[ Stevens ]
[ Rehnquist ]
[ Breyer ]
[ Rehnquist ]
[ Stevens ]
[ Opinion of Scalia ]
[ Opinion of Thomas ]
[ Opinion of Kennedy ]
021740, 021747, 021753, 021755, and 021756
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[December 10, 2003]
Justice Stevens and Justice OConnor delivered the opinion of the Court with respect to BCRA Titles I and II.**
The Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 11, as amended, 2 U.S.C. A. §431 et seq. (main ed. and Supp. 2003), the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U.S.C. A. §315, and other portions of the United States Code, 18 U.S.C. A. §607 (Supp. 2003), 36 U.S.C. A. §§510511, that are challenged in these cases.1 In this opinion we discuss Titles I and II of BCRA. The opinion of the Court delivered by The Chief Justice, post, p. ___, discusses Titles III and IV, and the opinion of the Court delivered by Justice Breyer, post, p. ___, discusses Title V.
More than a century ago the
sober-minded Elihu Root advocated legislation that
would prohibit political contributions by corporations in order
BCRA is the most recent federal
enactment designed to purge national politics of what was
conceived to be the pernicious influence of big
money campaign contributions. Id., at 572.
As Justice Frankfurter explained in his opinion for the Court
in Automobile Workers, the first such enactment
responded to President Theodore Roosevelts call for
legislation forbidding all contributions by corporations
In 1925 Congress extended the
prohibition of contributions to include
anything of value, and made acceptance of a
corporate contribution as well as the giving of such a
contribution a crime. Federal Election
Commn v. National Right to Work Comm., 459 U.S. 197, 209
(1982) (citing Federal Corrupt Practices Act, 1925,
§§301, 313, 43 Stat. 1070, 1074). During the debates
preceding that amendment, a leading Senator characterized
Congress historical concern with the political potentialities of wealth and their untoward consequences for the democratic process, Automobile Workers, supra, at 577578, has long reached beyond corporate money. During and shortly after World War II, Congress reacted to the enormous financial outlays made by some unions in connection with national elections. 352 U.S., at 579. Congress first restricted union contributions in the Hatch Act, 18 U.S.C. § 6102 and it later prohibited union contributions in connection with federal elections altogether. National Right to Work, supra, at 209 (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch. 144, §9, 57 Stat. 167). Congress subsequently extended that prohibition to cover unions election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general elections. Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat. 136. See Automobile Workers, supra, at 578584. During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S. Rep. No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H. R. Rep. No. 2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, Congress careful legislative adjustment of the federal election laws, in a cautious advance, step by step, to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference. National Right to Work, 352 U.S., at 209 (citations omitted).
In early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, 86 Stat. 3. As first enacted, that statute required disclosure of all contributions exceeding $100 and of expenditures by candidates and political committees that spent more than $1,000 per year. Id., at 1119. It also prohibited contributions made in the name of another person, id., at 19, and by Government contractors, id., at 10. The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. Id., at 1213.3 See Pipefitters v. United States, 407 U.S. 385, 409410 (1972).
As the 1972 presidential elections made clear, however, FECAs passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. Reviewing a constitutional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as by far the most comprehensive reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress. Buckley v. Valeo, 519 F.2d 821, 831 (1975) (en banc) (per curiam).
The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees receipts and disbursements. They also limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national conventions; required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. Id., at 831834.
The Court of Appeals upheld the 1974 amendments almost in their entirety.4 It concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. Id., at 841. The courts opinion relied heavily on findings that large contributions facilitated access to public officials5 and described methods of evading the contribution limits that had enabled contributors of massive sums to avoid disclosure. Id., at 837841.6
The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as regulations of conduct rather than speech. Id., at 840841 (citing United States v. OBrien, 391 U.S. 367, 376377 (1968)). This Court, however, concluded that each set of limitations raised seriousthough differentconcerns under the First Amendment. Buckley v. Valeo, 424 U.S. 1, 1423 (1976) (per curiam). We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only a marginal restriction upon the contributors ability to engage in free communication. Id., at 2021. Considering the deeply disturbing examples of corruption related to candidate contributions discussed in the Court of Appeals opinion, we determined that limiting contributions served an interest in protecting the integrity of our system of representative democracy. Id., at 2627. In the end, the Acts primary purposeto limit the actuality and appearance of corruption resulting from large individual financial contributionsprovided a constitutionally sufficient justification for the $1,000 contribution limitation. Id., at 26.
We prefaced our analysis of the
$1,000 limitation on expenditures by observing that it broadly
encompassed every expenditure
44. We concluded, however, that as so narrowed, the provision would not provide effective protection against the dangers of quid pro quo arrangements, because persons and groups could eschew expenditures that expressly advocated the election or defeat of a clearly identified candidate while remaining free to spend as much as they want to promote the candidate and his views. Id., at 45. We also rejected the argument that the expenditure limits were necessary to prevent attempts to circumvent the Acts contribution limits, because FECA already treated expenditures controlled by or coordinated with the candidate as contributions, and we were not persuaded that independent expenditures posed the same risk of real or apparent corruption as coordinated expenditures. Id., at 4647. We therefore held that Congress interest in preventing real or apparent corruption was inadequate to justify the heavy burdens on the freedoms of expression and association that the expenditure limits imposed.
We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act. Id., at 6668. In order to avoid an overbreadth problem, however, we placed the same narrowing construction on the term expenditure in the disclosure context that we had adopted in the context of the expenditure limitations. Thus, we construed the reporting requirement for persons making expenditures of more than $100 in a year to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. Id., at 80 (footnote omitted).
Our opinion in Buckley addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. Id., at 2829, n. 31; see also n. 3, supra.
Three important developments in the years after our decision in Buckley persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of soft money, the proliferation of issue ads, and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.
Under FECA, contributions must be made with funds that are subject to the Acts disclosure requirements and source and amount limitations. Such funds are known as federal or hard money. FECA defines the term contribution, however, to include only the gift or advance of anything of value made by any person for the purpose of influencing any election for Federal office. 2 U.S.C. § 431(8)(A)(i) (emphasis added). Donations made solely for the purpose of influencing state or local elections are therefore unaffected by FECAs requirements and prohibitions. As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidates, to contribute nonfederal moneyalso known as soft moneyto political parties for activities intended to influence state or local elections.
Shortly after Buckley was decided, questions arose concerning the treatment of contributions intended to influence both federal and state elections. Although a literal reading of FECAs definition of contribution would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activitiesincluding get-out-the-vote drives and generic party advertisingin part with soft money.7 In 1995 the FEC concluded that the parties could also use soft money to defray the costs of legislative advocacy media advertisements, even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidates election or defeat. FEC Advisory Op. 199525.
As the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. Of the two major parties total spending, soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000.8 The national parties transferred large amounts of their soft money to the state parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose activities under FEC rules.9 In the year 2000, for example, the national parties diverted $280 millionmore than half of their soft moneyto state parties.
Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave, in total, more than $9 million in nonfederal funds to the two national party committees.10 In the most recent election cycle the political parties raised almost $300 million60% of their total soft-money fundraisingfrom just 800 donors, each of which contributed a minimum of $120,000.11 Moreover, the largest corporate donors often made substantial contributions to both parties.12 Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties.13
Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already contributed the legal maximum to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party.14 Such solicitations were not uncommon.15
The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECAs limitations on the source and amount of contributions in connection with federal elections.
In Buckley we construed FECAs disclosure and reporting requirements, as well as its expenditure limitations, to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. 424 U.S., at 80 (footnote omitted). As a result of that strict reading of the statute, the use or omission of magic words such as Elect John Smith or Vote Against Jane Doe marked a bright statutory line separating express advocacy from issue advocacy. See id., at 44, n. 52. Express advocacy was subject to FECAs limitations and could be financed only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be financed with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors.
While the distinction between issue and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words.16 Little difference existed, for example, between an ad that urged viewers to vote against Jane Doe and one that condemned Jane Does record on a particular issue before exhorting viewers to call Jane Doe and tell her what you think.17 Indeed, campaign professionals testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words.18 Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.19 Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads,20 and those expenditures, like soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive to organizations and candidates precisely because they were beyond FECAs reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money.21
Because FECAs disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. Citizens for Better Medicare, for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers.22 And Republicans for Clean Air, which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individualsbrothers who together spent $25 million on ads supporting their favored candidate.23
While the public may not have been
fully informed about the sponsorship of so-called issue ads,
the record indicates that candidates and officeholders often
were. A former Senator confirmed that candidates and officials
knew who their friends were and sometimes suggest[ed]
that corporations or individuals make donations to interest
groups that run issue ads.
In 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal elections. The report gave particular attention to the effect of soft money on the American political system, including elected officials practice of granting special access in return for political contributions.
The committees principal findings
relating to Democratic Party fundraising were set forth in the
majoritys report, while the minority report primarily
described Republican practices. The two reports reached
consensus, however, on certain central propositions. They
agreed that the soft money loophole had led to a
meltdown of the campaign finance system that had
been intended to keep corporate, union and large
individual contributions from influencing the electoral
process.26 One Senator stated that the hearings
provided overwhelming evi-
dence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble.27
The report was critical of both
parties methods of raising soft money, as well as their
use of those funds. It concluded that both parties promised
and provided special access to candidates and senior Government
officials in exchange for large soft-money contributions. The
Committee majority described the White House coffees that
rewarded major donors with access to President Clinton,28 and the
courtesies extended to an international businessman named Roger
Tamraz, who candidly acknowledged that his donations of about
$300,000 to the DNC and to state parties were motivated by his
interest in gaining the Federal Governments support for
an oil-line project in the Caucasus.29 The minority described the
promotional materials used by the RNCs two principal
donor programs, Team 100 and the Republican
Eagles, which promised special access to
high-ranking Republican elected officials, including governors,
senators, and representatives.30 One fundraising
letter recited that the chairman of the RNC had personally
escorted a donor on appointments that
In 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal elections. The Committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.32 The ads thus provided a means for evading FECAs candidate contribution limits.
The report also emphasized the role of state and local parties. While the FECs allocation regime permitted national parties to use soft money to pay for up to 40% of the costs of both generic voter activities and issue advertising, they allowed state and local parties to use larger percentages of soft money for those purposes.33 For that reason, national parties often made substantial transfers of soft money to state and local political parties for generic voter activities that in fact ultimately benefit[ed] federal candidates because the funds for all practical purposes remain[ed] under the control of the national committees. The report concluded that [t]he use of such soft money thus allow[ed] more corporate, union treasury, and large contributions from wealthy individuals into the system.34
The report discussed potential reforms, including a ban on soft money at the national and state party levels and restrictions on sham issue advocacy by nonparty groups.35 The majority expressed the view that a ban on the raising of soft money by national party committees would effectively address the use of union and corporate general treasury funds in the federal political process only if it required that candidate-specific ads be funded with hard money.36 The minority similarly recommended the elimination of soft-money contributions to political parties from individuals, corporations, and unions, as well as reforms addressing candidate advertisements masquerading as issue ads.37
In BCRA, Congress enacted many of the committees proposed reforms. BCRAs central provisions are designed to address Congress concerns about the increasing use of soft money and issue advertising to influence federal elections. Title I regulates the use of soft money by political parties, officeholders, and candidates. Title II primarily prohibits corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections.
Section 403 of BCRA provides special rules for actions challenging the constitutionality of any of the Acts provisions. 2 U.S.C. A. §437h note (Supp. 2003). Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by §403, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 403 directed the District Court to advance the cases on the docket and to expedite their disposition to the greatest possible extent. The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate, lengthy opinions, each of which contained extensive commentary on the facts and a careful analysis of the legal issues. 251 F. Supp. 2d 176 (2003). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 2003, held some parts of BCRA unconstitutional and upheld others. 251 F. Supp. 2d 948.
As authorized by §403, all of the losing parties filed direct appeals to this Court within 10 days. 2 U.S.C. A. §437h note. On June 5, 2003, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 2003. 539 U.S. ___. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Ibid. Mindful of §403s instruction that we expedite our disposition of these appeals to the greatest extent possible, we also consider each of the issues in order. Accordingly, we first turn our attention to Title I of BCRA.
Title I is Congress effort to plug the soft-money loophole. The cornerstone of Title I is new FECA §323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U.S.C. A. §441i(a) (Supp. 2003).38 In short, §323(a) takes national parties out of the soft-money business.
The remaining provisions of new FECA §323 largely reinforce the restrictions in §323(a). New FECA §323(b) prevents the wholesale shift of soft-money influence from national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal elections. 2 U.S.C. A. §441i(b). These Federal election activit[ies], defined in new FECA §301(20)(A), are almost identical to the mixed-purpose activities that have long been regulated under the FECs pre-BCRA allocation regime. 2 U.S.C. A. §431(20)(A). New FECA §323(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. 2 U.S.C. A. §441i(d). New FECA §323(e) restricts federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local elections. 2 U.S.C. A. §441i(e). Finally, new FECA §323(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates. 2 U.S.C. A. §441i(f).
Plaintiffs mount a facial First Amendment challenge to new FECA §323, as well as challenges based on the Elections Clause, U.S. Const., Art. I, §4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn.
In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. See, e.g., Federal Election Commn v. Beaumont, 539 U.S. ___, ___ (2003) (slip op., at 14); see also Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387388 (2000); Buckley, 424 U.S., at 19. In these cases we have recognized that contribution limits, unlike limits on expenditures, entai[l] only a marginal restriction upon the contributors ability to engage in free communication. Id., at 20; see also, e.g., Beaumont, supra, at ___ (slip op., at 14); Shrink Missouri, supra, at 386388. In Buckley we said that:
A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributors support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributors freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor. 424 U.S., at 21 (footnote omitted).
Because the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to preven[t] candidates and political committees from amassing the resources necessary for effective advocacy. Ibid.
We have recognized that
contribution limits may bear more heavily on the
associational right than on freedom to speak, Shrink
Missouri, supra, at 388, since contributions serve
to affiliate a person with a candidate and
enabl[e] like-minded persons to pool their
resources, Buckley, 424 U.S., at 22. Unlike
expenditure limits, however, which preclud[e] most
associations from effectively amplifying the voice of their
adherents, contribution limits both leave the
contributor free to become a member of any political
association and to assist personally in the associations
efforts on behalf of candidates, and allow associations
to aggregate large sums of money to promote effective
advocacy. Ibid. The overall effect
of dollar limits on contributions is merely to require
candidates and political committees to raise funds from a
greater number of persons. Id., at 2122.
Thus, a contribution limit involving even
Our treatment of contribution
restrictions reflects more than the limited burdens they impose
Amendment freedoms. It also reflects the importance of the
interests that underlie contribution limitsinterests 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. National Right to Work, 459 U.S., at
208; see also Federal Election Commn v.
Colorado Republican Federal Campaign Comm., 533 U.S. 431,
440441 (2001) (Colorado II). We have said that
these interests directly implicate
Our application of this less rigorous degree of scrutiny has given rise to significant criticism in the past from our dissenting colleagues. See, e.g., Shrink Missouri, 528 U.S., at 405410 (Kennedy, J., dissenting); id., at 410420 (Thomas, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Commn, 518 U.S. 604, 635644 (1996) (Colorado I) (Thomas, J., dissenting). We have rejected such criticism in previous cases for the reasons identified above. We are also mindful of the fact that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in Buckley and its progeny. Considerations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley was decided. See Hilton v. South Carolina Public Railways Commn, 502 U.S. 197, 202 (1991).40
Like the contribution limits we upheld in Buckley, §323s restrictions have only a marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in effective political speech. Beaumont, 539 U.S., at ___ (slip op., at 14). Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.
Plaintiffs contend that we must apply strict scrutiny to §323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECAs contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in §323 to regulate contributions on the demand rather than the supply side. See, e.g., National Right to Work, supra, at 206211 (upholding a provision restricting PACs ability to solicit funds). The relevant inquiry is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here.
For example, while §323(a) prohibits national parties from receiving or spending nonfederal money, and §323(b) prohibits state party committees from spending nonfederal money on federal election activities, neither provision in any way limits the total amount of money parties can spend. 2 U.S.C. A. §§441i(a), (b) (Supp. 2003). Rather, they simply limit the source and individual amount of donations. That they do so by prohibiting the spending of soft money does not render them expenditure limitations.41
Similarly, the solicitation provisions of §323(a) and §323(e), which restrict the ability of national party committees, federal candidates, and federal officeholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities subject to FECAs source and amount restrictions. Even §323(d), which on its face enacts a blanket ban on party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to solicit funds to the organizations federal PACs. 2 U.S.C. A. §441i(d). As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. See infra, at 7273 (construing §323(d)s restriction on donations by parties to apply only to donations from a party committees nonfederal or soft-money account). And as with §323(a), §323(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party officers acting in their individual capacities. 2 U.S.C. A. §§441i(a), (d).
