540 U.S. 93


Syllabus

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

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

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


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

The Bipartisan Campaign Reform Act of 2002 (BCRA), which amended the Federal Election Campaign Act of 1971 (FECA), the Communications Act of 1934, and other portions of the United States Code, is the most recent of nearly a century of federal enactments designed “to purge national politics of what [is] conceived to be the pernicious influence of ‘big money’ campaign contributions.” United States v. Automobile Workers, 352 U. S. 567. In enacting BCRA, Congress sought to address three important developments in the years since this Court’s landmark decision in Buckley v. Valeo, 424 U. S. 1 (per curiam): the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.

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

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

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

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

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

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

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

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

(1) The governmental interest underlying §323(a)—preventing the actual or apparent corruption of federal candidates and officeholders—constitutes a sufficiently important interest to justify contribution limits. That interest is not limited to the elimination of quid pro quo, cash-for-votes exchanges, see Buckley, supra , at 28, but extends also to “undue influence on an officeholder’s judgment, and the appearance of such influence,” Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431 (Colorado II) . These interests are sufficient to justify not only contribution limits themselves, but also laws preventing the circumvention of such limits. Id., at 456. While the quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments varies with the novelty or plausibility of the justification raised, Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, the idea that large contributions to a national party can corrupt or create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible, see, e.g., Buckley , supra, at 38. There is substantial evidence in these cases to support Congress’ determination that such contributions of soft money give rise to corruption and the appearance of corruption. For instance, the record is replete with examples of national party committees’ peddling access to federal candidates and officeholders in exchange for large soft-money donations. Pp. 32–45.

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

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

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

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

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

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

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

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

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

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

(iii) The evidence supporting the argument that the Levin Amendment prevents parties from amassing the resources needed to engage in effective advocacy is speculative. The history of campaign finance regulation proves that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether the amount available over previous election cycles is reduced, but whether the reduction is so radical as to drive the sound of the recipient’s voice below the level of notice. Shrink Missouri , 528 U. S., at 397. If state or local parties can make such a showing, as-applied challenges remain available. Pp. 65–66.

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

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

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

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

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

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

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

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

5. The District Court’s judgment is affirmed to the extent that it upheld the disclosure requirements in amended FECA §304 and rejected the facial attack on the provisions relating to donors of $1,000 or more, but reversed to the extent that it invalidated FECA §304(f)(5). Pp. 82–95.

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

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

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

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

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

7. The District Court’s judgment is affirmed to the extent that it upheld the constitutionality of new FECA §316(b)(2), and reversed to the extent that it invalidated any part of that section. BCRA §203 extends to all “electioneering communications” FECA §316(b)(2)’s restrictions on the use of corporate and union general treasury funds. 2 U. S. C. A. §441b(b)(2). Because those entities may still organize and administer segregated funds, or PACs, for such communications, the provision is a regulation of, not a ban on, expression. Beaumont, 539 U. S., at ___ (slip op., at 15). This Court’s consideration of plaintiffs’ claim that the expanded regulation is both overinclusive and underinclusive is informed by the conclusion that the distinction between express advocacy and so-called issue advocacy is not constitutionally compelled. Thus, the Court examines the degree to which BCRA burdens First Amendment expression and evaluates whether a compelling governmental interest justifies that burden. Plaintiffs have not carried their burden of proving that new FECA §316(b)(2) is overbroad. They argue that the justifications that adequately support regulation of express advocacy do not apply to significant quantities of speech encompassed by the electioneering communications definition. That argument fails to the extent that issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for regulating express advocacy apply equally to those ads if they have an electioneering purpose, which the vast majority do. Also rejected is plaintiffs’ argument that new FECA §316(b)(2)’s segregated-fund requirement is underinclusive because it does not apply to print or Internet advertising. The record here reflects that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the relevant period. Congress justifiably concluded that remedial legislation was needed to stanch that flow of money. Finally, §304(f)(3)(B)(i), which excludes news items and commentary from the electioneering communications definition, is wholly consistent with First Amendment principles as applied to the media. Pp. 97–103.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Notes

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


TOP

Dissent

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

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

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

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

02–1702 v .

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

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

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

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

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

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

I

The issue presented by Title I is not, as the Court implies, whether Congress can permissibly regulate campaign contributions to candidates, de facto or otherwise, or seek to eliminate corruption in the political process. Rather, the issue is whether Congress can permissibly regulate much speech that has no plausible connection to candidate contributions or corruption to achieve those goals. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor , JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.

The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate’s federal election.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 497 (1985) , can be regulated, but §323(a) does not regulate only donations given to influence a particular federal election; it regulates all donations to national political committees, no matter the use to which the funds are put.

The Court attempts to sidestep the unprecedented breadth of this regulation by stating that the “close relationship between federal officeholders and the national parties” makes all donations to the national parties “suspect.” Ante, at 45. But a close association with others, especially in the realm of political speech, is not a surrogate for corruption; it is one of our most treasured First Amendment rights. See California Democratic Party v. Jones, 530 U. S. 567, 574 (2000) ; Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 225 (1989) ; Tashjian v. Republican Party of Conn., 479 U. S. 208, 214 (1986) . The Court’s willingness to impute corruption on the basis of a relationship greatly infringes associational rights and expands Congress’ ability to regulate political speech. And there is nothing in the Court’s analysis that limits congressional regulation to national political parties. In fact, the Court relies in part on this closeness rationale to regulate nonprofit organizations . Ante , at 47–48, n. 51. Who knows what association will be deemed too close to federal officeholders next. When a donation to an organization has no potential to corrupt a federal officeholder, the relationship between the officeholder and the organization is simply irrelevant.

The Court fails to recognize that the national political parties are exemplars of political speech at all levels of government, in addition to effective fundraisers for federal candidates and officeholders. For sure, national political party committees exist in large part to elect federal candidates, but as a majority of the District Court found, they also promote coordinated political messages and participate in public policy debates unrelated to federal elections, promote, even in off-year elections, state and local candidates and seek to influence policy at those levels, and increase public participation in the electoral process. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297–298 (1981) ; Buckley , 424 U. S., at 27. Notwithstanding the Court’s citation to the numerous abuses of FECA, under any definition of “exacting scrutiny,” the means chosen by Congress, restricting all donations to national parties no matter the purpose for which they are given or are used, are not “closely drawn to avoid unnecessary abridgment of associational freedoms,” id. , at 25.

BCRA’s overinclusiveness is not limited to national political parties. To prevent the circumvention of the ban on the national parties’ use of nonfederal funds, BCRA extensively regulates state parties, primarily state elections, and state candidates. For example, new FECA §323(b), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds 1 for general partybuilding activities such as voter registration, voter identification, and get out the vote for state candidates even if federal candidates are not mentioned. See 2 U. S. C. A. §§441i(b)–(ii) (Supp. 2003). New FECA §323(d) prohibits state and local political party committees, like their national counterparts, from soliciting and donating “any funds” to nonprofit organizations such as the National Rifle Association or the National Association for the Advancement of Colored People (NAACP). See 2 U. S. C. A. §441i(d). And, new FECA §323(f) requires a state gubernatorial candidate to abide by federal funding restrictions when airing a television ad that tells voters that, if elected, he would oppose the President’s policy of increased oil and gas exploration within the State because it would harm the environment. See 2 U. S. C. A. §§441i(f) (regulating “public communication[s] that refe[r] to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that … attacks or opposes a candidate for that office”).

Although these provisions are more focused on activities that may affect federal elections, there is scant evidence in the record to indicate that federal candidates or officeholders are corrupted or would appear corrupted by donations for these activities. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions, 2 see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665 (1994) ).

Yet the Court cannot truly mean what it says. Newspaper editorials and political talk shows benefit federal candidates and officeholders every bit as much as a generic voter registration drive conducted by a state party; there is little doubt that the endorsement of a major newspaper affects federal elections, and federal candidates and officeholders are surely “grateful,” ante , at 60, for positive media coverage. I doubt, however, the Court would seriously contend that we must defer to Congress’ judgment if it chose to reduce the influence of political endorsements in federal elections. 3 See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).

It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). All political speech that is not sifted through federal regulation circumvents the regulatory scheme to some degree or another, and thus by the Court’s standard would be a “loophole” in the current system. 4 Unless the Court would uphold federal regulation of all funding of political speech, a rationale dependent on circumvention alone will not do. By untethering its inquiry from corruption or the appearance of corruption, the Court has removed the touchstone of our campaign finance precedent and has failed to replace it with any logical limiting principle.

But such an untethering is necessary to the Court’s analysis. Only by using amorphous language to conclude a federal interest, however vaguely defined, exists can the Court avoid the obvious fact that new FECA §§323(a), (b), (d), and (f ) are vastly overinclusive. Any campaign finance law aimed at reducing corruption will almost surely affect federal elections or prohibit the circumvention of federal law, and if broad enough, most laws will generally reduce some appearance of corruption. Indeed, it is precisely because broad laws are likely to nominally further a legitimate interest that we require Congress to tailor its restrictions; requiring all federal candidates to self-finance their campaigns would surely reduce the appearance of donor corruption, but it would hardly be constitutional. In allowing Congress to rely on general principles such as affecting a federal election or prohibiting the circumvention of existing law, the Court all but eliminates the “closely drawn” tailoring requirement and meaningful judicial review.

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

II

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

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

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

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

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

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

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

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

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

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

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

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


Notes

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

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

2 Ironically, in the Court’s view, Congress cannot be trusted to exercise judgment independent of its parties’ large donors in its usual voting decisions because donations may be used to further its members’ reelection campaigns, but yet must be deferred to when it passes a comprehensive regulatory regime that restricts election-related speech. It seems to me no less likely that Congress would create rules that favor its Members’ reelection chances, than be corrupted by the influx of money to its political parties, which may in turn be used to fund a portion of the Members’ reelection campaigns.

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

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

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

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


TOP

Dissent

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

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

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

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

02–1702 v .

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

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

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

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Stevens , dissenting with respect to §305.* *

The Chief Justice , writing for the Court, concludes that the McConnell plaintiffs lack standing to challenge §305 of BCRA because Senator McConnell cannot be affected by the provision until “45 days before the Republican primary election in 2008.” Ante , at 4. I am not persuaded that Article III’s case-or-controversy requirement imposes such a strict temporal limit on our jurisdiction. By asserting that he has run attack ads in the past, that he plans to run such ads in his next campaign, and that §305 will adversely affect his campaign strategy, Senator McConnell has identified a “concrete,” “ ‘distinct,’ ” and “ ‘actual’ ” injury, Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) . That the injury is distant in time does not make it illusory.

The second prong of the standing inquiry—whether the alleged injury is fairly traceable to the defendants’ challenged action and not the result of a third party’s independent choices—poses a closer question. Section 305 does not require broadcast stations to charge a candidate higher rates for unsigned ads that mention the candidate’s opponent. Rather, the provision simply permits stations to charge their normal rates for such ads. Some stations may take advantage of this regulatory gap and adopt pricing schemes that discriminate between the kind of ads that Senator McConnell has run in the past and those that strictly comply with §305. It is also possible, however, that instead of incurring the transaction costs of policing candidates’ compliance with §305, stations will continue to charge the same rates for attack ads as for all other campaign ads. In the absence of any record evidence that stations will uniformly choose to charge Senator McConnell higher rates for the attack ads he proposes to run in 2008, it is at least arguable that his alleged injury is not traceable to BCRA §305.

Nevertheless, I would entertain plaintiffs’ challenge to §305 on the merits and uphold the section. Like BCRA §§201, 212, and 311, §305 serves an important—and constitutionally sufficient—informational purpose. Moreover, §305’s disclosure requirements largely overlap those of §311, and plaintiffs identify no reason why any candidate already in compliance with §311 will be harmed by the marginal additional burden of complying with §305. Indeed, I am convinced that “the important governmental interest of ‘shed[ding] the light of publicity’ on campaign financing,” invoked above in connection with §311, ante , at 9 (opinion of Rehnquist, C. J .), would suffice to support a legislative provision expressly requiring all sponsors of attack ads to identify themselves in their ads. That §305 seeks to achieve the same purpose indirectly, by withdrawing a statutory benefit, does not render the provision any less sound.

Finally, I do not regard §305 as a constitutionally suspect “viewpoint-based regulation.” Brief for Appellants/Cross-Appellees Senator Mitch McConnell et al. in No. 02–1674 et al., p. 67. Like BCRA’s other disclosure requirements, §305 evenhandedly regulates speech based on its electioneering content. Although the section reaches only ads that mention opposing candidates, it applies equally to all such ads. Disagreement with one’s opponent obviously expresses a “viewpoint,” but §305 treats that expression exactly like the opponent’s response.

In sum, I would uphold §305.


Notes

* * Justice Ginsburg and Justice Breyer join this opinion in itsentirety.


TOP

CDInPart

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

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

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

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

02–1702 v .

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

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

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

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

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

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

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002) , tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001) , dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001) , and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000) , would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of “soft” money to fund “issue ads” that incumbents find so offensive.

