[ 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 Breyer delivered the opinion of the Court with respect to BCRA Title V.**
We consider here the constitutionality of §504 of the Bipartisan Campaign Reform Act of 2002 (BCRA), amending the Communications Act of 1934. That section requires broadcasters to keep publicly available records of politically related broadcasting requests. 47 U.S.C. A. §315(e) (Supp. 2003). The McConnell plaintiffs, who include the National Association of Broadcasters, argue that §504 imposes onerous administrative burdens, lacks any offsetting justification, and consequently violates the First Amendment. For similar reasons, the three judges on the District Court found BCRA §504 unconstitutional on its face. 251 F. Supp. 2d 176, 186 (DC 2003) (per curiam) (case below). We disagree, and we reverse that determination.
BCRA §504s key requirements are the following:
(1) A candidate request requirement calls for broadcasters to keep records of broadcast requests made by or on behalf of any legally qualified candidate for public office. 47 U.S.C. A. §315(e)(1)(A) (Supp. 2003).
(2) An election message request requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast message[s] that refer either to a legally qualified candidate or to any election to Federal office. §§315(e)(1)(B)(i), (ii).
(3) An issue
request requirement calls for broadcasters to keep
records of requests (made by anyone) to broadcast
message[s] related to a national legislative
of public importance, §315(e)(1)(B)(iii), or otherwise relating to a political matter of national importance, §315(e)(1)(B).
We shall consider each provision in turn.
BCRA §504s candidate
request requirements are virtually identical to those
contained in a regulation that the Federal Communications
Commission (FCC) promulgated as early as 1938 and which with
slight modifications the FCC has maintained in effect ever
since. 47 CFR
§ 73.1943 (2002); compare 3 Fed. Reg. 1692 (1938) (47
CFR §36a4); 13 Fed. Reg. 7486 (1948) (47 CFR
§§3.190(d), 3.290(d), 3.690(d)); 17 Fed. Reg. 4711
(1952) (47 CFR
§ 3.590(d)); 19 Fed. Reg. 5949 (1954); 23 Fed. Reg.
7817 (1958); 28 Fed. Reg. 13593 (1963) (47 CFR §
43 Fed. Reg. 32795 (1978) (47 CFR § 73.1940(d)); 57
Fed. Reg. 210 (1992) (47 CFR § 73.1943). See generally Brief in Opposition to Motion of Appellee National Association of Broadcasters for Summary Affirmance in No. 021676, pp. 910 (hereinafter Brief Opposing Summary Affirmance).
In its current form the FCC regulation requires broadcast licensees to keep a publicly available file of all requests for broadcast time made by or on behalf of a candidate for public office, along with a notation showing whether the request was granted, and (if granted) a history that includes classes of time, rates charged, and when the spots actually aired. 47 CFR § 73.1943(a) (2002); §76.1701(a) (same for cable systems). These regulation-imposed requirements mirror the statutory requirements imposed by BCRA §504 with minor differences which no one here challenges. Compare 47 CFR § 73.1943 with 47 U.S.C. A. §315(e)(2) (see Appendix, infra).
The McConnell plaintiffs argue that these requirements are intolerabl[y] burdensome and invasive. Brief for Appellants/Cross-Appellees Senator Mitch McConnell et al. in No. 021674 et al., p. 74 (hereinafter Brief for McConnell Plaintiffs). But we do not see how that could be so. The FCC has consistently estimated that its candidate request regulation imposes upon each licensee an additional administrative burden of six to seven hours of work per year. See 66 Fed. Reg. 37468 (2001); id., at 18090; 63 Fed. Reg. 26593 (1998); id., at 10379; 57 Fed. Reg. 18492 (1992); see also 66 Fed. Reg. 29963 (2001) (total annual burden of one hour per cable system). That burden means annual costs of a few hundred dollars at most, a microscopic amount compared to the many millions of dollars of revenue broadcasters receive from candidates who wish to advertise.