Section 323 thus shows due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or union contribute money through its PAC in no way alters or impairs the political message intertwined with the solicitation. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988) (treating solicitation restriction that required fundraisers to disclose particular information as a content-based regulation subject to strict scrutiny because it necessarily alter[ed] the content of the speech). And rather than chill such solicitations, as was the case in Schaumburg, the restriction here tends to increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, §323s spending and solicitation restrictions have only a marginal impact on political speech.42
Finally, plaintiffs contend that the type of associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckleys contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. E.g., California Democratic Party v. Jones, 530 U.S. 567, 573574 (2000). In making this argument, plaintiffs greatly exaggerate the effect of §323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. See infra, at 5152. Section 323 merely subjects a greater percentage of contributions to parties and candidates to FECAs source and amount limitations. Buckley has already acknowledged that such limitations leave the contributor free to become a member of any political association and to assist personally in the associations efforts on behalf of candidates. 424 U.S., at 22. The modest impact that §323 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. None of this is to suggest that the alleged associational burdens imposed on parties by §323 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny.43
With these principles in mind, we apply the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new FECA §323. Because the five challenged provisions of §323 implicate different First Amendment concerns, we discuss them separately. We are mindful, however, that Congress enacted §323 as an integrated whole to vindicate the Governments important interest in preventing corruption and the appearance of corruption.
The core of Title I is new FECA §323(a), which provides that national committee[s] of a political party may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act. 2 U.S.C. A. §441i(a)(1) (Supp. 2003). The prohibition extends to any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, or maintained, or controlled by such a national committee. §441(a)(2).
The main goal of §323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FECs allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. See supra, at 1113, and n. 7. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to influence federal elections.44 New §323(a) is designed to put a stop to that practice.
The Government defends §323(a)s ban on national parties involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and officeholders. Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECAs contribution limits, noting that such laws deal[t] with only the most blatant and specific attempts of those with money to influence government action. 424 U.S., at 28. Thus, [i]n speaking of improper influence and opportunities for abuse in addition to quid pro quo arrangements, we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. Shrink Missouri, 528 U.S., at 389; see also Colorado II, 533 U.S., at 441 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to undue influence on an officeholders judgment).
Of almost equal importance has been the Governments interest in combating the appearance or perception of corruption engendered by large campaign contributions. Buckley, supra, at 27; see also Shrink Missouri, supra, at 390; Federal Election Commn v. National Conservative Political Action Comm., 470 U.S. 480, 496497 (1985). Take away Congress authority to regulate the appearance of undue influence and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance. Shrink Missouri, 528 U.S., at 390; see also id., at 401 (Breyer, J., concurring). And because the First Amendment does not require Congress to ignore the fact that candidates, donors, and parties test the limits of the current law, Colorado II, 533 U.S., at 457, these interests have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits, id., at 456 ([A]ll Members of the Court agree that circumvention is a valid theory of corruption).
The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty or the plausibility of the justification raised. Shrink Missouri, supra, at 391. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidates party in aid of that candidates campaign threaten to createno less than would a direct contribution to the candidatea sense of obligation. See Buckley, supra, at 38 (upholding FECAs $25,000 limit on aggregate yearly contributions to a candidate, political committee, and political party committee as a quite modest restraint to prevent evasion of the $1,000 contribution limitation by, among other things, huge contributions to the candidates political party). This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest. This close affiliation has placed national parties in a unique position, whether they like it or not, to serve as agents for spending on behalf of those who seek to produce obligated officeholders. Colorado II, supra, at 452; see also Shrink Missouri, supra, at 406 (Kennedy, J., dissenting) ([Respondent] asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually funneled through political parties (emphasis added)). As discussed below, rather than resist that role, the national parties have actively embraced it.
The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress belief that they do. As set forth above, supra, at 1113, and n. 7, the FECs allocation regime has invited widespread circumvention of FECAs limits on contributions to parties for the purpose of influencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidates federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.45
The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECAs hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees solely in order to assist federal campaigns, including the officeholders own. 251 F. Supp. 2d, at 472 (Kollar-Kotelly, J.) (quoting declaration of Wade Randlett, CEO, Dashboard Technology ¶¶69 (hereinafter Randlett Decl.), App. 713714); see also 251 F. Supp. 2d, at 471473, 478479 (Kollar-Kotelly, J.); id., at 842843 (Leon, J.). Parties kept tallies of the amounts of soft money raised by each officeholder, and the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Members campaign. Id., at 474475 (Kollar-Kotelly, J.). Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. Id., at 477478 (Kollar-Kotelly, J.); id., at 824, 847 (Leon, J.). National party committees often teamed with individual candidates campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the partys higher contribution limits while still allowing donors to give to their preferred candidate. Id., at 478 (Kollar-Kotelly, J.); id., at 847848 (Leon, J.); see also App. 1286 (Krasno & Sorauf Expert Report (characterizing the joint fundraising committee as one in which Senate candidates in effect rais[e] soft money for use in their own races)). Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders. 251 F. Supp. 2d, at 487488 (Kollar-Kotelly, J.) ([F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge, as it is provided by the national political parties and the donors themselves); id., at 853855 (Leon, J.).
For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D. C., stated in his declaration:
Particularly telling is the fact that, in 1996 and 2000, more
than half of the top 50 soft-money donors gave substantial sums
to both major national parties, leaving room for no
other conclusion but that these donors were seeking influence,
or avoiding retaliation, rather than promoting any particular
ideology. See, e.g., 251 F. Supp. 2d, at
508510 (Kollar-Kotelly, J.) (citing Mann Expert Report
Tbls. 56); 251 F. Supp. 2d, at 509 (
The evidence from the federal officeholders perspective is similar. For example, one former Senator described the influence purchased by nonfederal donations as follows:
See also id., at 489 (Kollar-Kotelly, J.) (
Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. See, e.g., 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.); id., at 852 (Leon, J.); App. 390394 (declaration of Sen. John McCain ¶¶5, 811 (hereinafter McCain Decl.)); App. 811 (Simpson Decl. ¶10) (Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform); App. 805 (declaration of former Sen. Paul Simon ¶¶1314). To claim that such actions do not change legislative outcomes surely misunderstands the legislative process.
More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholders judgment, and the appearance of such influence. Colorado II, supra, at 441. Many of the deeply disturbing examples of corruption cited by this Court in Buckley, 424 U.S., at 27, to justify FECAs contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley, 519 F.2d, at 821, 839840, n. 36; nn. 56, supra. Even if that access did not secure actual influence, it certainly gave the appearance of such influence. Colorado II, supra, at 441; see also 519 F.2d, at 838.
The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See 251 F. Supp. 2d, at 492506 (Kollar-Kotelly, J.). As one former Senator put it:
So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $100,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking members, and two retreats with the Democratic House leader and DCCC chair in Telluride, Colorado, and Hyannisport, Massachusetts. Id., at 504505 (Kollar-Kotelly, J.); see also id., at 506 (describing records indicating that DNC offered meetings with President in return for large donations); id., at 502503 (describing RNCs various donor programs); id., at 503504 (same for NRSC); id., at 500503 (same for DSCC); id., at 504 (same for NRCC). Similarly, the RNCs donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors. Id., at 500503 (finding, further, that the RNC holds out the prospect of access to officeholders to attract soft-money donations and encourages officeholders to meet with large soft-money donors); accord, id., at 860861 (Leon, J.).
Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice Kennedy would limit Congress regulatory interest only to the prevention of the actual or apparent quid pro quo corruption inherent in contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post, at 810, 15. Regulation of any other donation or expenditureregardless of its size, the recipients relationship to the candidate or officeholder, its potential impact on a candidates election, its value to the candidate, or its unabashed and explicit intent to purchase influencewould, according to Justice Kennedy, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.48
Justice Kennedys interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. The evidence set forth above, which is but a sampling of the reams of disquieting evidence contained in the record, convincingly demonstrates that soft-money contributions to political parties carry with them just such temptation.
Justice Kennedy likewise takes too narrow a view of the appearance of corruption. He asserts that only those transactions with inherent corruption potential, which he again limits to contributions directly to candidates, justify the inference that regulating the conduct will stem the appearance of real corruption. Post, at 14.49 In our view, however, Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context. To be sure, mere political favoritism or opportunity for influence alone is insufficient to justify regulation. Post, at 1214. As the record demonstrates, it is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influence. Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. It is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption.
In sum, there is substantial evidence to support Congress determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption.
Receiving Soft Money
Plaintiffs and The Chief Justice contend that §323(a) is impermissibly overbroad because it subjects all funds raised and spent by national parties to FECAs hard-money source and amount limits, including, for example, funds spent on purely state and local elections in which no federal office is at stake.50 Post, 25 (Rehnquist, C. J., dissenting). Such activities, The Chief Justice asserts, pose little or no potential to corrupt federal candidates or officeholders. Post, at 5 (dissenting opinion). This observation is beside the point. Section 323(a), like the remainder of §323, regulates contributions, not activities. As the record demonstrates, it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect.
As one expert noted,
Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the funding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft-money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties. 148 Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays).
Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used.
This close affiliation has also placed national parties in a position to sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes. Access to federal officeholders is the most valuable favor the national party committees are able to give in exchange for large donations. The fact that officeholders comply by donating their valuable time indicates either that officeholders place substantial value on the soft-money contribution themselves, without regard to their end use, or that national committees are able to exert considerable control over federal officeholders. See, e.g., App. 11961198 (Expert Report of Donald P. Green, Yale University) (Once elected to legislative office, public officials enter an environment in which political parties-in-government control the resources crucial to subsequent electoral success and legislative power. Political parties organize the legislative caucuses that make committee assignments); App. 1298 (Krasno & Sorauf Expert Report) (indicating that officeholders re-election prospects are significantly influenced by attitudes of party leadership). Either way, large soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put. As discussed above, Congress had sufficient grounds to regulate the appearance of undue influence associated with this practice. The Governments strong interests in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source, amount, and disclosure limitations of FECA.51
Directing Soft Money
Plaintiffs also contend that §323(a)s prohibition on national parties soliciting or directing soft-money contributions is substantially overbroad. The reach of the solicitation prohibition, however, is limited. It bars only solicitations of soft money by national party committees and by party officers in their official capacities. The committees remain free to solicit hard money on their own behalf, as well as to solicit hard money on behalf of state committees and state and local candidates.52 They also can contribute hard money to state committees and to candidates. In accordance with FEC regulations, furthermore, officers of national parties are free to solicit soft money in their individual capacities, or, if they are also officials of state parties, in that capacity. See 67 Fed. Reg. 49083 (2002).
This limited restriction on solicitation follows sensibly from the prohibition on national committees receiving soft money. The same observations that led us to approve the latter compel us to reach the same conclusion regarding the former. A national committee is likely to respond favorably to a donation made at its request regardless of whether the recipient is the committee itself or another entity. This principle accords with common sense and appears elsewhere in federal laws. E.g., 18 U.S.C. § 201(b)(2) (prohibition on public officials demand[ing] [or] seek[ing] anything of value personally or for any other person or entity (emphasis added)); 5 CFR § 2635.203(f)(2) (2003) (restriction on gifts to federal employees encompasses gifts [g]iven to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee).
Plaintiffs argue that BCRA itself
demonstrates the overbreadth of §323(a)s
solicitation ban. They point in particular to §323(e),
which allows federal candidates and officeholders to solicit
limited amounts of soft money from individual donors under
certain circumstances. Compare 2 U.S.C. A §441i(a)
with §441i(e) (Supp. 2003). The differences between
§§323(a) and 323(e), however, are without
constitutional significance. We have recognized that the
differing structures and purposes of different
entities may require different forms of regulation in
order to protect the integrity of the electoral
The McConnell and political party plaintiffs contend that §323(a) is substantially overbroad and must be stricken on its face because it impermissibly infringes the speech and associational rights of minor parties such as the Libertarian National Committee, which, owing to their slim prospects for electoral success and the fact that they receive few large soft-money contributions from corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC. In Buckley, we rejected a similar argument concerning limits on contributions to minor-party candidates, noting that any attempt to exclude minor parties and independents en masse from the Acts contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election. 424 U.S., at 3435. We have thus recognized that the relevance of the interest in avoiding actual or apparent corruption is not a function of the number of legislators a given party manages to elect. It applies as much to a minor party that manages to elect only one of its members to federal office as it does to a major party whose members make up a majority of Congress. It is therefore reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process.
We add that nothing in §323(a) prevents individuals from pooling resources to start a new national party. Post, at 5 (Kennedy, J., dissenting). Only when an organization has gained official status, which carries with it significant benefits for its members, will the proscriptions of §323(a) apply. Even then, a nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from amassing the resources necessary for effective advocacy. Buckley, supra, at 21.
Finally, plaintiffs assert that §323(a) is unconstitutional because it impermissibly interferes with the ability of national committees to associate with state and local committees. By way of example, plaintiffs point to the Republican Victory Plans, whereby the RNC acts in concert with the state and local committees of a given State to plan and implement joint, full-ticket fundraising and electioneering programs. See App. 693, 694697 (declaration of John Peschong, RNC Western Reg. Political Dir. (describing the Republican Victory Plans)). The political parties assert that §323(a) outlaws any participation in Victory Plans by RNC officers, including merely sitting down at a table and engaging in collective decisionmaking about how soft money will be solicited, received, and spent. Such associational burdens, they argue, are too great for the First Amendment to bear.
We are not persuaded by this argument
because it hinges on an unnaturally broad reading of the terms
spend, receive, direct, and
solicit. 2 U.S.C. A. §441i(a) (Supp.
2003). Nothing on the face of §323(a) prohibits national
party officers, whether acting in their official or individual
capacities, from sitting down with state and local party
committees or candidates to plan and advise how to raise and
spend soft money. As long as the national party officer does
not personally spend, receive, direct, or solicit soft money,
§323(a) permits a wide range of joint planning and
electioneering activity. Intervenor-defendants, the principal
drafters and proponents of the legislation, concede as much.
Brief for Intervenor-Defendants Sen. John McCain et al. in
1674 et al., p. 22 (BCRA leaves parties and candidates free to coordinate campaign plans and activities, political messages, and fundraising goals with one another). The FECs current definitions of §323(a)s terms are consistent with that view. See, e.g., 11 CFR § 300.2(m) (2002) (defining solicit as to ask another person (emphasis added)); §300.2(n) (defining direct as to ask a person who has expressed an intent to make a contribution . . . to make that contribution including through a conduit or intermediary (emphasis added)); §300.2(c) (laying out the factors that determine whether an entity will be considered to be controlled by a national committee).
Given the straightforward meaning
of this provision, Justice Kennedy is incorrect that [a]
national partys mere involvement in the strategic
planning of fundraising for a state ballot initiative or
its assistance in developing a state partys Levin-money
fundraising efforts risks a finding that the officers are in
Accordingly, we reject the plaintiffs First Amendment challenge to new FECA §323(a).
In constructing a coherent scheme of campaign finance regulation, Congress recognized that, given the close ties between federal candidates and state party committees, BCRAs restrictions on national committee activity would rapidly become ineffective if state and local committees remained available as a conduit for soft-money donations.53 Section 323(b) is designed to foreclose wholesale evasion of §323(a)s anticorruption measures by sharply curbing state committees ability to use large soft-money contributions to influence federal elections. The core of §323(b) is a straightforward contribution regulation: It prevents donors from contributing nonfederal funds to state and local party committees to help finance Federal election activity. 2 U.S. C A. §441i(b)(1) (Supp. 2003). The term Federal election activity encompasses four distinct categories of electioneering: (1) voter registration activity during the 120 days preceding a regularly scheduled federal election; (2) voter identification, get-out-the-vote (GOTV), and generic campaign activity54 that is conducted in connection with an election in which a candidate for Federal office appears on the ballot; (3) any public communication55 that refers to a clearly identified candidate for Federal office and promotes, supports, attacks, or opposes a candidate for that office; and (4) the services provided by a state committee employee who dedicates more than 25% of his or her time to activities in connection with a Federal election. §§431(20)(A)(i)(iv). The Act explicitly excludes several categories of activity from this definition: public communications that refer solely to nonfederal candidates;56 contributions to nonfederal candidates;57 state and local political conventions; and the cost of grassroots campaign materials like bumper stickers that refer only to state candidates. §431(20)(B). All activities that fall within the statutory definition must be funded with hard money. §441i(b)(1).
