on electioneering communications. Under Buckley ’s standard of proof, the evidence here did not establish the requisite reasonable probability of harm to any plaintiff group or its members resulting from compelled disclosure. However, the rejection of this facial challenge does not foreclose possible future challenges to particular applications of that disclosure requirement.

This Court is also unpersuaded by plaintiffs’ challenge to new FECA §304(f)(5)’s requirement regarding the disclosure of executory contracts. The new provision mandates disclosure only when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Given the relatively short time frames in which such communications are made, the interest in assuring that disclosures are made in time to provide relevant information to voters is significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole without the advance disclosure requirement, for political supporters could avoid preelection disclosures about ads slated to run during a campaign’s final weeks simply by making a preelection downpayment of less than $10,000, with the balance payable after the election. The record contains little evidence of any harm that might flow from the requirement’s enforcement, and the District Court’s speculation about such harm cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. Pp. 88–95.

6. The District Court’s judgment is affirmed insofar as it held that plaintiffs advanced no basis for finding unconstitutional BCRA §202, which amends FECA §315(a)(7)(C) to provide that disbursements for electioneering communications that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party, 2 U. S. C. A. §441a(a)(7)(C). That provision clarifies the scope of §315(a)(7)(B), which provides that expenditures made by any person in cooperation, consultation, or concert with, or at the request or suggestion of a candidate or party constitute contributions. BCRA pre-empts a possible claim that the term “expenditure” in §315(a)(7)(B) is limited to spending for express advocacy. Because Buckley’ s narrow interpretation of that term was only a statutory limitation on Congress’ power to regulate federal elections, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats other coordinated expenditures. Pp. 96–97.

7. The District Court’s judgment is affirmed to the extent that it upheld the constitutionality of new FECA §316(b)(2), and reversed to the extent that it invalidated any part of that section. BCRA §203 extends to all “electioneering communications” FECA §316(b)(2)’s restrictions on the use of corporate and union general treasury funds. 2 U. S. C. A. §441b(b)(2). Because those entities may still organize and administer segregated funds, or PACs, for such communications, the provision is a regulation of, not a ban on, expression. Beaumont, 539 U. S., at ___ (slip op., at 15). This Court’s consideration of plaintiffs’ claim that the expanded regulation is both overinclusive and underinclusive is informed by the conclusion that the distinction between express advocacy and so-called issue advocacy is not constitutionally compelled. Thus, the Court examines the degree to which BCRA burdens First Amendment expression and evaluates whether a compelling governmental interest justifies that burden. Plaintiffs have not carried their burden of proving that new FECA §316(b)(2) is overbroad. They argue that the justifications that adequately support regulation of express advocacy do not apply to significant quantities of speech encompassed by the electioneering communications definition. That argument fails to the extent that 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 regulating express advocacy apply equally to those ads if they have an electioneering purpose, which the vast majority do. Also rejected is plaintiffs’ argument that new FECA §316(b)(2)’s segregated-fund requirement is underinclusive because it does not apply to print or Internet advertising. The record here reflects that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the relevant period. Congress justifiably concluded that remedial legislation was needed to stanch that flow of money. Finally, §304(f)(3)(B)(i), which excludes news items and commentary from the electioneering communications definition, is wholly consistent with First Amendment principles as applied to the media. Pp. 97–103.

8. The District Court’s judgment is affirmed to the extent that it upheld new FECA §316(c)(6), as limited to nonprofit entities that are not so-called MCFL organizations. BCRA §204, which adds §316(c)(6), 2 U. S. C. A. §441b(c)(2), extends to nonprofit corporations the prohibition on the use of general treasury funds to pay for electioneering communications. This Court upheld a similar restriction in Beaumont , supra, except as it applied to organizations that are formed for the express purpose of promoting political ideas, have no shareholders, are not established by a business corporation or labor union, and do not accept contributions from those entities, MCFL, 479 U. S., at 264. The same constitutional objection to applying the pre-BCRA restrictions to such organizations necessarily applies with equal force to FECA §316(c)(6). That §316(c)(6) does not, on its face, exempt MCFL organizations is not a sufficient reason to invalidate it. This Court presumes that the legislators were fully aware that the provision could not apply to MCFL -type entities, and the Government concedes that it does not. As so construed, the provision is plainly valid. Pp. 103–106.