To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.

Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much “hard money”—the sort of funding generally not restricted by this legislation—as do their challengers? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. Is it an oversight, do you suppose, that the so-called “millionaire provisions” raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election “war chest”? See BCRA §§304, 316, and 319. And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not? See new FECA §§323(a) and (e).

I wish to address three fallacious propositions that might be thought to justify some or all of the provisions of this legislation—only the last of which is explicitly embraced by the principal opinion for the Court, but all of which underlie, I think, its approach to these cases.

(a) Money is Not Speech

It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968) , or camping out on the National Mall, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) . That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 399 (2000) ( Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.”

Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).

Division of labor requires a means of mediating exchange, and in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.

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

History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233, 245–249 (1936) ; Schlesinger, supra, at 67–84.

We have kept faith with the Founders’ tradition by prohibiting the selective taxation of the press. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983) (ink and paper tax); Grosjean , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. These press-taxation cases belie the claim that regulation of money used to fund speech is not regulation of speech itself. A tax on a newspaper’s advertising revenue does not prohibit anyone from saying anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That is even a step short of totally prohibiting advertising revenue— which would be analogous to the total prohibition of certain campaign-speech contributions in the present cases. Yet it is unquestionably a violation of the First Amendment.

Many other cases exemplify the same principle that an attack upon the funding of speech is an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980) , we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991) , we held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for payment to the victims. And in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) , we held unconstitutional a university’s discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times Co. v. Sullivan, 376 U. S. 254 (1964) , holding that paid advertisements in a newspaper were entitled to full First Amendment protection:

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

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

It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer.

(b) Pooling Money is Not Speech

Another proposition which could explain at least some of the results of today’s opinion is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: “And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” (Emphasis added.) The freedom to associate with others for the dissemination of ideas—not just by singing or speaking in unison, but by pooling financial resources for expressive purposes—is part of the freedom of speech.

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

“The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449, 460 (1958) , stemmed from the Court’s recognition that ‘[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.’ Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee ‘ “freedom to associate with others for the common advancement of political beliefs and ideas,” ’ … .” Buckley, supra, at 15.

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

If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the First Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full First Amendment protection threatens the existence of all political parties.

(c) Speech by Corporations Can Be Abridged

The last proposition that might explain at least some of today’s casual abridgment of free-speech rights is this: that the particular form of association known as a corporation does not enjoy full First Amendment protection. Of course the text of the First Amendment does not limit its application in this fashion, even though “[b]y the end of the eighteenth century the corporation was a familiar figure in American economic life.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:

“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted).

In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 8 (1986) , we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.” And in Buckley , 424 U. S. 1, we held unconstitutional FECA’s limitation upon independent corporate expenditures.

The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. People who associate—who pool their financial resources—for purposes of economic enterprise overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is chosen by those who associate to defend and promote particular ideas—such as the American Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a government that wished to suppress nuclear power—or oil and gas exploration, or automobile manufacturing, or gun ownership, or civil liberties—and that had the power to prohibit corporate advertising against its proposals. To be sure, the individuals involved in, or benefited by, those industries, or interested in those causes, could (given enough time) form political action committees or other associations to make their case. But the organizational form in which those enterprises already exist , and in which they can most quickly and most effectively get their message across, is the corporate form. The First Amendment does not in my view permit the restriction of that political speech. And the same holds true for corporate electoral speech: A candidate should not be insulated from the most effective speech that the major participants in the economy and major incorporated interest groups can generate.

But what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.

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

But let us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible “appearance of corruption,” the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to “crack cocaine,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, “I hope that we will not allow our attention to be distracted from the real issues at hand—how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don’t aid our Nation’s political dialog.” Id., at 20521–20522 (remarks of Sen. McCain). He assured the body that “[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).

Another theme prominent in the legislative debates was the notion that there is too much money spent on elections. The first principle of “reform” was that “there should be less money in politics.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). And most expansively:

“Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion or voter education. More money does not mean more ideas, more substance or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity and an increasingly longer campaign period.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry).

Perhaps voters do detest these 30-second spots—though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has “substance” and “depth” (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

And what exactly are these outrageous sums frittered away in determining who will govern us? A report prepared for Congress concluded that the total amount, in hard and soft money, spent on the 2000 federal elections was between $2.4 and $2.5 billion. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their Nation’s officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8 billion). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. If our democracy is drowning from this much spending, it cannot swim.

* * *

Which brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce “fairer” campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that “what’s good for General Motors is good for the country.”* * Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. Whether in prescient recognition of the Charlie Wilson Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, “[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech ‘for fairness’ sake’ simply out of bounds.” Austin , 494 U. S., at 693 ( Scalia, J., dissenting). Having abandoned that approach to a limited extent in Buckley , we abandon it much further today.

We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:

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

The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come—and always, always, with the objective of reducing the excessive amount of speech.


Notes

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


TOP

CDInPart

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

02–1674 v .

FEDERAL ELECTION COMMISSION, et al .;

NATIONAL RIFLE ASSOCIATION, et al. , APPELLANTS

02–1675 v .

FEDERAL ELECTION COMMISSION, et al .;

FEDERAL ELECTION COMMISSION, et al ., APPELLANTS

02–1676 v .

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

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

02–1702 v .

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

REPUBLICAN NATIONAL COMMITTEE, et al ., APPELLANTS

02–1727 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1733 v .

FEDERAL ELECTION COMMISSION, et al .;

AMERICAN CIVIL LIBERTIES UNION, APPELLANTS

02–1734 v .

FEDERAL ELECTION COMMISSION, et al.;

VICTORIA JACKSON GRAY ADAMS, et al ., APPELLANTS

02–1740 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1747 v .

FEDERAL ELECTION COMMISSION, et al .;

CALIFORNIA DEMOCRATIC PARTY, et al ., APPELLANTS

02–1753 v .

FEDERAL ELECTION COMMISSION, et al.;

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

02–1755 v .

FEDERAL ELECTION COMMISSION, et al .;

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

02–1756 v .

FEDERAL ELECTION COMMISSION, et al .

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


[December 10, 2003]

Justice Kennedy , concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II.* *

The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. And they provide safe harbor to the mainstream press, suggesting that the corporate media alone suffice to alleviate the burdens the Act places on the rights and freedoms of ordinary citizens.

Today’s decision upholding these laws purports simply to follow Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) , and to abide by stare decisis , see ante , at 27 (joint opinion of Stevens and O’Connor , JJ. (hereinafter Court or majority)); but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today’s decision, the Court surpasses Buckley ’s limits and expands Congress’ regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech.

A few examples show how BCRA reorders speech rights and codifies the Government’s own preferences for certain speakers. BCRA would have imposed felony punishment on Ross Perot’s 1996 efforts to build the Reform Party. Compare Federal Election Campaign Act of 1971 (FECA) §§309(d)(1)(A), 315(a)(1)(B), and 323(a)(1) (prohibiting, by up to five years’ imprisonment, any individual from giving over $25,000 annually to a national party), with Spending By Perot, The Houston Chronicle, Dec. 13, 1996, p. 43 (reporting Perot’s $8 million founding contribution to the Reform Party). BCRA makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman’s impending vote to permit logging in national forests. See BCRA §203. BCRA escalates Congress’ discrimination in favor of the speech rights of giant media corporations and against the speech rights of other corporations, both profit and nonprofit. Compare BCRA §203, with Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 659–660 (1990) (first sanctioning this type of discrimination).

To the majority, all this is not only valid under the First Amendment but also is part of Congress’ “steady improvement of the national election laws.” Ante , at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit:

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

Id., at S2097 (statement of Sen. Wellstone) (“[P]assing this legislation … will whet people’s appetite for more”); id., at S2101 (statement of Sen. Boxer) (“[T]his bill is not the be-all or the end-all, but it is a strong start”); id., at S2152 (statement of Sen. Corzine) (“[T]his should not and will not be the last time campaign finance reform is debated on the Senate floor. We have many more important campaign finance issues to explore”); id., at S2157 (statement of Sen. Torricelli) (“Make [BCRA] the beginning of a reform, not the end of reform”); id., at H442 (Feb. 13, 2002) (statement of Rep. Doggett) (“Mr. Chairman, if [BCRA] has any defect, it is that it does too little, not too much”).

Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations.

With respect, I dissent from the majority opinion upholding BCRA Titles I and II. I concur in the judgment as to BCRA §213 and new FECA §323(e) and concur in the judgment in part and dissent in part as to BCRA §§201, 202, and 214.

I. TITLE I AND COORDINATION PROVISIONS

Title I principally bans the solicitation, receipt, transfer and spending of soft money by the national parties (new FECA §323(a), 2 U. S. C. A. §441i(a) (Supp. 2003)). It also bans certain uses of soft money by state parties (new FECA §323(b)); the transfer of soft money from national parties to nonprofit groups (new FECA §323(d)); the solicitation, receipt, transfer, and spending of soft money by federal candidates and officeholders (new FECA §323(e)); and certain uses of soft money by state candidates (new FECA §323(f)). These provisions, and the other provisions with which this opinion is principally concerned, are set out in full, see Appendix, infra . Even a cursory review of the speech and association burdens these laws create makes their First Amendment infirmities obvious:

Title I bars individuals with shared beliefs from pooling their money above limits set by Congress to form a new third party. See new FECA §323(a).

Title I bars national party officials from soliciting or directing soft money to state parties for use on a state ballot initiative. This is true even if no federal office appears on the same ballot as the state initiative. See new FECA §323(a).

A national party’s mere involvement in the strategic planning of fundraising for a state ballot initiative risks a determination that the national party is exercising “indirect control” of the state party. If that determination is made, the state party must abide by federal regulations. And this is so even if the federal candidate on the ballot, if there is one, runs unopposed or is so certain of election that the only voter interest is in the state and local campaigns. See new FECA §323(a).

Title I compels speech. Party officials who want to engage in activity such as fundraising must now speak magic words to ensure the solicitation cannot be interpreted as anything other than a solicitation for hard, not soft, money. See ibid.

Title I prohibits the national parties from giving any sort of funds to nonprofit entities, even federally regulated hard money, and even if the party hoped to sponsor the interest group’s exploration of a particular issue in advance of the party’s addition of it to their platform. See new FECA §323(d).

By express terms, Title I imposes multiple different forms of spending caps on parties, candidates, and their agents. See new FECA §§323(a), (e), and (f).

Title I allows state parties to raise quasi-soft money Levin funds for use in activities that might affect a federal election; but the Act prohibits national parties from assisting state parties in developing and executing these fundraising plans, even when the parties seek only to advance state election interests. See new FECA §323(b).

Until today’s consolidated cases, the Court has accepted but two principles to use in determining the validity of campaign finance restrictions. First is the anticorruption rationale. The principal concern, of course, is the agreement for a quid pro quo between officeholders (or candidates) and those who would seek to influence them. The Court has said the interest in preventing corruption allows limitations on receipt of the quid by a candidate or officeholder, regardless of who gives it or of the intent of the donor or officeholder. See Buckley , 424 U. S., at 26– 27, 45–48; infra , at 7–10. Second, the Court has analyzed laws that classify on the basis of the speaker’s corporate or union identity under the corporate speech rationale. The Court has said that the willing adoption of the entity form by corporations and unions justifies regulating them differently: Their ability to give candidates quids may be subject not only to limits but also to outright bans; their electoral speech may likewise be curtailed. See Austin, 494 U. S., at 659–660; Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 201–211 (1982) .

The majority today opens with rhetoric that suggests a conflation of the anticorruption rationale with the corporate speech rationale. See ante , at 3–6 (hearkening back to, among others, Elihu Root and his advocacy against the use of corporate funds in political campaigning). The conflation appears designed to cast the speech regulated here as unseemly corporate speech. The effort, however, is unwarranted, and not just because money is not per se the evil the majority thinks. Most of the regulations at issue, notably all of the Title I soft money bans and the Title II coordination provisions, do not draw distinctions based on corporate or union status. Referring to the corporate speech rationale as if it were the linchpin of the case, when corporate speech is not primarily at issue, adds no force to the Court’s analysis. Instead, the focus must be on Buckley ’s anticorruption rationale and the First Amendment rights of individual citizens.

A. Constitutionally Sufficient Interest

In Buckley, the Court held that one, and only one, interest justified the significant burden on the right of association involved there: eliminating, or preventing, actual corruption or the appearance of corruption stemming from contributions to candidates.

“It is unnecessary to look beyond the Act’s primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions—in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.” 424 U. S., at 26.

See also ibid. (concluding this corruption interest was sufficiently “significant” to sustain “closely drawn” interference with protected First Amendment rights).

In parallel, Buckley concluded the expenditure limitations in question were invalid because they did not advance that same interest. See id., at 47–48 (“[T]he independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process”); see also id., at 45, 46.

