SOUTER, J., DISSENTING
FEDERAL ELECTION COMM'N V. WISCONSIN RIGHT TOLIFE, INC.
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NOS. 06-969 AND 06-970
FEDERAL ELECTION COMMISSION, APPELLANT
06–969
v.
WISCONSIN RIGHT TO LIFE, INC.
SENATOR JOHN McCAIN, et al.,
APPELLANTS
06–970
v.
WISCONSIN RIGHT TO LIFE, INC.
on appeals from the united states district
court for the district of columbia
[June 25, 2007]
Justice Souter, with
whom Justice Stevens, Justice Ginsburg, and Justice Breyer join,
dissenting.
The significance and effect of
today’s judgment, from which I respectfully dissent, turn on three
things: the demand for campaign money in huge amounts from large
contributors, whose power has produced a cynical electorate; the
congressional recognition of the ensuing threat to democratic
integrity as reflected in a century of legislation restricting the
electoral leverage of concentrations of money in corporate and
union treasuries; and
McConnell v.
Federal Election
Comm’n,
540 U.
S. 93 (2003), declaring the facial validity of the most recent
Act of Congress in that tradition, a decision that is effectively,
and unjustifiably, overruled today.[
Footnote 1]
I
The indispensable ingredient of a
political candidacy is money for advertising. In the 2004 campaign,
more than half of the combined expenditures by the two principal
presidential candidates (excluding fundraising) went for media time
and space. See The Costliest Campaign, Washington Post, Dec. 30,
2004, p. A7.[
Footnote 2] And in
the 2005–2006 election cycle, the expenditure of more than $2
billion on television shattered the previous record, even without a
presidential contest. See Inside Media, MediaWeek, Nov. 20, 2006,
p. 18. The portent is for still greater spending. By the end of
March 2007, almost a year before the first primary and more than 18
months before the general election, presidential candidates had
already raised over $150 million. See Balz, Fundraising Totals
Challenge Early Campaign Assumptions, Washington Post, Apr. 17,
2007, p. A1 (citing figures and noting that “[t]he campaign is
living up to its reputation as the most expensive in U. S.
history”). To reach this total, the leading fundraisers collected
over $250,000 per day in the first quarter of 2007, Mullins,
Clinton Leads the Money Race, Wall Street Journal, Apr. 16, 2007,
p. A8, and the eventual nominees are expected to raise $500 million
apiece (about $680,000 per day over a 2-year election cycle),
Kirkpatrick and Pilhofer, McCain Lags in Income But Excels in
Spending, Report Shows, N. Y. Times, Apr. 15, 2007, p. 20.
The indispensability of these
huge sums has two significant consequences for American Government
that are particularly on point here. The enormous demands, first,
assign power to deep pockets. See Balz,
supra, at A6 (“For
all the interest in Internet fundraising, big donors still ruled in
the first quarter, with roughly 80 percent of donations coming in
amounts of $1,000 or more”). Candidates occasionally boast about
the number of contributors they have, but the headlines speaking in
dollars reflect political reality. See,
e.g., Mullins,
supra, at A8 (headlined “Clinton Leads the Money
Race”).
Some major contributors get satisfaction from
pitching in for their candidates, but political preference fails to
account for the frequency of giving “substantial sums to
both major national parties,”
McConnell, 540 U.
S., at 148, a practice driven “by stark political pragmatism, not
by ideological support for either party or their candidates,” Brief
for Committee for Economic Development et al. as
Amici
Curiae in
McConnell, O. T. 2003, No. 02–1674, p. 3
(hereinafter CED Brief). What the high-dollar pragmatists of either
variety get is special access to the officials they help elect, and
with it a disproportionate influence on those in power. See
McConnell,
supra, at 130–131. As the erstwhile
officer of a large American corporation put it, “ ‘[b]usiness
leaders believe—based on experience and with good reason—that …
access gives them an opportunity to shape and affect governmental
decisions and that their ability to do so derives from the fact
that they have given large sums of money to the parties.’ ”
CED Brief 9. At a critical level, contributions that underwrite
elections are leverage for enormous political influence.
Voters know this. Hence, the second important
consequence of the demand for big money to finance publicity:
pervasive public cynicism. A 2002 poll found that 71 percent of
Americans think Members of Congress cast votes based on the views
of their big contributors, even when those views differ from the
Member’s own beliefs about what is best for the country. Mellman
& Wirthlin 267; see also
id., at 266 (“In public
opinion research it is uncommon to have 70 percent or more of the
public see an issue the same way. When they do, it indicates an
unusually strong agreement on that issue”). The same percentage
believes that the will of contributors tempts Members to vote
against the majority view of their constituents.
Id., at
267. Almost half of Americans believe that Members often decide how
to vote based on what big contributors to their party want, while
only a quarter think Members often base their votes on perceptions
of what is best for the country or their constituents.
Ibid.
Devoting concentrations of money in
self-interested hands to the support of political campaigning
therefore threatens the capacity of this democracy to represent its
constituents and the confidence of its citizens in their capacity
to govern themselves. These are the elements summed up in the
notion of political integrity, giving it a value second to none in
a free society.
II
If the threat to this value
flowing from concentrations of money in politics has reached an
unprecedented enormity, it has been gathering force for
generations. Before the turn of the last century, as now, it was
obvious that the purchase of influence and the cynicism of voters
threaten the integrity and stability of democratic government, each
derived from the responsiveness of its law to the interests of
citizens and their confidence in that focus. The danger has
traditionally seemed at its apex when no reasonable limits
constrain the campaign activities of organizations whose “unique
legal and economic characteristics” are tailored to “facilitat[e]
the amassing of large treasuries,”
Austin v.
Michigan
Chamber of Commerce,
494 U. S. 652, 658, 660 (1990).
Corporations were the earliest subjects of concern; the same
characteristics that have made them engines of the Nation’s
extraordinary prosperity have given them the financial muscle to
gain “advantage in the political marketplace” when they turn from
core corporate activity to electioneering,
Federal Election
Comm’n v.
Massachusetts Citizens for Life, Inc.,
479 U. S. 238,
258 (1986)
(MCFL), and in “Congress’ judgment” the same
concern extends to labor unions as to corporations,
Federal
Election Comm’n v.
National Right to Work Comm.,
459 U. S. 197, 210 (1982); see also
Austin,
supra, at 661.
A
In the wake of the industrial
expansion after the Civil War there developed a momentum for civic
reform that led to the enactment of the Pendleton Civil Service Act
of 1883, ch. 27, 22 Stat. 403, which stopped political parties from
raising money through compulsory assessments on federal employees.
Not unnaturally, corporations filled the vacuum, see R. Mutch,
Campaigns, Congress, and Courts xvi–xvii (1988) (hereinafter
Mutch), and in due course demonstrated what concentrated capital
could do. The resulting political leverage disturbed “the
confidence of the plain people of small means in our political
institutions,” E. Root, The Political Use of Money (delivered Sept.
3, 1894), in Addresses on Government and Citizenship 141, 143–144
(R. Bacon & J. Scott eds. 1916) (cited in
United
States v.
Automobile Workers,
352 U. S. 567, 571
(1957)), and the 1904 Presidential campaign eventually
“crystallized popular sentiment” on the subject of money and
politics,
id., at 572. In his next message to Congress,
President Theodore Roosevelt invoked the power “to protect the
integrity of the elections of its own officials [as] inherent” in
government, and called for “vigorous measures to eradicate”
perceived political corruption, for he found “no enemy of free
government more dangerous and none so insidious.”[
Footnote 3] 39 Cong. Rec. 17 (1904).
The following year, the President urged that
“[a]ll contributions by corporations to any political committee or
for any political purpose should be forbidden by law.” 40 Cong.