9. Because this Court has already found BCRA §201’s executory contract disclosure requirement constitutional, plaintiffs’ challenge to a similar disclosure requirement in BCRA §212, which added FECA §304(g), 2 U. S. C. A. §434, is essentially moot. Pp. 106–107.

10. The District Court’s judgment is affirmed to the extent that it invalidated BCRA §213, which amends FECA §315(d)(4) to require political parties to choose between coordinated and independent expenditures during the postnomination, preelection period. 2 U. S. C. A. §441a(d)(4). That provision places an unconstitutional burden on the parties’ right to make unlimited independent expenditures. Although the category of burdened speech is limited to independent expenditures for express advocacy—and therefore is relatively small—it plainly is entitled to First Amendment protection. The governmental interest in requiring parties to avoid using magic words is not sufficient to support the burden imposed by §315(d)(4). The fact that the provision is cast as a choice rather than an outright prohibition on independent expenditures does not make it constitutional. Pp. 107–114.

11. The District Court’s judgment is affirmed to the extent that it rejected plaintiffs’ challenges to BCRA §214, which adds FECA §315(a)(7)(B)(ii), 2 U. S. C. A. §441a(a)(7)(b)(ii). FECA §315(a)(7)(B)(i) long has provided that expenditures that are controlled by or coordinated with a candidate will be treated as contributions to the candidate. BCRA §214(a) extends that rule to expenditures coordinated with political parties; and §§214 (b) and (c) direct the FEC to promulgate new regulations that do not “require agreement or formal collaboration to establish coordination,” 2 U. S. C. A. §441a(a) note. FECA §315(a)(7)(B)(ii) is not overbroad simply because it permits a finding of coordination in the absence of a pre-existing agreement. Congress has always treated expenditures made after a wink or nod as coordinated. Nor does the absence of an agreement requirement render §315(a)(7)(B)(ii) unconstitutionally vague. An agreement has never been required under §315(a)(7)(B)(i), which uses precisely the same language as the new provision to address coordination with candidates, and which has survived without constitutional challenge for almost three decades. Plaintiffs have provided no evidence that that the definition has chilled political speech, and have made no attempt to explain how an agreement requirement would prevent the FEC from engaging in what they fear will be intrusive and politically motivated investigations. Finally, in this facial challenge to BCRA, plaintiffs’ challenge to §§214(b) and (c) is not ripe to the extent that they allege constitutional infirmities in the FEC’s new regulations rather than the statute. Pp. 114–119.

The Chief Justice delivered the opinion of the Court with respect to miscellaneous BCRA Title III and IV provisions, concluding that the District Court’s judgment with respect to these provisions must be affirmed. Pp. 2–11.

1. The plaintiffs’ challenges to BCRA §305, §307, and the millionaire provisions are nonjusticiable. Pp. 2–8.

(a) The McConnell plaintiffs lack standing to challenge BCRA §305, which amends the federal Communications Act of 1934 requirement that, 45 days before a primary or 60 days before a general election, broadcast stations sell air time to a qualified candidate at their “lowest unit charge,” 47 U. S. C. §315(b). Section 305’s amendment, in turn, denies a candidate the benefit of that charge in specified circumstances. 47 U. S. C. A. §§315(b)(2)(A), (C). Senator McConnell’s testimony that he plans to run ads critical of his opponents and had run them in the past is too remote temporally to satisfy the Article III standing requirement that a plaintiff demonstrate an “injury in fact” that is “actual or imminent,” Whitmore v. Arkansas, 495 U. S. 149, given that the lowest unit charge requirement is not available until 45 days before a primary, that Senator McConnell’s current term does not expire until 2009, and that, therefore, the earliest day he could be affected by §305 is 45 days before the 2008 Republican primary election. Pp. 2–4.