Thus, though Buckley subjected expenditure limits to strict scrutiny and contribution limits to less exacting review, it held neither could withstand constitutional challenge unless it was shown to advance the anticorruption interest. In these consolidated cases, unless Buckley is to be repudiated, we must conclude that the regulations further that interest before considering whether they are closely drawn or narrowly tailored. If the interest is not advanced, the regulations cannot comport with the Constitution, quite apart from the standard of review.

Buckley made clear, by its express language and its context, that the corruption interest only justifies regulating candidates’ and officeholders’ receipt of what we can call the “ quids ” in the quid pro quo formulation. The Court rested its decision on the principle that campaign finance regulation that restricts speech without requiring proof of particular corrupt action withstands constitutional challenge only if it regulates conduct posing a demonstrable quid pro quo danger:

“To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.” Id., at 26–27.

See also id., at 45 (“[A]ssuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions …”). That Buckley rested its decision on this quid pro quo standard is not a novel observation. We have held this was the case:

“The exception [of contribution limits being justified under the First Amendment] relates to the perception of undue influence of large contributions to a candidate: ‘ To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.’ ” Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297 (1981) (quoting Buckley, supra, at 26–27).

See also Federal Election Comm’n v. Beaumont , 539 U. S. ___ (2003) (furthering this anticorruption rationale by upholding limits on contributions given directly to candidates); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 (2000) (same).

Despite the Court’s attempt to rely on language from cases like Shrink Missouri to establish that the standard defining corruption is broader than conduct that presents a quid pro quo danger, see ante , at 43, n. 48, in those cases the Court in fact upheld limits on conduct possessing quid pro quo dangers, and nothing more. See also infra , 12. For example, the Shrink Missouri Court’s distinguishing of what was at issue there and quid pro quo , in fact, shows only that it used the term quid pro quo to refer to actual corrupt, vote-buying exchanges, as opposed to interactions that possessed quid pro quo potential even if innocently undertaken. Thus, the Court said:

“[W]e spoke in Buckley of the perception of corruption ‘inherent in a regime of large individual financial contributions’ to candidates for public office . . . as a source of concern “almost equal” to quid pro quo improbity.” 528 U. S., at 390 (citations omitted).

Thus, the perception of corruption that the majority now asserts is somehow different from the quid pro quo potential discussed in this opinion, was created by an exchange featuring quid pro quo potential—contributions directly to a candidate.

In determining whether conduct poses a quid pro quo danger the analysis is functional. In Buckley , the Court confronted an expenditure limitation provision that capped the amount of money individuals could spend on any activity intended to influence a federal election ( i.e. , it reached to both independent and coordinated expenditures). See 424 U. S., at 46–47. The Court concluded that though the limitation reached both coordinated and independent expenditures, there were other valid FECA provisions that barred coordinated expenditures. Hence, the limit at issue only added regulation to independent expenditures. On that basis it concluded the provision was unsupported by any valid corruption interest. The conduct to which it added regulation (independent expenditures) posed no quid pro quo danger. See ibid .

Placing Buckley ’s anticorruption rationale in the context of the federal legislative power yields the following rule: Congress’ interest in preventing corruption provides a basis for regulating federal candidates’ and officeholders’ receipt of quids , whether or not the candidate or officeholder corruptly received them. Conversely, the rule requires the Court to strike down campaign finance regulations when they do not add regulation to “actual or apparent quid pro quo arrangements.” Id., at 45.

The Court ignores these constitutional bounds and in effect interprets the anticorruption rationale to allow regulation not just of “actual or apparent quid pro quo arrangements,” ibid., but of any conduct that wins goodwill from or influences a Member of Congress. It is not that there is any quarrel between this opinion and the majority that the inquiry since Buckley has been whether certain conduct creates “undue influence.” See ante , at 40–41. On that we agree. The very aim of Buckley ’s standard, however, was to define undue influence by reference to the presence of quid pro quo involving the officeholder. The Court, in contrast, concludes that access, without more, proves influence is undue. Access, in the Court’s view, has the same legal ramifications as actual or apparent corruption of officeholders. This new definition of corruption sweeps away all protections for speech that lie in its path.

The majority says it is not abandoning our cases in this way, but its reasoning shows otherwise:

“More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judgment, or the appearance of such influence.’ [ Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 441 (2001) (Colorado II) ]. Many of the ‘deeply disturbing examples’ of corruption cited by this Court in Buckley to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. Even if that access did not secure actual influence, it certainly gave the ‘appearance of such influence.’ Colorado II , supra , at 441; see also [ Buckley v. Valeo, 519 F. 2d 821, 838 (CADC 1975)].

“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 176, 492–506 (DC 2003) (Kollar-Kotelly, J.)].” Ante, at 40–41.

The majority notes that access flowed from the regulated conduct at issue in Buckley and its progeny, then uses that fact as the basis for concluding that access peddling by the parties equals corruption by the candidates. That conclusion, however, is tenable only by a quick and subtle shift, and one that breaks new ground: The majority ignores the quid pro quo nature of the regulated conduct central to our earlier decisions. It relies instead solely on the fact that access flowed from the conduct.

To ignore the fact that in Buckley the money at issue was given to candidates, creating an obvious quid pro quo danger as much as it led to the candidates also providing access to the donors, is to ignore the Court’s comments in Buckley that show quid pro quo was of central importance to the analysis. See 424 U. S., at 26–27, 45. The majority also ignores that in Buckley , and ever since, those party contributions that have been subject to congressional limit were not general party-building contributions but were only contributions used to influence particular elections. That is, they were contributions that flowed to a particular candidate’s benefit, again posing a quid pro quo danger. And it ignores that in Colorado II , the party spending was that which was coordinated with a particular candidate, thereby implicating quid pro quo dangers. In all of these ways the majority breaks the necessary tether between quid and access and assumes that access, all by itself, demonstrates corruption and so can support regulation. See also ante , at 47 (“[L]arge soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put”).

Access in itself, however, shows only that in a general sense an officeholder favors someone or that someone has influence on the officeholder. There is no basis, in law or in fact, to say favoritism or influence in general is the same as corrupt favoritism or influence in particular. By equating vague and generic claims of favoritism or influence with actual or apparent corruption, the Court adopts a definition of corruption that dismantles basic First Amendment rules, permits Congress to suppress speech in the absence of a quid pro quo threat, and moves beyond the rationale that is Buckley ’s very foundation.

The generic favoritism or influence theory articulated by the Court is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle. Any given action might be favored by any given person, so by the Court’s reasoning political loyalty of the purest sort can be prohibited. There is no remaining principled method for inquiring whether a campaign finance regulation does in fact regulate corruption in a serious and meaningful way. We are left to defer to a congressional conclusion that certain conduct creates favoritism or influence.

Though the majority cites common sense as the foundation for its definition of corruption, see ante, at 35, 43, in the context of the real world only a single definition of corruption has been found to identify political corruption successfully and to distinguish good political responsiveness from bad—that is quid pro quo . Favoritism and influence are not, as the Government’s theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness. Q uid pro quo corruption has been, until now, the only agreed upon conduct that represents the bad form of responsiveness and presents a justiciable standard with a relatively clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship between an official and a quid .

The majority attempts to mask its extension of Buckley under claims that BCRA prevents the appearance of corruption, even if it does not prevent actual corruption, since some assert that any donation of money to a political party is suspect. See ante , at 40–42. Under Buckley ’s holding that Congress has a valid “interest in stemming the reality or appearance of corruption,” 424 U. S., at 47–48, however, the inquiry does not turn on whether some persons assert that an appearance of corruption exists. Rather, the inquiry turns on whether the Legislature has established that the regulated conduct has inherent corruption potential, thus justifying the inference that regulating the conduct will stem the appearance of real corruption. Buckley was guided and constrained by this analysis. In striking down expenditure limits the Court in Buckley did not ask whether people thought large election expenditures corrupt, because clearly at that time many persons, including a majority of Congress and the President, did. See id., at 25 (“According to the parties and amici , the primary interest served . . . by the Act as a whole, is the prevention of corruption and the appearance of corruption”). Instead, the Court asked whether the Government had proved that the regulated conduct, the expenditures, posed inherent quid pro quo corruption potential. See id., at 46.

The Buckley decision made this analysis even clearer in upholding contribution limitations. It stated that even if actual corrupt contribution practices had not been proved, Congress had an interest in regulating the appearance of corruption that is “inherent in a regime of large individual financial contributions.” Id., at 27 (discussing contributions to candidates). See also id., at 28, 30. The quid pro quo nature of candidate contributions justified the conclusion that the contributions pose inherent corruption potential; and this in turn justified the conclusion that their regulation would stem the appearance of real corruption.

From that it follows that the Court today should not ask, as it does, whether some persons, even Members of Congress, conclusorily assert that the regulated conduct appears corrupt to them. Following Buckley , it should instead inquire whether the conduct now prohibited inherently poses a real or substantive quid pro quo danger, so that its regulation will stem the appearance of quid pro quo corruption.

1. New FECA §§323(a), (b), (d), and (f)

Sections 323(a), (b), (d), and (f), 2 U. S. C. A. §§441i(a), (b), (d), and (f ) (Supp. 2003), cannot stand because they do not add regulation to conduct that poses a demonstrable quid pro quo danger. They do not further Buckley ’s corruption interest.

The majority, with a broad brush, paints §323(a) as aimed at limiting contributions possessing federal officeholder corruption potential. From there it would justify §323’s remaining provisions as necessary complements to ensure the national parties cannot circumvent §323(a)’s prohibitions. The broad brush approach fails, however, when the provisions are reviewed under Buckley ’s proper definition of corruption potential.

On its face §323(a) does not regulate federal candidates’ or officeholders’ receipt of quids because it does not regulate contributions to, or conduct by, candidates or officeholders. See BCRA §101(a) (setting out new FECA §323(a): National parties may not “solicit, receive, or direct to another person … or spend any [soft money]”).

The realities that underlie the statute, furthermore, do not support the majority’s interpretation. Before BCRA’s enactment, parties could only use soft money for a candidate’s “benefit” ( e.g. , through issue ads, which all parties now admit may influence elections) independent of that candidate. And, as discussed later, §323(e) validly prohibits federal candidate and officeholder solicitation of soft money party donations. See infra , at 31. Section 323(a), therefore, only adds regulation to soft money party donations not solicited by, or spent in coordination with, a candidate or officeholder.

These donations (noncandidate or officeholder solicited soft money party donations that are independently spent) do not pose the quid pro quo dangers that provide the basis for restricting protected speech. Though the government argues §323(a) does regulate federal candidates’ and officeholders’ receipt of quids , it bases its argument on this flawed reasoning:

(1) “[F]ederal elected officeholders are inextricably linked to their political parties,” Brief for Appellees/Cross Appellants FEC et al. in No. 02–1674 et al., p. 21; cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 626 (1996) (Colorado I) ( Kennedy , J., concurring in judgment and dissenting in part).

(2) All party receipts must be connected to, and must create, corrupt donor favoritism among these officeholders.

(3) Therefore, regulation of party receipts equals regulation of quids to the party’s officeholders.

The reasoning is flawed because the Government’s reliance on reasoning parallel to the Colorado I concurrence only establishes the first step in its chain of logic: that a party is a proxy for its candidates generally. It does not establish the second step: that as a proxy for its candidates generally, all moneys the party receives (not just candidate solicited-soft money donations, or donations used in coordinated activity) represent quids for all the party’s candidates and officeholders. The Government’s analysis is inconsistent with what a majority of the Justices, in different opinions, have said.

Justice Thomas ’ dissent in Colorado II , 533 U. S., at 476–477, taken together with Justice Breyer ’s opinion announcing the judgment of the Court in Colorado I , rebuts the second step of the Government’s argument. Justice Thomas demonstrated that a general party-candidate corruption linkage does not exist. As he pointed out:

“The dearth of evidence [of such corruption] is unsurprising in light of the unique relationship between a political party and its candidates: ‘The very aim of a political party is to influence its candidate’s stance on issues and, if the candidate takes office or is reelected, his votes.’ If coordinated expenditures help achieve this aim, the achievement ‘does not … constitute “a subversion of the political process.” ’ ” Colorado II, supra, at 476–477 (citations omitted).

Justice Breyer reached the same conclusion about the corrupting effect general party receipts could have on particular candidates, though on narrower grounds. He concluded that independent party conduct lacks quid pro quo corruption potential. See Colorado I, 518 U. S., at 617–618; id., at 617 (“If anything, an independent [party] expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor”); id., at 616 (“[T]he opportunity for corruption posed by [soft money] contributions is, at best, attenuated” because they may not be used for the purposes of influencing a federal election under FECA).

These opinions establish that independent party activity, which by definition includes independent receipt and spending of soft money, lacks a possibility for quid pro quo corruption of federal officeholders. This must be all the more true of a party’s independent receipt and spending of soft money donations neither directed to nor solicited by a candidate.