Rec. 96 (1905). His call was seconded by the Senate sponsor of the
eventual legislation, whose “sad thought [was] that the Senate is
discredited by the people of the United States as being a body more
or less corruptible or corrupted.”
Id., at 229. The
President persisted in his 1906 message to Congress with another
call for “a law prohibiting all corporations from contributing to
the campaign expenses of any party,” 41 Cong. Rec. 22, and the next
year Congress passed the Tillman Act of 1907:
“it shall be unlawful for any national bank, or any
corporation organized by authority of any laws of Congress, to make
a money contribution in connection with any election to any
political office. It shall also be unlawful for any corporation
whatever to make a money contribution in connection with any
election at which Presidential and Vice-Presidential electors or a
Representative in Congress is to be voted for or any election by
any State legislature of a United States Senator.” 34 Stat.
864–865.[
Footnote 4]
The aim was “not merely to prevent the subversion
of the integrity of the electoral process,” but “to sustain the
active, alert responsibility of the individual citizen in a
democracy for the wise conduct of government.”
Automobile
Workers,
supra, at 575.
B
Thirty years later, new questions
about the electoral influence of accumulated wealth surfaced as
organized labor expanded during the New Deal. In the 1936 election,
labor unions contributed “unprecedented” sums, S. Rep. No.
151, 75th Cong., 1st Sess., 127 (1937), the greater part of them by
the United Mine Workers, see Campaign Finance Sourcebook 17. And in
due course reaction began to build: “[w]artime strikes gave rise to
fears of the new concentration of power represented by the gains of
trade unionism. And so the belief grew that, just as the great
corporations had made huge political contributions to influence
governmental action … , the powerful unions were pursuing a similar
course, and with the same untoward consequences for the democratic
process.”
Automobile Workers,
supra, at 578.
Congress responded with the War Labor Disputes Act of 1943, which
extended the ban on corporate donations to labor organizations, ch.
144, §9, 57 Stat. 167–168, an extension that was made permanent in
the Labor Management Relations Act, 1947, better known as
Taft-Hartley, §304, 61 Stat. 159–160.
C
At the same time, Congress had
another worry that foreshadows our case today. It was concerned
that the statutory prohibition on corporate “contribution[s]” was
being so narrowly construed as to open a “loophole whereby
corporations, national banks, and labor organizations are enabled
to avoid the obviously intended restrictive policy of the statute
by garbing their financial assistance in the form of an
‘expenditure’ rather than a contribution.” S. Rep. No. 1, 80th
Cong., 1st Sess., 38–39 (1947); see also H. Rep. No. 2739, 79th
Cong., 2d Sess., 40 (1947) (“The intent and purpose of the
provision of the act prohibiting any corporation or labor
organization making any contribution in connection with any
election would be wholly defeated if it were assumed that the term
‘making any contribution’ related only to the donating of money
directly to a candidate, and excluded the vast expenditures of
money in the activities herein shown to be engaged in extensively.
Of what avail would a law be to prohibit the contributing direct to
a candidate and yet permit the expenditure of large sums in his
behalf?”). Taft-Hartley therefore extended the prohibition to any
“contribution or expenditure” by a corporation or a union “in
connection with” a federal election. §304, 61 Stat. 159.[
Footnote 5]
D
The new law left open, however,
the right of a union to spend money on electioneering from a
segregated fund raised specifically for that purpose from members,
but not drawn from the general treasury. Segregated funding
entities, the now-familiar political action committees or PACs, had
been established prior to Taft-Hartley, and we concluded in
Pipefitters v.
United States,
407 U. S. 385, 409
(1972), that Taft-Hartley did not prohibit “union contributions and
expenditures from political funds financed in some sense by the
voluntary donations of employees.”
This balance of authorized and
restricted financing methods for corporate and union electioneering
was made explicit in the Federal Election Campaign Act of 1971
(FECA). See 86 Stat. 10 (“[T]he phrase ‘contribution or
expenditure’ … shall not include … the establishment,
administration, and solicitation of contributions to a separate
segregated fund to be utilized for political purposes by a
corporation or labor organization”). “[T]he underlying theory [of
the statute was] that substantial general purpose treasuries should
not be diverted to political purposes, both because of the effect
on the political process of such aggregated wealth and out of
concern for the dissenting member or stockholder.” 117 Cong. Rec.
43381 (1971) (statement of Rep. Hansen). But the PAC exception
maintained “ ‘the proper balance in regulating corporate and
union political activity required by sound policy and the
Constitution.’ ”
Pipefitters,
supra, at 431
(quoting 117 Cong. Rec. 43381 (statement of Rep. Hansen)).[
Footnote 6]
E
In 1986, in
MCFL, we
reexamined the longstanding ban on spending corporate and union
treasury funds “in connection with” federal elections, 2 U.
S. C. §441b, and drew two conclusions implicated in the
present case. First, we construed the “in connection with” phrase
in much the same way we had interpreted comparable FECA language
challenged in
Buckley v.
Valeo,
424 U. S. 1 (1976)
(per
curiam). We held that to avoid vagueness, the product of
prohibited corporate and union expenditures “must constitute
‘express advocacy’ in order to be subject to the prohibition.”
MCFL, 479 U. S., at 249.
We thus held that the prohibition
applied “only to expenditures for communications that in express
terms advocate the election or defeat of a clearly identified
candidate for federal office.”
Buckley, 424 U. S., at 44.
“[E]xpress terms,” in turn, meant what had already become known as
“magic words,” such as “ ‘vote for,’ ‘elect,’ ‘support,’ ‘cast
your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’
‘reject.’ ”
Ibid., n. 52. The consequence of this
construction was obvious: it pulled the teeth out of the statute,
as we had understood when we announced it in its earlier
application in
Buckley:
“The exacting interpretation of the statutory
language necessary to avoid unconstitutional vagueness … undermines
the limitation’s effectiveness as a loophole-closing provision by
facilitating circumvention by those seeking to exert improper
influence upon a candidate or officeholder. It would naively
underestimate the ingenuity and resourcefulness of persons and
groups desiring to buy influence to believe that they would have
much difficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat but nevertheless
benefited the candidate’s campaign.” Id., at 45.
Nor was the statute, even as thus
narrowed, enforceable against the particular advocacy corporation
challenging the limit in
MCFL. This was the second holding
of
MCFL relevant here; we explained that the congressional
effort to limit the political influence of corporate money “has
reflected concern not about use of the corporate form
per
se, but about the potential for unfair deployment of wealth
for political purposes,” 479 U. S., at 259. We held that this
“legitima[te]” concern could not reasonably extend to
electioneering expenditures by the corporation at issue in
MCFL, which neither “engage[d] in business activities” nor
accepted donations from business corporations and unions (and thus
could not serve as a “condui[t]” for political spending by those
entities).
Id., at 263–264.[
Footnote 7]
F
As was expectable,
narrowing the corporate-union electioneering limitation to magic
words soon reduced it to futility
. “[P]olitical money … is
a moving target,” Issacharoff & Karlan, The Hydraulics of
Campaign Finance Reform, 77 Tex. L. Rev. 1705, 1707 (1999),
and the “ingenuity and resourcefulness” of political financiers
revealed the massive regulatory gap left by the “magic words” test,
Buckley, 424 U. S., at 45. It proved to be the door
through which so-called “issue ads” of current practice entered
American politics.
An issue ad is an advertisement
on a political subject urging the reader or listener to let a
politician know what he thinks, but containing no magic words
telling the recipient to vote for or against anyone. By the 1996
election cycle, between $135 and $150 million was being devoted to
these ads, see
McConnell, 540 U. S., at 127, n. 20,
and because they had no magic words, they failed to trigger the
limitation on union or corporate expenditures for electioneering.