Section 323(b)(2), the so-called Levin Amendment, carves out an exception to this general rule. A refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix of federal and nonfederal funds, the Levin Amendment allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and Levin fundsthat is, funds raised within an annual limit of $10,000 per person. 2 U.S.C. A. §441i(b)(2). Except for the $10,000 cap and certain related restrictions to prevent circumvention of that limit, §323(b)(2) leaves regulation of such contributions to the States.58
The scope of the Levin Amendment is limited in two ways. First, state and local parties can use Levin money to fund only activities that fall within categories (1) and (2) of the statutes definition of federal election activitynamely, voter registration activity, voter identification drives, GOTV drives, and generic campaign activities. 2 U.S.C. A. §441i(b)(2)(A). And not all of these activities qualify: Levin funds cannot be used to pay for any activities that refer to a clearly identified candidate for Federal office; they likewise cannot be used to fund broadcast communications unless they refer solely to a clearly identified candidate for State or local office. §§441i(b)(2)(B)(i)(ii).
Second, both the Levin funds and
the allocated portion of hard money used to pay for such
activities must be raised entirely by the state or local
committee that spends them. §441i(b)(2)(B)(iv). This
means that a state party committee cannot use Levin funds
transferred from other party committees to cover the Levin
funds portion of a Levin Amendment expenditure. It also means
that a state party committee cannot use hard money transferred
from other party committees to cover the hard-money portion of
a Levin Amendment expenditure. Furthermore, national
committees, federal candidates, and federal officeholders
generally may not solicit Levin funds on behalf of
state committees, and state committees may not team up to raise Levin funds. §441i(b)(2)(C). They can, however, jointly raise the hard money used to make Levin expenditures.
We begin by noting that, in addressing the problem of soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. Its conclusion, based on the evidence before it, was that the corrupting influence of soft money does not insinuate itself into the political process solely through national party committees. Rather, state committees function as an alternate avenue for precisely the same corrupting forces.59 Indeed, both candidates and parties already ask donors who have reached the limit on their direct contributions to donate to state committees.60 There is at least as much evidence as there was in Buckley that such donations have been made with the intentand in at least some cases the effectof gaining influence over federal officeholders.61 Section 323(b) thus promotes an important governmental interest by confronting the corrupting influence that soft-money donations to political parties already have.
Congress also made a prediction. Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to §323(a) by scrambling to find another way to purchase influence. It was neither novel nor implausible, Shrink Missouri, 528 U.S., at 391, for Congress to conclude that political parties would react to §323(a) by directing soft-money contributors to the state committees, 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. We must accord substantial deference to the predictive judgments of Congress, Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665 (1994), particularly when, as here, those predictions are so firmly rooted in relevant history and common sense. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest.
Plaintiffs argue that even if some legitimate interest might be served by §323(b), the provisions restrictions are unjustifiably burdensome and therefore cannot be considered closely drawn to match the Governments objectives. They advance three main contentions in support of this proposition. First, they argue that the provision is substantially overbroad because it federalizes activities that pose no conceivable risk of corrupting or appearing to corrupt federal officeholders. Second, they argue that the Levin Amendment imposes an unconstitutional burden on the associational rights of political parties. Finally, they argue that the provision prevents them from amassing the resources they need to engage in effective advocacy. We address these points in turn.
Plaintiffs assert that §323(b) represents a new brand of pervasive federal regulation of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes well beyond Congress concerns about the corruption of the federal electoral process. We disagree.
It is true that §323(b) captures some activities that affect state campaigns for nonfederal offices. But these are the same sorts of activities that already were covered by the FECs pre-BCRA allocation rules, and thus had to be funded in part by hard money, because they affect federal as well as state elections. See 11 CFR § 106.5 (2002). As a practical matter, BCRA merely codifies the principles of the FECs allocation regime while at the same time justifiably adjusting the formulas applicable to these activities in order to restore the efficacy of FECAs longtime statutory restrictionapproved by the Court and eroded by the FECs allocation regimeon contributions to state and local party committees for the purpose of influencing federal elections. See 2 U.S.C. § 431(8)(A), 441a(a)(1)(C); see also Buckley, 424 U.S., at 38 (upholding FECAs $25,000 limit on aggregate contributions to candidates and political committees); cf. California Medical Assn. v. Federal Election Commn, 453 U.S. 182 (1981) (upholding FECAs $5,000 limit on contributions to multicandidate political committees).
Like the rest of Title I, §323(b) is premised on Congress judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption. As we explain below, §323(b) is narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal candidates directly. Further, these regulations all are reasonably tailored, with various temporal and substantive limitations designed to focus the regulations on the important anti-corruption interests to be served. We conclude that §323(b) is a closely-drawn means of countering both corruption and the appearance of corruption.
The first two categories of
Federal election activity, voter registration
efforts, §301(20)(A)(i), and voter identification, GOTV,
and generic campaign activities conducted in connection with a
federal election, §301(20)(A)(ii), clearly capture
activity that benefits federal candidates. Common sense
dictates, and it was undisputed below, that a
partys efforts to register voters sympathetic to that
party directly assist the partys candidates for federal
office. 251 F. Supp. 2d, at 460 (Kollar-Kotelly, J.). It
is equally clear that federal candidates reap substantial
rewards from any efforts that increase the number of
like-minded registered voters who actually go to the polls.62 See,
e.g., id., at 459 (
The record also makes quite clear
that federal officeholders are grateful for contributions to
state and local parties that can be converted into GOTV-type
efforts. See id., at 459 (quoting a letter thanking a
California Democratic Party donor and noting that CDPs
voter registration and GOTV efforts would help
Because voter registration, voter
identification, GOTV, and generic campaign activity all confer
substantial benefits on federal candidates, the funding of such
activities creates a significant risk of actual and apparent
corruption. Section 323(b) is a reasonable response to that
risk. Its contribution limitations are focused on the subset
of voter registration activity that is most likely to affect
the election prospects of federal candidates: activity that
occurs within 120 days before a federal election. And if the
voter registration drive does not specifically
mention a federal candidate, state committees can take advantage of the Levin Amendments higher contribution limits and relaxed source restrictions. 2 U.S.C. A. §§441i(b)(2)(B)(i)(ii) (Supp. 2003). Similarly, the contribution limits applicable to §301(20)(A)(ii) activities target only those voter identification, GOTV, and generic campaign efforts that occur in connection with an election in which a candidate for a Federal office appears on the ballot. 2 U.S.C. A. §431(20)(A)(ii). Appropriately, in implementing this subsection, the FEC has categorically excluded all activity that takes place during the run-up to elections when no federal office is at stake.63 Furthermore, state committees can take advantage of the Levin Amendments higher contribution limits to fund any §301(A)(20)(i) and §301(A)(20)(ii) activities that do not specifically mention a federal candidate. 2 U.S.C. A. §§441i(b)(2)(B)(i)(ii). The prohibition on the use of soft money in connection with these activities is therefore closely drawn to meet the sufficiently important governmental interests of avoiding corruption and its appearance.
Public communications that promote or attack a candidate for federal officethe third category of Federal election activity, §301(20)(A)(iii)also undoubtedly have a dramatic effect on federal elections. Such ads were a prime motivating force behind BCRAs passage. See 3 1998 Senate Report 4535 (additional views of Sen. Collins) ([T]he hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble). As explained below, any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating. The record on this score could scarcely be more abundant. Given the overwhelming tendency of public communications, as carefully defined in §301(20)(A)(iii), to benefit directly federal candidates, we hold that application of §323(b)s contribution caps to such communications is also closely drawn to the anticorruption interest it is intended to address.64
As for the final category of Federal election activity, §301(20)(A)(iv), we find that Congress interest in preventing circumvention of §323(b)s other restrictions justifies the requirement that state and local parties spend federal funds to pay the salary of any employee spending more than 25% of his or her compensated time on activities in connection with a federal election. In the absence of this provision, a party might use soft money to pay for the equivalent of a full-time employee engaged in federal electioneering, by the simple expedient of dividing the federal workload among multiple employees. Plaintiffs have suggested no reason for us to strike down this provision. Accordingly, we give deference to [the] congressional determination of the need for [this] prophylactic rule. National Conservative Political Action Comm., 470 U.S., at 500.
Plaintiffs also contend that §323(b) is unconstitutional because the Levin Amendment unjustifiably burdens 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. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e.g., California Democratic Party v. Jones, 530 U.S. 567 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). But 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.
As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committees Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of choice.65 The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize all hands fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. In that case, the purpose, if not the letter, of §323(b)(2)s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal officeholders. 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.
Section 323(b)(2)(B)(iv)s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committees Levin expenditures presents a closer question. 2 U.S.C. A. §441i(b)(2)(B)(iv) (Supp. 2003). The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committees Levin funds. This purported interest is weak, particularly given the fact that §323(a) already polices attempts by national parties to engage in such behavior. See 2 U.S.C. A. §441i(a)(2) (extending §323(a)s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis. Party committees, including national party committees, remain free to transfer unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all homegrown hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticircumvention interest vindicated by §323(b)(2)(B)(iv)s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement.
to Engage in Effective Advocacy
Finally, plaintiffs contend that §323(b) is unconstitutional because its restrictions on soft-money contributions to state and local party committees will prevent them from engaging in effective advocacy. As Judge Kollar-Kotelly noted, the political parties evidence regarding the impact of BCRA on their revenues is speculative and not based on any analysis. 251 F. Supp. 2d, at 524. If the history of campaign finance regulation discussed above proves anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the relative amount of money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether §323(b) reduces the amount of funds available over previous election cycles, but whether it is so radical in effect as to drive the sound of [the recipients] voice below the level of notice. Shrink Missouri, 528 U.S., at 397. If indeed state or local parties can make such a showing, as-applied challenges remain available.
We accordingly conclude that §323(b), on its face, is closely drawn to match the important governmental interests of preventing corruption and the appearance of corruption.
Section 323(d) prohibits national, state, and local party committees, and their agents or subsidiaries, from solicit[ing] any funds for, or mak[ing] or direct[ing] any donations to, any organization established under §501(c) of the Internal Revenue Code66 that makes expenditures in connection with an election for federal office, and any political organizations established under §527 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.67 2 U.S.C. A. §441i(d) (Supp. 2003). The District Court struck down the provision on its face. We reverse and uphold §323(d), narrowly construing the sections ban on donations to apply only to the donation of funds not raised in compliance with FECA.
The Government defends §323(d)s ban on solicitations to tax-exempt organizations engaged in political activity as preventing circumvention of Title Is limits on contributions of soft money to national, state, and local party committees. That justification is entirely reasonable. The history of Congress efforts at campaign finance reform well demonstrates that candidates, donors, and parties test the limits of the current law. Colorado II, 533 U.S., at 457. Absent the solicitation 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.68 All of the corruption and appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Donations made at the behest of party committees would almost certainly be regarded by party officials, donors, and federal officeholders alike as benefiting the party as well as its candidates. Yet, by soliciting the donations to third-party organizations, the parties would avoid FECAs source-and-amount limitations, as well as its disclosure restrictions. See 251 F. Supp. 2d, at 348 (Henderson, J.) (citing various declarations demonstrating that, prior to BCRA, most tax-exempt organizations did not disclose the source or amount of contributions); id., at 521 (Kollar-Kotelly, J.) (same).
Experience under the current law
demonstrates that Congress concerns about circumvention
are not merely hypothetical. Even without the added incentives
created by Title I, national, state, and local parties already
solicit unregulated soft-money donations to tax-exempt
organizations for the purpose of supporting federal
electioneering activity. See, e.g., 3 1998 Senate
Report 4013 (In addition to direct contributions from the
RNC to nonprofit groups, the senior leadership of the RNC
helped to raise funds for many of the coalitions
nonprofit organizations); id., at 5983 (minority
views) (Tax-exempt issue advocacy groups and
other conduits were systematically used to circumvent federal
campaign finance laws); 251 F. Supp. 2d, at 517
(Kollar-Kotelly, J.); id., at 848 (Leon, J.). Parties
and candidates have also begun to take advantage of so-called
politician 527s, which are little more than
soft-money fronts for the promotion of particular federal
officeholders and their interests. See id., at 519
(Kollar-Kotelly, J.) (
Section 323(d)s solicitation restriction is closely drawn to prevent political parties from using tax-exempt organizations as soft-money surrogates. Though phrased as an absolute prohibition, the restriction does nothing more than subject contributions solicited by parties to FECAs regulatory regime, leaving open substantial opportunities for solicitation and other expressive activity in support of these organizations. First, and most obviously, §323(d) restricts solicitations only to those §501(c) groups mak[ing] expenditures or disbursements in connection with an election for Federal office, 2 U.S.C. A. §441i(d)(1) (Supp. 2003), and to §527 organizations, which by definition engage in partisan political activity, §441i(d)(2); 26 U.S.C. § 527(e). Second, parties remain free to solicit hard-money contributions to a §501(c)s federal PAC, as well as to §527 organizations that already qualify as federal PACs.69 Third, §323(d) allows parties to endorse qualifying organizations in ways other than direct solicitations of unregulated donations. For example, with respect to §501(c) organizations that are prohibited from administering PACs, parties can solicit hard-money donations to themselves for the express purpose of donating to these organizations. See supra, at 7273. Finally, as with §323(a), §323(d) in no way restricts solicitations by party officers acting in their individual capacities. 2 U.S.C. A. §441i(d) (extending restrictions to solicitations and donations made by an officer or agent acting on behalf of any such party committee (emphasis added)).
In challenging §323(d)s ban on solicitations, plaintiffs renew the argument they made with respect to §323(a)s solicitation restrictions: that it cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited donations of soft money to tax-exempt organizations that engage in federal election activities. Compare 2 U.S.C. A. §441i(d) with §441i(e)(4). But if §323(d)s restrictions on solicitations are otherwise valid, they are 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; see also Katzenbach v. Morgan, 384 U.S. 641, 656657 (1966). In any event, the difference between the two provisions is fully explained by the fact that national party officers, unlike federal candidates and officeholders, are able to solicit soft money on behalf of nonprofit organizations in their individual capacities. Section 323(e), which is designed to accommodate the individual associational and speech interests of candidates and officeholders in lending personal support to nonprofit organizations, also places tight content, source, and amount restrictions on solicitations of soft money by federal candidates and officeholders. Given those limits, as well as the less rigorous standard of review, the greater allowances of §323(e) do not render §323(d)s solicitation restriction facially invalid.
Section 323(d) also prohibits
national, state, and local party committees from making or
directing any donatio[n] to qualifying §501(c)
or §527 organizations. 2 U.S.C. A. §441i(d)
(Supp. 2003). The Government again defends the restriction as
an anticircumvention measure. We agree insofar as it prohibits
the donation of soft money. Absent such a restriction, state
and local party committees could accomplish directly what the
antisolicitation restrictions prevent them from doing
namely, raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Because the party itself would be raising and collecting the funds, the potential for corruption would be that much greater. We will not disturb Congress reasonable decision to close that loophole, particularly given a record demonstrating an already robust practice of parties making such donations. See 251 F. Supp. 2d, at 517518 (Kollar-Kotelly); id., at 848849 (Leon, J.).
The prohibition does raise overbreadth concerns if read to restrict donations from a partys federal accounti.e., funds that have already been raised in compliance with FECAs source, amount, and disclosure limitations. Parties have many valid reasons for giving to tax-exempt organizations, not the least of which is to associate themselves with certain causes and, in so doing, to demonstrate the values espoused by the party. A complete ban on donations prevents parties from making even the general expression of support that a contribution represents. Buckley, 424 U.S., at 21. At the same time, prohibiting parties from donating funds already raised in compliance with FECA does little to further Congress goal of preventing corruption or the appearance of corruption of federal candidates and officeholders.
The Government asserts that the restriction is necessary to prevent parties from leveraging their hard money to gain control over a tax-exempt groups soft money. Even if we accepted that rationale, it would at most justify a dollar limit, not a flat ban. Moreover, any legitimate concerns over capture are diminished by the fact that the restrictions set forth in §§323(a) and (b) apply not only to party committees, but to entities under their control. See 2 U.S.C. A. §441i(a)(2) (extending prohibitions on national party committees to any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee (emphasis added)); §441i(b)(1) (same for state and local party committees).