Perhaps for this reason, broadcasters in the past did not strongly oppose the regulation or its extension. Cf., e.g., 17 Fed. Reg. 4711 (1952) (No comments adverse to the adoption of the proposed rule have been received); 43 Fed. Reg. 32794 (1978) (no adverse comments). Indeed in 1992, CBS itself suggest[ed] that the candidate file include a record of all requests for time. 57 Fed. Reg. 206 (1992); cf. 63 Fed. Reg. 49493 (1998) (FCC not persuaded that the current retention period [two years] is overly burdensome to licensees).
In any event, as the FCC wrote in
an analogous context, broadcaster recordkeeping requirements
tunities records); §§73.3526(e)(11)(i), (e)(12) (list of
programs that have provided the stations most significant treatment of community issues during the preceding three month period, including brief narrative describing [the issues, and] time, date, duration, and title); §§73.3526(e)(11)(ii), (iii) (reports of childrens program, and retention of records sufficient to substantiate compliance with the commercial limits on childrens programming); §73.3613(a) (network affiliation contracts); §§73.3613(b), 73.3615, 73.3526(e)(5) (ownership-related reports); §73.3613(c) ([m]anagement consultant agreements); §73.3613(d) ([t]ime brokerage agreements). Compared to these longstanding recordkeeping requirements, an additional six to seven hours is a small drop in a very large bucket.
The McConnell plaintiffs also claim that the candidate requests requirement fails significantly to further any important governmental interest. Brief for McConnell Plaintiffs 74. But, again, we cannot agree. The FCC has pointed out that [t]hese records are necessary to permit political candidates and others to verify that licensees have complied with their obligations relating to use of their facilities by candidates for political office pursuant to the equal time provision of 47 U.S.C. § 315(a). 63 Fed. Reg. 49493 (1998). They also help the FCC determine whether broadcasters have violated their obligation to sell candidates time at the lowest unit charge. 47 U.S.C. § 315(b). As reinforced by BCRA, the candidate request requirements will help the FCC, the Federal Election Commission, and the public to evaluate whether broadcasters are processing [candidate] requests in an evenhanded fashion, Brief Opposing Summary Affirmance 9, thereby helping to assure broadcasting fairness. 47 U.S.C. § 315(a); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). They will help make the public aware of how much money candidates may be prepared to spend on broadcast messages. 2 U.S.C. A. §434 (main ed. and Supp. 2003); see ante, at 8793 (joint opinion of Stevens and OConnor, JJ.) (hereinafter joint opinion). And they will provide an independently compiled set of data for purposes of verifying candidates compliance with the disclosure requirements and source limitations of BCRA and the Federal Election Campaign Act of 1971. 2 U.S.C. A. §434; cf. Adventure Communications, Inc. v. Kentucky Registry of Election Finance, 191 F.3d 429, 433 (CA4 1999) (candidate compliance verification); 63 Fed. Reg. 49493 (1998) (FCC finding record retention provision provides public with necessary and adequate access).
We note, too, that the FCCs regulatory authority is broad. Red Lion, supra, at 380 (broad mandate to assure broadcasters operate in public interest); National Broadcasting Co. v. United States, 319 U.S. 190, 219 (1943) (same). And we have previously found broad governmental authority for agency information demands from regulated entities. Compare United States v. Morton Salt Co., 338 U.S. 632, 642643 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946); Donovan v. Lone Steer, Inc., 464 U.S. 408, 414415 (1984).
The Chief Justice suggests that the Government has not made these particular claims. But it hasthough succinctlyfor it has cross-referenced the relevant regulatory rules. Compare post, at 1213 (opinion of Rehnquist, C. J.), with Brief Opposing Summary Affirmance; Brief for McConnell Plaintiffs 7374; Brief for FEC et al. in No. 021674 et al., pp. 132133. And succinctness through cross-reference was necessary given our procedural requirement that the Government set forth in a 140-page brief all its arguments concerning each of the 20 BCRA provisions here under contest. 251 F. Supp. 2d, at 186188.