Experience showed, however, just what we foresaw in
Buckley, that the line between “issue” broadcasts and
outright electioneering was a patent fiction, as in the example of
a television “issue ad” that ran during a Montana congressional
race between Republican Rick Hill and Democrat Bill Yellowtail in
1996:
“ ‘ “Who is Bill Yellowtail? He preaches
family values but took a swing at his wife. And Yellowtail’s
response? He only slapped her. But ‘her nose was not broken.’ He
talks law and order … but is himself a convicted felon. And though
he talks about protecting children, Yellowtail failed to make his
own child support payments—then voted against child support
enforcement. Call Bill Yellowtail. Tell him to support family
values.” ’ ”
McConnell,
supra, at
193–194, n. 78.[
Footnote
8]
There are no “magic words” of “express advocacy” in
that statement, but no one could deny with a straight face that the
message called for defeating Yellowtail.
There was nothing unusual about the Yellowtail
issue ad in 1996, and an enquiry into campaign practices by the
Senate Committee on Governmental Affairs found as a general matter
that “the distinction between issue and express advocacy … appeared
to be meaningless in the 1996 elections.” 3 S. Rep. No.
105–167, p. 3994 (1998). “ ‘ “What separates issue
advocacy and political advocacy is a line in the sand drawn on a
windy day.” ’ ”
McConnell,
supra, at
126, n. 16 [
Footnote
9] (quoting the former director of an advocacy organization’s
PAC). Indeed, the President of the AFL–CIO stated that “ ‘the
bulk of’ ” its ads were targeted for broadcast in districts
represented by “ ‘first-term, freshmen Republicans who … may
be defeatable,’ ” 3 S. Rep. No. 105–167, at 3997, 3998,
and n. 23, and the Senate Committee found that the union used a
“$.15 per member, per month assessment” to finance “issue ads that
were clearly designed to influence the outcome of the election,”
id., at 3999, 4000. Not surprisingly, “ostensibly
independent” ads “were often actually coordinated with, and
controlled by, the campaigns.”
McConnell,
supra,
at 131.
Nor was it surprising that the Senate
Committee heard testimony that “ ‘[w]ithout taming’ ” the
vast sums flowing into issue ads, “ ‘campaign finance
reform—no matter how thoroughly it addresses … perceived
problems—will come to naught.’ ” 3 S. Rep. No. 105–167,
at 4480 (quoting testimony of Professor Daniel R. Ortiz). The
Committee predicted that “if the course of non-action is followed,
… Congress would be encouraging further growth of union, corporate
nonprofit and individual independent expenditures.”
Id.,
at 4481.[
Footnote 10] The
next two elections validated the prediction: during the 1998 cycle,
spending on issue ads doubled to between $270 and $340 million, and
the figure climbed to $500 million in the 2000 cycle.
McConnell, 540 U. S., at 127, n. 20. A report from
the Annenberg Public Policy Center concluded that “[t]he type of
issue ad that dominated depended greatly on how close we were to
the general election… . Though candidate-centered issue ads
always made up a majority of issue ads, as the election approached
the percent [of] candidate-centered spots increased … such that by
the last two months before the election almost all televised issue
spots made a case for or against a candidate.” Issue Advertising in
the 1999–2000 Election Cycle 14 (2001).
They were worth the money of those who
ultimately paid for them. According to one former Senator,
“ ‘Members will … be favorably disposed to those who
finance’ ” interest groups that run “ ‘issue ads’ ”
when those financiers “ ‘later seek access to discuss pending
legislation.’ ”
McConnell v.
FEC, 251 F.
Supp. 2d 176, 556 (DC 2003) (Kollar-Kotelly, J.) (quoting the
declaration of Dale Bumpers).
The congressional response was §203 of the
Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 91, which
redefined prohibited “expenditure” so as to restrict corporations
and unions from funding “electioneering communication[s]” out of
their general treasuries. 2 U. S. C. §441b(b)(2) (2000 ed.,
Supp. IV). The new phrase “electioneering communication” was
narrowly defined in BCRA’s §201 as “any broadcast, cable, or
satellite communication” that
“(I) refers to a clearly
identified candidate for Federal office;
“(II) is made within—
“(aa) 60 days before a general, special, or
runoff election for the office sought by the candidate; or
“(bb) 30 days before a primary or preference
election, or a convention or caucus of a political party that has
authority to nominate a candidate, for the office sought by the
candidate; and
“(III) in the case of a communication which
refers to a candidate for an office other than President or Vice
President, is targeted to the relevant electorate.”
§434(f)(3)(A)(i).
III
In
McConnell, we found
this definition to be “easily understood and objectiv[e],” raising
“none of the vagueness concerns that drove our analysis” of the
statutory language at issue in
Buckley and
MCFL,
540 U. S., at 194, and we held that the resulting line separating
regulated election speech from general political discourse does
not, on its face, violate the First Amendment. We rejected any
suggestion “that
Buckley drew a constitutionally mandated
line between express advocacy [with magic words] and so-called
issue advocacy [without them], and that speakers possess an
inviolable First Amendment right to engage in the latter category
of speech.”
Id., at 190. To the contrary, we held that
“our decisions in
Buckley and
MCFL were specific
to the statutory language before us; they in no way drew a
constitutional boundary that forever fixed the permissible scope of
provisions regulating campaign-related speech.”
Id., at
192–193. “[T]he presence or absence of magic words cannot
meaningfully distinguish electioneering speech,” which is
prohibitable, “from a true issue ad,” we said, since ads that
“esche[w] the use of magic words … are no less clearly intended to
influence the election.”
Id., at 193. We thus found
“[l]ittle difference … between an ad that urged viewers to ‘vote
against Jane Doe’ and one that condemned Jane Doe’s record on a
particular issue before exhorting viewers to ‘call Jane Doe and
tell her what you think.’ ”
Id., at 126–127.
We understood that Congress had a
compelling interest in limiting this sort of electioneering by
corporations and unions, for §203 exemplified a tradition of
“repeatedly sustained legislation aimed at ‘the corrosive and
distorting effects of immense aggregations of wealth that are
accumulated with the help of the corporate form and that have
little or no correlation to the public’s support for the
corporation’s political ideas.’ ”
Id., at 205
(quoting
Austin, 494 U. S., at 660). Nor did we see any
plausible claim of substantial overbreadth from incidentally
prohibiting ads genuinely focused on issues rather than elections,
given the limitation of “electioneering communication” by time,
geographical coverage, and clear reference to candidate. “Far from
establishing that BCRA’s application to pure issue ads is
substantial, either in an absolute sense or relative to its
application to election-related advertising, the record strongly
supports the contrary conclusion.” 540 U. S., at 207. Finally, we
underscored the reasonableness of the §203 line by emphasizing that
it defined a category of limited, but not prohibited, corporate and
union speech: “Because corporations can still fund electioneering
communications with PAC money, it is ‘simply wrong’ to view [§203]
as a ‘complete ban’ on expression rather than a regulation.”
Id., at 204 (quoting
Federal Election Comm’n v.
Beaumont,
539 U. S. 146, 162
(2003)). Thus “corporations and unions may finance genuine issue
ads [in the runup period] by simply avoiding any specific reference
to federal candidates, or in doubtful cases by paying for the ad
from a segregated [PAC] fund.” 540 U. S., at 206.