These observations do not, however, require us to sustain plaintiffs facial challenge to §323(d)s donation restriction. When the validity of an act of the Congress is drawn in question, and a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. Crowell v. Benson, 285 U.S. 22, 62 (1932); see also Boos v. Barry, 485 U.S. 312, 331 (1988); New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982). Given our obligation to avoid constitutional problems, we narrowly construe §323(d)s ban to apply only to donations of funds not raised in compliance with FECA. This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole. Though there is little legislative history regarding BCRA generally, and almost nothing on §323(d) specifically, the abuses identified in the 1998 Senate report regarding campaign finance practices involve the use of nonprofit organizations as conduits for large soft-money donations. See, e.g., 3 1998 Senate Report 4565 (The evidence indicates that the soft-money loophole is fueling many of the campaign abuses investigated by the Committee . Soft money also supplied the funds parties used to make contributions to tax-exempt groups, which in turn used the funds to pay for election-related activities); id., at 45684569 (describing as an egregious exampl[e] of misuse a $4.6 million donation of nonfederal funds by the RNC to Americans for Tax Reform, which the organization spent on direct mail and phone bank operations to counter anti-Republican advertising). We have found no evidence that Congress was concerned about, much less that it intended to prohibit, donations of money already fully regulated by FECA. Given Title Is exclusive focus on abuses related to soft money, we would expect that if Congress meant §323(d)s restriction to have this dramatic and constitutionally questionable effect, it would say so explicitly. Because there is nothing that compels us to conclude that Congress intended donations to include transfers of federal money, and because of the constitutional infirmities such an interpretation would raise, we decline to read §323(d) in that way. Thus, political parties remain free to make or direct donations of money to any tax-exempt organization that has otherwise been raised in compliance with FECA.
New FECA §323(e) regulates the raising and soliciting of soft money by federal candidates and officeholders. 2 U.S.C. A. §441i(e) (Supp. 2003). It prohibits federal candidates and officeholders from solicit[ing], receiv[ing], direct[ing], transfer[ing], or spend[ing] any soft money in connection with federal elections. §441i(e)(1)(A). It also limits the ability of federal candidates and officeholders to solicit, receive, direct, transfer, or spend soft money in connection with state and local elections. §441i(e)(1)(B).70
Section 323(e)s general prohibition on solicitations admits of a number of exceptions. For instance, federal candidates and officeholders are permitted to attend, speak, or be a featured guest at a state or local party fundraising event. 2 U.S.C. A. §441i(e)(3). Section 323(e) specifically provides that federal candidates and officeholders may make solicitations of soft money to §501(c) organizations whose primary purpose is not to engage in Federal election activit[ies] as long as the solicitation does not specify how the funds will be spent, 2 U.S.C. A. §441i(e)(4)(A); to §501(c) organizations whose primary purpose is to engage in Federal election activit[ies] as long as the solicitations are limited to individuals and the amount solicited does not exceed $20,000 per year per individual, 2 U.S.C. A. §441i(e)(4)(B); and to §501(c) organizations for the express purpose of carrying out such activities, again so long as the amount solicited does not exceed $20,000 per year per individual, 2 U.S.C. A. §441(e)(4)(B).
No party seriously questions the constitutionality of §323(e)s general ban on donations of soft money made directly to federal candidates and officeholders, their agents, or entities established or controlled by them. Even on the narrowest reading of Buckley, a regulation restricting donations to a federal candidate, regardless of the ends to which those funds are ultimately put, qualifies as a contribution limit subject to less rigorous scrutiny. Such donations have only marginal speech and associational value, but at the same time pose a substantial threat of corruption. By severing the most direct link between the soft-money donor and the federal candidate, §323(e)s ban on donations of soft money is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders.
Section 323(e)s restrictions
on solicitations are justified as valid anticircumvention
measures. Large soft-money donations at a candidates or
officeholders behest give rise to all of the same
corruption concerns posed by contributions made directly to the
candidate or officeholder. Though the candidate may not
ultimately control how the funds are spent, the value of the
donation to the candidate or officeholder is evident from the
fact of the solicitation itself. Without some restriction on
solicitations, federal candidates and officeholders could
easily avoid FECAs contribution limits by soliciting
funds from large donors and restricted sources to like-minded
organizations engaging in federal election activities. As the
record demonstrates, even before the passage of BCRA, federal
candidates and officeholders had already begun soliciting
donations to state and local parties, as well as tax-exempt
organizations, in order to help their own, as well as their
partys, electoral cause. See Colorado II, 533
U.S., at 458 (quoting fundraising letter from a Congressman
explaining to contributor that
Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Rather than place an outright ban on solicitations to tax-exempt organizations, §323(e)(4) permits limited solicitations of soft money. 2 U.S.C. A. §441i(e)(4). This allowance accommodates individuals who have long served as active members of nonprofit organizations in both their official and individual capacities. Similarly, §§323(e)(1)(B) and 323(e)(3) preserve the traditional fundraising role of federal officeholders by providing limited opportunities for federal candidates and officeholders to associate with their state and local colleagues through joint fundraising activities. 2 U.S.C. A. §§441i(e)(1)(B), 441i(e)(3). Given these many exceptions, as well as the substantial threat of corruption or its appearance posed by donations to or at the behest of federal candidates and officeholders, §323(e) is clearly constitutional. We accordingly uphold §323(e) against plaintiffs First Amendment challenge.
The final provision of Title I is new
FECA §323(f). 2 U.S.C. A. §441i(f) (Supp.
2003). Section 323(f) generally prohibits candidates for state
or local office, or state or local officeholders, from spending
soft money to fund public communications as defined
i.e., a communication that refers to a clearly identified candidate for Federal office and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office. 2 U.S.C. A. §441i(f)(1); §431(20)(A)(iii). Exempted from this restriction are communications made in connection with an election for state or local office which refer only to the state or local candidate or officeholder making the expenditure or to any other candidate for the same state or local office. §441i(f)(2).
Section 323(f) places no cap on the amount of money that state or local candidates can spend on any activity. Rather, like §§323(a) and 323(b), it limits only the source and amount of contributions that state and local candidates can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund public communications, §323(f) 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 advance two principal arguments against §323(f). We have already rejected the first argument, that the definition of public communications in new FECA §301(20)(A)(iii) is unconstitutionally vague and overbroad. See supra, 62, n. 64. We add only that, plaintiffs and Justice Kennedys contrary reading notwithstanding, post, at 34, this provision does not prohibit a state or local candidate from advertising that he has received a federal officeholders endorsement.71
The second argument, that soft-money contributions to state and local candidates for public communications do not corrupt or appear to corrupt federal candidates, ignores both the record in this litigation and Congress strong interest in preventing circumvention of otherwise valid contribution limits. The proliferation of sham issue ads has driven the soft-money explosion. Parties have sought out every possible way to fund and produce these ads with soft money: They have labored to bring them under the FECs allocation regime; they have raised and transferred soft money from national to state party committees to take advantage of favorable allocation ratios; and they have transferred and solicited funds to tax-exempt organizations for production of such ads. We will not upset Congress eminently reasonable prediction that, with these other avenues no longer available, state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertising. We therefore uphold §323(f) against plaintiffs First Amendment challenge.72
Several plaintiffs contend that Title I exceeds Congress Election Clause authority to make or alter rules governing federal elections, U.S. Const., Art. I, §4, and, by impairing the authority of the States to regulate their own elections, violates constitutional principles of federalism. In examining congressional enactments for infirmity under the Tenth Amendment, this Court has focused its attention on laws that commandeer the States and state officials in carrying out federal regulatory schemes. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). By contrast, Title I of BCRA only regulates the conduct of private parties. It imposes no requirements whatsoever upon States or state officials, and, because it does not expressly pre-empt state legislation, it leaves the States free to enforce their own restrictions on the financing of state electoral campaigns. It is true that Title I, as amended, prohibits some fundraising tactics that would otherwise be permitted under the laws of various States, and that it may therefore have an indirect effect on the financing of state electoral campaigns. But these indirect effects do not render BCRA unconstitutional. It is not uncommon for federal law to prohibit private conduct that is legal in some States. See, e.g., United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001). Indeed, such conflict is inevitable in areas of law that involve both state and federal concerns. It is not in and of itself a marker of constitutional infirmity. See Ex parte Siebold, 100 U.S. 371, 392 (1879).
Of course, in maintaining the federal system envisioned by the Founders, this Court has done more than just prevent Congress from commandeering the States. We have also policed the absolute boundaries of congressional power under Article I. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). But plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Congress has a fully legitimate interest in maintaining the integrity of federal officeholders and preventing corruption of federal electoral processes through the means it has chosen. Indeed, our above analysis turns on our finding that those interests are sufficient to satisfy First Amendment scrutiny. Given that finding, we cannot conclude that those interests are insufficient to ground Congress exercise of its Elections Clause power. See Morrison, supra, at 607 (respect owed to coordinate branches demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds).
Finally, plaintiffs argue that Title I violates the equal protection component of the Due Process Clause of the Fifth Amendment because it discriminates against political parties in favor of special interest groups such as the National Rifle Association (NRA), American Civil Liberties Union (ACLU), and Sierra Club. As explained earlier, BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. Interest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications). We conclude that this disparate treatment does not offend the Constitution.
As an initial matter, we note that BCRA actually favors political parties in many ways. Most obviously, party committees are entitled to receive individual contributions that substantially exceed FECAs limits on contributions to nonparty political committees; individuals can give $25,000 to political party committees whereas they can give a maximum of $5,000 to nonparty political committees. In addition, party committees are entitled in effect to contribute to candidates by making coordinated expenditures, and those expenditures may greatly exceed the contribution limits that apply to other donors. See 2 U.S.C. A. §441a(d) (Supp. 2003).
More importantly, however, Congress is fully entitled to consider the real-world differences between political parties and interest groups when crafting a system of campaign finance regulation. See National Right to Work, 459 U.S., at 210. Interest groups do not select slates of candidates for elections. Interest groups do not determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses. Political parties have influence and power in the legislature that vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation is the primary way by which voters identify candidates, or that parties in turn have special access to and relationships with federal officeholders. Congress efforts at campaign finance regulation may account for these salient differences. Taken seriously, appellants equal protection arguments would call into question not just Title I of BCRA, but much of the pre-existing structure of FECA as well. We therefore reject those arguments.
Accordingly, we affirm the judgment of the District Court insofar as it upheld §§323(e) and 323(f). We reverse the judgment of the District Court insofar as it invalidated §§323(a), 323(b), and 323(d).
Title II of BCRA, entitled Noncandidate Campaign Expenditures, is divided into two subtitles: Electioneering Communications and Independent and Coordinated Expenditures. We consider each challenged section of these subtitles in turn.
The first section of Title II, §201, comprehensively amends FECA §304, which requires political committees to file detailed periodic financial reports with the FEC. The amendment coins a new term, electioneering communication, to replace the narrowing construction of FECAs disclosure provisions adopted by this Court in Buckley. As discussed further below, that construction limited the coverage of FECAs disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term electioneering communication is not so limited, but is defined to encompass any broadcast, cable, or satellite communication that
(I) refers to a clearly identified candidate for Federal office;
(II) is made within
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate other than President or Vice President, is targeted to the relevant electorate. 2 U.S.C. A. §434(f)(3)(A)(i) (Supp. 2003).73
New FECA §304(f)(3)(C) further provides that a
In addition to setting forth this definition, BCRAs amendments to FECA §304 specify significant disclosure requirements for persons who fund electioneering communications. BCRAs use of this new term is not, however, limited to the disclosure context: A later section of the Act (BCRA §203, which amends FECA §316(b)(2)) restricts corporations and labor unions funding of electioneering communications. Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts.
The major premise of plaintiffs challenge to BCRAs use of the term electioneering communication is that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, electioneering communications without making an exception for those communications that do not meet Buckleys definition of express advocacy.
That position misapprehends our
prior decisions, for the express advocacy restriction was an
endpoint of statutory interpretation, not a first principle of
constitutional law. In Buckley we began by examining
then-18 U.S.C. §
608(e)(1) (1970 ed., Supp. IV), which restricted
We then considered FECAs
disclosure provisions, including 2 U.S.C. § 431(f)
(1970 ed., Supp. IV), which defined
Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command.75 In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL, 479 U.S. 238 (1986), in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that Buckleys express advocacy category was a product of statutory construction.76
In short, the concept of express
advocacy and the concomitant class of magic words were born of
an effort to avoid constitutional infirmities. See NLRB
v. Catholic Bishop of Chicago, 440 U.S. 490, 500
(1979) (citing Murray v. Schooner Charming Betsy,
2 Cranch 64, 118 (1804)). We have long rigidly
adhered to the tenet
Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. See Buckley, supra, at 45. Indeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that Buckleys magic-words requirement is functionally meaningless. 251 F. Supp. 2d, at 303304 (Henderson, J.); id., at 534 (Kollar-Kotelly, J.); id., at 875879 (Leon, J.). Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted.77 And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.78 Buckleys express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system.
Finally we observe that new FECA §304(f)(3)s definition of electioneering communication raises none of the vagueness concerns that drove our analysis in Buckley. The term electioneering communication applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Grayned v. City of Rockford, 408 U.S. 104, 108114 (1972). Thus, the constitutional objection that persuaded the Court in Buckley to limit FECAs reach to express advocacy is simply inapposite here.
Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy, we turn to plaintiffs other concerns about the use of the term electioneering communication in amended FECA §304s disclosure provisions. Under those provisions, whenever any person makes disbursements totaling more than $10,000 during any calendar year for the direct costs of producing and airing electioneering communications, he must file a statement with the FEC identifying the pertinent elections and all persons sharing the costs of the disbursements. 2 U.S.C. A. §§434(f)(2)(A), (B), and (D) (Supp. 2003). If the disbursements are made from a corporations or labor unions segregated account,79 or by a single individual who has collected contributions from others, the statement must identify all persons who contributed $1,000 or more to the account or the individual during the calendar year. §§434(f)(2)(E), (F). The statement must be filed within 24 hours of each disclosure datea term defined to include the first date and all subsequent dates on which a persons aggregate undisclosed expenses for electioneering communications exceed $10,000 for that calendar year. §§434(f)(1), (2) and (4). Another subsection further provides that the execution of a contract to make a disbursement is itself treated as a disbursement for purposes of FECAs disclosure requirements. §434(f)(5).
In addition to the failed argument that BCRAs amendments to FECA §304 improperly extend to both express and issue advocacy, plaintiffs challenge amended FECA §304s disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who contributed $1,000 or more to the individual or group that paid for a communication, and (2) mandating disclosure of executory contracts for communications that have not yet aired. The District Court rejected the former submission but accepted the latter, finding invalid new FECA §304(f)(5), which governs executory contracts. Relying on BCRAs severability provision,80 the court held that invalidation of the executory contracts subsection did not render the balance of BCRAs amendments to FECA §304 unconstitutional. 251 F. Supp. 2d, at 242 (per curiam).
We agree with the District Court that the important state interests that prompted the Buckley Court to uphold FECAs disclosure requirementsproviding the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictionsapply in full to BCRA.81 Accordingly, Buckley amply supports application of FECA §304s disclosure requirements to the entire range of electioneering communications. As the authors of the District Courts per curiam opinion concluded after reviewing evidence concerning the use of purported issue ads to influence federal elections:
The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRAs disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections. Plaintiffs disdain for BCRAs disclosure pro-visions is nothing short of surprising. Plaintiffs chal-lenge BCRAs restrictions on electioneering communications on the premise that they should be permitted to spend corporate and labor union general treasury funds in the sixty days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be uninhibited, robust, and wide-open. McConnell Br. at 44 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: The Coalition-Americans Working for Real Change (funded by business organizations opposed to organized labor), Citizens for Better Medicare (funded by the pharmaceutical industry), Republicans for Clean Air (funded by brothers Charles and Sam Wyly). Findings ¶¶44, 51, 52. Given these tactics, Plaintiffs never satisfactorily answer the question of how uninhibited, robust, and wide-open speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs argument for striking down BCRAs disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace. 251 F. Supp. 2d, at 237.
The District Court was also correct that Buckley forecloses a facial attack on the new provision in §304 that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $10,000 in a calendar year on electioneering communications. Like our earlier decision in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958),82 Buckley recognized that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause. Nevertheless, Buckley rejected the contention that FECAs disclosure requirements could not constitutionally be applied to minor parties and independent candidates because the Governments interest in obtaining information from such parties was minimal and the danger of infringing their rights substantial. In Buckley, unlike NAACP, we found no evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled disclosures. Buckley, 424 U.S., at 6970. We acknowledged that such a case might arise in the future, however, and addressed the standard of proof that would then apply:
We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a partys contributors names will subject them to threats, harassment, or reprisals from either Government officials or private parties. Id., at 74.
A few years later we used that standard to resolve a minor partys challenge to the constitutionality of the State of Ohios disclosure requirements. We held that the First Amendment prohibits States from compelling disclosures that would subject identified persons to threats, harassment, and reprisals, and that the District Courts findings had established a reasonable probability of such a result.83 Brown v. Socialist Workers 74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982).
