OCTOBER TERM, 2002
Syllabus
FEDERAL ELECTION COMMISSION
v. BEAUMONT ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 02-403. Argued March 25, 2003-Decided June 16,2003
A corporation is prohibited from making "a contribution or
expenditure in connection with" certain federal elections, 2 U. S.
C. § 441b(a), but not from establishing, administering, and
soliciting contributions to a separate fund to be used for
political purposes, §441b(b)(2)(C). Such a PAC (so called after the
political action committee that runs it) is free to make
contributions and other expenditures in connection with federal
elections. Respondents, a nonprofit advocacy corporation known as
North Carolina Right to Life, Inc., and others (collectively NCRL),
sued petitioner Federal Election Commission (FE C), challenging the
constitutionality of § 441b and its implementing regulations as
applied to NCRL. As relevant here, the District Court granted NCRL
summary judgment as to the ban on direct contributions, and the
Fourth Circuit affirmed.
Held: Applying the direct contribution prohibition to
nonprofit advocacy corporations is consistent with the First
Amendment. Pp. 152-163.
(a) An attack on the federal prohibition of direct corporate
political contributions goes against the current of a century of
congressional efforts to curb corporations' potentially deleterious
influences on federal elections. Since 1907, federal law has barred
such direct corporate contributions. Much of the subsequent
congressional attention to corporate political activity has been
meant to strengthen the original, core prohibition on such
contributions.
Federal Election Comm'n v.
National Right
to Work Comm., 459 U. S. 197. As in
1907, current law focuses on the corporate structure's special
characteristics that threaten the integrity of the political
process.
Id., at 209. In barring corporate earnings from
turning into political "war chests," the ban was and is intended to
"preven[t] corruption or the appearance of corruption."
Federal
Election Comm'n v.
National Conservative Political Action
Comm., 470 U. S.
480, 496-497. The ban also protects individuals who have paid
money into a corporation or union for other purposes from having
their money used to support political candidates to whom they may
be opposed,
National Right to Work, supra, at 208, and
hedges
147
against use of corporations as conduits for circumventing "valid
contribution limits,"
Federal Election Comm'n v.
Colorado
Republican Federal Campaign Comm., 533 U. S. 431,456, and n.
18. Pp. 152-156.
(b)
National Right to Work all but decided against NCRUs
position that § 441b's ban on direct contributions is
unconstitutional as applied to nonprofit advocacy corporations.
There, this Court upheld the part of § 441b restricting a nonstock
corporation to its membership when soliciting PAC contributions,
concluding that the congressional judgment to regulate corporate
political involvement warrants considerable deference and reflects
a permissible assessment of the dangers that corporations pose to
the electoral process. 459 U. S., at 207-211. It would be hard to
read this conclusion, except on the practical understanding that
the corporation's capacity to make contributions was legitimately
limited to indirect donations within the scope allowed to PACs. And
the Court specifically rejected the argument made here, that
deference to congressional judgments about corporate contribution
limits turns on details of corporate form or the affluence of
particular corporations.
National Right to Work has
repeatedly been read as approving § 441b's prohibition on direct
contributions, even by nonprofit corporations without great
financial resources. Equal significance must be accorded to
Federal Election Comm'n v.
Massachusetts Citizens for
Life, Inc., 479 U. S. 238, on which NCRL and the Fourth Circuit
have relied. In holding § 441b's prohibition on independent
expenditures unconstitutional as applied to a nonprofit advocacy
corporation, the Court there distinguished
National Right to
Work on the ground that it addressed regulation of
contributions, not expenditures. Pp. 156-159.