The Government’s premise is also unsupported by the record before us. The record confirms that soft money party contributions, without more, do not create quid pro quo corruption potential. As a conceptual matter, generic party contributions may engender good will from a can- didate or officeholder because, as the Government says: “[A] Member of Congress can be expected to feel a natural temptation to favor those persons who have helped the ‘team,’ ” Brief for Appellees/Cross-Appellants FEC et al. in No. 02–1674 et al., p. 33. Still, no Member of Congress testified this favoritism changed voting behavior.

The piece of record evidence the Government puts forward on this score comes by way of deposition testimony from former Senator Simon and Senator Feingold. See 251 F. Supp. 2d 176, 482 (DC 2003) (Kollar-Kotelly, J.). Senator Simon reported an unidentified colleague indicated frustration with Simon’s opposition to legislation that would benefit a party contributor on the grounds that “ ‘we’ve got to pay attention to who is buttering our bread’ ” and testified he did not think there was any question “ ‘this’ ” ( i.e. , “donors getting their way”) was why the legislation passed. See App. 805. Senator Feingold, too, testified an unidentified colleague suggested he support the legislation because “ ‘they [ i.e. , the donor] just gave us [ i.e. , the party] $100,000.’ ” 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.).

That evidence in fact works against the Government. These two testifying Senators expressed disgust toward the favoring of a soft money giver, and not the good will one would have expected under the Government’s theory. That necessarily undercuts the inference of corruption the Government would have us draw from the evidence.

Even more damaging to the Government’s argument from the testimony is the absence of testimony that the Senator who allegedly succumbed to corrupt influence had himself solicited soft money from the donor in question. Equally, there is no indication he simply favored the company with his vote because it had, without any involvement from him, given funds to the party to which he belonged. This fact is crucial. If the Senator himself had been the solicitor of the soft money funds in question, the incident does nothing more than confirm that Congress’ efforts at campaign finance reform ought to be directed to conduct that implicates quid pro quo relationships. Only if there was some evidence that the officeholder had not solicited funds from the donor could the Court extrapolate from this episode that general party contributions function as quids , inspiring corrupt favoritism among party members. The episode is the single one of its type reported in the record and does not seem sufficient basis for major incursions into settled practice. Given the Government’s claim that the corrupt favoritism problem is widespread, its inability to produce more than a single instance purporting to illustrate the point demonstrates the Government has not fairly characterized the general attitudes of Members towards soft money donors from whom they have not solicited.

Other aspects of the record confirm the Government has not produced evidence that Members corruptly favor soft money donors to their party as a per se matter. Most testimony from which the Government would have the Court infer corruption is testimony that Members are rewarded by their parties for soliciting soft money. See i d., at 438–521 (Kollar-Kotelly, J.). This says nothing about how Members feel about a party’s soft money donors from whom they have not solicited. Indeed, record evidence on this point again cuts against the Government:

“ ‘As a Member of the Senate Finance Committee, I experienced the pressure first hand. On several occasions when we were debating important tax bills, I needed a police escort to get into the Finance Committee hearing room because so many lobbyists were crowding the halls, trying to get one last chance to make their pitch to each Senator. Senators generally knew which lobbyist represented the interests of which large donor. I was often glad that I limited the amount of soft money fundraising I did and did not take PAC contributions, because it would be extremely difficult not to feel beholden to these donors otherwise.’ ” Id., at 482 (testimony of former Senator Boren; see 6–R Defs. Exhs., Tab 8, ¶8).

Thus, one of the handful of Senators on whom the Government relies to make its case candidly admits the pressure of appeasing soft money donors derives from the Members’ solicitation of donors, not from those donors’ otherwise giving to their party.

In light of all this, §323(a) has no valid anticorruption interest. The anticircumvention interests the Government offers in defense of §§323(b), (d), and (f) must also fall with the interests asserted to justify §323(a). Any anticircumvention interest can be only as compelling as the interest justifying the underlying regulation.

None of these other sections has an independent justifying interest. Section 323(b), for example, adds regulation only to activity undertaken by a state party. In the District Court two of the three judges found as fact that particular state and local parties exist primarily to participate in state and local elections, that they spend the majority of their resources on those elections, and that their voter registration and Get Out The Vote (GOTV) activities, in particular, are directed primarily at state and local elections. See 251 F. Supp. 2d, at 301–302 (Henderson, J., concurring in judgment in part and dissenting in part); id., at 837–840 (Leon, J.). These findings, taken together with BCRA’s other, valid prohibitions barring coordination with federal candidates or officeholders and their soft money solicitation, demonstrate that §323(b) does not add regulation to conduct that poses a danger of a federal candidate’s or officeholder’s receipt of quids .

Even §323(b)’s narrowest regulation, which bans state party soft money funded ads that (1) refer to a clearly identified federal candidate, and (2) either support or attack any candidate for the office of the clearly mentioned federal candidate, see new FECA §301(20)(A)(iii), fails the constitutional test. The ban on conduct that by the statute’s own definition may serve the interest of a federal candidate suggests to the majority that it is conduct that poses quid pro quo danger for federal candidates or officeholders. Yet, even this effect—considered after excising the coordination and candidate-solicited funding aspects elsewhere prohibited by BCRA §§202 and 214(a) and new FECA §323(a)—poses no danger of a federal candidate’s or officeholder’s receipt of a quid . That conduct is no different from an individual’s independent expenditure referring to and supporting a clearly identified candidate—and this poses no regulable danger.

Section 323(d), which governs relationships between the national parties and nonprofit groups, fails for similar reasons. It is worth noting that neither the record nor our own experience tells us how significant these funds transfers are at this time. It is plain, however, that the First Amendment ought not to be manipulated to permit Congress to forbid a political party from aiding other speakers whom the party deems more effective in addressing discrete issues. One of the central flaws in BCRA is that Congress is determining what future course the creation of ideas and the expression of views must follow. Its attempt to foreclose new and creative partnerships for speech, as illustrated here, is consistent with neither the traditions nor principles of our Free Speech guarantee, which insists that the people, and not the Congress, decide what modes of expression are the most legitimate and effective.

The majority’s upholding §323(d) is all the more unsettling because of the way it ignores the Act as Congress wrote it. Congress said national parties “shall not solicit any funds for, or make or direct any donations to” §501(c) nonprofit organizations that engage in federal election activity or to §527 political committees. The Court, however, reads out the word “any” and construes the words “funds” and “donations” to mean “soft money funds” and “soft money donations.” See ante , at 72 (“This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole”). The Court’s statutory amendment may be consistent with its anti-soft-money rationale; it is not, however, consistent with the plain and unavoidable statutory text Congress has given us. Even as construed by the Court, moreover, it is invalid.

The majority strains to save the provision from what must seem to it an unduly harsh First Amendment. It does so by making a legislative determination Congress chose not to make: to prefer hard money to soft money within the construct of national party relationships with nonprofit groups. Congress gave no indication of a preference to regulate either hard money or soft in this context. Rather, it simply proscribed all transfers of money between the two organizations and all efforts by the national parties to raise any money on the nonprofit groups’ behalf. The question the Court faces is not which part of a text to sever and strike, but whether Congress can prohibit such transfers altogether. The answer, as the majority recognizes, is no. See ante , at 71 (“[P]rohibiting 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”).

Though §323(f) in effect imposes limits on candidate contributions, it does not address federal candidate and officeholder contributions. Yet it is the possibility of federal officeholder quid pro quo corruption potential that animates Buckley ’s rule as it relates to Acts of Congress (as opposed to Acts of state legislatures). See 424 U. S., at 13 (“The constitutional power of Congress to regulate federal elections is well established”).

When one recognizes that §§323(a), (b), (d), and (f) do not serve the interest the anticorruption rationale contemplates, Title I’s entirety begins to look very much like an incumbency protection plan. See J. Miller, Monopoly Politics 84–101 (1999) (concluding that regulations limiting election fundraising and spending constrain challengers more than incumbents). That impression is worsened by the fact that Congress exempted its officeholders from the more stringent prohibitions imposed on party officials. Compare new FECA §323(a) with new FECA §323(e). Section 323(a) raises an inflexible bar against soft money solicitation, in any way, by parties or party officials. Section 323(e), in contrast, enacts exceptions to the rule for federal officeholders (the very centerpiece of possible corruption), and allows them to solicit soft money for various uses and organizations.

The law in some respects even weakens the regulation of federal candidates and officeholders. Under former law, officeholders were understood to be limited to receipt of hard money by their campaign committees. See 2 U. S. C. §§431 (setting out the pre-BCRA FECA regime). BCRA, however, now allows them and their campaign committees to receive soft money that fits the hard money source and amount restrictions, so long as the officeholders direct that money on to other nonfederal candidates. See new FECA §323(e)(1)(B). The majority’s characterization of this weakening of the regime as “tightly constrain[ing]” candidates, ante, at 73, n. 70, is a prime example of its unwillingness to confront Congress’ own interest or the persisting fact that the regulations violate First Amendment freedoms. The more lenient treatment accorded to incumbency-driven politicians than to party officials who represent broad national constituencies must render all the more suspect Congress’ claim that the Act’s sole purpose is to stop corruption.

The majority answers this charge by stating the obvious, that “§323(e) applies to both officeholders and candidates .” Ante , at 78, n. 72. The controlling point, of course, is the practical burden on challengers. That the prohibition applies to both incumbents and challengers in no way establishes that it burdens them equally in that regard. Name recognition and other advantages held by incumbents ensure that as a general rule incumbents will be advantaged by the legislation the Court today upholds.

The Government identifies no valid anticorruption interest justifying §§323(a), (b), (d), and (f). The very nature of the restrictions imposed by these provisions makes one all the more skeptical of the Court’s explanation of the interests at stake. These provisions cannot stand under the First Amendment.

2. New FECA §323(e)

Ultimately, only one of the challenged Title I provisions satisfies Buckley ’s anticorruption rationale and the First Amendment’s guarantee. It is §323(e). This provision is the sole aspect of Title I that is a direct and necessary regulation of federal candidates’ and officeholders’ receipt of quids . Section 323(e) governs “candidate[s], individual[s] holding Federal office, agent[s] of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office.” 2 U. S. C. A. §441i(e) (Supp. 2003). These provisions, and the regulations that follow, limit candidates’ and their agents’ solicitation of soft money. The regulation of a candidate’s receipt of funds furthers a constitutionally sufficient interest. More difficult, however, is the question whether regulation of a candidate’s solicitation of funds also furthers this interest if the funds are given to another.

I agree with the Court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids . This regulation fits under Buckley ’s anticorruption rationale.

B. Standard of Review

It is common ground between the majority and this opinion that a speech-suppressing campaign finance regulation, even if supported by a sufficient Government interest, is unlawful if it cannot satisfy our designated standard of review. See ante , at 24–27. In Buckley , we applied “closely drawn” scrutiny to contribution limitations and strict scrutiny to expenditure limitations. Compare 424 U. S., at 25, with id., at 44–45. Against that backdrop, the majority assumes that because Buckley applied the rationale in the context of contribution and expenditure limits, its application gives Congress and the Court the capacity to classify any challenged campaign finance regulation as either a contribution or an expenditure limit. Thus, it first concludes Title I’s regulations are contributions limits and then proceeds to apply the lesser scrutiny.

“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.” Ante, at 28.

Though the majority’s analysis denies it, Title I’s dynamics defy this facile, initial classification.

Title I’s provisions prohibit the receipt of funds; and in most instances, but not all, this can be defined as a contribution limit. They prohibit the spending of funds; and in most instances this can be defined as an expenditure limit. They prohibit the giving of funds to nonprofit groups; and this falls within neither definition as we have ever defined it. Finally, they prohibit fundraising activity; and the parties dispute the classification of this regulation (the challengers say it is core political association, while the Government says it ultimately results only in a limit on contribution receipts).

The majority’s classification overlooks these competing characteristics and exchanges Buckley ’s substance for a formulaic caricature of it. Despite the parties’ and the majority’s best efforts on both sides of the question, it ignores reality to force these regulations into one of the two legal categories as either contribution or expenditure limitations. Instead, these characteristics seem to indicate Congress has enacted regulations that are neither contribution nor expenditure limits, or are perhaps both at once.

Even if the laws could be classified in broad terms as only contribution limits, as the majority is inclined to do, that still leaves the question what “contribution limits” can include if they are to be upheld under Buckley . Buckley ’s application of a less exacting review to contribution limits must be confined to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder. Any broader definition of the category contradicts Buckley ’s quid pro quo rationale and overlooks Buckley ’s language, which contemplates limits on contributions to a candidate or campaign committee in explicit terms. See 424 U. S., at 13 (applying less exacting review to “contribution … limitations in the Act prohibit[ing] individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign”); id., at 45 (“[T]he contribution limitations’ [apply a] total ban on the giving of large amounts of money to candidates”). See also id., at 20, 25, 28.

The Court, it must be acknowledged, both in Buckley and on other occasions, has described contribution limits due some more deferential review in less than precise terms. At times it implied that donations to political parties would also qualify as contributions whose limitation too would be subject to less exacting review. See id., at 23–24, n. 24 (“[T]he general understanding of what constitutes a political contribution[:] Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution”). See also Federal Election Comm’n v. Beaumont , 539 U. S., at ___ (2003) (slip op., at 14) (“ ‘[C]ontributions may result in political expression if spent by a candidate or an association’ ”).