In this litigation the District Court applied Buckleys evidentiary standard and foundconsistent with our conclusion in Buckley, and in contrast to that in Brownthat the evidence did not establish the requisite reasonable probability of harm to any plaintiff group or its members. The District Court noted that some parties had expressed such concerns, but it found a lack of specific evidence about the basis for these concerns. 251 F. Supp. 2d, at 247 (per curiam). We agree, but we note that, like our refusal to recognize a blanket exception for minor parties in Buckley, our rejection of plaintiffs facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement.
We also are unpersuaded by plaintiffs challenge to new FECA §304(f)(5), which requires disclosure of executory contracts for electioneering communications:
Contracts to disburse
For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement. 2 U.S.C. A. §434(f)(5) (Supp. 2003).
In our view, this provision serves an important purpose the District Court did not advance. BCRAs amendments to FECA §304 mandate disclosure only if and when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Plaintiffs do not take issue with the use of a dollar amount, rather than the number or dates of the ads, to identify the time when a person paying for electioneering communications must make disclosures to the FEC. Nor do they question the need to make the contents of parties disclosure statements available to curious voters in advance of elections. Given the relatively short time frames in which electioneering communications are made, the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole if advertisers were not required to disclose executory contracts. In the absence of that requirement, political supporters could avoid preelection disclosures concerning ads slated to run during the final week of a campaign simply by making a preelection downpayment of less than $10,000, with the balance payable after the election. Indeed, if the advertiser waited to pay that balance until the next calendar year then, as long as the balance did not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely.
The record contains little evidence identifying any harm that might flow from the enforcement of §304(f)(5)s advance disclosure requirement. The District Court speculated that disclosing information about contracts that have not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace. 251 F. Supp. 2d, at 241 (per curiam). Without evidence relating to the frequency of nonperformance of executed contracts, such speculation cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. It is no doubt true that §304(f)(5) will sometimes require the filing of disclosure statements in advance of the actual broadcast of an advertisement.84 But the same would be true in the absence of an advance disclosure requirement, if a television station insisted on advance payment for all of the ads covered by a contract. Thus, the possibility that amended §304 may sometimes require disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather than the date of an ad) to trigger the disclosure requirement as it is a function of §304(f)(5)s treatment of executory contracts.
As the District Court observed,
amended FECA §304s disclosure requirements are
constitutional because they
Section 202 of BCRA amends FECA
§315(a)(7)(C) to provide that disbursements for
electioneering communication[s] 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) (Supp. 2003).85 The
amendment clarifies the scope of the preceding subsection,
§315(a)(7)(B), which states more generally that
expenditures made by any person in cooperation,
consultation, or concert, with, or at the request or suggestion
Since our decision in Buckley, Congress power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. The ability to form and administer separate segregated funds authorized by FECA §316, 2 U.S.C. A. §441b (main ed. and Supp. 2003), has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Courts unanimous view,86 and it is not challenged in this litigation.
Section 203 of BCRA amends FECA §316(b)(2) to extend this rule, which previously applied only to express advocacy, to all electioneering communications covered by the definition of that term in amended FECA §304(f)(3), discussed above. 2 U.S.C. A. §441b(b)(2) (Supp. 2003).87 Thus, under BCRA, corporations and unions may not use their general treasury funds to finance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose. Because corporations can still fund electioneering communications with PAC money, it is simply wrong to view the provision as a complete ban on expression rather than a regulation. Beaumont, 539 U.S., at ___, ___ (slip op., at 15). As we explained in Beaumont:
The PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the government regulate campaign activity through registration and disclosure, see [2 U.S.C.] §§432434, without jeopardizing the associational rights of advocacy organizations members. Id., at ___ (slip op., at 16) (citation omitted).
See also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658 (1990).
Rather than arguing that the
prohibition on the use of general treasury funds is a complete
ban that operates as a prior restraint, plaintiffs instead
challenge the expanded regulation on the grounds that it is
both overbroad and underinclusive. Our consideration of
plaintiffs challenge is informed by our earlier
conclusion that the distinction between express advocacy and
so-called issue advocacy is not constitutionally compelled. In
that light, we must examine the degree to which BCRA burdens First Amendment
expression and evaluate whether a compelling governmental
interest justifies that burden. Id., at 657. The
latter questionwhether the state interest is
compellingis easily answered by our prior decisions
regarding campaign finance regulation, which represent
respect for the legislative judgment that the special
characteristics of the corporate structure require particularly
In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office, Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), and [a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. Buckley, 424 U.S., at 48. Rather, plaintiffs argue that the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications.
This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. See 251 F. Supp. 2d, at 307312 (Henderson, J.); id., at 583587 (Kollar-Kotelly, J.); id., at 796798 (Leon, J.). Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 1314; App. 13301348 (Krasno & Sorauf Expert Report); 251 F. Supp. 2d, at 573578 (Kollar-Kotelly, J.); id., at 826827 (Leon, J.). Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.88
We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA §316(b)(2) is overbroad. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not justify prohibiting all enforcement of the law unless its application to protected speech is substantial, not only in an absolute sense, but also relative to the scope of the laws plainly legitimate applications. Virginia v. Hicks, 539 U.S. ___, ___ (2003) (slip op., at 56). Far from establishing that BCRAs application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.
Plaintiffs also argue that FECA §316(b)(2)s segregated-fund requirement for electioneering communications is underinclusive because it does not apply to advertising in the print media or on the Internet. 2 U.S.C. A. §434(f)(3)(A) (Supp. 2003). The records developed in this litigation and by the Senate Committee adequately explain the reasons for this legislative choice. Congress found that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately preceding federal elections, and that remedial legislation was needed to stanch that flow of money. 251 F. Supp. 2d, at 569573 (Kollar-Kotelly, J.); id., at 799 (Leon, J.); 3 1998 Senate Report 4465, 44744481; 5 id., at 75217525. As we held in Buckley, reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. 424 U.S., at 105 (internal quotation marks and citations omitted). One might just as well argue that the electioneering communication definition is underinclusive because it leaves advertising 61 days in advance of an election entirely unregulated. The record amply justifies Congress line drawing.
In addition to arguing that §316(b)(2)s segregated-fund requirement is underinclusive, some plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA §304(f)(3)(B)(i) excludes from the definition of electioneering communications any communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate. 2 U.S.C. A. §434(f)(3)(B)(i) (Supp. 2003). Plaintiffs argue this provision gives free rein to media companies to engage in speech without resort to PAC money. Section 304(f)(3)(B)(i)s effect, however, is much narrower than plaintiffs suggest. The provision excepts news items and commentary only; it does not afford carte blanche to media companies generally to ignore FECAs provisions. The statutes narrow exception is wholly consistent with First Amendment principles. A valid distinction exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public. Austin, 494 U.S., at 668. Numerous federal statutes have drawn this distinction to ensure that the law does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events. Ibid. (citations omitted); see, e.g., 2 U.S.C. § 431(9)(B)(i) (exempting news stories, commentaries, and editorials from FECAs definition of expenditure); 15 U.S.C. § 18011804 (providing a limited antitrust exemption for newspapers); 47 U.S.C. § 315(a) (excepting newscasts, news interviews, and news documentaries from the requirement that broadcasters provide equal time to candidates for public office).89
We affirm the District Courts judgment to the extent that it upheld the constitutionality of FECA §316(b)(2); to the extent that it invalidated any part of §316(b)(2), we reverse the judgment.
Section 204 of BCRA, which adds FECA §316(c)(6), applies the prohibition on the use of general treasury funds to pay for electioneering communications to not-for-profit corporations.90 Prior to the enactment of BCRA, FECA required such corporations, like business corporations, to pay for their express advocacy from segregated funds rather than from their general treasuries. Our recent decision in Federal Election Commn v. Beaumont, 539 U.S. ___ (2003), confirmed that the requirement was valid except insofar as it applied to a sub-category of corporations described as MCFL organizations, as defined by our decision in MCFL, 479 U.S. 238 (1986).91 The constitutional objection to applying FECAs segregated-fund requirement to so-called MCFL organizations necessarily applies with equal force to FECA §316(c)(6).
Our decision in MCFL related to a carefully defined category of entities. We identified three features of the organization at issue in that case that were central to our holding:
First, it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. If political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second, it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity. Third, MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace. Id., at 264.
That FECA §316(c)(6) does not, on its face, exempt MCFL organizations from its prohibition is not a sufficient reason to invalidate the entire section. If a reasonable limiting construction has been or could be placed on the challenged statute to avoid constitutional concerns, we should embrace it. Broadrick, 413 U.S., at 613; Buckley, 424 U.S., at 44. Because our decision in the MCFL case was on the books for many years before BCRA was enacted, we presume that the legislators who drafted §316(c)(6) were fully aware that the provision could not validly apply to MCFL-type entities. See Bowen v. Massachusetts, 487 U.S. 879, 896 (1988); Cannon v. University of Chicago, 441 U.S. 677, 696697 (1979). Indeed, the Government itself concedes that §316(c)(6) does not apply to MCFL organizations. As so construed, the provision is plainly valid. See Austin, 494 U.S., at 661665 (holding that a segregated-fund requirement that did not explicitly carve out an MCFL exception could apply to a nonprofit corporation that did not qualify for MCFL status).
Accordingly, the judgment of the District Court upholding §316(c)(6) as so limited is affirmed.
Section 212 of BCRA amends FECA §304 to add a new disclosure requirement, FECA §304(g), which applies to persons making independent expenditures of $1,000 or more during the 20-day period immediately preceding an election. Like FECA §304(f)(5), discussed above, new §304(g) treats the execution of a contract to make a disbursement as the functional equivalent of a payment for the goods or services covered by the contract.92 In challenging this provision, plaintiffs renew the argument we rejected in the context of §304(f)(5): that they have a constitutional right to postpone any disclosure until after the performance of the services purchased by their expenditure.
The District Court held that the
challenge to FECA §304(g) was not ripe because the FEC has
issued regulations provid[ing] Plaintiffs with the exact
remedy they seekthat is, specifically declining to
require disclosure of independent express advocacy
expenditures prior to their publi[c]
89, renders the issue essentially moot.
Section 213 of BCRA amends FECA §315(d)(4) to impose certain limits on party spending during the postnomination, preelection period.93 At first blush, the text of §315(d)(4)(A) appears to require political parties to make a straightforward choice between using limited coordinated expenditures or unlimited independent expenditures to support their nominees. All three judges on the District Court concluded that the provision placed an unconstitutional burden on the parties right to make unlimited independent expenditures. 251 F. Supp. 2d, at 388 (Henderson, J.); id., at 650651 (Kollar-Kotelly, J.), id., at 805808 (Leon, J.). In the end, we agree with that conclusion but believe it important to identify certain complexities in the text of §315(d)(4) that affect our analysis of the issue.
Section 315 of FECA sets forth various limitations on contributions and expenditures by individuals, political parties, and other groups. Section 315(a)(2) restricts contributions by parties to $5,000 per candidate. 2 U.S.C. A. §441a(a)(2). Because §315(a)(7) treats expenditures that are coordinated with a candidate as contributions to that candidate, 2 U.S.C. A. §441(a)(7) (Supp. 2003), the $5,000 limit also operates as a cap on parties coordinated expenditures. Section 315(d), however, provides that, [n]otwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, political parties may make expenditures in support of their candidates under a formula keyed to the voting-age population of the candidates home State or, in the case of a candidate for President, the voting-age population of the United States. 2 U.S.C. A. §§441a(d)(1)(3) (main ed. and Supp. 2003).94 In the year 2000, that formula permitted expenditures ranging from $33,780 to $67,650 for House of Representatives races, and from $67,650 to $1.6 million for Senate races. Colorado II, 533 U.S., at 439, n. 3. We held in Colorado I that parties have a constitutional right to make unlimited independent expenditures, and we invalidated §315(d) to the extent that it restricted such expenditures. As a result of that decision, §315(d) applies only to coordinated expenditures, replacing the $5,000 cap on contributions set out in §315(a)(2) with the more generous limitations prescribed by §§315(d)(1)(3). We sustained that limited application in Colorado II, supra.
Section 213 of BCRA amends §315(d) by adding a new paragraph (4). New §315(d)(4)(A) provides that, after a party nominates a candidate for federal office, it must choose between two spending options. Under the first option, a party that makes any independent expenditure (as defined in section [301(17)]) is thereby barred from making any coordinated expenditure under this subsection. 2 U.S.C. A. §441a(d)(4)(A)(i) (Supp. 2003). The phrase this subsection is a reference to subsection (d) of §315. Thus, the consequence of making an independent expenditure is not a complete prohibition of any coordinated expenditure: Although the party cannot take advantage of the increased spending limits under §§315(d)(1)(3), it still may make up to $5,000 in coordinated expenditures under §315(a)(2). As the difference between $5,000 and $1.6 million demonstrates, however, that is a significant cost to impose on the exercise of a constitutional right.
The second option is the converse
of the first. It provides that a party that makes any
coordinated expenditure under this subsection
(i.e., one that exceeds the ordinary $5,000 limit)
cannot make any independent expenditure (as defined in
section [301(17)]) with respect to the candidate. 2
U.S.C. A. §441a(d)(4)(A)(ii). Section 301(17)
In sum, the coverage of new FECA §315(d)(4) is much more limited than it initially appears. A party that wishes to spend more than $5,000 in coordination with its nominee is forced to forgo only the narrow category of independent expenditures that make use of magic words. But while the category of burdened speech is relatively small, it plainly is entitled to First Amendment protection. See Buckley, 424 U.S., at 4445, 48. Under §315(d)(4), a political partys exercise of its constitutionally protected right to engage in core First Amendment expression, id., at 48, results in the loss of a valuable statutory benefit that has been available to parties for many years. To survive constitutional scrutiny, a provision that has such consequences must be supported by a meaningful governmental interest.
The interest in requiring political parties to avoid the use of magic words is not such an interest. We held in Buckley that a $1,000 cap on expenditures that applied only to express advocacy could not be justified as a means of avoiding circumvention of contribution limits or preventing corruption and the appearance of corruption because its restrictions could easily be evaded: So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. Id., at 45. The same is true in this litigation. Any claim that a restriction on independent express advocacy serves a strong Government interest is belied by the overwhelming evidence that the line between express advocacy and other types of election-influencing expression is, for Congress purposes, functionally meaningless. Indeed, Congress enacted the new electioneering communication[s] provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing communications designed to influence candidate elections. In light of that recognition, we are hard pressed to conclude that any meaningful purpose is served by §315(d)(4)s burden on a partys right to engage independently in express advocacy.
The Government argues that §315(d)(4) nevertheless is constitutional because it is not an outright ban (or cap) on independent expenditures, but rather offers parties a voluntary choice between a constitutional right and a statutory benefit. Whatever merit that argument might have in the abstract, it fails to account for new §315(d)(4)(B), which provides:
For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee. 2 U.S.C. A. §441a(d)(4)(B) (Supp. 2003).
Given that provision, it simply is not the case that each party committee can make a voluntary and independent choice between exercising its right to engage in independent advocacy and taking advantage of the increased limits on coordinated spending under §§315(d)(1)(3). Instead, the decision resides solely in the hands of the first mover, such that a local party committee can bind both the state and national parties to its chosen spending option.96 It is one thing to say that Congress may require a party committee to give up its right to make independent expenditures if it believes that it can accomplish more with coordinated expenditures. It is quite another thing, however, to say that the RNC must limit itself to $5,000 in coordinated expenditures in support of its presidential nominee if any state or local committee first makes an independent expenditure for an ad that uses magic words. That odd result undermines any claim that new §315(d)(4) can withstand constitutional scrutiny simply because it is cast as a voluntary choice rather than an outright prohibition on independent expenditures.
The portion of the judgment of the District Court invalidating BCRA §213 is affirmed.
Ever since our decision in Buckley, it has been settled that expenditures by a noncandidate that are controlled by or coordinated with the candidate and his campaign may be treated as indirect contributions subject to FECAs source and amount limitations. 424 U.S., at 46. Thus, FECA §315(a)(7)(B)(i) long has provided that expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate. 2 U.S.C. A. §441a(a)(7)(B)(i) (Supp. 2003). Section 214(a) of BCRA creates a new FECA §315(a)(7)(B)(ii) that applies the same rule to expenditures coordinated with a national, State, or local committee of a political party. 2 U.S.C. A. §441a(a)(7)(B)(ii).97 Sections 214(b) and (c) direct the FEC to repeal its current regulations98 and to promulgate new regulations dealing with coordinated communications paid for by persons other than candidates or their parties. Subsection (c) provides that the new regulations shall not require agreement or formal collaboration to establish coordination. 2 U.S.C. A. §441a(a) note.