We may add that a nonprofit corporation, no
matter what its source of funding, is free to pelt a federal
candidate like Jane Doe with criticism or shower her with praise,
by name and within days of an election, if it speaks through a
newspaper ad or on a website, rather than a “broadcast, cable, or
satellite communication,” 2 U. S. C. §434(f)(3)(A)(i) (2000 ed.,
Supp. IV). And a nonprofit may use its general treasury to pay for
clearly “electioneering communication[s]” so long as it declines to
serve as a conduit for money from business corporations and unions
(and thus qualifies for the
MCFL exception).[
Footnote 11]
* * *
In sum, Congress in 1907
prohibited corporate contributions to candidates and in 1943
applied the same ban to unions. In 1947, Congress extended the
complete ban from contributions to expenditures “in connection
with” an election, a phrase so vague that in 1986 we held it must
be confined to instances of express advocacy using magic words.
Congress determined, in 2002, that corporate and union expenditures
for fake issue ads devoid of magic words should be regulated using
a narrow definition of “electioneering communication” to reach only
broadcast ads that were the practical equivalents of express
advocacy. In 2003, this Court found the provision free from
vagueness and justified by the concern that drove its
enactment.
This century-long tradition of
legislation and judicial precedent rests on facing undeniable facts
and testifies to an equally undeniable value. Campaign finance
reform has been a series of reactions to documented threats to
electoral integrity obvious to any voter, posed by large sums of
money from corporate or union treasuries, with no redolence of
“grassroots” about them. Neither Congress’s decisions nor our own
have understood the corrupting influence of money in politics as
being limited to outright bribery or discrete
quid pro
quo; campaign finance reform has instead consistently focused
on the more pervasive distortion of electoral institutions by
concentrated wealth, on the special access and guaranteed favor
that sap the representative integrity of American government and
defy public confidence in its institutions. From early in the 20th
century through the decision in
McConnell, we have
acknowledged that the value of democratic integrity justifies a
realistic response when corporations and labor organizations commit
the concentrated moneys in their treasuries to electioneering.
IV
The corporate appellee in these
cases, Wisconsin Right to Life (WRTL), is a nonprofit corporation
funded to a significant extent by contributions from other
corporations.[
Footnote 12]
In 2004, WRTL accepted over $315,000 in corporate donations, App.
40, and of its six general fund contributions of $50,000 or more
between 2002 and 2005, three, including the largest (for $140,000),
came from corporate donors,
id., at 118–121.
WRTL also runs a PAC, funded by
individual donations, which has been active over the years in
making independent campaign expenditures, as in the previous two
elections involving Senator Feingold.
Id., at 15. During
the 1998 campaign, for example, WRTL’s PAC spent $60,000 to oppose
him.
Ibid. In 2004, however, despite a sharp nationwide
increase in PAC receipts, WRTL focused its fundraising on its
corporate treasury, not the PAC,
id., at 41–43, and took
in only $17,000 in PAC contributions, as against over $150,000
during 2000,
id., at 41–42.
Throughout the 2004 senatorial campaign, WRTL
made no secret of its views about who should win the election and
explicitly tied its position to the filibuster issue. Its PAC
issued at least two press releases saying that its “Top Election
Priorities” were to “Re-elect George W. Bush” and “Send Feingold
Packing!”
Id., at 78–80, 82–84. In one of these, the Chair
of WRTL’s PAC was quoted as saying, “ ‘We do not want Russ
Feingold to continue to have the ability to thwart President Bush’s
judicial nominees.’ ”
Id., at 82–83. The Spring 2004
issue of the WRTL PAC’s quarterly magazine ran an article headlined
“Radically Pro-Abortion Feingold Must Go!”, which reported that
“Feingold has been active in his opposition to Bush’s judicial
nominees” and said that “the defeat of Feingold must be uppermost
in the minds of Wisconsin’s pro-life community in the 2004
elections.”
Id., at 101–103.
It was under these circumstances that WRTL ran
the three television and radio ads in question. The bills for them
were not paid by WRTL’s PAC, but out of the general treasury with
its substantial proportion of corporate contributions; in fact,
corporations earmarked more than $50,000 specifically to pay for
the ads,
id., at 41. Each one criticized an unnamed “group
of Senators” for “using the filibuster delay tactic to block
federal judicial nominees from a simple ‘yes’ or ‘no’ vote,” and
described the Senators’ actions as “politics at work, causing
gridlock and backing up some of our courts to a state of
emergency.”[
Footnote 13]
They exhorted viewers and listeners to “[c]ontact Senators Feingold
and Kohl and tell them to oppose the filibuster,” but instead of
providing a phone number or e-mail address, they told the audience
to go to BeFair.org, a website set up by WRTL. A visit to this
website would erase any doubt a listener or viewer might have as to
whether Senators Feingold and Kohl were part of the “group”
condemned in the ads: it displayed a document that criticized the
two Senators for voting to filibuster “16 out of 16 times” and
accused them of “putting politics into the court system, creating
gridlock, and costing taxpayers money.”
Id., at 86.
WRTL’s planned airing of the ads had no
apparent relation to any Senate filibuster vote but was keyed to
the timing of the senatorial election. WRTL began broadcasting the
ads on July 26, 2004, four days after the Senate recessed for the
summer, and although the filibuster controversy raged on through
2005, WRTL did not resume running the ads after the election.
Id., at 29, 32. During the campaign period that the ads
did cover, Senator Feingold’s support of the filibusters was a
prominent issue. His position was well known,[
Footnote 14] and his Republican opponents, who
vocally opposed the filibusters, made the issue a major talking
point in their campaigns against him.[
Footnote 15]
In sum, any Wisconsin voter who paid attention
would have known that Democratic Senator Feingold supported
filibusters against Republican presidential judicial nominees, that
the propriety of the filibusters was a major issue in the
senatorial campaign, and that WRTL along with the Senator’s
Republican challengers opposed his reelection because of his
position on filibusters. Any alert voters who heard or saw WRTL’s
ads would have understood that WRTL was telling them that the
Senator’s position on the filibusters should be grounds to vote
against him.
Given these facts, it is beyond all reasonable
debate that the ads are constitutionally subject to regulation
under
McConnell. There, we noted that BCRA was meant to
remedy the problem of “[s]o-called issue ads” being used “to
advocate the election or defeat of clearly identified federal
candidates.” 540 U. S., at 126. We then gave a paradigmatic example
of these electioneering ads subject to regulation, saying that
“[l]ittle difference existed . . . between an ad that urged viewers
to ‘vote against Jane Doe’ and one that condemned Jane Doe’s record
on a particular issue before exhorting viewers to ‘call Jane Doe
and tell her what you think.’ ”
Id., at 126–127.
The WRTL ads were indistinguishable from the
Jane Doe ad; they “condemned [Senator Feingold’s] record on a
particular issue” and exhorted the public to contact him and “tell
[him] what you think.”[
Footnote
16] And just as anyone who heard the Jane Doe ad would
understand that the point was to defeat Doe, anyone who heard the
Feingold ads (let alone anyone who went to the website they named)
would know that WRTL’s message was to vote against Feingold. If it
is now unconstitutional to restrict WRTL’s Feingold ads, then it
follows that §203 can no longer be applied constitutionally to
McConnell’s Jane Doe paradigm.
McConnell’s holding that §203 is
facially constitutional is overruled. By what steps does the
principal opinion reach this unacknowledged result less than four
years after
McConnell was decided?
A
First, it lays down a new test to
identify a severely limited class of ads that may constitutionally
be regulated as electioneering communications, a test that is
flatly contrary to
McConnell. An ad is the equivalent of
express advocacy and subject to regulation, the opinion says, only
if it is “susceptible of no reasonable interpretation other than as
an appeal to vote for or against a specific candidate.”
Ante, at 16. Since the Feingold ads could, in isolation,
be read as at least including calls to communicate views on
filibusters to the two Senators, those ads cannot be treated as the
functional equivalent of express advocacy to elect or defeat
anyone, and therefore may not constitutionally be regulated at
all.