These seemingly conflicting statements are best reconciled by reference to Buckley ’s underlying rationale for applying less exacting review. In a similar, but more imperative, sense proper application of the standard of review to regulations that are neither contribution nor expenditure limits (or which are both at once) can only be determined by reference to that rationale.

Buckley ’s underlying rationale is this: Less exacting review applies to Government regulations that “significantly interfere” with First Amendment rights of association. But any regulation of speech or associational rights creating “markedly greater interference” than such significant interference receives strict scrutiny. Unworkable and ill advised though it may be, Buckley unavoidably sets forth this test:

“Even a ‘ “significant interference” with protected rights of political association’ may be sustained if the State demonstrates [1] a sufficiently important interest and [2] employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda , [ 419 U. S. 477, 488 (1975) ]; NAACP v. Button, [ 371 U. S. 415, 438 (1963) ]; Shelton v. Tucker [ 364 U. S. 479, 488 (1960) ] .” 424 U. S., at 25.

“The markedly greater burden on basic freedoms [referring to ‘the freedom of speech and association’] caused by [expenditure limits] thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of [the expenditure limits] turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.” Id., at 44–45.

The majority, oddly enough, first states this standard with relative accuracy, but then denies it. Compare:

“The relevant inquiry [in determining the level of scrutiny] 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,” ante , at 28–29, with:

“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.” Ante , at 31.

The majority’s attempt to separate out how burdens on speech rights and burdens on associational rights affect the standard of review is misguided. It is not even true to Buckley ’s unconventional test. Buckley , as shown in the quotations above, explained the lower standard of review by reference to the level of burden on associational rights, and it explained the need for a higher standard of review by reference to the higher burdens on both associational and speech rights. In light of Buckley ’s rationale, and in light of this Court’s ample precedent affirming that burdens on speech necessitate strict scrutiny review, see 424 U. S., at 44–45 (“[E]xacting scrutiny [applies] to limitations on core First Amendment rights of political expression”), “closely drawn” scrutiny should be employed only in review of a law that burdens rights of association, and only where that burden is significant, not markedly greater. Since the Court professes not to repudiate Buckley , it was right first to say we must determine how significant a burden BCRA’s regulations place on First Amendment rights, though it should have specified that the rights implicated are those of association. Its later denial of that analysis flatly contradicts Buckley .

The majority makes Buckley ’s already awkward and imprecise test all but meaningless in its application. If one is viewing BCRA through Buckley ’s lens, as the majority purports to do, one must conclude the Act creates markedly greater associational burdens than the significant burden created by contribution limitations and, unlike contribution limitations, also creates significant burdens on speech itself. While BCRA contains federal contribution limitations, which significantly burden association, it goes even further. The Act entirely reorders the nature of relations between national political parties and their candidates, between national political parties and state and local parties, and between national political parties and nonprofit organizations.

The many and varied aspects of Title I’s regulations impose far greater burdens on the associational rights of the parties, their officials, candidates, and citizens than do regulations that do no more than cap the amount of money persons can contribute to a political candidate or committee. The evidence shows that national parties have a long tradition of engaging in essential associational activities, such as planning and coordinating fundraising with state and local parties, often with respect to elections that are not federal in nature. This strengthens the conclusion that the regulations now before us have unprecedented impact. It makes impossible, moreover, the contrary conclusion—which the Court’s standard of review determination necessarily implies—that BCRA’s soft money regulations will not much change the nature of association between parties, candidates, nonprofit groups, and the like. Similarly, Title I now compels speech by party officials. These officials must be sure their words are not mistaken for words uttered in their official capacity or mistaken for soliciting prohibited soft, and not hard, money. Few interferences with the speech, association, and free expression of our people are greater than attempts by Congress to say which groups can or cannot advocate a cause, or how they must do it.

Congress has undertaken this comprehensive reordering of association and speech rights in the name of enforcing contribution limitations. Here, however, as in Buckley , “[t]he markedly greater burden on basic freedoms caused by [BCRA’s pervasive regulation] cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations.” Id., at 44–45. BCRA fundamentally alters, and thereby burdens, protected speech and association throughout our society. Strict scrutiny ought apply to review of its constitutionality. Under strict scrutiny, the congressional scheme, for the most part, cannot survive. This is all but acknowledged by the Government, which fails even to argue that strict scrutiny could be met.

1. New FECA §323(e)

Because most of the Title I provisions discussed so far do not serve a compelling or sufficient interest, the standard of review analysis is only dispositive with respect to new FECA §323(e). As to §323(e), 2 U. S. C. A. §441i(e) (Supp. 2003), I agree with the Court that this provision withstands constitutional scrutiny.

Section 323(e) is directed solely to federal candidates and their agents; it does not ban all solicitation by candidates, but only their solicitation of soft money contributions; and it incorporates important exceptions to its limits (candidates may receive, solicit, or direct funds that comply with hard money standards; candidates may speak at fundraising events; candidates may solicit or direct unlimited funds to organizations not involved with federal election activity; and candidates may solicit or direct up to $20,000 per individual per year for organizations involved with certain federal election activity ( e.g. , GOTV, voter registration)). These provisions help ensure that the law is narrowly tailored to satisfy First Amendment requirements. For these reasons, I agree §323(e) is valid.

2. New FECA §§323(a), (b), (d), and (f)

Though these sections do not survive even the first test of serving a constitutionally valid interest, it is necessary as well to examine the vast overbreadth of the remainder of Title I, so the import of the majority’s holding today is understood. Sections 323(a), (b), (d), and (f), 2 U. S. C. A. §§441i(a), (b), (d), and (f) (Supp. 2003), are not narrowly tailored, cannot survive strict scrutiny, and cannot even be considered closely drawn, unless that phrase is emptied of all meaning.

First, the sections all possess fatal overbreadth. By regulating conduct that does not pose quid pro quo dangers, they are incursions on important categories of protected speech by voters and party officials.

At the next level of analytical detail, §323(a) is overly broad as well because it regulates all national parties, whether or not they present candidates in federal elections. It also regulates the national parties’ solicitation and direction of funds in odd-numbered years when only state and local elections are at stake.

Likewise, while §323(b) might prohibit some state party conduct that would otherwise be undertaken in conjunction with a federal candidate, it reaches beyond that to a considerable range of campaign speech by the state parties on nonfederal issues. A state or local party might want to say: “The Democratic slate for state assembly opposes President Bush’s tax policy … . Elect the Republican slate to tell Washington, D. C. we don’t want higher taxes.” Section 323(b) encompasses this essential speech and prohibits it equally with speech that poses a federal officeholder quid quo pro danger.

Other predictable political circumstances further demonstrate §323(b)’s overbreadth. It proscribes the use of soft money for all state party voter registration efforts occurring within 120 days of a federal election. So, the vagaries of election timing, not any real interest related to corruption, will control whether state parties can spend nonfederally regulated funds on ballot efforts. This overreaching contradicts important precedents that recognize the need to protect political speech for campaigns related to ballot measures. See generally Citizens Against Rent Control , 454 U. S. 290 (1981) ; First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) .

Section 323(b) also fails the narrow tailoring requirement because less burdensome regulatory options were available. The Government justifies the provision as an attempt to stop national parties from circumventing the soft money allocation constraints they faced under the prior FECA regime. We are told that otherwise the national parties would let the state parties spend money on their behalf. If, however, the problem were avoidance of allocation rates, Congress could have made any soft money transferred by a national party to a state party subject to the allocation rates that governed the national parties’ similar use of the money.

Nor is §323(d) narrowly tailored. The provision, proscribing any solicitation or direction of funds, prohibits the parties from even distributing or soliciting regulated money ( i.e. , hard money). It is a complete ban on this category of speech. To prevent circumvention of contribution limits by imposing a complete ban on contributions is to burden the circumventing conduct more severely than the underlying suspect conduct could be burdened.

By its own terms, the statute prohibits speech that does not implicate federal elections. The provision prohibits any transfer to a §527 organization, irrespective of whether the organization engages in federal election activity. This is unnecessary, as well, since Congress enacted a much narrower provision in §323(a)(2) to prevent circumvention by the parties via control of other organizations. Section 323(a)(2) makes “any entity that is directly or indirectly . . . controlled by” the national parties subject to the same §323(a) prohibitions as the parties themselves. 2 U. S. C. A. §441i (Supp. 2003).

Section 323(f), too, is not narrowly tailored or even close to it. It burdens a substantial body of speech and expression made entirely independent of any federal candidate. The record, for example, contains evidence of Alabama Attorney General Pryor’s reelection flyers showing a picture of Pryor shaking hands with President Bush and stating: “Bush appointed Pryor to be Alabama co-chairman of the George W. Bush for President campaign.” A host of circumstances could make such statements advisable for state candidates to use without any coordination with a federal candidate. Section 323(f) incorporates no distinguishing feature, such as an element of coordination, to ensure First Amendment protected speech is not swept up within its bounds.

Compared to the narrowly tailored effort of §323(e), which addresses in direct and specific terms federal candidates’ and officeholders’ quest for dollars, these sections cast a wide net not confined to the critical categories of federal candidate or officeholder involvement. They are not narrowly tailored; they are not closely drawn; they flatly violate the First Amendment; and even if they do encompass some speech that poses a regulable quid pro quo danger, that little assurance does not justify or permit a regime which silences so many legitimate voices in this protected sphere.

C. Coordination Provisions

Other BCRA Title II sections require analysis alongside the provisions of Title I, for they, too, are regulations that principally operate within the ambit of Buckley ’s anticorruption principle. BCRA §§202 and 214 are two of these provisions. They involve the Act’s new definition of coordination. BCRA §213 is another. It institutes a new system in which the parties are forced to choose between two different types of relationships with their candidates.

1.

I agree with the majority that §§214(b) and (c) do not merit our review because they are not now justiciable. See ante , at 118. I disagree, however, with the majority’s view that §214(a), §214’s sole justiciable provision, is valid. Nor can I agree that §202 is valid in its entirety.

Section 214(a) amends FECA to define, as hard money contributions to a political party, expenditures an individual makes in concert with the party. See ante , at 114. This provision, in my view, must fall. As the earlier discussion of Title I explains, individual contributions to the political parties cannot be capped in the soft money context. Since an individual’s soft money contributions to a party may not be limited, it follows with even greater force that an individual’s expenditure of money, coordinated with the party for activities on which the party could spend unlimited soft money, cannot be capped.

This conclusion emerges not only from an analysis of Title I but also from Colorado I . There, Justice Breyer ’s opinion announcing the judgment of the Court concluded political parties had a constitutional right to engage in independent advocacy on behalf of a candidate. 518 U. S. 604 (1996) . That parties can spend unlimited soft money on this activity follows by necessary implication. A political party’s constitutional right to spend money on advocacy independent of a candidate is burdened by §214(a) in a direct and substantial way. The statute commands the party to refrain from coordinating with an individual engaging in advocacy even if the individual is acting independently of the candidate.

Section 202 functions in a manner similar to the operation of §214(a). It directs that when persons make “electioneering communications,” see new FECA §304(f)(3), 2 U. S. C. A. §434(f)(3) (Supp. 2003), in a coordinated fashion with a candidate or a party, the coordinated communication expense must be treated as a hard money contribution by the person to that candidate or party. The trial court erroneously believed it needed to determine whether §304’s definition of electioneering communications was itself unconstitutional to assess this provision. While a statutory definition may lead to an unconstitutional result under one application, it may lead to a constitutional result under another. Compare infra , at 35–36; infra , at 38, with infra , at 63–66. It is unhelpful to talk in terms of the definition being unconstitutional or constitutional when the only relevant question is whether, as animated by a substantive prohibition, here §202, the definition leads to unconstitutional results. The other Title II provisions that employ §304’s electioneering communication definition are analyzed below, within the context of the corporate speech rationale and the disclosure provisions. Section 202, however, must be judged under the anticorruption rationale because it does not distinguish according to corporate or union status, and it does not involve disclosure requirements. Section 202 simply limits the speech of all “persons.”

Section 202 does satisfy Buckley ’s anticorruption rationale in one respect: It treats electioneering communications expenditures made by a person in coordination with a candidate as hard money contributions to that candidate. For many of the same reasons that §323(e) is valid, §202, in this single way, is valid: it regulates conduct that poses a quid pro quo danger—satisfaction of a candidate’s request.

Insofar as §202 regulates coordination with a political party, however, it suffers from the same flaws as §214(a). Congress has instructed us, as much as possible, to sever any infirm portions of statutory text from the valid parts, see BCRA §401. Following that instruction, I would uphold §202’s text as to its candidate coordination regulation (the first clause of new FECA §315(a)(7)(C)(ii), 2 U. S. C. A. §441a(a)(7)(C)(ii) (Supp. 2003), but rule invalid its text that applies the coordination provision to political parties.