Plaintiffs do not dispute that Congress may apply the same coordination rules to parties as to candidates. They argue instead that new FECA §315(a)(7)(B)(ii) and its implementing regulations are overbroad and unconstitutionally vague because they permit a finding of coordination even in the absence of an agreement. Plaintiffs point out that political supporters may be subjected to criminal liability if they exceed the contribution limits with expenditures that ultimately are deemed coordinated. Thus, they stress the importance of a clear definition of coordination and argue any definition that does not hinge on the presence of an agreement cannot provide the precise guidance that the First Amendment demands. Brief for Chamber of Commerce of the United States et al., Appellant in No. 021756, p. 48. As plaintiffs readily admit, that argument reaches beyond BCRA, calling into question FECAs pre-existing provisions governing expenditures coordinated with candidates.
We are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinatedand therefore may be regulated as indirect contributionsand expenditures that truly are independent. We repeatedly have struck down limitations on expenditures made totally independently of the candidate and his campaign, Buckley, 424 U.S., at 47, on the ground that such limitations impose far greater restraints on the freedom of speech and association than do limits on contributions and coordinated expenditures, id., at 44, while fail[ing] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, id., at 4748. See also Colorado I, 518 U.S., at 613614 (striking down limit on expenditure made by party officials prior to nomination of candidates and without any consultation with potential nominees). We explained in Buckley:
Unlike contributions, independent expenditures may well provide little assistance to the candidates campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. 424 U.S., at 47.
Thus, the rationale for affording
special protection to wholly independent expenditures has
nothing to do with the absence of an agreement and everything
to do with the functional consequences of different types of
expenditures. Independent expenditures are poor sources
of leverage for a spender because they might be duplicative or
counterproductive from a candidates point of view.
Colorado II, 533 U.S., at 446. By contrast,
expenditures made after a wink or nod often will be
as useful to the candidate as cash. Id., at
442, 446. For that reason, Congress has always treated
expenditures made at the request or suggestion of a
candidate as coordinated.99 2 U.S.C. A. §441a(a)(7)(B)(i)
(Supp. 2003). A supporter easily could comply with a
candidates request or suggestion without first agreeing
to do so, and the resulting expenditure would be
Nor are we persuaded that the
absence of an agreement requirement renders
§315(a)(7)(B)(ii) unconstitutionally vague. An agreement
has never been required to support a finding of coordination
with a candidate under §315(a)(7)(B)(i), which refers to
expenditures made in cooperation, consultation, or
concer[t] with, or at the request or suggestion of a
candidate. Congress used precisely the same language in new
§315(a)(7)(B)(ii) to address expenditures coordinated with
parties. FECAs longstanding definition of coordination
delineates its reach in words of common
understanding. Cameron v. Johnson, 390 U.S. 611, 616
(1968). Not surprisingly, therefore, the relevant statutory
language has survived without constitutional challenge for
almost three decades. Although that fact does not insulate the
definition from constitutional scrutiny, it does undermine
plaintiffs claim that the language of
§315(a)(7)(B)(ii) is intolerably vague. Plaintiffs do not
present any evidence that the definition has chilled political
speech, whether between candidates and their supporters or by
the supporters to the general public. See Reno v.
American Civil Liberties Union, 521 U.S. 844, 874
(1997) (noting risk that vague statutes may chill protected
expression). And, although plaintiffs speculate that the FEC
could engage in intrusive and politically motivated
investigations into alleged coordination, they do not even
attempt to explain why an agreement requirement would solve
that problem. Moreover, the only evidence plaintiffs have
adduced regarding the enforcement of the coordination provision
during its 27-year history concerns three investigations in the
late 1990s into groups on different sides of the
political aisle. Such meager evidence does not support the
claim that §315(a)(7)(B)(ii) will foster
arbitrary and discriminatory application.
Finally, portions of plaintiffs challenge to BCRA §214 focus on the regulations the FEC has promulgated under §214(c). 11 CFR § 109.21 (2003). As the District Court explained, issues concerning the regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in a separate proceeding. Thus, we agree with the District Court that plaintiffs challenge to §§214(b) and (c) is not ripe to the extent that the alleged constitutional infirmities are found in the implementing regulations rather than the statute itself.
The portions of the District Court judgment rejecting plaintiffs challenges to BCRA §214 are affirmed.
Many years ago we observed that [t]o say that Congress is without power to pass appropriate legislation to safeguard an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection. Burroughs v. United States, 290 U.S., at 545. We abide by that conviction in considering Congress most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. In the main we uphold BCRAs two principal, complementary features: the control of soft money and the regulation of electioneering communications. Accordingly, we affirm in part and reverse in part the District Courts judgment with respect to Titles I and II.
It is so ordered.
*. * Justice Souter, Justice Ginsburg, and Justice Breyer join this opinion in its entirety.
1. The parties to the litigation are described in the findings of the District Court. 251 F. Supp. 2d 176, 221226 (DC 2003) (per curiam). For the sake of clarity, we refer to the parties who challenged the law in the District Court as the plaintiffs, referring to specific plaintiffs by name where necessary. We refer to the parties who intervened in defense of the law as the intervenor-defendants.
2. The Hatch Act also limited both the amount political committees could expend and the amount they could receive in contributions. Act of July 19, 1940, ch. 640, 54 Stat. 767. Senator Bankhead, in offering the amendment from the Senate floor, said: We all know that money is the chief source of corruption. We all know that large contributions to political campaigns not only put the political party under obligation to the large contributors, who demand pay in the way of legislation, but we also know that large sums of money are used for the purpose of conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the country to spread propaganda, both true and untrue. United States v. Automobile Workers, 352 U.S. 567, 577578 (1957) (quoting 86 Cong. Rec. 2720 (1940)).
3. As a general rule, FECA permits corporations and unions to solicit contributions to their PACs from their shareholders or members, but not from outsiders. 2 U.S.C. § 441b(b)(4)(A), (C); see Federal Election Commn v. National Right to Work Comm., 459 U.S. 197, 198199, and n. 1 (1982).
4. The court held that one disclosure provision was unconstitutionally vague and overbroad. Buckley v. Valeo, 519 F.2d 821, 832 (CADC 1975) (en banc) (per curiam) (invalidating 2 U.S.C. § 437a (1970 ed., Supp. V)). No appeal was taken from that holding. Buckley v. Valeo, 424 U.S. 1, 10, n. 7 (1976) (per curiam).
5. The Court of Appeals found: Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributors particular concerns. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process. Buckley, 519 F.2d, at 838 (footnotes omitted). The court also noted: Congress found and the District Court confirmed that such contributions were often made for the purpose of furthering business or private interests by facilitating access to government officials or influencing governmental decisions, and that, conversely, elected officials have tended to afford special treatment to large contributors. See S. Rep. No. 93689, 93d Cong., 2d Sess. 45; Findings I, ¶¶108, 110, 118, 170. Id., at 838, n. 32. Citing further evidence of corruption, the court explained: The disclosures of illegal corporate contributions in 1972 included the testimony of executives that they were motivated by the perception that this was necessary as a calling card, something that would get us in the door and make our point of view heard, Hearings before the Senate Select Comm. on Presidential Campaign Activities, 93d Cong., 1st Sess. 5442 (1973) (Ashland Oil Co.Orin Atkins, Chairman) or in response to pressure for fear of a competitive disadvantage that might result, id. at 5495, 5514 (American AirlinesGeorge Spater, former chairman); see Findings I, ¶105. The record before Congress was replete with specific examples of improper attempts to obtain governmental favor in return for large campaign contributions. See Findings I, ¶¶15964. Id., at 839, n. 37.
6. The court cited the intricate scheme of the American Milk Producers, Inc., as an example of the lengths to which contributors went to avoid their duty to disclose: Since the milk producers, on legal advice, worked on a $2500 limit per committee, they evolved a procedure, after consultation in November 1970 with Nixon fund raisers, to break down [their $2 million donation] into numerous smaller contributions to hundreds of committees in various states which could then hold the money for the Presidents reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure. Id., at 839, n. 36. The milk producers contributed large sums to the Nixon campaign in order to gain a meeting with White House officials on price supports. Ibid.
7. In 1977 the FEC promulgated a rule allowing parties to allocate their administrative expenses on a reasonable basis between accounts containing funds raised in compliance with FECA and accounts containing nonfederal funds, including corporate and union donations. 11 CFR § 102.6(a)(2). In advisory opinions issued in 1978 and 1979, the FEC allowed parties similarly to allocate the costs of voter registration and get-out-the-vote drives between federal and nonfederal accounts. FEC Advisory Op. 197810; FEC Advisory Op. 197917. See 251 F. Supp. 2d, at 195197 (per curiam). In 1990 the FEC clarified the phrase on a reasonable basis by promulgating fixed allocation rates. 11 CFR § 106.5 (1991). The regulations required the Republican National Committee (RNC) and Democratic National Committee (DNC) to pay for at least 60% of mixed-purpose activities (65% in presidential election years) with funds from their federal accounts. §106.5(b)(2). By contrast, the regulations required state and local committees to allocate similar expenditures based on the ratio of federal to nonfederal offices on the States ballot, §106.5(d)(1), which in practice meant that they could expend a substantially greater proportion of soft money than national parties to fund mixed-purpose activities affecting both federal and state elections. See 251 F. Supp. 2d, at 198199 (per curiam).
8. 1 Defs. Exhs., Tab 1, Tbl. 2 (report of Thomas E. Mann, Chair & Sr. Fellow, Brookings Institution (hereinafter Mann Expert Report)); 251 F. Supp. 2d, at 197201 (per curiam).
9. Mann Expert Report 26; 251 F. Supp. 2d, at 441 (Kollar-Kotelly, J.).
10. Id., at 494 (Kollar-Kotelly, J.).
11. Mann Expert Report 24.
12. In the 2000 election cycle, 35 of the 50 largest soft-money donors gave to both parties; 28 of the 50 gave more than $100,000 to both parties. Mann Expert Report Tbl. 6; see also 251 F. Supp. 2d, at 509 (Kollar-Kotelly, J.); id., at 785, n. 77 (Leon, J.).
13. A former chief executive officer of a large corporation explained: Business and labor leaders believe, based on their experience, that disappointed Members, and their party colleagues, may shun or disfavor them because they have not contributed. Equally, these leaders fear that if they refuse to contribute (enough), competing interests who do contribute generously will have an advantage in gaining access to and influencing key Congressional leaders on matters of importance to the company or union. App. 283, ¶9 (declaration of Gerald Greenwald, United Airlines (hereinafter Greenwald Decl.)). Amici Curiae Committee for Economic Development and various business leaders attest that corporate soft-money contributions are coerced and, at bottom, wholly commercial in nature, and that [b]usiness leaders increasingly wish to be freed from the grip of a system in which they fear the adverse consequences of refusing to fill the coffers of the major parties. Brief for Committee for Economic Development et al. as Amici Curiae 28.
14. See 251 F. Supp. 2d, at 480 (Kollar-Kotelly, J.); id., at 842 (Leon, J.).
15. See id., at 479480 (Kollar-Kotelly, J.); id., at 842843 (Leon, J.). One former party official explained to the District Court: Once youve helped a federal candidate by contributing hard money to his or her campaign, you are sometimes asked to do more for the candidate by making donations of hard and/or soft money to the national party committees, the relevant state party (assuming it can accept corporate contributions), or an outside group that is planning on doing an independent expenditure or issue advertisement to help the candidates campaign. Id., at 479 (Kollar-Kotelly, J.).
16. Id., at 532537 (Kollar-Kotelly, J.); id., at 875879 (Leon, J.). As the former chair of one major advocacy organizations PAC put it, [i]t is foolish to believe there is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day. Id., at 536537 (Kollar-Kotelly, J.) (quoting Tanya K. Metaksa, Opening Remarks at the American Assn. of Political Consultants Fifth General Session on Issue Advocacy, Jan. 17, 1997, p. 2); 251 F. Supp. 2d, at 878879 (Leon, J.) (same).
17. Id., at 304 (Henderson, J.,
concurring in judgment in part and
dissenting in part); id., at 534 (Kollar-Kotelly, J.); id., at 875879 (Leon, J.).
18. It is undisputed that very few adswhether run by candidates, parties, or interest groupsused words of express advocacy. Id., at 303 (Henderson, J.); id., at 529 (Kollar-Kotelly, J.); id., at 874 (Leon, J.). In the 1998 election cycle, just 4% of candidate advertisements used magic words; in 2000, that number was a mere 5%. App. 1334 (report of Jonathan S. Krasno, Yale University, & Frank J. Sorauf, University of Minnesota, pp. 5354 (hereinafter Krasno & Sorauf Expert Report); see 1 Defs. Exhs., Tab 2, pp. 5354).
19. 251 F. Supp. 2d, at 564, and n. 6 (Kollar-Kotelly, J.) (citing report of Kenneth M. Goldstein, University of Wisconsin-Madison, App. A, Tbl. 16; see 3R Defs. Exhs., Tab 7); Tr. of Oral Arg. 202203; see also 251 F. Supp. 2d, at 305 (Henderson, J.).
20. The spending on electioneering communications climbed dramatically during the last decade. In the 1996 election cycle, $135 to $150 million was spent on multiple broadcasts of about 100 ads. In the next cycle (1997-1998), 77 organizations aired 423 ads at a total cost between $270 and $340 million. By the 2000 election, 130 groups spent over an estimated $500 million on more than 1,100 different ads. Two out of every three dollars spent on issue ads in the 2000 cycle were attributable to the two major parties and six major interest groups. Id., at 303304 (Henderson, J.) (citing Annenberg Public Policy Center, Issue Advertising in the 19992000 Election Cycle 115 (2001) (hereinafter Annenberg Report); see 38 Defs. Exhs., Tab 22); 251 F. Supp. 2d, at 527 (Kollar-Kotelly, J.) (same); id., at 879 (Leon, J.) (same).
21. Id., at 540 (Kollar-Kotelly, J.) (quoting internal AFL-CIO Memorandum from Brian Weeks to Mike Klein, Electronic Buy for Illinois Senator, (Oct. 9, 1996), AFL-CIO 005244); 251 F. Supp. 2d, at 886 (Leon, J.) (same).
22. The association was known as the Pharmaceutical Research and Manufacturers of America (PhRMA). Id., at 232 (per curiam).
23. Id., at 232233. Other examples of mysterious groups included Voters for Campaign Truth, Aretino Industries, Montanans for Common Sense Mining Laws, American Seniors, Inc., American Family Voices, App. 1355 (Krasno & Sorauf Expert Report 7177), and the Coalition to Make our Voices Heard, 251 F. Supp. 2d, at 538 (Kollar-Kotelly, J.). Some of the actors behind these groups frankly acknowledged that in some places its much more effective to run an ad by the Coalition to Make Our Voices Heard than it is to say paid for by the men and women of the AFLCIO. Ibid. (Kollar-Kotelly, J.) (quoting report of David B. Magleby, Brigham Young University 1819 (hereinafter Magleby Expert Report), App. 14841485).
24. 251 F. Supp. 2d, at 518519 (Kollar-Kotelly, J.).
25. Id., at 478479 (Kollar-Kotelly, J.) (citing declaration of Robert Hickmott, Senior V. P., Smith-Free Group, ¶8 (hereinafter Hickmott Decl.); see 6R Defs. Exhs., Tab 19, ¶8).
26. S. Rep. No. 105167, vol. 4, p. 4611 (1998) (hereinafter 1998 Senate Report); 5 id., at 7515.
27. 3 id., at 4535 (additional views of Sen. Collins).
28. 1 id., at 4142, 195200. The report included a memorandum written by the DNC finance chairman suggesting the use of White House coffees and overnights to give major donors quality time with the President, and noted that the guests accounted for $26.4 million in contributions. Id., at 194, 196.
29. 2 id., at 29132914, 2921. Despite concerns about Tamrazs background and a possible conflict with United States foreign policy interests, he was invited to six events attended by the President. Id., at 29202921. Similarly, the minority noted that in exchange for Michael Kojimas contribution of $500,000 to the 1992 Presidents Dinner, he and his wife had been placed at the head table with President and Mrs. Bush. Moreover, Kojima received several additional meetings with the President, other administration officials, and United States embassy officials. 4 id., at 5418, 5422, 5428.
30. The former requires an initial contribution of $100,000, and $25,000 for each of the next three years; the latter requires annual contributions of $15,000. 5 id., at 7968.
31. Id., at 7971.
32. 1 id., at 49; 3 id., at 39974006.
33. Id., at 4466.
35. Id., at 44684470, 44804481, 44914494.
36. Id., at 4492.
37. 6 id., at 9394.