(c) This Court could not hold for NCRL without recasting its
understanding of the risks of harm posed by corporate political
contributions, of the expressive significance of contributions, and
of the consequent deference owed to legislative judgments on what
to do about them. NCRUs efforts do not unsettle existing law on
these points. Its argument that
Massachusetts Citizens for
Life-type corporations pose no potential threat to the
political system is rejected. Concern about the corrupting
potential underlying the corporate ban may be implicated by
advocacy corporations, which, like their for-profit counterparts,
benefit from state-created advantages and may be able to amass
substantial political war chests. Also rejected is NCRUs argument
that the application of the ban on direct contributions should be
subject to strict scrutiny because § 441b bars, rather than limits,
contributions based on their source. When reviewing political
financial restrictions, the level of scrutiny is based on the
importance of the political activity at issue to effective speech
or political association, and restrictions on political
148
contributions have long been treated as marginal speech
restrictions subject to relatively complaisant First Amendment
review because contributions lie closer to the edges than to the
core of political expression. Thus, a contribution limit passes
muster if it is closely drawn to match a sufficiently important
interest. The time to consider the difference between a ban and a
limit is when applying scrutiny at the level selected, not in
selecting the standard of review itself. But even NCRUs argument
that § 441b is not closely drawn rests on the false premise that
the provision is a complete ban. In fact, the provision allows
corporate political participation through PACs. And this Court does
not think that regulatory burdens on PACs, including restrictions
on their ability to solicit funds, renders a PAC unconstitutional
as an advocacy corporation's sole avenue for making political
contributions. See
National Right to Work, supra, at
201-202. Pp. 159-163.
278 F.3d
261, reversed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ.,
joined. KENNEDY, J., filed an opinion concurring in the judgment,
post, p. 163. THOMAS, J., filed a dissenting opinion, in
which SCALIA, J., joined,
post, p.164.
Deputy Solicitor General Clement argued the cause for
petitioner. With him on the briefs were Solicitor General Olson,
Assistant Attorney General McCallum, Gregory G. Garre, Douglas N.
Letter, Edward Himmelfarb, and Jonathan H. Levy.
James Bopp, Jr., argued the cause for respondents. With
him on the brief were
Richard E. Co
leson and
Thomas J.
Marzen.*
*Briefs of
amici curiae urging reversal were filed for
the Association of Trial Lawyers of America by
Jeffrey Robert
White; for the Brennan Center for Justice at New York
University School of Law by
Burt Neuborne, Frederick A. O.
Schwarz, and
Deborah Goldberg; and for Public
Citizen, Inc., et al. by
Scott L. Nelson, Alan B. Morrison,
and
David
Briefs of
amici curiae urging affirmance were filed for
the American Taxpayers Alliance by
Alan P. Dye; for the
Pacific Legal Foundation by
Deborah J.
La Fetra; and
for ReaICampaignReform.org, Inc., et al. by
William J.
Olson, John S.
Miles, and
Herbert W Titus.
149
JUSTICE SOUTER delivered the opinion of the Court. Since 1907,
federal law has barred corporations from contributing directly to
candidates for federal office. We hold that applying the
prohibition to nonprofit advocacy corporations is consistent with
the First Amendment.
I
The current statute makes it "unlawful ... for any corporation
whatever ... to make a contribution or expenditure in connection
with" certain federal elections, 90 Stat. 490, as renumbered and
amended, 2 U. S. C. § 441b(a), "contribution or expenditure" each
being defined to include "anything of value," § 441b(b)(2). The
prohibition does not, however, forbid "the establishment,
administration, and solicitation of contributions to a separate
segregated fund to be utilized for political purposes." §
441b(b)(2)(C); see § 431(4)(B). Such a PAC (so called after the
political action committee that runs it) may be wholly controlled
by the sponsoring corporation, whose employees and stockholders or
members generally may be solicited for contributions. See §§
441b(b)(4)(B)-(C);
Federal Election Comm'n v.
National
Right to Work Comm., 459 U. S. 197, 200, n. 4
(1982). While federal law requires PACs to register and disclose
their activities, §§ 432-434; see
Federal Election Comm'n v.
Massachusetts Citizens for Life, Inc., 479 U. S. 238, 253-254
(1986), the law leaves them free to make contributions as well as
other expenditures in connection with federal elections, §
441b(b)(2)(C).
Respondents are a corporation known as North Carolina Right to
Life, Inc., three of its officers, and a North Carolina voter
(here, together, NCRL), who have sued the Federal Election
Commission, the independent agency set up to "administer, seek to
obtain compliance with, and formulate policy with respect to" the
federal electoral laws. § 437c
150
(b)(l). NCRL challenges the constitutionality of § 441b and the
FEC's regulations implementing that section, 11 CFR §§ 114.2(b),
114.10 (2003), but only so far as they apply to NCRL. The
corporation is organized under the laws of North Carolina to
provide counseling to pregnant women and to urge alternatives to
abortion, and as a nonprofit advocacy corporation it is exempted
from federal taxation by § 501(c)(4) of the Internal Revenue Code,
26 U. S. C. § 501(c)(4).1 It has no shareholders and, although it
receives some donations from traditional business corporations, it
is "overwhelmingly funded by private contributions from
individuals." App. 14. NCRL has made contributions and expenditures
in connection with state elections, but not federal, owing to 2 U.