(b) The Adams and Paul plaintiffs lack standing to challenge BCRA §307, which amends FECA §315(a)(1) to increase and index for inflation certain contribution limits. Neither injury alleged by the Adams plaintiffs, a group of voters, voter organizations, and candidates, is sufficient to confer standing. First, their assertion that §307 deprives them of an equal ability to participate in the election process based on their economic status does not satisfy the standing requirement that a plaintiff’s alleged injury be an invasion of a concrete and particularized legally protected interest, Lujan v. Defenders of Wildlife, 504 U. S. 555, since political “free trade” does not necessarily require that all who participate in the political marketplace do so with exactly equal resources, e.g., MCFL, 479 U. S., at 257 . Second, the Adams plaintiffs-candidates’ contention that §307 puts them at a “fundraising disadvantage” compared to their opponents because they do not wish to solicit or accept the large campaign contributions BCRA permits does not meet the standing requirement that their alleged injury be “fairly traceable” to §307, see Lujan, supra, at 562, since their alleged inability to compete stems not from §307’s operation, but from their own personal choice not to solicit or accept large contributions. Also inadequate for standing purposes is the Paul plaintiffs’ contention that their congressional campaigns and public interest advocacy involve traditional press activities, such that §307’s contribution limits, together with FECA §315’s individual and PAC contribution limitations, impose unconstitutional editorial control on them in violation of the First Amendment’s Freedom of the Press Clause. These plaintiffs cannot show the requisite substantial likelihood their requested relief will remedy their alleged injury in fact, see Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, since, even if the Court were to strike down BCRA §307’s increases and indexes, as they ask, both FECA’s contribution limits and an exemption for institutional news media would remain unchanged. Pp. 4–8.

(c) The Adams plaintiffs lack standing to challenge the so-called “millionaire provisions,” BCRA §§304, 315, and 316, which provide for a series of staggered increases in otherwise applicable contribution-to-candidate limits if the candidate’s opponent spends a triggering amount of his personal funds, and eliminate the coordinated expenditure limits in certain circumstances. Because these plaintiffs allege the same injuries that they alleged with regard to BCRA §307, they fail to state a cognizable injury that is fairly traceable to BCRA. Additionally, none of them is a candidate in an election affected by the millionaire provisions, and it would be purely conjectural to assume that any of them ever will be. P. 8.

2. The District Court’s decision upholding BCRA §311’s expansion of FECA §318(a) to include mandatory electioneering-communications-disbursements disclosure is affirmed because such inclusion bears a sufficient relationship to the important governmental interest of “shed[ding] the light of publicity” on campaign financing, Buckley, 424 U. S., at 81 . Assuming, as the Court must, that FECA §318 is valid both to begin with and as amended by BCRA §311’s amendments other than the electioneering-communications inclusion, the latter inclusion is not itself unconstitutional. P. 9.

3. BCRA §318—which forbids individuals “17 years old or younger” to make contributions to candidates and political parties, 2 U. S. C. A. §441k—violates the First Amendment rights of minors, see, e.g ., Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503. Because limitations on an individual’s political contributions impinge on the freedoms of expression and association, see Buckley, 424 U. S., at 20–22, the Court applies heightened scrutiny to such a limitation, asking whether it is justified by a “sufficiently important interest” and “closely drawn” to avoid unnecessary abridgment of the First Amendment, see e.g., post, at 25–26 (joint opinion of Stevens<font i="1" scaps="1"> and O’Connor, JJ.). The Government offers scant evidence for its assertion that §318 protects against corruption by conduit— i.e., donations by parents through their minor children to circumvent contribution limits applicable to the parents. Absent a more convincing case of the claimed evil, this interest is simply too attenuated for §318 to withstand heightened scrutiny. See Shrink Missouri , 528 U. S., at 391. Even assuming, arguendo , the Government advances an important interest, the provision is overinclusive, as shown by the States’ adoption of more tailored approaches. Pp. 9–11.