But the same could have been said
of the hypothetical Jane Doe ad. Its spoken message ended with the
instruction to tell Doe what the voter thinks. The same could also
have been said of the actual Yellowtail ad. Yet in
McConnell, we gave the Jane Doe ad as the paradigm of a
broadcast message that could be constitutionally regulated as
election conduct, and we explicitly described the Yellowtail ad as
a “striking example” of one that was “clearly intended to influence
the election,”
McConnell, 540 U. S., at 193, and n.
78.
The principal opinion, in other words, simply
inverts what we said in
McConnell. While we left open the
possibility of a “genuine” or “pure” issue ad that might not be
open to regulation under §203,
id., at 206–207, and n. 88,
we meant that an issue ad without campaign advocacy could escape
the restriction. The implication of the adjectives “genuine” and
“pure” is unmistakable: if an ad is reasonably understood as going
beyond a discussion of issues (that is, if it can be understood as
electoral advocacy), then by definition it is not “genuine” or
“pure.” But the principal opinion inexplicably wrings the opposite
conclusion from those words: if an ad is susceptible to any
“reasonable interpretation other than as an appeal to vote for or
against a specific candidate,” then it must be a “pure” or
“genuine” issue ad.
Ante, at 16. This stands
McConnell on its head, and on this reasoning it is pos-
sible that even some ads with magic words could not be
regulated.
B
Second, the principal opinion
seems to defend this inversion of
McConnell as a necessary
alternative to an unadministrable subjective test for the
equivalence of express (and regulable) electioneering advocacy. The
principal opinion acknowledges, of course, that in
McConnell we said that “[t]he justifications for the
regulation of express advocacy apply equally to ads aired during
[the period shortly before an election] if the ads are intended to
influence the voters’ decisions and have that effect.” 540 U. S.,
at 206. But The Chief Justice says that statement in
McConnell cannot be accepted at face value because we
could not, consistent with precedent, have focused our First
Amendment enquiry on whether “the speaker actually intended to
affect an election.”
Ante, at 14.[
Footnote 17] The Chief Justice suggests it is
more likely that the
McConnell opinion inadvertently
borrowed the language of “intended … effect[s],” 540 U. S., at 206,
from academic studies in the record of viewers’ perceptions of the
ads’ purposes,
ante, at 12.[
Footnote 18]
If The Chief Justice were correct
that
McConnell made the constitutional application of §203
contingent on whether a corporation’s “motives were pure,” or its
issue advocacy “subjective[ly] sincer[e],”
ante, at 14
(internal quotation marks omitted), then I, too, might be inclined
to reconsider
McConnell’s language. But
McConnell
did not do that. It did not purport to draw constitutional lines
based on the subjective motivations of corporations (or their
principals) sponsoring political ads, but merely described our test
for equivalence to express advocacy as resting on the ads’
“electioneering purpose,” which will be objectively apparent from
those ads’ content and context (as these cases and the examples
cited in
McConnell readily show). We therefore held that
§203 was not substantially overbroad because “the vast majority of
ads clearly had such a purpose,” and consequently could be
regulated consistent with the First Amendment. 540 U. S., at
206.
For that matter, if the studies to which The
Chief Justice refers were now to inform our reading of
McConnell, they would merely underscore the objective
character of the proper way to determine whether §203 is
constitutional as applied to a given ad. The authors of those
studies did not conduct discovery of the “actua[l] inten[tions],”
ante, at 14, behind any ads; nor, to my knowledge, were
the sponsors of campaign ads summoned before researchers to explain
their motivations. The studies merely confirmed that “reasonable
people are … able to discern between ads whose primary purpose is
to support a candidate and those intended to provide information
about a policy issue.” J. Krasno & D. Seltz, Buying Time:
Television Advertising in the 1998 Congressional Elections 9
(2000). To be clear, I am not endorsing the precise methodology of
those studies (and The Chief Justice is correct that we did not do
so in
McConnell,
ante, at 13, n. 4); the point is
only that the studies relied on a “reasonable” person’s
understanding of the ads’ apparent purpose, and thus were no less
objective than The Chief Justice’s own approach.
A similarly mistaken fear of an
unadministrable and speech-chilling subjective regime seems to
underlie The Chief Justice’s unwillingness to acknowledge the part
that consideration of an ad’s context necessarily plays in any
realistic assessment of its meaning. A reasonable Wisconsinite
watching or listening to WRTL’s ads would likely ask and answer
some obvious questions about their circumstances. Is the group that
sponsors these ads the same one publicly campaigning against
Senator Feingold’s reelection? The Chief Justice says that this
information is “beside the point,” because WRTL’s history of overt
electioneering only “goes to [its] subjective intent.”
Ante, at 18. Did these “issue” ads begin appearing on the
air during the election season, rather than at the time the
filibuster “issue” was in fact being debated in the Senate? This,
too, is said to be irrelevant.
Ante, at 19. And does the
website to which WRTL’s ads direct viewers contain material
expressly advocating Senator Feingold’s defeat? This enquiry is
dismissed as being “one step removed from the text of the ads
themselves.”
Ante, at 20. But these questions are central
to the meaning of the ads, and any reasonable person would take
account of circumstances in coming to understand the object of
WRTL’s ad. And why not? Each of the contextual facts here can be
established by an objective look at a public record; none requires
a voter (or a litigant) to engage in discovery of evidence about
WRTL’s operations or internal communications, and none goes to a
hidden state of mind.
This refusal to see and hear what any listener
to WRTL’s ads would actually consider produces a rule no different
in practice from the one adopted by the District Court, which
declined to look beyond the “four corners” of the ads themselves.
466 F. Supp. 2d 195, 207 (DC 2006). Although The Chief Justice
ostensibly stops short of categorically foreclosing consideration
of context, see
ante, at 20, the application of his test
here makes it difficult to see how relevant contextual evidence
could ever be taken into account the way it was in
McConnell,[
Footnote
19] and it is hard to imagine The Chief Justice would ever find
an ad to be “susceptible of no reasonable interpretation other than
as an appeal to vote for or against a specific candidate,”
ante, at 16, unless it contained words of express
advocacy. The Chief Justice thus effectively reinstates the same
toothless “magic words” criterion of regulable electioneering that
led Congress to enact BCRA in the first place.
C
Third, it may be that the
principal opinion rejects
McConnell on the erroneous
assumption that §203 flatly bans independent electioneering
communications by a corporation. The Chief Justice argues that
corporations must receive “the benefit of any doubt,”
ante, at 16, whenever we undertake the task of “separating
… political speech protected under the First Amendment from that
which may be banned,”
ante, at 13. But this is a
fundamental misconception of the task at hand: we have already held
that it is “ ‘simply wrong’ to view [§203] as a ‘complete ban’
on expression,” because PAC financing provides corporations “with a
constitutionally sufficient opportunity to engage in express
advocacy.”[
Footnote 20]
McConnell, 540 U. S., at 203–204 (quoting
Beaumont, 539 U. S., at 162). Thus, a successful
as-applied challenger to §203 should necessarily show, at the
least, that it could not constitutionally be subjected to the
administrative rules that govern a PAC’s formation and operation.
See
id., at 163. This would be an uphill fight, after our
repeated affirmations that the PAC structure does not impose
excessive burdens,
ibid. (citing
National Right to
Work Comm., 459 U. S., at 201–202), and WRTL has a
particularly weak position on this point: it set up its own PAC
long before the 2004 election, used it to campaign openly against
Senator Feingold in the past, and could have raised noncorporate
donations to it in the 2004 election cycle. Any argument that
establishing and maintaining a PAC is unconstitutionally burdensome
for WRTL would thus likely be futile, and certainly should not
prevail on WRTL’s summary judgment motion.