In sum, given the Governments reference to the 65-year-old FCC regulation and the related considerations we have mentioned, we cannot accept the argument that the constitutionality of the candidate request provision lacks evidentiary support. The challengers have made no attempt to explain away the FCCs own contrary conclusions and the mass of evidence in related FCC records and proceedings. E.g., 57 Fed. Reg. 189 (1992); cf. supra, at 45; ante, at 117118 (joint opinion) (upholding BCRAs coordination provision based, in part, on prior experience under similar provision). Because we cannot, on the present record, find the longstanding FCC regulation unconstitutional, we likewise cannot strike down the candidate request provision in BCRA §504; for the latter simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it.
BCRA §504s election message request requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast a message about a legally qualified candidate or any election to Federal office. 47 U.S.C. A. §§315(e)(1)(B)(i), (ii) (Supp. 2003). Although these requirements are somewhat broader than the candidate request requirement, they serve much the same purposes. A candidates supporters or opponents account for many of the requests to broadcast message[s] about a candidate. Requests to broadcast messages about an election may include messages that favor one candidate or another, along with other messages that may be more neutral.
Given the nature of many of the messages, recordkeeping can help both the regulatory agencies and the public evaluate broadcasting fairness, and determine the amount of money that individuals or groups, supporters or opponents, intend to spend to help elect a particular candidate. Cf. ante, at 100101 (joint opinion) (upholding stringent restrictions on all election-time advertising that refers to a candidate because such advertising will often convey message of support or opposition). Insofar as the request is to broadcast neutral material about a candidate or election, the disclosure can help the FCC carry out other statutory functions, for example, determining whether a broadcasting station is fulfilling its licensing obligation to broadcast material important to the community and the public. 47 U.S.C. § 315(a) (obligation to afford reasonable opportunity for the discussion of conflicting views on issues of public importance); 47 CFR § 73.1910 (2002); §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community).
For reasons previously discussed,
supra, at 45, and on the basis of the material
presented, we cannot say that these requirements will impose
disproportionate administrative burdens. They ask the
broadcaster to keep information about the disposition of the
request, and information identifying the individual or company
requesting the broadcast time (name, address, contact
information, or, if the requester is not an individual, the
names of company officials). 47 U.S.C. A. §315(e)(2)
(Supp. 2003). Insofar as the request is made by a
candidates supporters, the candidate
request regulation apparently already requires
broadcasters to keep such records. 43 Fed. Reg. 32794 (1978).
Regardless, the information should prove readily available, for
the individual requesting a broadcast must provide it to the
broadcaster should the broadcaster accept the request. 47 CFR §
73.1212(e) (2002). And as we have previously pointed out,
the recordkeeping requirements do not reach significantly
beyond other FCC
recordkeeping rules, for example, those requiring broadcasting licensees to keep material showing com-
pliance with their license-related promises to broad-
cast material on issues of public importance. See, e.g., §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community); supra, at 45 (collecting regulations); Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413, 14211422 (CADC 1983) (describing FCC rules, in force during 19601981, that required nonentertainment programming in 14 specific areas and mandated publicly available records detailing date, time, source, and description to substantiate compliance). If, as we have held, the candidate request requirements are constitutional, supra, at 7, the election message requirements, which serve similar governmental interests and impose only a small incremental burden, must be constitutional as well.
The issue request requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast message[s] about a national legislative issue of public importance or any political matter of national importance. 47 U.S.C. A. §§315(e)(1)(B), (e)(1)(B)(iii) (Supp. 2003). These recordkeeping requirements seem likely to help the FCC determine whether broadcasters are carrying out their obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance, 47 CFR § 73.1910 (2002), and whether broadcasters are too heavily favoring entertainment, and discriminating against broadcasts devoted to public affairs, see ibid.; 47 U.S. C §315(a); Red Lion, 395 U.S., at 380.