4. Because the FEC clearly has standing, the Court need not address whether the intervenor-defendants, whose position here is identical to the FEC’s, were properly granted intervention pursuant to, inter alia , BCRA §403(b). See, e.g., Clinton v. City of New York, 524 U. S. 417, n. 19. P. 11.

Justice Breyer delivered the Court’s opinion with respect to BCRA Title V—§504 of which amends the Communications Act of 1934 to require broadcasters to keep publicly available records of politically related broadcasting requests, 47 U. S. C. A. §315(e)—concluding that the portion of the judgment below invalidating §504 as facially violative of the First Amendment must be reversed. Pp. 2–15.

1. Section 504’s “candidate request” requirements—which call for broadcasters to keep records of broadcast requests “made by or on behalf of any … candidate,” 47 U. S. C. A. §315(e)(1)(A)—are upheld. They are virtually identical to those contained in a longstanding FCC regulation. The McConnell plaintiffs’ argument that the requirements are intolerably burdensome and invasive is rejected. The FCC has consistently estimated that its regulation imposes upon a licensee a comparatively small additional administrative burden. Moreover, the §504 requirement is supported by significant governmental interests in verifying that licensees comply with their obligations to allow political candidates “equal time,” 47 U. S. C. §315(a), and to sell such time at the “lowest unit charge,” §315(b); in evaluating whether they are processing candidate requests in an evenhanded fashion to help assure broadcasting fairness, §315(a); in making the public aware of how much candidates spend on broadcast messages; 2 U. S. C. A. §434; and in providing an independently compiled set of data for verifying candidates’ compliance with BCRA’s and FECA’s disclosure requirements and source limitations, ibid. Because the Court cannot, on the present record, find the longstanding FCC regulation unconstitutional, it cannot strike down BCRA §504’s “candidate request” provision, which simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it. Pp. 3–7.

2. Because §504’s “candidate request” requirements are constitutional, its “election message” requirements—which serve similar governmental interests and impose only a small incremental burden in requiring broadcasters to keep records of requests (made by anyone) to broadcast “message[s]” that refer either to a “legally qualified candidate” or to “any election to Federal office,” 47 U. S. C. A. §§315(e)(1)(B)(i), (ii)—must be constitutional as well. Pp. 8–9.

3. BCRA §504’s “issue request” requirements—which call for broadcasters to keep records of requests (made by anyone) to broadcast “message[s]” related to a “national legislative issue of public importance,” 47 U. S. C. A. §315(e)(1)(B)(iii), or a “political matter of national importance,” §315(e)(1)(B)—survive the McConnell plaintiffs’ facial challenge. These recordkeeping requirements seem likely to help determine whether broadcasters are fulfilling their obligations under the FCC’s regulations to afford reasonable opportunity for the discussion of conflicting views on important public issues or whether they too heavily favor entertainment, discriminating against public affairs broadcasts. The plaintiffs’ claim that the above-quoted statutory language is unconstitutionally vague or overbroad is unpersuasive, given that it is no more general than language Congress has used to impose other obligations upon broadcasters and is roughly comparable to other BCRA language upheld in this litigation. Whether the “issue request” requirements impose disproportionate administrative burdens will depend on how the FCC interprets and applies them. The parties remain free to challenge the provisions, as interpreted by the FCC’s regulations, or as otherwise applied. Without the greater information any such challenge will likely provide, the Court cannot say that the provisions’ administrative burdens are so great, or their justifications so minimal, as to warrant finding them facially unconstitutional. Similarly, the argument that the “issue request” requirement will force the purchasers to disclose information revealing their political strategies to opponents does not show that BCRA §504 is facially unconstitutional, but the plaintiffs remain free to raise this argument when §504 is applied. Pp. 9–12.

Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter , and Ginsburg , JJ., joined. Scalia , J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas , J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II–A, and II–B. Kennedy , J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia , J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist , C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens , J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.