This provision includes an “advance contracts” aspect as well. That aspect of the provision, on its own, would be invalid, for many of the reasons discussed below with respect to the advance disclosure requirements embodied in BCRA §§201 and 212. See infra , at 38–39.

2.

The final aspect of BCRA that implicates Buckley ’s anticorruption rationale is §213, the forced choice provision. The majority concludes §213 violates the Constitution. I agree and write on this aspect of the case to point out that the section’s unlawfulness flows not from the unique contours of the statute that settle how much political parties may spend on their candidate’s campaign, see ante , at 109–113, but from its raw suppression of constitutionally protected speech.

Section 213 unconstitutionally forces the parties to surrender one of two First Amendment rights. We affirmed that parties have a constitutionally protected right to make independent expenditures in Colorado I . I continue to believe, moreover, that even under Buckley a political party has a protected right to make coordinated expenditures with its candidates. See Colorado II , 533 U. S., at 466–482 ( Thomas , J., dissenting). Our well-established constitutional tradition respects the role parties play in the electoral process and in stabilizing our representative democracy. “There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government.” Davis v. Bandemer , 478 U. S. 109, 144–145 (1986) ( O’Connor , J., concurring in judgment). This role would be undermined in the absence of a party’s ability to coordinate with candidates. Cf. Colorado I , supra, at 629 (parties can “give effect to their views only by selecting and supporting candidates”) ( Kennedy , J., concurring in judgment and dissenting in part). Section 213’s command that the parties abandon one First Amendment right or the other offends the Constitution even more than a command that a person choose between a First Amendment right and a statutory right.

II. TITLE II PROVISIONS

A. Disclosure Provisions

BCRA §201, which requires disclosure of electioneering communications, including those coordinated with the party but independent of the candidate, does not substantially relate to a valid interest in gathering data about compliance with contribution limits or in deterring corruption. Contra, ante , at 89. As the above analysis of Title I demonstrates, Congress has no valid interest in regulating soft money contributions that do not pose quid pro quo corruption potential. In the absence of a valid basis for imposing such limits the effort here to ensure compliance with them and to deter their allegedly corrupting effects cannot justify disclosure. The regulation does substantially relate to the other interest the majority details, however. See ibid. This assures its constitutionality. For that reason, I agree with the Court’s judgment upholding the disclosure provisions contained in §201 of Title II, with one exception.

Section 201’s advance disclosure requirement—the aspect of the provision requiring those who have contracted to speak to disclose their speech in advance—is, in my view, unconstitutional. Advance disclosure imposes real burdens on political speech that post hoc disclosure does not. It forces disclosure of political strategy by revealing where ads are to be run and what their content is likely to be (based on who is running the ad). It also provides an opportunity for the ad buyer’s opponents to dissuade broadcasters from running ads. See Brief for Plaintiffs-Appellants/Cross-Appellees National Right to Life Committee, Inc., et al. in No. 02–1733 et al., pp. 44–46, and nn. 42–43. Against those tangible additional burdens, the Government identifies no additional interest uniquely served by advance disclosure. If Congress intended to ensure that advertisers could not flout these disclosure laws by running an ad before the election, but paying for it afterwards, see ante , at 93–94, then Congress should simply have required the disclosure upon the running of the ad. Burdening the First Amendment further by requiring advance disclosure is not a constitutionally acceptable alternative. To the extent §201 requires advance disclosure, it finds no justification in its subordinating interests and imposes greater burdens than the First Amendment permits.

Section 212, another disclosure provision, likewise incorporates an advance disclosure requirement. The plaintiffs challenge only this advance disclosure requirement, and not the broader substance of this section. The majority concludes this challenge is not ripe. I disagree.

The statute commands advance disclosure. The FEC has issued a regulation under §212 that, by its terms, does not implement this particular requirement. See 68 Fed. Reg. 404, 452 (2003) (to be codified at 11 CFR §109.10(c)(d)). Adoption of a regulation that does not implement the statute to its full extent does not erase the statutory requirement. This is not a case in which a statute is ambiguous and the agency interpretation can be relied upon to avoid a statutory obligation that is uncertain or arguable. The failure of the regulation at this point to require advance disclosure is of no moment. Contra, 251 F. Supp. 2d, at 251 (per curiam) . The validity of §212 is an issue presented for our determination; it is ripe; and the advance disclosure requirement, for the reasons given when discussing the parallel provision under §201, is unconstitutional. Contra, ante , at 106 (declining to address the ripeness question in light of the majority’s rejection of the challenge to advance notice in §201).

B. BCRA §203

The majority permits a new and serious intrusion on speech when it upholds §203, the key provision in Title II that prohibits corporations and labor unions from using money from their general treasury to fund electioneering communications. The majority compounds the error made in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990) , and silences political speech central to the civic discourse that sustains and informs our democratic pro-cesses. Unions and corporations, including nonprofit corporations, now face severe criminal penalties for broadcasting advocacy messages that “refe[r] to a clearly identified candidate,” 2 U. S. C. A. §431(20)(A)(iii) (Supp. 2003), in an election season. Instead of extending Austin to suppress new and vibrant voices, I would overrule it and return our campaign finance jurisprudence to principles consistent with the First Amendment.

1.

The Government and the majority are right about one thing: The express-advocacy requirement, with its list of magic words, is easy to circumvent. The Government seizes on this observation to defend BCRA §203, arguing it will prevent what it calls “sham issue ads” that are really to the same effect as their more express counterparts. Ante, at 78, 85–87. What the Court and the Government call sham, however, are the ads speakers find most effective. Unlike express ads that leave nothing to the imagination, the record shows that issues ads are preferred by almost all candidates, even though politicians, unlike corporations, can lawfully broadcast express ads if they so choose. It is a measure of the Government’s disdain for protected speech that it would label as a sham the mode of communication sophisticated speakers choose because it is the most powerful.

The Government’s use of the pejorative label should not obscure §203’s practical effect: It prohibits a mass communication technique favored in the modern political process for the very reason that it is the most potent. That the Government would regulate it for this reason goes only to prove the illegitimacy of the Government’s purpose. The majority’s validation of it is not sustainable under accepted First Amendment principles. The problem is that the majority uses Austin , a decision itself unfaithful to our First Amendment precedents, to justify banning a far greater range of speech. This has it all backwards. If protected speech is being suppressed, that must be the end of the inquiry.

The majority’s holding cannot be reconciled with First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) , which invalidated a Massachusetts law prohibiting banks and business corporations from making expenditures “for the purpose of” influencing referendum votes on issues that do not “materially affect” their business interests. Id. , at 767. Bellotti was decided in the face of the same arguments on which the majority now relies. Corporate participation, the Government argued in Bellotti , “would exert an undue influence on the outcome of a referendum vote.” Id. , at 789. The influence, presumably, was undue because “immense aggregations of wealth” were facilitated by the “unique state-conferred corporate structure.” Austin , 494 U. S., at 660. With these “state-created advantages,” id. , at 659, corporations would “drown out other points of view” and “destroy the confidence of the people in the democratic process.” Bellotti , 435 U. S., at 789. Bellotti rejected these arguments in emphatic terms:

“To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution ‘protects expression which is eloquent no less than that which is unconvincing.’ Kingsley Int’l Pictures Corp. v. Regents , 360 U. S., at 689… . ‘[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment… .’ Buckley , 424 U. S., at 48–49.” Id., at 790–791.

Bellotti similarly dismissed the argument that the prohibition was necessary to “protec[t] corporate shareholders” “by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree.” Id., at 792–793. Among other problems, the statute was overinclusive:

“[It] would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure… . Acting through their power to elect the board of directors or to insist upon protective provisions in the corporation’s charter, shareholders normally are presumed competent to protect their own interests… . [M]inority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements … . Assuming, arguendo , that protection of shareholders is a ‘compelling’ interest under the circumstances of this case, we find ‘no substantially relevant correlation between the governmental interest asserted and the State’s effort’ to prohibit appellants from speaking.” Id. , at 794–795.

See also Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (providing analogous protections to union members).

Austin turned its back on this holding, not because the Bellotti Court had overlooked the Government’s interest in combating quid pro quo corruption, but because a new majority decided to recognize “a different type of corruption,” Austin , 494 U. S., at 660, i.e., the same “corrosive and distorting effects of immense aggregations of wealth,” ibid., found insufficient to sustain a similar prohibition just a decade earlier. Unless certain narrow exceptions apply, see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), the prohibition extends even to nonprofit corporations organized to promote a point of view. Aside from its disregard of precedents, the majority’s ready willingness to equate corruption with all organizations adopting the corporate form is a grave insult to nonprofit and for-profit corporations alike, entities that have long enriched our civic dialogue.

Austin was the first and, until now, the only time our Court had allowed the Government to exercise the power to censor political speech based on the speaker’s corporate identity. The majority’s contrary contention is simply incorrect. Contra, ante, at 96–97 (“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”). I dissented in Austin , 494 U. S., at 695, and continue to believe that the case represents an indefensible departure from our tradition of free and robust debate. Two of my colleagues joined the dissent, including a member of today’s majority. Ibid. ( O’Connor and Scalia , JJ.). See also id., at 679 (S calia , J., dissenting).

To be sure, Bellotti concerns issue advocacy, whereas Austin is about express advocacy. This distinction appears to have accounted for the position of at least two members of the Court. See 494 U. S., at 675–676 (Brennan, J., concurring) (“The Michigan law . . . prohibits corporations from using treasury funds only for making independent expenditures in support of, or in opposition to, any candidate in state elections. A corporation remains free … to use general treasury funds to support an initiative proposal in a state referendum” (citation omitted)); id. , at 678 ( Stevens , J., concurring) (“[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other”). The distinction, however, between independent expenditures for commenting on issues, on the one hand, and supporting or opposing a candidate, on the other, has no First Amendment significance apart from Austin ’s arbitrary line.

Austin was based on a faulty assumption. Contrary to Justice Stevens ’ proposal that there is “vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other,” ibid. , there is a general recognition now that discussions of candidates and issues are quite often intertwined in practical terms. See, e.g., Brief for Intervenor-Defendants Senator John McCain et al. in No. 02–1674 et al., p. 42 (“ ‘[The] legal … wall between issue advocacy and political advocacy … is built of the same sturdy material as the emperor’s clothing. Everyone sees it. No one believes it’ ” (quoting the chair of the Political Action Committee (PAC) of the National Rifle Association (NRA))). To abide by Austin ’s repudiation of Bellotti on the ground that Bellotti did not involve express advocacy is to adopt a fiction. Far from providing a rationale for expanding Austin , the evidence in these consolidated cases calls for its reexamination. Just as arguments about immense aggregations of corporate wealth and concerns about protecting shareholders and union members do not justify a ban on issue ads, they cannot sustain a ban on independent expenditures for express ads. In holding otherwise, Austin “forced a substantial amount of political speech underground” and created a species of covert speech incompatible with our free and open society. Nixon v. Shrink Missouri Gov- ernment PAC, 528 U. S., at 406 ( Kennedy , J., dissenting).

The majority not only refuses to heed the lessons of experience but also perpetuates the conflict Austin created with fundamental First Amendment principles. Buckley foresaw that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” 424 U. S., at 42; see also id. , at 45. It recognized that “ ‘[p]ublic discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct.’ ” Id. , at 42, n. 50. Hence, “ ‘[d]iscussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.’ ” Ibid. In glossing over Austin ’s opposite—and false—assumption that express advocacy is different, the majority ignores reality and elevates a distinction rejected by Buckley in clear terms.

Even after Buckley construed the statute then before the Court to reach only express advocacy, it invalidated limits on independent expenditures, observing that “[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.” 424 U. S., at 48. Austin defied this principle. It made the impermissible content-based judgment that commentary on candidates is less deserving of First Amendment protection than discussions of policy. In its haste to reaffirm Austin today, the majority refuses to confront this basic conflict between Austin and Buckley . It once more diminishes the First Amendment by ignoring its command that the Government has no power to dictate what topics its citizens may discuss. See Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530 (1980) .

Continued adherence to Austin , of course, cannot be justified by the corporate identity of the speaker. Not only does this argument fail to account for Bellotti , 435 U. S., at 777 (“The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual”), but Buckley itself warned that “[t]he First Amendment’s protection against governmental abridgment of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion.” 424 U. S., at 49; see also id. , at 48–49; Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972) . The exemption for broadcast media companies, moreover, makes the First Amendment problems worse, not better. See Austin , 494 U. S., at 712 ( Kennedy , J., dissenting) (“An independent ground for invalidating this statute is the blanket exemption for media corporations. . . . All corporations communicate with the public to some degree, whether it is their business or not; and communication is of particular importance for nonprofit corporations”); see also id. , at 690–691 ( Scalia , J., dissenting) (“Amassed corporate wealth that regularly sits astride the ordinary channels of information is much more likely to produce the New Corruption (too much of one point of view) than amassed corporate wealth that is generally busy making money elsewhere”). In the end the majority can supply no principled basis to reason away Austin ’s anomaly. Austin ’s errors stand exposed, and it is our duty to say so.