The McConnell plaintiffs claim that the statutory languagepolitical matter of national importance or national legislative issue of public importanceis unconstitutionally vague or overbroad. Brief for McConnell Plaintiffs 7475. But that language is no more general than the language that Congress has used to impose other obligations upon broadcasters. Compare 47 U.S.C. A. §315(e)(1)(B) (Supp. 2003) (political matter of national importance) and §315(e)(1)(B)(iii) (national legislative issue of public importance) (both added by BCRA §504), with 47 U.S.C. § 315(a) (obligation to operate in the public interest and to afford reasonable opportunity for discussion of issues of public importance); §317(a)(2) (FCC disclosure requirements relating to any political program or discussion of any controversial issue); cf. 47 CFR § 73.1212(e) (2002) (political matter or a controversial issue of public importance); and 9 Fed. Reg. 14734 (1944) (public controversial issues); ante, at 117118 (joint opinion) (noting that the experience under longstanding regulations undermines claims of chilling effect). And that language is also roughly comparable to other language in BCRA that we uphold today. E.g., ante, at 6162, and n. 64 (joint opinion) (upholding 2 U.S.C. A. §431(20)(A)(iii) (Supp. 2003) (public 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)), ante, at 117118 (upholding 2 U.S.C. A. §441a(a)(7)(B)(ii) (Supp. 2003) (counting as coordinated disbursements that are made in cooperation, consultation, or concert with, or at the request or suggestion of [a political party]) against challenge and noting that an agreement is not necessary for precision).
Whether these requirements impose disproportionate administrative burdens is more difficult to say. On the one hand, the burdens are likely less heavy than many that other FCC regulations have imposed, for example, the burden of keeping and disclosing [a]ll written comments and suggestions received from the public, including every e-mail. 47 CFR §§73.1202, 73.3526(e)(9) (2002); see also supra, at 45. On the other hand, the burdens are likely heavier than those imposed by BCRA §504s other provisions, previously discussed.
The regulatory burden, in practice, will depend on how the FCC interprets and applies this provision. The FCC has adequate legal authority to write regulations that may limit, and make more specific, the provisions potential linguistic reach. 47 U.S.C. § 315(d). It has often ameliorated regulatory burdens by interpretation in the past, and there is no reason to believe it will not do so here. See 14 FCC Rcd. 4653, ¶25 (1999) (relaxing the recordkeeping requirements in respect to cable systems that serve fewer than 5,000 subscribers); 14 FCC Rcd. 11121, ¶¶2022 (1999) (requiring candidates to inspect the political file at a station rather than requiring licensees to send out photocopies of the files to candidates upon telephone request). The parties remain free to challenge the provisions, as interpreted by the FCC in regulations, or as otherwise applied. Any such challenge will likely provide greater information about the provisions justifications and administrative burdens. Without that additional information, we cannot now say that the burdens are so great, or the justifications so minimal, as to warrant finding the provisions unconstitutional on their face.
The McConnell plaintiffs and The Chief Justice make one final claim. They say that the issue request requirement will force them to disclose information that will reveal their political strategies to opponents, perhaps prior to a broadcast. See post, at 1415 (dissenting opinion). We are willing to assume that the Constitution includes some form of protection against premature disclosure of campaign strategythough, given the First Amendment interest in free and open discussion of campaign issues, we make this assumption purely for arguments sake. Nonetheless, even on that assumption we do not see how BCRA §504 can be unconstitutional on its face.
For one thing, the statute requires disclosure of names, addresses, and the fact of a request; it does not require disclosure of substantive campaign content. See 47 U.S.C. A. §315(e)(2) (Supp. 2003). For another, the statutory words as soon as possible, §315(e)(3), would seem to permit FCC disclosure-timing rules that would avoid any premature disclosure that the Constitution itself would forbid. Further, the plaintiffs do not point toand our own research cannot findany specific indication of such a strategy-disclosure problem arising during the past 65 years in respect to the existing FCC candidate request requirement, where the strategic problem might be expected to be more acute. Finally, we today reject an analogous facial attackpremised on speculations of advance disclosureon a similar BCRA provision. See ante, at 94 (joint opinion). Thus, the strategy disclosure argument does not show that BCRA §504 is unconstitutional on its face, but the plaintiffs remain free to raise this argument when §504 is applied.
The Chief Justice makes two important arguments in response to those we have set forth. First, he says that we approac[h] §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected. Post, at 11 (dissenting opinion). The Chief Justice is certainly correct in emphasizing the importance of the speech interests of candidates and other potential speakers, but we have not ignored their First Amendment perspective.