Notes

* Together with No. 02–1675, National Rifle Association et al. v. Federal Election Commission et al., No. 02–1676, Federal Election Commission et al. v. McConnell, United States Senator, et al., No. 02–1702, McCain, United States Senator, et al. v. McConnell, United States Senator, et al., No. 02–1727, Republican National Committee et al. v. Federal Election Commission et al., No. 02–1733, National Right to Life Committee, Inc., et al. v. Federal Election Commission et al., No. 02–1734, American Civil Liberties Union v. Federal Election Commission et al., No. 02–1740, Adams et al. v. Federal Election Commission et al., No. 02–1747, Paul, United States Congressman, et al. v. Federal Election Commission et al., No. 02–1753, California Democratic Party et al. v. Federal Election Commission et al., No. 02–1755, American Federation of Labor and Congress of Industrial Organizations et al. v. Federal Election Commission et al., and No. 02–1756, Chamber of Commerce of the United States et al. v. Federal Election Commission et al., also on appeal from the same court.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


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Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

Dissent

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Chief Justice Rehnquist , dissenting with respect to BCRA Titles I and V.* *

Although I join Justice Kennedy ’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V.

I

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. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “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.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal 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.” Ante, at 45. 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. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . 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 . Ante , at 47–48, n. 51. 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 as a majority of the District Court found, 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. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. 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. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. 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,” id. , at 25.

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), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 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. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). 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). See 2 U. S. C. A. §441i(d). 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. A. §§441i(f) (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, 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. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

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,” ante , at 60, 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. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). 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. 4 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.

No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption.

II

BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003). 5 This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.

This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).

Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.

Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.) , the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:

“As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U. S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).

“The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7.

While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.

At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) . Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted. 6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 354 (1995) .

As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.

The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.

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


Notes

* * Justice Scalia and Justice Kennedy join this opinion in itsentirety.

1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties.

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.

3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates.

4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be.

5 Section 315(e), as amended by BCRA §504, provides: “Political record “(1) In general “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that— “(A) is made by or on behalf of a legally qualified candidate for public office; or “(B) communicates a message relating to any political matter of national importance, including— “(i) a legally qualified candidate; “(ii) any election to Federal office; or “(iii) a national legislative issue of public importance. “(2) Contents of record “A record maintained under paragraph (1) shall contain information regarding— “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee; “(B) the rate charged for the broadcast time; “(C) the date and time on which the communication is aired; “(D) the class of time that is purchased; “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable); “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. “(3) Time to maintain file “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.”

6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attemptto use the broadcast medium to convey a message espoused by the organizations.


TOP

CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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:

“Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted).

This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.

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 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.

“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415, 431 (1963) (internal quotation marks omitted).

“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 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,” ’ … .” Buckley, supra, at 15.

We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984) . That “right to associate . . . in pursuit” includes the right to pool financial resources.

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.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, 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.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “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.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. 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 what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

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,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). 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.” Id., at 20521–20522 (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]. 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 . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

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.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). 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.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

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. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. 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). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. 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.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). 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 most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

“This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold).

The system indeed. 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. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor 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.


Notes

* * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953).


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CDInPart

MITCH M c CONNELL, UNITED STATES SENATOR, et al ., APPELLANTS

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

JOHN M c CAIN, UNITED STATES SENATOR, et al ., APPELLANTS

02–1702 v .

MITCH M c CONNELL, UNITED STATES SENATOR, et al .;

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al. , APPELLANTS

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

RON PAUL, UNITED STATES CONGRESSMAN, et al ., APPELLANTS

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al ., APPELLANTS

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

CHAMBER OF COMMERCE OF THE UNITED STATES, et al ., APPELLANTS

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Scalia , concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.

With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice ; I join the opinion of Justice Kennedy , except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas . With respect to Titles III and IV, I join The Chief Justice ’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.

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, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , 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 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? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. 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”? See BCRA §§304, 316, and 319. 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? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). 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? See new FECA §§323(a) and (e).

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

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “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.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. 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. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

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 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.

This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.

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. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

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 , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. 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.,