I surmise that even the majority, along with the Government, appreciates these problems with Austin . That is why it invents a new justification. We are now told that “the government also has a compelling interest in insulating federal elections from the type of corruption arising from the real or apparent creation of political debts.” Brief for Appellees/Cross-Appellants FEC et al. in No. 02–1674 et al., p. 88. “[E]lectioneering communications paid for with the general treasury funds of labor unions and corporations,” the Government warns, “endea[r] those entities to elected officials in a way that could be perceived by the public as corrupting.” See 251 F. Supp. 2d, at 622–623 (Kollar-Kotelly, J.) (stating the Government’s position).

This rationale has no limiting principle. Were we to accept it, Congress would have the authority to outlaw even pure issue ads, because they, too, could endear their sponsors to candidates who adopt the favored positions. Taken to its logical conclusion, the alleged Government interest “in insulating federal elections from … the real or apparent creation of political debts” also conflicts with Buckley . If a candidate feels grateful to a faceless, impersonal corporation for making independent expenditures, the gratitude cannot be any less when the money came from the CEO’s own pocket. Buckley , however, struck down limitations on independent expenditures and rejected the Government’s corruption argument absent evidence of coordination. See 424 U. S., at 51. The Government’s position would eviscerate the line between expenditures and contributions and subject both to the same “complaisant review under the First Amendment.” Federal Election Committee v. Beaumont , 539 U. S., at ___ (slip op., at 14). Complaisant or otherwise, we cannot cede authority to the Legislature to do with the First Amendment as it pleases. Since Austin is inconsistent with the First Amendment, its extension diminishes the First Amendment even further. For this reason §203 should be held unconstitutional.

2.

Even under Austin , BCRA §203 could not stand. All parties agree strict scrutiny applies; §203, however, is far from narrowly tailored.

The Government is unwilling to characterize §203 as a ban, citing the possibility of funding electioneering communications out of a separate segregated fund. This option, though, does not alter the categorical nature of the prohibition on the corporation. “[T]he corporation as a corporation is prohibited from speaking.” Austin , 494 U. S., at 681, n. ( Scalia , J., dissenting). What the law allows—permitting the corporation “to serve as the founder and treasurer of a different association of individuals that can endorse or oppose political candidates”—“is not speech by the corporation.” Ibid.

Our cases recognize the practical difficulties corporations face when they are limited to communicating through PACs. The majority need look no further than MCFL, 479 U. S. 238, for an extensive list of hurdles PACs have to confront:

“Under [2 U. S. C.] §432 [(1982 ed.)], [MCFL] must appoint a treasurer, §432(a); ensure that contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the amount of contribution, §432(b)(2); see that its treasurer keeps an account of every contribution regardless of amount, the name and address of any person who makes a contribution in excess of $50, all contributions received from political committees, and the name and address of any person to whom a disbursement is made regardless of amount, §432(c); and preserve receipts for all disbursements over $200 and all records for three years, §§432(c), (d). Under §433, MCFL must file a statement of organization containing its name, address, the name of its custodian of records, and its banks, safety deposit boxes, or other depositories, §§433(a), (b); must report any change in the above information within 10 days, §433(c); and may dissolve only upon filing a written statement that it will no longer receive any contributions nor make disbursements, and that it has no outstanding debts or obligations, §433(d)(1).

“Under §434, MCFL must file either monthly reports with the FEC or reports on the following schedule: quarterly reports during election years, a pre-election report no later than the 12th day before an election, a postelection report within 30 days after an election, and reports every 6 months during nonelection years. §§434(a)(4)(A), (B). These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate’s authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. §434(b). In addition, MCFL may solicit contributions for its separate segregated fund only from its ‘members,’ §§441b(b)(4)(A), (C), which does not include those persons who have merely contributed to or indicated support for the organization in the past.” Id., at 253–254.

These regulations are more than minor clerical requirements. Rather, they create major disincentives for speech, with the effect falling most heavily on smaller entities that often have the most difficulty bearing the costs of compliance. Even worse, for an organization that has not yet set up a PAC, spontaneous speech that “refers to a clearly identified candidate for Federal office” becomes impossible, even if the group’s vital interests are threatened by a piece of legislation pending before Congress on the eve of a federal election. See Brief for Appellants Chamber of Commerce of the United States et al. in No. 02–1756 et al., p. 37. Couple the litany of administrative burdens with the categorical restriction limiting PACs’ solicitation activities to “members,” and it is apparent that PACs are inadequate substitutes for corporations in their ability to engage in unfettered expression.

Even if the newly formed PACs manage to attract members and disseminate their messages against these heavy odds, they have been forced to assume a false identity while doing so. As the American Civil Liberties Union (ACLU) points out, political committees are regulated in minute detail because their primary purpose is to influence federal elections. “The ACLU and thousands of other organizations like it,” however, “are not created for this purpose and therefore should not be required to operate as if they were.” Reply Brief for Appellant ACLU in No. 02–1734 et al., p. 15. A requirement that coerces corporations to adopt alter egos in communicating with the public is, by itself, sufficient to make the PAC option a false choice for many civic organizations. Forcing speech through an artificial “secondhand endorsement structure … debases the value of the voice of nonprofit corporate speakers … [because] PAC’s are interim, ad hoc organizations with little continuity or responsibility.” Austin , 494 U. S., at 708–709 ( Kennedy , J., dissenting). In contrast, their sponsoring organizations “have a continuity, a stability, and an influence” that allows “their members and the public at large to evaluate their … credibility.” Id., at 709.

The majority can articulate no compelling justification for imposing this scheme of compulsory ventriloquism. If the majority is concerned about corruption and distortion of the political process, it makes no sense to diffuse the corporate message and, under threat of criminal penalties, to compel the corporation to spread the blame to its ad hoc intermediary.

For all these reasons, the PAC option cannot advance the Government’s argument that the provision meets the test of strict scrutiny. See, e.g., id. , at 657–660; MCFL, 479 U. S. 238; see also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 826 (2000) (“When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression”).

Once we turn away from the distraction of the PAC option, the provision cannot survive strict scrutiny. Under the primary definition, §203 prohibits unions and corporations from funding from their general treasury any broadcast, cable, or satellite communication which—

“(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 for an office other than President or Vice President, is targeted to the relevant electorate.” 2 U. S. C. A. §434f(3)(A)(i) (Supp. 2003).

The prohibition, with its crude temporal and geographic proxies, is a severe and unprecedented ban on protected speech. As discussed at the outset, suppose a few Senators want to show their constituents in the logging industry how much they care about working families and propose a law, 60 days before the election, that would harm the environment by allowing logging in national forests. Under §203, a nonprofit environmental group would be unable to run an ad referring to these Senators in their districts. The suggestion that the group could form and fund a PAC in the short time required for effective participation in the political debate is fanciful. For reasons already discussed, moreover, an ad hoc PAC would not be as effective as the environmental group itself in gaining credibility with the public. Never before in our history has the Court upheld a law that suppresses speech to this extent.

The group would want to refer to these Senators, either by name or by photograph, not necessarily because an election is at stake. It might be supposed the hypothetical Senators have had an impeccable environmental record, so the environmental group might have no previous or present interest in expressing an opinion on their candidacies. Or, the election might not be hotly contested in some of the districts, so whatever the group says would have no practical effect on the electoral outcome. The ability to refer to candidates and officeholders is important because it allows the public to communicate with them on issues of common concern. Section 203’s sweeping approach fails to take into account this significant free speech interest. Under any conventional definition of overbreadth, it fails to meet strict scrutiny standards. It forces electioneering communications sponsored by an environmental group to contend with faceless and nameless opponents and consign their broadcast, as the NRA well puts it, to a world where politicians who threaten the environment must be referred to as “ ‘ He Whose Name Cannot Be Spoken.’ ” Reply Brief for Appellants NRA et al. in No. 02–1675 et al., p. 19.

In the example above, it makes no difference to §203 or to the Court that the bill sponsors may have such well-known ideological biases that revealing their identity would provide essential instruction to citizens on whether the policy benefits them or their community. Nor does it make any difference that the names of the bill sponsors, perhaps through repetition in the news media, have become so synonymous with the proposal that referring to these politicians by name in an ad is the most effective way to communicate with the public. Section 203 is a comprehensive censor: On the pain of a felony offense, the ad must not refer to a candidate for federal office during the crucial weeks before an election.

We are supposed to find comfort in the knowledge that the ad is banned under §203 only if it “is targeted to the relevant electorate,” defined as communications that can be received by 50,000 or more persons in the candidate’s district. See 2 U. S. C. A. §434(f)(3)(C) (Supp. 2003). This Orwellian criterion, however, is analogous to a law, unconstitutional under any known First Amendment theory, that would allow a speaker to say anything he chooses, so long as his intended audience could not hear him. See Kleindienst v. Mandel, 408 U. S. 753, 762–765 (1972) (discussing the “ First Amendment right to receive information and ideas” (internal quotation marks omitted)). A central purpose of issue ads is to urge the public to pay close attention to the candidate’s platform on the featured issues. By banning broadcast in the very district where the candidate is standing for election, §203 shields information at the heart of the First Amendment from precisely those citizens who most value the right to make a responsible judgment at the voting booth.

In defending against a facial attack on a statute with substantial overbreadth, it is no answer to say that corporations and unions may bring as-applied challenges on a case-by-case basis. When a statute is as out of bounds as §203, our law simply does not force speakers to “undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation.” Virginia v. Hicks , 539 U. S. ___ , ___ (2003) (slip op., at 5). If they instead “abstain from protected speech,” they “har[m] not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Ibid. Not the least of the ill effects of today’s decision is that our overbreadth doctrine, once a bulwark of protection for free speech, has now been manipulated by the Court to become but a shadow of its former self.

In the end the Government and intervenor-defendants cannot dispute the looseness of the connection between §203 and the Government’s proffered interest in stemming corruption. At various points in their briefs, they drop all pretense that the electioneering ban bears a close relation to anticorruption purposes. Instead, they defend §203 on the ground that the targeted ads “may influence,” are “likely to influence,” or “will in all likelihood have the effect of influencing” a federal election. See Brief for Appellees/Cross-Appellants FEC et al. in No. 02–1674 et al., pp. 14, 24, 84, 92–93, 94; Brief for Intervenor-Defendants Senator John McCain et al. in No. 02–1674 et al., pp. 42–43. The mere fact that an ad may, in one fashion or another, influence an election is an insufficient reason for outlawing it. I should have thought influencing elections to be the whole point of political speech. Neither strict scrutiny nor any other standard the Court has adopted to date permits outlawing speech on the ground that it might influence an election, which might lead to greater access to politicians by the sponsoring organization, which might lead to actual corruption or the appearance of corruption. Settled law requires a real and close connection between end and means. The attenuated causation the majority endorses today is antithetical to the concept of narrow tailoring.

3.

As I would invalidate §203 under the primary definition, it is necessary to add a few words about the backup provision. As applied in §203, the backup definition prohibits corporations and unions from financing from their general treasury funds

“any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.” 2 U. S. C. A. §434f(3)(A)(ii) (Supp. 2003).

The prohibition under the backup has much of the same imprecision as the ban under the primary definition, though here there is even more overbreadth. Unlike the primary definition, the backup contains no temporal or geographic limitation. Any broadcast, cable, or satellite communications—not just those aired within a certain blackout period and received by a certain segment of the population—are prohibited, provided they “promote,” “support,” “attack,” or “oppose” a candidate. There is no showing that such a permanent and ubiquitous restriction meets First Amendment standards for the relationship between means and ends.

The backup definition is flawed for the further reason that it is vague. The crucial words—“promotes,” “support,” “attack,” “oppose”—are nowhere defined. In this respect the backup is similar to the provision in the Federal Election Campaign Act that Buckley held to be unconstitutionally vague. Cf. 424 U. S., at 39–44 (“ ‘ No person may make any expenditure … relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000’ ”).

The statutory phrase “suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate” cannot cure the overbreadth or vagueness of the backup definition. Like other key terms in the provision, these words are not defined. The lack of guidance presents serious problems of uncertainty. If “plausible” means something close to “reasonable in light of the totality of the circumstances,” speakers will be provided with an insufficient degree of protection and will, as a result, engage in widespread self-censorship to avoid severe criminal penalties.

Given the statute’s vagueness, even defendants’ own experts disagree among themselves about whether specific ads fall within the prohibition. Hence, people “of common intelligence must necessarily guess at [the backup definition’s] meaning and differ as to its application,” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) . For these reasons, I would also invalidate the ban on electioneering communication under the backup definition.

4.