For that matter, even without the
PAC alternative, it would be untrue that §203 “banned” WRTL from
saying anything a genuine issue ad would say, for WRTL could have
availed itself of either or both of the following additional
options. It is undisputed that WRTL’s ads could have been broadcast
lawfully in the runup to the election (and bankrolled from WRTL’s
general treasury) if Senator Feingold’s name had been omitted and
the Senator not otherwise singled out. Since members of today’s
majority apparently view WRTL’s broadcasts either as “genuine issue
ad[s],”
ante, at 16 (opinion of The Chief Justice), or as
“lobby[ing] Wisconsin voters concerning the filibustering of the
President’s judicial nominees,”
ante, at 2 (Scalia, J.,
concurring in part and concurring in judgment), a claim that
omitting Senator Feingold’s name would “ban” WRTL’s message is
specious. Yet one searches my Brothers’ opinions in vain for any
persuasive reason why substituting the phrase “Contact your
Senators” for the phrase “Contact Senators Feingold and Kohl” would
have denied WRTL a constitutionally sufficient (and clearly lawful)
alternative way to send its message. If WRTL is to be believed when
it claims that the issue was the point of the ads, it would have
lost nothing by referring simply to the “Senators.”
Finally, the suggestion that §203 is a ban on
political speech is belied by
MCFL’s safe harbor for
nonprofit advocacy corporations: under that rule, WRTL would have
been free to attack Senator Feingold by name at any time with ads
funded from its corporate treasury, if it had not also chosen to
serve as a funnel for hundreds of thousands of dollars from other
corporations. Thus, what is called a “ban” on speech is a limit on
the financing of electioneering broadcasts by entities that refuse
to take advantage of the PAC structure but insist on acting as
conduits from the campaign war chests of business corporations.
D
In sum,
McConnell does
not graft a subjective standard onto campaign regulation, the
context of campaign advertising cannot sensibly be ignored, and
§203 is not a ban on speech. What cannot be gainsaid, in any event,
is that in treating these subjects as it does, the operative
opinion produces the result of overruling
McConnell’s
holding on §203, less than four years in the Reports. Anyone who
doubts that need merely ask what the law would have been if, back
in 2003, this Court had held §203 facially unconstitutional.
BCRA’s definition of
“electioneering communication,” which identifies the communications
regulable under §203, includes a backup to be used if the primary
definition “is held to be constitutionally insufficient by final
judicial decision to support the regulation provided herein.” 2 U.
S. C. §434(f)(3)(A)(ii) (2000 ed., Supp. IV). If this should
occur, “electioneering communication” is to be defined as
“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.”
Ibid.
This backup sounds familiar
because it is essentially identical to The Chief Justice’s
test for evaluating an as-applied challenge to the original
definition of “electioneering communication”: regulation is
permissible only if the communication is “susceptible of no
reasonable interpretation other than as an appeal to vote for or
against a specific candidate,”
ante, at 16. Thus does the
principal opinion institute the very standard that would have
prevailed if the Court formally overruled
McConnell. There
is neither a theoretical nor a practical basis to claim that
McConnell’s treatment of §203 survives.
E
The price of
McConnell’s
demise as authority on §203 seems to me to be a high one. The Court
(and, I think, the country) loses when important precedent is
overruled without good reason, and there is no justification for
departing from our usual rule of
stare decisis here. The
same combination of alternatives that was available to corporations
affected by
McConnell in 2003 is available today: WRTL
could have run a newspaper ad, could have paid for the broadcast
ads through its PAC, could have established itself as an
MCFL organization free of corporate money, and could have
said “call your Senators” instead of naming Senator Feingold in its
ads broadcasted just before the election. Nothing in the related
law surrounding §203 has changed in any way, let alone in any way
that undermines
McConnell’s rationale. See
Planned
Parenthood of Southeastern Pa. v.
Casey,
505 U. S. 833, 854–855
(1992).
Nor can any serious argument be
made that
McConnell’s holding has been “unworkable in
practice.”
Allied-Signal, Inc. v.
Director, Div. of
Taxation,
504
U. S. 768, 783 (1992) (internal quotation marks
omitted)
. McConnell validated a clear rule
resting on mostly bright-line conditions, and there is no
indication that the statute has been difficult to apply.[
Footnote 21] Although WRTL contends
that the as-applied remedy has proven to be “[i]nadequate” because
such challenges cannot be litigated quickly enough to avoid being
mooted, Brief for Appellee 65–66, nothing prevents an advertiser
from obtaining a preliminary injunction if it can qualify for one,
and WRTL does not point to any evidence that district courts have
been unable to rule on any such matters in a timely way.
Finally, it goes without saying that nothing
has changed about the facts. In Justice Frankfurter’s words, they
demonstrate a threat to “the integrity of our electoral process,”
Automobile Workers, 352 U. S., at 570, which for a century
now Congress has repeatedly found to be imperiled by corporate, and
later union, money: witness the Tillman Act, Taft-Hartley, FECA,
and BCRA. See Part II,
supra.
McConnell was our
latest decision vindicating clear and reasonable boundaries that
Congress has drawn to limit “ ‘the corrosive and distorting
effects of immense aggregations of wealth,’ ” 540 U. S., at
205 (quoting
Austin, 494 U. S., at 660), and the decision
could claim the justification of ongoing fact as well as decisional
history in recognizing Congress’s authority to protect the
integrity of elections from the distortion of corporate and union
funds.
After today, the ban on contributions by
corporations and unions and the limitation on their corrosive
spending when they enter the political arena are open to easy
circumvention, and the possibilities for regulating corporate and
union campaign money are unclear. The ban on contributions will
mean nothing much, now that companies and unions can save
candidates the expense of advertising directly, simply by running
“issue ads” without express advocacy, or by funneling the money
through an independent corporation like WRTL.
But the understanding of the voters and the
Congress that this kind of corporate and union spending seriously
jeopardizes the integrity of democratic government will remain. The
facts are too powerful to be ignored, and further efforts at
campaign finance reform will come. It is only the legal landscape
that now is altered, and it may be that today’s departure from
precedent will drive further reexamination of the constitutional
analysis: of the distinction between contributions and
expenditures, or the relation between spending and speech, which
have given structure to our thinking since
Buckley itself
was decided.
I cannot tell what the future will force upon
us, but I respectfully dissent from this judgment today.
Footnote 1
Substantially for the reasons stated by the
Court,
ante, at 7–10, I believe these cases are
justiciable.
Footnote 2
Between candidates, political action
committees, interest groups, and national, state, and local
parties, spending on the 2004 state and federal elections exceeded
$4 billion. K. Patterson, Spending in the 2004 Election, in
Financing the 2004 Election 68, 71, tbl. 3–1 (D. Magleby, A.
Corrado, & K. Patterson eds. 2006). Congressional campaigns
spent over $1 billion in 2004,
id., at 75, tbl. 3–4, state
legislative candidates raised three-quarters of a billion dollars
in the 2003–2004 election cycle, The Institute on Money in State
Politics, State Elec- tions Overview 2004, p. 2 (2005), available
at http://www.followthe money.org/press/Reports/200601041.pdf (all
Internet materials as visited June 20, 2007, and available in Clerk
of Court’s case file), and gubernatorial candidates raised over
$200 million,
id., at 6. State judicial campaigns have
become flush with cash as well, with state supreme court candidates
raising over $30 million in the 2005–2006 cycle. Sample
et al., The New Politics of Judicial Elections 2006, p. 16
(2007), available at
http://www.justiceatstake.org/files/NewPoliticsof
JudicialElections2006.pdf. In a single 2004 judicial election in
Illinois, the candidates raised a breathtaking $9.3 million, an
amount the winner called “ ‘obscene.’ ” The Justice-elect
wondered, “ ‘How can people have faith in the system?’ ”
Moyer & Brandenburg, Big Money and Special Interests are
Warping Judicial Elections, Legal Times, Oct. 9, 2006, p. 50
(quoting Justice Lloyd Karmeier of the Illinois Supreme Court).