To the contrary, we have discussed the speakers interests together with the broadcasters interests because the two sets of interests substantially overlap. For example, the speakers vagueness argument is no different from the broadcasters, and it fails for the same reasons, e.g., the fact that BCRA §504s language is just as definite and precise as other language that we today uphold. See supra, at 10.
We have separately discussed the one and only speech-related claim advanced on behalf of candidates (or other speakers) that differs from the claims set forth by the broadcasters. See supra, at 1112. This is the claim that the statutes disclosure requirements will require candidates to reveal their political strategies to opponents. We just said, and we now repeat, that BCRA §504 can be applied, in a significant number of cases, without requiring any such political-strategy disclosureeither because disclosure in many cases will not create any such risk or because the FCC may promulgate rules requiring disclosure only after any such risk disappears, or both.
Moreover, candidates (or other speakers) whom §504 affects adversely in this way (or in other ways) remain free to challenge the lawfulness of FCC implementing regulations and to challenge the constitutionality of §504 as applied. To find that the speech-related interests of candidates and others may be vindicated in an as-applied challenge is not to ignor[e] those interests.
Second, The Chief Justice says that the Government, in its brief, proffers no interest whatever to support §504 as a whole, adding that the existence of pre-existing unchallenged agency regulations imposing similar disclosure requirements cannot compel the conclusion that §504 is constitutional, nor somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504. Post, at 1213 (dissenting opinion).
Again The Chief Justice is correct in saying that the mere existence of similar FCC regulation-imposed requirementseven if unchallenged for at least 65 yearscannot prove that those requirements are constitutional. But the existence of those regulations means that we must read beyond the briefs in this case before holding those requirements unconstitutional. Before evaluating the relevant burdens and justifications, we must at least become acquainted with the FCCs own view of the matter. We must follow the Governments regulation-related references to the relevant regulatory records, related FCC regulatory conclusions, and the FCCs enforcement experience. We must take into account, for example, the likelihood that the reason there is nothing in the record that indicates licensees have treated purchasers unfairly, post, at 13 (Rehnquist, C. J., dissenting), is that for many decades similar FCC regulations have made that unfair treatment unlawful. And, if we are to avoid disrupting related agency law, we must evaluate what we find in agency records and related experience before holding this similar statutory provision unconstitutional on its face.
Even a superficial examination of those relevant agency materials reveals strong supporting justifications, and a lack of significant administrative burdens. And any additional burden that the statute, viewed facially, imposes upon interests protected by the First Amendment seems slight compared to the strong enforcement-related interests that it serves. Given the FCC regulations and their history, the statutory requirements must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.
That is why the regulations are relevant. That is why the brevity of the Governments discussion here cannot be determinative. That is why we fear that The Chief Justices contrary view would lead us into an unfortunateand at present unjustifiedrevolution in communications law. And that is why we disagree with his dissent.
The portion of the judgment of the District Court invalidating BCRA §504 is reversed.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Title 47 U.S.C. A. §315(e) (Supp. 2003), as amended by BCRA §504, provides:
(1) In general
A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that
(A) is made by or on behalf of a legally qualified candidate for public office; or
(B) communicates a message relating to any political matter of national importance, including
(i) a legally qualified candidate;
(ii) any election to Federal office; or
(iii) a national legislative issue of public importance.
(2) Contents of record
A record maintained under paragraph (1) shall contain information regarding
(A) whether the request to purchase broadcast time is accepted or rejected by the licensee;
(B) the rate charged for the broadcast time;
(C) the date and time on which the communication is aired;
(D) the class of time that is purchased;
(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);
(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and
(G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.
(3) Time to maintain file
The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.
Title 47 CFR § 73.1943 (2002) provides:
(a) Every licensee shall keep and permit public inspection of a complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. The disposition includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased.
(b) When free time is provided for use by or on behalf of candidates, a record of the free time provided shall be placed in the political file.
(c) All records required by
this paragraph shall be placed in the political file as soon as
shall be retained for a period of two years. As soon
as possible means immediately absent unusual
*. *Justice Stevens, Justice OConnor, Justice Souter, and Justice Ginsburg join this opinion in its entirety.