Before concluding the analysis on Title II, it is necessary to add a few words about the majority’s analysis of §204. The majority attempts to minimize the damage done under §203 by construing §204 (the Wellstone Amendment) to incorporate an exception for MCFL -type corporations. See MCFL, 479 U. S. 238. Section 204, however, does no such thing. As even the majority concedes, the provision “does not, on its face, exempt MCFL organizations from its prohibition.” Ante, at 105. Although we normally presume that legislators would not deliberately enact an unconstitutional statute, that presumption is inapplicable here. There is no ambiguity regarding what §204 is intended to accomplish. Enacted to supersede the Snowe-Jeffords Amendment that would have carved out precisely this exception for MCFL corporations, §204 was written to broaden BCRA’s scope to include issue-advocacy groups. See, e.g. , App. to Brief for Appellants NRA et al. in No. 02–1675 et al., pp. 65a, 67a (Sen. Wellstone) (“[I]ndividuals with all this wealth” will “make their soft money contributions to these sham issue ads run by all these … organizations, which under this loophole can operate with impunity” to run “poisonous ads.” I have an amendment that … make[s] sure … this big money doesn’t get [through]”). Instead of deleting the Snowe-Jeffords Amendment from the bill, however, the Wellstone Amendment was inserted in a separate section to preserve severability.

Were we to indulge the presumption that Congress understood the law when it legislated, the Wellstone Amendment could be understood only as a frontal challenge to MCFL . Even were I to agree with the majority’s interpretation of §204, however, my analysis of Title II remains unaffected. The First Amendment protects the right of all organizations, not just a subset of them, to engage in political speech. See Austin , 494 U. S., at 700–701 ( Kennedy , J., dissenting) (“The First Amendment does not permit courts to exercise speech suppression authority denied to legislatures”).

5.

Title II’s vagueness and overbreadth demonstrate Congress’ fundamental misunderstanding of the First Amendment. The Court, it must be said, succumbs to the same mistake. The majority begins with a denunciation of direct campaign contributions by corporations and unions. It then uses this rhetorical momentum as its leverage to uphold the Act. The problem, however, is that Title II’s ban on electioneering communications covers general commentaries on political issues and is far removed from laws prohibiting direct contributions from corporate and union treasuries. The severe First Amendment burden of this ban on independent expenditures requires much stronger justifications than the majority offers. See Buckley, supra , at 23.

The hostility toward corporations and unions that infuses the majority opinion is inconsistent with the viewpoint neutrality the First Amendment demands of all Government actors, including the members of this Court. Corporations, after all, are the engines of our modern economy. They facilitate complex operations on which the Nation’s prosperity depends. To say these entities cannot alert the public to pending political issues that may threaten the country’s economic interests is unprecedented. Unions are also an established part of the national economic system. They, too, have their own unique insights to contribute to the political debate, but the law’s impact on them is just as severe. The costs of the majority’s misplaced concerns about the “corrosive and distorting effects of immense aggregations of wealth,” Austin, supra , at 660, moreover, will weigh most heavily on budget-strapped nonprofit entities upon which many of our citizens rely for political commentary and advocacy. These groups must now choose between staying on the sidelines in the next election or establishing a PAC against their institutional identities. PACs are a legal construct sanctioned by Congress. They are not necessarily the means of communication chosen and preferred by the citizenry.

In the same vein the Court is quite incorrect to suggest that the mainstream press is a sufficient palliative for the novel and severe constraints this law imposes on the political process. The Court should appreciate the dynamic contribution diverse groups and associations make to the intellectual and cultural life of the Nation. It should not permit Congress to foreclose or restrict those groups from participating in the political process by constraints not applicable to the established press.

CONCLUSION

The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and the Government may not prescribe the means used to conduct it.

The First Amendment commands that Congress “shall make no law … abridging the freedom of speech.” The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. Our pluralistic society is filled with voices expressing new and different viewpoints, speaking through modes and mechanisms that must be allowed to change in response to the demands of an interested public. As communities have grown and technology has evolved, concerted speech not only has become more effective than a single voice but also has become the natural preference and efficacious choice for many Americans. The Court, upholding multiple laws that suppress both spontaneous and concerted speech, leaves us less free than before. Today’s decision breaks faith with our tradition of robust and unfettered debate.

For the foregoing reasons, with respect, I dissent from the Court’s decision upholding the main features of Titles I and II.

APPENDIX TO OPINION OF KENNEDY, J.

BCRA §101(a), 116Stat. 81, which sets forth new FECA §323, 2 U. S. C. A. §441i (Supp. 2003), provides:

“SEC. 323. SOFT MONEY OF POLITICAL PARTIES.

“(a) NATIONAL COMMITTEES.—

“(1) IN GENERAL.—A national committee of a political party (including a national congressional campaign committee 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) APPLICABILITY.—The prohibition established by paragraph (1) applies to any such national committee, any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee.

“(b) STATE, DISTRICT, AND LOCAL COMMITTEES.—

“(1) IN GENERAL.—Except as provided in paragraph (2), an amount that is expended or disbursed for Federal election activity by a State, district, or local committee of a political party (including an entity that is directly or indirectly established, financed, maintained, or controlled by a State, district, or local committee of a political party and an officer or agent acting on behalf of such committee or entity), or by an association or similar group of candidates for State or local office or of individuals holding State or local office, shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act.

“(2) APPLICABILITY.—

“(A) IN GENERAL.—Notwithstanding clause (i) or (ii) of section 301(20)(A), and subject to subparagraph (B), paragraph (1) shall not apply to any amount expended or disbursed by a State, district, or local committee of a political party for an activity described in either such clause to the extent the amounts expended or disbursed for such activity are allocated (under regulations prescribed by the Commission) among amounts—

“(i) which consist solely of contributions subject to the limitations, prohibitions, and reporting requirements of this Act (other than amounts described in subparagraph (B)(iii)); and

“(ii) other amounts which are not subject to the limitations, prohibitions, and reporting requirements of this Act (other than any requirements of this subsection).

“(B) CONDITIONS.—Subparagraph (A) shall only apply if—

“(i) the activity does not refer to a clearly identified candidate for Federal office;

“(ii) the amounts expended or disbursed are not for the costs of any broadcasting, cable, or satellite communication, other than a communication which refers solely to a clearly identified candidate for State or local office;

“(iii) the amounts expended or disbursed which are described in subparagraph (A)(ii) are paid from amounts which are donated in accordance with State law and which meet the requirements of subparagraph (C), except that no person (including any person established, financed, maintained, or controlled by such person) may donate more than $10,000 to a State, district, or local committee of a political party in a calendar year for such expenditures or disbursements; and

“(iv) the amounts expended or disbursed are made solely from funds raised by the State, local, or district committee which makes such expenditure or disbursement, and do not include any funds provided to such committee from—

“(I) any other State, local, or district committee of any State party,

“(II) the national committee of a political party (including a national congressional campaign committee of a political party),

“(III) any officer or agent acting on behalf of any committee described in subclause (I) or (II), or

“(IV) any entity directly or indirectly established, financed, maintained, or controlled by any committee described in subclause (I) or (II).

“(C) PROHIBITING INVOLVEMENT OF NATIONAL PARTIES, FEDERAL CANDIDATES AND OFFICEHOLDERS, AND STATE PARTIES ACTING JOINTLY.—Notwithstanding subsection (e) (other than subsection (e)(3)), amounts specifically authorized to be spent under subparagraph (B)(iii) meet the requirements of this subparagraph only if the amounts—

“(i) are not solicited, received, directed, transferred, or spent by or in the name of any person described in subsection (a) or (e); and

“(ii) are not solicited, received, or directed through fundraising activities conducted jointly by 2 or more State, local, or district committees of any political party or their agents, or by a State, local, or district committee of a political party on behalf of the State, local, or district committee of a political party or its agent in one or more other States.

“(c) FUNDRAISING COSTS.—An amount spent by a person described in subsection (a) or (b) to raise funds that are used, in whole or in part, for expenditures and disbursements for a Federal election activity shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act.

“(d) TAX-EXEMPT ORGANIZATIONS.—A national, State, district, or local committee of a political party (including a national congressional campaign committee of a political party), an entity that is directly or indirectly established, financed, maintained, or controlled by any such national, State, district, or local committee or its agent, and an officer or agent acting on behalf of any such party committee or entity, shall not solicit any funds for, or make or direct any donations to—

“(1) an organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code (or has submitted an application for determination of tax exempt status under such section) and that makes expenditures or disbursements in connection with an election for Federal office (including expenditures or disbursements for Federal election activity); or

“(2) an organization described in section 527 of such Code (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).

“(e) FEDERAL CANDIDATES.—

“(1) IN GENERAL.—A candidate, individual holding Federal office, agent of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office, shall not—

“(A) solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office, including funds for any Federal election activity, unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act; or

“(B) solicit, receive, direct, transfer, or spend funds in connection with any election other than an election for Federal office or disburse funds in connection with such an election unless the funds—

“(i) are not in excess of the amounts permitted with respect to contributions to candidates and political committees under paragraphs (1), (2), and (3) of section 315(a); and

“(ii) are not from sources prohibited by this Act from making contributions in connection with an election for Federal office.

“(2) STATE LAW.—Paragraph (1) does not apply to the solicitation, receipt, or spending of funds by an individual described in such paragraph who is or was also a candidate for a State or local office solely in connection with such election for State or local office if the solicitation, receipt, or spending of funds is permitted under State law and refers only to such State or local candidate, or to any other candidate for the State or local office sought by such candidate, or both.

“(3) FUNDRAISING EVENTS.—Notwithstanding paragraph (1) or subsection (b)(2)(C), a candidate or an individual holding Federal office may attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party.

“(4) PERMITTING CERTAIN SOLICITATIONS.—

“(A) GENERAL SOLICITATIONS.—Notwithstanding any other provision of this subsection, an individual described in paragraph (1) may make a general solicitation of funds on behalf of any organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code (or has submitted an application for determination of tax exempt status under such section) (other than an entity whose principal purpose is to conduct activities described in clauses (i) and (ii) of section 301(20)(A)) where such solicitation does not specify how the funds will or should be spent.

“(B) CERTAIN SPECIFIC SOLICITATIONS.—In addition to the general solicitations permitted under subparagraph (A), an individual described in paragraph (1) may make a solicitation explicitly to obtain funds for carrying out the activities described in clauses (i) and (ii) of section 301(20)(A), or for an entity whose principal purpose is to conduct such activities, if—

“(i) the solicitation is made only to individuals; and

“(ii) the amount solicited from any individual during any calendar year does not exceed $20,000.

“(f) STATE CANDIDATES.—

“(1) IN GENERAL.—A candidate for State or local office, individual holding State or local office, or an agent of such a candidate or individual may not spend any funds for a communication described in section 301(20)(A)(iii) unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act.

“(2) EXCEPTION FOR CERTAIN COMMUNICATIONS.—Paragraph (1) shall not apply to an individual described in such paragraph if the communication involved is in connection with an election for such State or local office and refers only to such individual or to any other candidate for the State or local office held or sought by such individual, or both.”

BCRA §101(b), adds a definition of “federal election activity” to FECA §301, 2 U. S. C. A. §431(20) (Supp. 2003), which provides as follows:

“(20) FEDERAL ELECTION ACTIVITY.—

“(A) IN GENERAL.—The term ‘Federal election activity’ means—

“(i) voter registration activity during the period that begins on the date that is 120 days before the date a regularly scheduled Federal election is held and ends on the date of the election;

“(ii) voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot (regardless of whether a candidate for State or local office also appears on the ballot);

“(iii) a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate); or

“(iv) services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual's compensated time during that month on activities in connection with a Federal election.

“(B) EXCLUDED ACTIVITY.—The term ‘Federal election activity’ does not include an amount expended or disbursed by a State, district, or local committee of a political party for—

“(i) a public communication that refers solely to a clearly identified candidate for State or local office, if the communication is not a Federal election activity described in subparagraph (A)(i) or (ii);

“(ii) a contribution to a candidate for State or local office, provided the contribution is not designated to pay for a Federal election activity described in subparagraph (A);

“(iii) the costs of a State, district, or local political convention; and

“(iv) the costs of grassroots campaign materials, including buttons, bumper stickers, and yard signs, that name or depict only a candidate for State or local office.”

Title 2 U. S. C. A. §§441b(a) and (b)(1)–(2) (Supp. 2003), as amended by BCRA §203, provide:

“(a) It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.

“(b)(1) For the purposes of this section the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

“(2) For purposes of this section and section 79 l (h) of Title 15, the term “contribution or expenditure” includes a contribution or expenditure, as those terms are defined in section 431 of this title, and also includes any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section or for any applicable electioneering communication, but shall not include (A) communications by a corporation to its stockholders and executive or administrative personnel and their families or by a labor organization to its members and their families on any subject; (B) nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and executive or administrative personnel and their families, or by a labor organization aimed at its members and their families; and (C) the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation, labor organization, membership organization, cooperative, or corporation without capital stock.”


Notes

* * The Chief Justice joins this opinion in its entirety. Justice Scalia joins this opinion except to the extent it upholds new FECA §323(e)and BCRA §202. Justice Thomas joins this opinion with respect to BCRA §213.