According to polling data, the fear that people will lose trust in
the system is well founded. With respect to judicial elections, a
context in which the influence of campaign contributions is most
troubling, a recent poll of business leaders revealed that about
four in five thought that campaign contributions have at least
“some influence” on judges’ decisions, while 90 percent are at
least “somewhat concerned” that “[c]ampaign contributions and
political pressure will make judges accountable to politicians and
special interest groups instead of the law and the Constitution.”
Zogby International, Attitudes and Views of American Business
Leaders on State Judicial Elections and Political Contributions to
Judges 4–5 (May 2007), available at http://www.
ced.org/docs/report/report_2007judicial_survey.pdf. People have
similar feelings about other elected officials. See M. Mellman
& R. Wirthlin, Public Views of Party Soft Money, in Inside the
Campaign Finance Battle 266–269 (A. Corrado, T. Mann, & T.
Potter eds. 2003) (hereinafter Mellman & Wirthlin); see also
infra, at 4–5.
Footnote 3
Perhaps the President’s call was inspired by
the accusations from his own 1904 Democratic opponent, Judge Alton
B. Parker, that the Republican camp accepted corporate campaign
contributions intended to buy influence. See A. Corrado, Money and
Politics: A History of Federal Campaign Finance Law, in A. Corrado,
T. Mann, D. Ortiz, & T. Potter, The New Campaign Finance
Sourcebook 7, 10–11 (2005) (hereinafter Campaign Finance
Sourcebook).
Footnote 4
A bill along similar lines had been
unsuccessfully introduced years earlier by Senator William
Chandler, a New Hampshire Republican whom the railroad interests
helped defeat in 1900. See Mutch 4–6 (discussing the unlikely
alliance between Chandler, a radical Republican, and Senator
Benjamin Tillman, a South Carolina Democrat who ultimately
succeeded in enacting the law that carries his name).
Footnote 5
Taft-Hartley also specified that the
prohibition extends to primary elections, 61 Stat. 159, an
extension that had been thought likely to exceed the authority of
Congress under Art. I, §4 of the Constitution until our decision in
United States v.
Classic,
313 U. S. 299, 317
(1941). See H. Rep. No. 2093, 78th Cong., 2d Sess., 8–9 (1945)
(discussing the significance of
Classic).
Footnote 6
FECA also validated corporate and union
spending on internal communications and nonpartisan activities
designed to promote voting. See 86 Stat. 10 (“[T]he phrase
‘contribution or expenditure’ . . . shall not include
communications by a corporation to its stockholders and their
families, or by a labor organization to its members and their
families on any subject [or] nonpartisan registration and
get-out-the-vote campaigns by a corporation aimed at its
stockholders and their families or by a labor organization aimed at
its members and their families”). “ ‘If an organization …
believes that certain candidates pose a threat to its well-being or
the well-being of its members or stockholders, it should be able to
get its views to those members or stockholders. . . . Both union
members and stockholders have the right to expect this expert
guidance.’ ”
Pipefitters, 407 U. S., at 431, n. 42
(quoting 117 Cong. Rec. 43380 (statement of Rep. Hansen)).
Footnote 7
Compare
Austin v.
Michigan
Chamber of Commerce,
494 U. S. 652, 664 (1990) (First
Amendment does not protect a nonprofit corporation from expenditure
limits if the corporation accepts corporate and union
contributions, lest corporations and unions readily “circumvent”
restrictions on their own election spending “by funneling money
through” nonprofits)
. Justice Scalia asserts that
Austin “strayed far from” the principles we announced in
First Nat. Bank of Boston v.
Bellotti,
435 U. S. 765 (1978).
Ante, at 7 (opinion concurring in part and concurring in
judgment).
Bellotti, however, concerned corporate spending
in connection with a referendum, and we went out of our way in that
case to avoid casting any doubt upon the constitutionality of
limiting corporate expenditures during candidate elections. We
said:
“The overriding concern behind the enactment of [the federal
restrictions on corporate contributions and expenditures] was the
problem of corruption of elected representatives through the
creation of political debts. The importance of the governmental
interest in preventing this occurrence has never been doubted. The
case before us presents no comparable problem, and our
consideration of a corporation’s right to speak on issues of
general public interest implies no comparable right in the quite
different context of participation in a political campaign for
election to public office. Congress might well be able to
demonstrate the existence of a danger of real or apparent
corruption in independent expenditures by corporations to influence
candidate elections.” 435 U. S., at 788, n. 26 (citations
omitted).
Eight years before
Austin, we
unanimously reaffirmed that
Bellotti “specifically pointed
out that in elections of candidates to public office, unlike in
referenda on issues of general public interest, there may well be a
threat of real or apparent corruption.”
Federal Election
Comm’n v.
National Right to Work Comm.,
459 U. S. 197, 210, n. 7 (1982). Then,
four years later, in
MCFL, we also noted that an
expenditure limit offering corporations a PAC alternative is
“distinguishable from the complete foreclosure of any opportunity
for political speech” that we addressed in
Bellotti. 479
U. S., at 259, n. 12. So
Austin did not “stra[y]”
from
Bellotti,
ante, at 7 (opinion of Scalia,
J.); the reasons
Bellotti was not controlling in
Austin had been clearly foreshadowed in
Bellotti
itself and confirmed repeatedly in our decisions leading up to
Austin.
Footnote 8
Or this example from a Texas district where
Democrat Nick Lampson challenged incumbent Republican Steve
Stockman, and where the AFL–CIO ran the following advertisement in
September and October of 1996:
“ ‘[Narrator] What’s important to
America’s families? [Middle-aged man] “My pension is very important
because it will provide a significant amount of my income when I
retire.” [Narrator] And where do the candidates stand? Congressman
Steve Stockman voted to make it easier for corporations to raid
employee pension funds. Nick Lampson opposes that plan. He supports
new safeguards to protect employee pension funds. When it comes to
your pension, there is a difference. Call and find out.’ ”
McConnell v.
FEC, 251 F. Supp. 2d 176, 201 (DC
2003)
(per curiam) (emphasis deleted; brackets in
original).
Footnote 9
Quoting
McConnell,
supra,
at 536, 537 (Kollar-Kotelly, J.) (in turn quoting T. Metaksa,
Opening Remarks at the American Assn. of Political Consultants
Fifth General Session on “Issue Advocacy,” Jan. 17, 1997, p.
2).
Footnote 10
The Senate Committee was not alone in its
concerns. In Wisconsin, for example, the Governor’s Blue-Ribbon
Commission on Campaign Finance Reform reported:
“Especially beginning in 1996, issue advocacy during the
campaign season dramatically expanded in Wisconsin.
. . . . .
“The Commission concludes that, in each of
these cases, the expenditures were clearly campaign-oriented
activities. They were quite clearly designed to influence the
electoral process. They were focused either on electing or
defeating a candidate. The Commission bases this conclusion on the
following points:
“Although those paying for the activities
claimed they were aimed solely at educating voters on the issues,
they each mentioned the names of candidates for office.
“They occurred only when election races were
in progress that involved a contest between an incumbent and a
challenger. When the election was over, the activities ended.
“The activity has occurred after legislative
sessions when the issues about which advocacy was occurring were
not being deliberated by the legislature.
“The activity occurred in campaign season,
between the candidate’s filing for candidacy and election time.