38. The national party committees of the two major political parties are: the Republican National Committee (RNC); the Democratic National Committee (DNC); the National Republican Senatorial Committee (NRSC); the National Republican Congressional Committee (NRCC); the Democratic Senatorial Campaign Committee (DSCC); and the Democratic Congressional Campaign Committee (DCCC). 251 F. Supp. 2d, at 468 (Kollar-Kotelly, J.).
39. Justice Kennedy accuses us of engaging in a sleight of hand by conflating unseemly corporate speech with the speech of political parties and candidates, and then adverting to the corporate speech rationale as if it were the linchpin of the litigation. Post, at 7 (opinion concurring in part and dissenting in part). This is incorrect. The principles set forth here and relied upon in assessing Title I are the same principles articulated in Buckley and its progeny that regulations of contributions to candidates, parties, and political committees are subject to less rigorous scrutiny than direct restraints on speechincluding unseemly corporate speech.
40. Since our decision in Buckley, we have consistently applied less rigorous scrutiny to contribution restrictions aimed at the prevention of corruption and the appearance of corruption. See, e.g., 424 U.S., at 2336 (applying less rigorous scrutiny to FECAs $1,000 limit on individual contributions to a candidate and FECAs $5,000 limit on PAC contributions to a candidate); id., at 38 (applying less rigorous scrutiny to FECAs $25,000 aggregate yearly limit on contributions to candidates, political party committees, and political committees); California Medical Assn. v. Federal Election Commn, 453 U.S. 182, 195196 (1981) (plurality opinion) (applying less rigorous scrutiny to FECAs $5,000 limit on contributions to multicandidate political committees); National Right to Work, 459 U.S., at 208211 (applying less rigorous scrutiny to antisolicitation provision buttressing an otherwise valid contribution limit); Colorado II, 533 U.S. 431, 456 (2001) (applying less rigorous scrutiny to expenditures coordinated with a candidate); Federal Election Commn v. Beaumont, 539 U.S.___, ___ (2003) (slip op., at 1415) (applying less rigorous scrutiny to provisions intended to prevent circumvention of otherwise valid contribution limits).
41. Indeed, Congress structured §323(b) in such a way as to free individual, corporate, and union donations to state committees for nonfederal elections from federal source and amount restrictions.
42. Justice Kennedys contention that less rigorous scrutiny applies only to regulations burdening political association, rather than political speech, misreads Buckley. In Buckley, we recognized that contribution limits burden both protected speech and association, though they generally have more significant impacts on the latter. 424 U.S., at 2022. We nevertheless applied less rigorous scrutiny to FECAs contribution limits because neither burden was sufficiently weighty to overcome Congress countervailing interest in protecting the integrity of the political process. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 388 (2000) (While we did not [in Buckley] attempt to parse [the] distinctions between the speech and association standards of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily on the associational right than on [the] freedom to speak. We consequently proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would survive a speech challenge as well, and we held the standard satisfied by the contribution limits under review. (citation omitted)). It is thus simply untrue in the campaign finance context that all burdens on speech necessitate strict scrutiny review. Post, at 29.
43. Justice Kennedy is no doubt correct that the associational burdens imposed by a particular piece of campaign-finance regulation may at times be so severe as to warrant strict scrutiny. Ibid. In light of our interpretation of §323(a), however, see infra, at 4647, §323 does not present such a case. As Justice Kennedy himself acknowledges, even significant interference with protected rights of association are subject to less rigorous scrutiny. Beaumont, 539 U.S., at _____ (slip op., at 15); see post, at 28. There is thus nothing inconsistent in our decision to account for the particular associational burdens imposed by §323(a) when applying the appropriate level of scrutiny.
44. The fact that the post-1990 explosion in soft-money spending on federal electioneering was accompanied by a series of efforts in Congress to clamp down on such uses of soft money (culminating, of course, in BCRA) underscores the fact that the FEC regulations permitted more than Congress, in enacting FECA, had ever intended. See J. Cantor, Congressional Research Service Report for Congress: Campaign Finance Legislation in the 101st Congress (1990) (9 bills seeking to limit the influence of soft money introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 102nd Congress (1991) (10 such bills introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 103rd Congress (1993) (16 bills); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 104th Congress (1996) (18 bills); see also 251 F. Supp. 2d, at 201206 (per curiam) (discussing legislative efforts to curb soft money in 105th and subsequent Congresses).
45. Justice Kennedy contends that the pluralitys observation in Colorado I that large soft-money donations to a political party pose little threat of corruption establish[es] that such contributions are not corrupting. Post, at 1718 (citing Colorado I, 518 U.S. 604, 616, 617618 (1996)). The cited dictum has no bearing on the present case. Colorado I addressed an entirely different questionnamely, whether Congress could permissibly limit a partys independent expendituresand did so on an entirely different set of facts. It also had before it an evidentiary record frozen in 1990well before the soft-money explosion of the 1990s. See Federal Election Commn v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448, 1451 (Colo. 1993).
46. Other business leaders agreed. For example, the chairman of the board and CEO of a major toy company explained: Many in the corporate world view large soft money donations as a cost of doing business. I remain convinced that in some of the more publicized cases, federal officeholders actually appear to have sold themselves and the party cheaply. They could have gotten even more money, because of the potential importance of their decisions to the affected business. 251 F. Supp. 2d, at 491 (Kollar-Kotelly, J.) (quoting declaration of Alan G. Hassenfeld, CEO, Hasbro, Inc., ¶16; see 6R Defs. Exhs., Tab 17). Similarly the chairman emeritus of a major airline opined: Though a soft money check might be made out to a political party, labor and business leaders know that those checks open the doors of the offices of individual and important Members of Congress and the Administration . Labor and business leaders believebased on experience and with good reasonthat such access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties. 251 F. Supp. 2d, at 498 (Kollar-Kotelly, J.) (quoting Greenwald Decl. ¶12, App. 283284, ¶10); 251 F. Supp. 2d, at 858859 (Leon, J.) (same).
47. Even more troubling is evidence in the record showing that national parties have actively exploited the belief that contributions purchase influence or protection to pressure donors into making contributions. As one CEO explained: [I]f youre giving a lot of soft money to one side, the other side knows. For many economically-oriented donors, there is a risk in giving to only one side, because the other side may read through FEC reports and have staff or a friendly lobbyist call and indicate that someone with interests before a certain committee has had their contributions to the other side noticed. Theyll get a message that basically asks: Are you sure you want to be giving only to one side? Dont you want to have friends on both sides of the aisle? If your interests are subject to anger from the other side of the aisle, you need to fear that you may suffer a penalty if you dont give . [D]uring the 1990s, it became more and more acceptable to call someone, saying you saw he gave to this person, so he should also give to you or the persons opponent. Id., at 510 (Kollar-Kotelly, J.) (quoting Randlett Decl. ¶12, App. 715); 251 F. Supp. 2d, at 868 (Leon, J.) (same).
48. In addition to finding no support in our recent cases, see, e.g., Colorado II, 533 U.S., at 441 (defining corruption more broadly than quid pro quo arrangements); Shrink Missouri, 528 U.S., at 389 (same), Justice Kennedys contention that Buckley limits Congress to regulating contributions to a candidate ignores Buckley itself. There, we upheld FECAs $25,000 limit on aggregate yearly contributions to candidates, political committees, and party committees out of recognition that FECAs $1,000 limit on candidate contributions would be meaningless if individuals could instead make huge contributions to the candidates political party. 424 U.S., at 38. Likewise, in California Medical Assn. v. Federal Election Commn, 453 U.S. 182 (1981), we upheld FECAs $5,000 limit on contributions to multicandidate political committees. It is no answer to say that such limits were justified as a means of preventing individuals from using parties and political committees as pass-throughs to circumvent FECAs $1,000 limit on individual contributions to candidates. Given FECAs definition of contribution, the $5,000 and $25,000 limits restricted not only the source and amount of funds available to parties and political committees to make candidate contributions, but also the source and amount of funds available to engage in express advocacy and numerous other noncoordinated expenditures. If indeed the First Amendment prohibited Congress from regulating contributions to fund the latter, the otherwise-easy-to-remedy exploitation of parties as pass-throughs (e.g., a strict limit on donations that could be used to fund candidate contributions) would have provided insufficient justification for such overbroad legislation.
49. At another point, describing our flawed reasoning, Justice Kennedy seems to suggest that Congress interest in regulating the appearance of corruption extends only to those contributions that actually create corrupt donor favoritism among officeholders. Post, at 16. This latter formulation would render Congress interest in stemming the appearance of corruption indistinguishable from its interest in preventing actual corruption.
50. In support of this claim, the political party plaintiffs assert that, in 2001, the RNC spent $15.6 million of nonfederal funds (30% of the nonfederal amount raised that year) on purely state and local election activity, including contributions to state and local candidates, transfers to state parties, and direct spending. See Tr. of Oral Arg. 102103 (statement of counsel Bobby R. Burchfield); 251 F. Supp. 2d, at 336337 (Henderson, J.); id., at 464465 (Kollar-Kotelly, J.); id., at 830 (Leon, J.).
51. The close relationship of federal officeholders and candidates to their parties answers not only The Chief Justices concerns about §323(a), but also his fear that our analysis of §323s remaining provisions bespeaks no limiting principle. Post, at 67 (dissenting opinion). As set forth in our discussion of those provisions, the record demonstrates close ties between federal officeholders and the state and local committees of their parties. That close relationship makes state and local parties effective conduits for donors desiring to corrupt federal candidates and officeholders. Thus, in upholding §§323(b), (d), and (f), we rely not only on the fact that they regulate contributions used to fund activities influencing federal elections, but also that they regulate contributions to or at the behest of entities uniquely positioned to serve as conduits for corruption. We agree with The Chief Justice that Congress could not regulate financial contributions to political talk show hosts or newspaper editors on the sole basis that their activities conferred a benefit on the candidate. Post, at 7 (dissenting opinion).
52. Plaintiffs claim that the option of soliciting hard money for state and local candidates is an illusory one, since several States prohibit state and local candidates from establishing multiple campaign accounts, which would preclude them from establishing separate accounts for federal funds. See Cal. Fair Pol. Practs. Commn Advisory Op. A91448 (Dec. 16, 1991), 1991 WL 772902; Colo. Const., Art. XXVIII, §2(3); Iowa Code §56.5A (Supp. 2003); and Ohio Rev. Code Ann. §3517.10(J) (Anderson Supp. 2002). Plaintiffs maintain that §323(a) combines with these state laws to make it impossible for state and local candidates to receive hard-money donations. But the challenge we are considering is a facial one, and on its face §323(a) permits solicitations. The fact that a handful of States might interfere with the mechanism Congress has chosen for such solicitations is an argument that may be addressed in an as-applied challenge.
53. Even opponents of campaign finance reform acknowledged that a prohibition of soft money donations to national party committees alone would be wholly ineffective. The Constitution and Campaign Reform: Hearings on S. 522 before the Senate Committee on Rules and Administration, 106th Cong., 2d Sess., 301 (2000) (statement of Bobby R. Burchfield, Partner, Covington & Burling).
54. Generic campaign activity promotes a political party rather than a specific candidate. 2 U.S.C. A. §431(21).
55. A public communication is a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising. §431(22).
56. So long as the communication does not constitute voter registration, voter identification, GOTV, or generic campaign activity. §431(20)(B)(i).
57. Unless the contribution is earmarked for federal election activity. §431(20)(B)(ii).
59. One former Senator noted: The fact is that much of what state and local parties do helps to elect federal candidates. The national parties know it; the candidates know it; the state and local parties know it. If state and local parties can use soft money for activities that affect federal elections, then the problem will not be solved at all. The same enormous incentives to raise the money will exist; the same large contributions by corporations, unions, and wealthy individuals will be made; the federal candidates who benefit from state party use of these funds will know exactly whom their benefactors are; the same degree of beholdenness and obligation will arise; the same distortions on the legislative process will occur; and the same public cynicism will erode the foundations of our democracyexcept it will all be worse in the publics mind because a perceived reform was undercut once again by a loophole that allows big money into the system. 251 F. Supp. 2d, at 467 (Kollar-Kotelly, J.) (quoting Rudman Decl. ¶19, App. 746).
60. E.g., 251 F. Supp. 2d, at 479 (Kollar-Kotelly, J.) ( It is not uncommon for the RNC to put interested donors in touch with various state parties. This often occurs when a donor has reached his or her federal dollar limits to the RNC, but wishes to make additional contributions to the state party (quoting declaration of Thomas Josefiak, RNC Chief Counsel ¶68, App 308)); see also Colorado II, 533 U.S., at 458 (quoting Congressman Wayne Allards Aug. 27, 1996, fundraising letter informing the recipient that you are at the limit of what you can directly contribute to my campaign, but you can further help my campaign by assisting the Colorado Republican Party ); 251 F. Supp 2d, at 454 (Kollar-Kotelly, J.) ( Both political parties have found spending soft money with its accompanying hard money match through their state parties to work smoothly, for the most part, and state officials readily acknowledge they are simply pass throughs to the vendors providing the broadcast ads or direct mail (quoting Magleby Expert Report 37, App. 15101511.)).
61. The 1998 Senate Report found that, in exchange for a substantial donation to state Democratic committees and candidates, the DNC arranged meetings for the donor with the President and other federal officials. 1 1998 Senate Report 4344; 2 id., at 29072931; 5 id., at 7519. That same Report also detailed how Native American tribes that operated casinos made sizable soft-money contributions to state Democratic committees in apparent exchange for access and influence. 1 id., at 4446; 2 id., at 31673194; see also McCain Decl., Exh. I (Weisskopf, The Busy Back-Door Men, Time, Mar. 31, 1997, p. 40)).
62. Since voter identification is a necessary precondition of any GOTV program, the findings regarding GOTV funding obviously apply with equal force to the funding of voter identification efforts.
63. With respect to GOTV, voter identification, and other generic campaign activity, the FEC has interpreted §323(b) to apply only to those activities conducted after the earliest filing deadline for access to the federal election ballot or, in States that do not conduct primaries, after January 1 of even-numbered years. 11 CFR § 100.24(a)(1) (2002). Any activities conducted outside of those periods are completely exempt from regulation under §323(b). Of course, this facial challenge does not present the question of the FEC regulations constitutionality. But the fact that the statute provides this basis for the FEC reasonably to narrow §301(20)(A)(ii) further calls into question plaintiffs claims of facial overbreadth. See Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
64. We likewise reject the argument that §301(20)(A)(iii) is unconstitutionally vague. The words promote, oppose, attack, and support clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision. These words provide explicit standards for those who apply them and give the person of ordinary intelligence a reasonable opportunity to know what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108109 (1972). This is particularly the case here, since actions taken by political parties are presumed to be in connection with election campaigns. See Buckley, 424 U.S., at 79 (noting that a general requirement that political committees disclose their expenditures raised no vagueness problems because the term political committee need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate and thus a political committees expenditures are, by definition, campaign related). Furthermore, should plaintiffs feel that they need further guidance, they are able to seek advisory opinions for clarification, see 2 U.S.C. § 437f (a)(1), and thereby remove any doubt there may be as to the meaning of the law, Civil Service Commn v. Letter Carriers, 413 U.S. 548, 580 (1973).
65. Any doubts that donors would engage in such a seemingly complex scheme are put to rest by the record evidence in Buckley itself. See n. 6, supra (setting forth the Court of Appeals findings regarding the efforts of milk producers to obtain a meeting with White House officials).
66. Section 501(c) organizations are groups generally exempted from taxation under the Internal Revenue Code. 26 U.S.C. § 501(a). These include §501(c)(3) charitable and educational organizations, as well as §501(c)(4) social welfare groups.
67. Section 527 political organizations are, unlike §501(c) groups, organized for the express purpose of engaging in partisan political activity. They include any party, committee, association, fund, or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures for the purpose of influencing or attempting to influence the selection, nomination, or appointment of any individual for Federal, State, or local public office. 26 U.S.C. § 527(e).