Advertisements of this sort have tended to occur at virtually no
other time.
“The activity involved the electronic media,
mass mailings, or centrally located telephone banks.
. . . . .
“The explosive growth of campaign-based
advocacy, without even disclosure of its activities and funding
sources, poses a grave risk to the integrity of elections. It has
created a two-tiered campaign process: one, based in candidates and
political parties, which is tightly regulated and controlled; the
other, based in interest group activity under the guise of ‘issue
advocacy’ but actually quite clearly election-focused, which lies
beyond accountability.” 1 Governor’s Blue-Ribbon Commission on
Campaign Finance Reform, State of Wisconsin: Report of the
Commission, available at
http://www.lafollette.wisc.edu/campaign_reform/final. htm.
Footnote 11
Campaign finance laws also continue to
provide several specific exemptions from the general prohibition on
corporate election-related spending, including communications “on
any subject” with stockholders and certain personnel, as well as
“nonpartisan registration and get-out-the-vote campaigns” similarly
aimed at shareholders and personnel. §441b(b)(2); see also
n. 6,
supra.
Footnote 12
To the extent these facts are disputed, we
must view them in the light most favorable to the Federal Election
Commission and the intervenor-defendants, since the District Court
granted WRTL’s motion for summary judgment. See
Pennsylvania
State Police v.
Suders,
542 U. S. 129, 134
(2004).
Footnote 13
These quotations are taken from the “Wedding”
ad, although the relevant language in all of the ads is virtually
identical. See
ante, at 4–6, and nn. 2–3 (principal
opinion).
Footnote 14
See,
e.g., Hearing before the
Subcommittee on the Constitution, Civil Rights and Property Rights
of the Senate Committee on the Judiciary, 108th Congress, 1st
Sess., 5–7 (2003) (statement of Sen. Feingold).
Footnote 15
See Gilbert, 3 Seeking Feingold Seat Attack
Him on Judges Issue, Milwaukee Journal Sentinel, Nov. 18, 2003,
App. 70–76 (“In Wisconsin, the three Republicans vying to take on
Senate Democrat Russ Feingold are attacking him on judges and
assert the controversy resonates with voters”).
Footnote 16
That the ads purported to target Senator Kohl
as well as Senator Feingold is of little import; since the ads
would have run during the peak of the 2004 campaign, the audience’s
focus would naturally fall more heavily on Senator Feingold (who
was up for reelection) rather than Senator Kohl (who was not).
Footnote 17
The Chief Justice says that
Buckley
v.
Valeo,
424 U. S. 1 (1976)
(per
curiam), “already rejected” any test that calls for an
assessment of the intent and effect of corporate electioneering.
Ante, at 13. The “reject[ion]” to which The Chief Justice
presumably refers is
Buckley’s quotation of
Thomas v.
Collins,
323 U. S. 516 (1945),
where we found impermissibly vague a statute that permitted a union
leader to “ ‘laud unionism’ ” but forbade him to “imply
an invitation” to join a union.
Id., at 534. The problem
with this predicament, we reasoned, was the lack of a clearly
permissible opportunity for expression: Whether words “designed to
fall short of invitation would miss that mark is a question both of
intent and of effect,” and no speaker “safely could assume that
anything he might say … would not be understood by some as an
invitation.”
Id., at 535. We then specified that the
speaker in
Thomas was left with an impermissibly limited
universe of “three choices: (1) to stand on his right and speak
freely; (2) to quit, refusing entirely to speak; (3) to trim, and
even thus to risk the penalty.”
Id., at 536.
The Chief Justice implies that considering the
intent and effect of corporate advertising during as-applied
challenges to §203 would put corporations in precisely the same
bind; thus, he wonders how
McConnell could use the
language of intent and effect without “even address[ing] what
Buckley” (and by extension,
Thomas) “had to say
on the subject.”
Ante, at 14. But one need not look far in
our
McConnell opinion to understand why we thought that
corporations have more than the constrained set of options
available to the union leader in
Thomas. Just a few
sentences after holding that ads with electioneering intent and
effect are regulable, we gave this explanation: “in the future
corporations and unions may finance genuine issue ads [shortly
before an election] by simply avoiding any specific reference to
federal candidates, or in doubtful cases by paying for the ad from
a segregated fund.” 540 U. S., at 206. In other words, corporations
can find refuge in constitutionally sufficient and clearly
delineated safe harbors by modifying the content of their ads (by
omitting a candidate’s name) or by altering the sources of their
ads’ financing (from general treasuries to PACs). The Chief Justice
thus wrongly jettisons our conclusions about the constitutionality
of regulating ads with electioneering purpose; we meant what we
said in
McConnell, and we did not overlook First Amendment
jurisprudence when we said it. Whereas The Chief Justice says that
BCRA “should provide a safe harbor for those who wish to exercise
First Amendment rights,”
ante, at 14, we already held in
McConnell that the campaign finance law accomplishes
precisely that.
Footnote 18
The Chief Justice speculates that
McConnell derived its test for functional equivalence from
“[t]wo key studies,”
ante, at 12, but not a shred of
language in
McConnell supports that theory. In stating the
legal standard,
McConnell made no mention of any study.
What is the authority, then, for asserting that the studies were
pivotal to the standard we announced in
McConnell? See
ante, at 12. Other than WRTL’s brief, The Chief Justice
cites only Judge Henderson’s separate district court opinion in
McConnell.
Ante, at 12. But The Chief Justice
quotes one part of Judge Henderson’s analysis and neglects to
mention that she in turn was quoting the lead author of one of the
studies in question: “According to the Brennan Center, the
Buying Time reports were ‘the central piece of evidence
marshaled by defenders of’ BCRA’s electioneering communication
provisions ‘in support of their constitutional validity.’ ”
McConnell, 251 F. Supp. 2d, at 307–308 (opinion of
Henderson, J.) (italics in original) (quoting deposition of Craig
P. Holman, principal co-author of Buying Time 2000: Television
Advertising in the 2000 Federal Elections (Brennan Center
2001)).
Footnote 19
Like the District Court, the only bit of
context The Chief Justice would allow the reasonable listener is
the congressional agenda: whether the “ ‘issue’ ”
addressed in an ad currently is, or soon will be, “ ‘the
subject of legislative scrutiny.’ ”
Ante, at 20
(quoting 466 F. Supp. 2d, at 207). For example, The Chief
Justice says, there would have been “no reason” to think that
WRTL’s ad constituted anything but a pure issue ad if it addressed
a bill pending during Senator Feingold’s reelection campaign, such
as the Universal National Service Act.
Ante, at 17. It is
revealing, of course, that The Chief Justice does not invoke the
filibuster issue, the subject of WRTL’s ads, as the legislative
matter with particular salience during the 2004 election. But why
the reasonable listener can look to Congress but not the calendar
on the wall or a WRTL website is difficult to fathom.
Footnote 20
Justice Scalia also adopts the same misconception
that §203 is a “ban” on speech. See
ante, at 18 (“Section
203’s line is bright, but it bans vast amounts of political
advocacy indistinguishable from hitherto protected speech”).
Footnote 21
These as-applied challenges provide no reason
to second-guess our conclusion in
McConnell that the rule
for differentiating between electioneering ads and genuine issue
ads is administrable. WRTL’s ads clearly have an electioneering
purpose and, as explained above, fall comfortably within the
heartland of electioneering communications that §203 may validly
regulate. Thus, although Justice Scalia claims that “[t]oday’s
cases make it apparent” that
McConnell must be overruled,
ante, at 18, there is nothing about today’s cases that
suggests that
McConnell is unworkable. We therefore have
no occasion to reconsider
McConnell from first
principles.
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