68. The record shows that many of the targeted tax-exempt organizations engage in sophisticated and effective electioneering activities for the purpose of influencing federal elections, including waging broadcast campaigns promoting or attacking particular candidates and conducting large-scale voter registration and GOTV drives. For instance, during the final weeks of the 2000 presidential campaign, the NAACPs National Voter Fund registered more than 200,000 people, promoted a GOTV hotline, ran three newspaper print ads, and made several direct mailings. 251 F. Supp. 2d, at 348349 (Henderson, J.). The NAACP reports that the program turned out one million additional African-American voters and increased turnout over 1996 among targeted groups by 22% in New York, 50% in Florida, and 140% in Missouri. Ibid. The effort, which cost $10 million, was funded primarily by a $7 million contribution from an anonymous donor. Id., at 349 (citing cross-examination of Donald P. Green, Yale University 1520, Exh. 3; see I Defs. Refiling Trs. on Pub. Record); 251 F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same); id., at 851 (Leon, J.) (same); see also id., at 349 (Henderson, J.) (stating that in 2000 the National Abortion and Reproductive Rights Action League (NARAL) spent $7.5 million and mobilized 2.1 million pro-choice voters (citing declaration of Mary Jane Gallagher, Exec. V. P., NARAL, 8, App. 271272, ¶24)); 251 F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same).
69. Notably, the FEC has interpreted §323(d)(2) to permit state, district, and local party committees to solicit donations to §527 organizations that are state-registered PACs, that support only state or local candidates, and that do not make expenditures or disbursements in connection with federal elections. 11 CFR § 300.37(a)(3)(iv) (2003). The agency determined that this interpretation of political committeeat least with respect to state, district, and local committeeswas consistent with BCRAs fundamental purpose of prohibiting soft money from being used in connection with federal elections. 67 Fed. Reg. 49106 (2002).
70. Section 323(e)(1)(B) tightly constrains the ability of federal candidates and officeholders to solicit or spend nonfederal money in connection with state or local elections. Contributions cannot exceed FECAs analogous hard-money contribution limits or come from prohibited sources. In effect, §323(e)(1)(B) doubles the limits on what individuals can contribute to or at the behest of federal candidates and officeholders, while restricting the use of the additional funds to activities not related to federal elections. If the federal candidate or officeholder is also a candidate for state or local office, he or she may solicit, receive, and spend an unlimited amount of nonfederal money in connection with that election, subject only to state regulation and the requirement that such solicitation or expenditures refer only to the relevant state or local office. 2 U.S.C. A. §441i(e)(2).
71. See 148 Cong. Rec. S2143 (Mar. 20, 2002) (statement of Sen. Feingold) (Section 323(f) does not prohibit spending non-federal money to run advertisements that mention that [state or local candidates] have been endorsed by a Federal candidate or say that they identify with a position of a named Federal candidate, so long as those advertisements do not support, attack, promote or oppose the Federal candidate).
72. Justice Kennedy faults our unwillingness to confront that Title Is entirety look[s] very much like an incumbency protection plan, citing §323(e), which provides officeholders and candidates with greater opportunities to solicit soft money than §§323(a) and (d) permit party officers. Post, at 2324. But, §323(e) applies to both officeholders and candidates and allows only minimally greater opportunities for solicitation out of regard for the fact that candidates and officeholders, unlike party officers, can never step out of their official roles. Supra, at 7071; 42 U.S.C. A. §441i(e). Any concern that Congress might opportunistically pass campaign-finance regulation for self-serving ends is taken into account by the applicable level of scrutiny. Congress must show concrete evidence that a particular type of financial transaction is corrupting or gives rise to the appearance of corruption and that the chosen means of regulation are closely drawn to address that real or apparent corruption. It has done so here. At bottom, Justice Kennedy has long disagreed with the basic holding of Buckley and its progeny that less rigorous scrutinywhich shows a measure of deference to Congress in an area where it enjoys particular expertiseapplies to assess limits on campaign contributions. Colorado II, 533 U.S., at 465 (Thomas, J., dissenting) (joining Justice Thomas for the proposition that Buckley should be overrruled (citation omitted)); Shrink Missouri, 528 U.S., at 405410 (Kennedy, J., dissenting).
73. BCRA also provides a backup definition of electioneering communication, which would become effective if the primary definition were held to be constitutionally insufficient by final judicial decision to support the regulation provided herein. 2 U.S.C. A. §434(f)(3)(A)(ii). We uphold all applications of the primary definition and accordingly have no occasion to discuss the backup definition.
74. We then held that, so construed, the expenditure restriction did not advance a substantial government interest, because independent express advocacy did not pose a danger of real or apparent corruption, and the line between express advocacy and other electioneering activities was easily circumvented. Concluding that §608(e)(1)s heavy First Amendment burden was not justified, we invalidated the provision. Buckley, 424 U.S., at 4548.
75. Our adoption of a narrowing construction was consistent with our vagueness and overbreadth doctrines. See Broadrick, 413 U.S., at 613; Grayned, 408 U.S., at 108114.
76. The provision at issue in MCFL2 U.S.C. § 441b (1982 ed.)required corporations and unions to use separate segregated funds, rather than general treasury moneys, on expenditures made in connection with a federal election. MCFL, 479 U.S., at 241. We noted that Buckley had limited the statutory term expenditure to words of express advocacy in order to avoid problems of overbreadth. 479 U.S., at 248. We held that a similar construction must apply to the expenditure limitation before us in MCFL and that the reach of 2 U.S.C. § 441b was therefore constrained to express advocacy. 479 U.S., at 249 (emphasis added).
77. As one major-party political consultant testified, it is rarely advisable to use such clumsy words as vote for or vote against. 251 F. Supp. 2d, at 305 (Henderson, J.) (quoting declaration of Douglas L. Bailey, founder, Bailey, Deardourff & Assoc., 12, App. 24, ¶3). He explained: All advertising professionals understand that the most effective advertising leads the viewer to his or her own conclusion without forcing it down their throat. 251 F. Supp. 2d, at 305 (Henderson, J.). Other political professionals and academics confirm that the use of magic words has become an anachronism. See id., at 531 (Kollar-Kotelly, J.) (quoting declaration of Raymond D. Strother, Pres., Strother/Duffy/Strother ¶4, 9 Defs. Exhs., Tab 40); see Unsealed Pp. Vol., Tab 7); App. 13341335 (Krasno & Sorauf Expert Report)); see also 251 F. Supp. 2d, at 305 (Henderson, J.); id., at 532 (Kollar-Kotelly, J.); id., at 87576 (Leon, J.).
78. One striking example is an ad that a group called Citizens for Reform sponsored during the 1996 Montana congressional race, in which Bill Yellowtail was a candidate. The ad stated: Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtails response? He only slapped her. But her nose was not broken. He talks law and order but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support paymentsthen voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values. 5 1998 Senate Report 6305 (minority views). The notion that this advertisement was designed purely to discuss the issue of family values strains credulity.
79. As discussed below, infra, at 97103, BCRA §203 bars corporations and labor unions from funding electioneering communications with money from their general treasuries, instead requiring them to establish a separate segregated fund for such expenditures. 2 U.S.C. A. §441b(b)(2).
80. Section 401 of BCRA provides: If any provision of this Act or amendment made by this Act . . ., or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding. 2 U.S.C. A. §454 note.
81. The disclosure requirements that BCRA §201 added to FECA §304 are actually somewhat less intrusive than the comparable requirements that have long applied to persons making independent expenditures. For example, the previous version of §304 required groups making independent expenditures to identify donors who contributed more than $200. 2 U.S.C. § 434(c)(2)(C) (2000 ed.). The comparable requirement in the amendments applies only to donors of $1,000 or more. 2 U.S.C. A. §§434(f)(2)(E), (F) (Supp. 2003).
82. NAACP v. Alabama arose out of a judgment holding the NAACP in contempt for refusing to produce the names and addresses of its members and agents in Alabama. The NAACP made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members ha[d] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. 357 U.S., at 462. We thought it apparent that the compelled disclosure would affect adversely the NAACP and its members ability to pursue their collective effort to foster beliefs which they admittedly have the right to advocate. Id., at 462463. Under these circumstances, we concluded that Alabamas interest in determining whether the NAACP was doing business in the State was plainly insufficient to justify its production order. Id., at 464466.
83. We stated: The District Court properly applied the Buckley test to the facts of this case. The District Court found substantial evidence of both governmental and private hostility toward and harassment of [Socialist Workers Party (SWP)] members and supporters. Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the four years preceding the trial. These incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership. Although appellants contend that two of the Ohio firings were not politically motivated, the evidence amply supports the District Courts conclusion that private hostility and harassment toward SWP members make it difficult for them to maintain employment. The District Court also found a past history of Government harassment of the SWP. Brown v. Socialist Workers 74 Campaign Comm. (Ohio), 459 U.S. 87, 9899 (1982) (paragraph break omitted).
84. We cannot judge the likelihood that this will occur, as the record contains little if any description of the contractual provisions that commonly govern payments for electioneering communications. Nor does the record contain any evidence relating to Justice Kennedys speculation, post, at 3940, that advance disclosure may disadvantage an advertiser.
85. New FECA §315(a)(7)(C) reads as follows: if (i) any person makes, or contracts to make, any disbursement for any electioneering communication (within the meaning of section 434(f)(3) of this title); and (ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee; such disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidates party and as an expenditure by that candidate or that candidates party. . . . 2 U.S.C. A. §441a(a)(7)(C).
86. We have explained: The statutory purpose of §441b is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U.S.C. § 441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of separate segregated fund[s], which may be utilized for political purposes. 2 U.S.C. § 441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation to solicit contributions to a fund established by it from persons other than its stockholders and their families and its executive or administrative personnel and their families. 2 U.S.C. § 441b(b)(4)(A). National Right to Work, 459 U.S., at 201202.
87. The amendment is straightforward. Prior to BCRA, FECA §316(a) made it unlawful for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with certain federal elections. 2 U.S.C. § 441b(a) (2000 ed.). BCRA amends FECA §316(b)(2)s definition of the term contribution or expenditure to include any applicable electioneering communication. 2 U.S.C. A. §441b(b)(2) (Supp. 2003).
88. As Justice Kennedy emphasizes in dissent, post, at 4445, we assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads. The premise that apparently underlies Justice Kennedys principal submission is a conclusion that the two categories of speech are nevertheless entitled to the same constitutional protection. If that is correct, Justice Kennedy must take issue with the basic holding in Buckley and, indeed, with our recognition in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978), that unusually important interests underlie the regulation of corporations campaign-related speech. In Bellotti we cited Buckley, among other cases, for the proposition that [p]reserving the integrity of the electoral process, preventing corruption, and sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government are interests of the highest importance. 435 U.S., at 788789 (citations and footnote omitted). Preservation of the individual citizens confidence in government, we added, is equally important. Id., at 789. BCRAs fidelity to those imperatives sets it apart from the statute in Bellottiand, for that matter, from the Ohio statute banning the distribution of anonymous campaign literature, struck down in McIntyre v. Ohio Elections Commn, 514 U.S. 334 (1995).
89. In a different but somewhat related argument, one set of plaintiffs contends that political campaigns and issue advocacy involve press activities, and that BCRA therefore interferes with speakers rights under the Freedom of the Press Clause. U.S. Const., Amdt. 1. We affirm the District Courts conclusion that this contention lacks merit.
90. The statutory scheme is somewhat complex. In its provision dealing with Rules Relating to Electioneering Communications, BCRA §203(c)(2) (adding FECA §316(c)(2)) makes a blanket exception for designated nonprofit organizations, which reads as follows: Exception Notwithstanding paragraph (1), the term applicable electioneering communication does not include a communication by a section 501(c)(4) organization or a political organization (as defined in section 527(e)(1) of Title 26) made under section 434(f)(2)(E) or (F) of this title if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8). For purposes of the preceding sentence, the term provided directly by individuals does not include funds the source of which is an entity described in subsection (a) of this section. 2 U.S.C. A. §441b(c)(2) (Supp. 2003). BCRA §204, however, amends FECA §316(c) to exclude targeted communications from that exception. New FECA §316(c)(6) states that the §316(c)(2) exception shall not apply in the case of a targeted communication that is made by an organization described in §316(b)(2). 2 U.S.C. A. ¶441b(c)(6)(A). Subparagraph (B) then defines the term targeted communication for the purpose of the provision as including all electioneering communications. The parties and the judges on the District Court have assumed that amended FECA §316(c)(6) completely canceled the exemption for nonprofit corporations set forth in §316(c)(2). 251 F. Supp. 2d, at 804 (Leon, J.) (Section 204 completely cancels out the exemption for all nonprofit corporations provided by Section 203).
91. [A] unanimous Court in National Right to Work did not think the regulatory burdens on PACs, including restrictions on their ability to solicit funds, rendered a PAC unconstitutional as an advocacy corporations sole avenue for making political contributions. See 459 U.S., at 201202. There is no reason to think the burden on advocacy corporations is any greater today, or to reach a different conclusion here. Beaumont, 539 U.S., at ___ (slip op., at 16).
92. New FECA §304(g) provides: Time for reporting certain expenditures (1) Expenditures aggregating $1,000 (A) Initial report A person (including a political committee) that makes or contracts to make independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, before the date of an election shall file a report describing the expenditures within 24 hours. (B) Additional reports After a person files a report under subparagraph (A), the person shall file an additional report within 24 hours after each time the person makes or contracts to make independent expenditures aggregating an additional $1,000 with respect to the same election as that to which the initial report relates. 2 U.S.C. A. §434 (Supp. 2003).
93. New FECA §315(d)(4) reads as follows: Independent versus coordinated expenditures by party (A) In general On or after the date on which a political party nominates a candidate, no committee of the political party may make (i) any coordinated expenditure under this subsection with respect to the candidate during the election cycle at any time after it makes any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle; or (ii) any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle at any time after it makes any coordinated expenditure under this subsection with respect to the candidate during the election cycle. (B) Application For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee. (C) Transfers A committee of a political party that makes coordinated expenditures under this subsection with respect to a candidate shall not, during an election cycle, transfer any funds to, assign authority to make coordinated expenditures under this subsection to, or receive a transfer of funds from, a committee of the political party that has made or intends to make an independent expenditure with respect to the candidate. 2 U.S.C. A. §441a(d)(4) (Supp. 2003).
94. After exempting political parties from the general contribution and expenditure limitations of the statute, 2 U.S.C. A. §441a(d)(1), FECA §315(d) imposes the following substitute limitations on party spending: (2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (e) of this section). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for office of President of the United States. (3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds (A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of (i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or (ii) $20,000; and (B) in the case of a candidate for election to the officer of Representative, Delegate, or Resident Commissioner in any other State, $10,000. 2 U.S.C. § 441a(d)(2)(3).
95. As amended by BCRA, §301(17) provides: Independent expenditure The term independent expenditure means an expenditure by a person (A) expressly advocating the election or defeat of a clearly identified candidate; and (B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidates authorized political committee, or their agents, or a political party committee or its agents. 2 U.S.C. A. §431(17) (Supp. 2003). The version of the definition prior to its amendment by BCRA also included the phrase expressly advocating the election or defeat of a clearly identified candidate. 2 U.S.C. § 431(17) (2000 ed.). That definition had been adopted in 1976, presumably to reflect the narrowing construction that the Court adopted in Buckley. Federal Election Campaign Act Amendments of 1976, 90 Stat. 475.
96. Although the District Court and all the parties to this litigation endorse the interpretation set forth in the text, it is not clear that subparagraph (B) should be read so broadly: The reference to a State instead of the States suggests that Congress meant to distinguish between committees associated with the party for each State (which would be grouped together by State, with each grouping treated as a single committee for purposes of the choice) and committees associated with a national party (which would likewise be grouped together and treated as a separate political committee). We need not resolve the interpretive puzzle, however, because even under the more limited reading a local party committee would be able to tie the hands of a state committee or other local committees in the same State.
97. The italicized portion of the following partial quotation of FECA §315(a)(7) was added by §214 of BCRA: For purposes of this subsection (A) contributions to a named candidate made to any political committee authorized by such candidate to accept contributions on his behalf shall be considered to be contributions made to such candidate; (B)(i) expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate; (ii) expenditures made by any person (other than a candidate or candidates authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee . 2 U.S.C. A. §441a(a)(7) (Supp. 2003).
98. Pre-BCRA FEC regulations defined coordinated expenditures to include expenditures made [a]t the request or suggestion of a candidate or party; communications in which a candidate or party exercised control or decision-making authority over the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement; and communications produced [a]fter substantial discussion or negotiation with a party or candidate, the result of which is collaboration or agreement. 11 CFR § 100.23(c)(2) (2001).
99. Contrary to plaintiffs contention, the statutory framework was not significantly different at the time of our decision in Buckley. The relevant provision, 18 U.S.C. § 608(e)(1), treated as coordinated any expenditures authorized or requested by the candidate. (Emphasis added.) And the legislative history, on which we relied for guidance in differentiating individual expenditures that are contributions from those treated as independent expenditures, described as independent an expenditure made by a supporter completely on his own, and not at the request or suggestion of the candidate or his agen[t]. 424 U.S., at 4647, n. 53 (quoting S. Rep. No. 93689, p. 18 (1974)).