S. C. § 441b. Instead, it has established a PAC, the North Carolina
Right to Life, Inc., Political Action Committee, which has
contributed to federal candidates. See
North Carolina Right to
Life, Inc. v.
Bartlett, 168 F.3d
705, 709 (CA4 1999), cert. denied, 528 U. S. 1153 (2000).
The District Court granted summary judgment to NCRL and held §
441b unconstitutional as applied to the corporation, both as to
direct contributions and independent expenditures. 137 F. Supp. 2d
648 (EDNC 2000). A divided Court of Appeals for the Fourth Circuit
affirmed,
278 F.3d
261 (2002), relying primarily on
Massachusetts Citizens for
Life, in which this Court held it unconstitutional to apply the
statute to independent expenditures by Massachusetts Citizens for
Life, Inc., a nonprofit advocacy corporation in some re-
1 Section 501(c)(4)(A) grants exemption to "[c]ivic leagues or
organizations not organized for profit but operated exclusively for
the promotion of social welfare, ... the net earnings of which are
devoted exclusively to charitable, educational, or recreational
purposes." An organization "may carryon lawful political activities
and remain exempt under section 501(c)(4) as long as it is
primarily engaged in activities that promote social welfare." Rev.
Rul. 81-95, 1981-1 Cum. Bull. 332. Unlike contributions to §
501(c)(3) organizations, donations to those recognized under §
501(c)(4) are not tax deductible. See
Regan v.
Taxation
With Representation of Wash., 461 U. S. 540, 543
(1983).
151
spects like NCRL. The Court of Appeals ruled, first, that the
prohibition on independent expenditures may not be applied to NCRL.
Although the panel acknowledged that Massachusetts Citizens for
Life, unlike NCRL, had a formal policy against accepting corporate
donations, see
Massachusetts Citizens for Life, supra, at
263-264 (describing this feature of the organization as "essential
to our holding"), it nevertheless treated NCRL as materially
indistinguishable from Massachusetts Citizens for Life.
To the point for present purposes, the Court of Appeals went on
to hold the ban on direct contributions likewise unconstitutional
as applied to NCRL. While the majority of the divided court
recognized that regulation of campaign contributions has received
greater deference under First Amendment cases than regulation of
independent expenditures, 278 F. 3d, at 274 (citing
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 386-388
(2000)), it held the ban on direct contributions unjustified as
applied to
"[Massachusetts Citizens for Life]-type
corporations," which it thought "pose[d] no risk of 'unfair
deployment of wealth for political purposes.'" 278 F. 3d, at 275
(quoting
Massachusetts Citizens for Life, supra, at 259).
The Court of Appeals reasoned that "[t]he rationale utilized by the
Court in
[Massachusetts Citizens for Life] to declare
prohibitions on independent expenditures unconstitutional as
applied to [the advocacy corporation involved there] is equally
applicable in the context of direct contributions." 278 F. 3d, at
275. Judge Gregory dissented from the others on this point, since
he saw no way to square their conclusion with this Court's
reasoning in
National Right to Work. 278 F. 3d, at 282.
After the Fourth Circuit divided 7 to 4 in denying rehearing en
bane, the FEC petitioned for certiorari solely as to the
constitutionality of the ban on direct contributions.2 Be-
2We thus have no occasion to say whether the Court of Appeals
correctly held NCRL entitled to the so-called
"Massachusetts
Citizens for Life exception" to the statute's ban on
independent expenditures.
152
cause on that issue the Fourth Circuit is in conflict with the
Sixth, see
Kentucky Right to Life, Inc. v.
Terry,
108 F.3d
637, 645-646 (1997) (upholding a provision of Kentucky law
analogous to § 441b), we granted certiorari, 537 U. S. 1027 (2002).
We now reverse.
II A
Any attack on the federal prohibition of direct corporate
political contributions goes against the current of a century of
congressional efforts to curb corporations' potentially
"deleterious influences on federal elections," which we have
canvassed a number of times before.
United States v.
Automobile Workers, 352 U. S. 567, 585
(1957); see
id., at 570-584; see also
National Right to
Work, 459 U. S., at 208-209;
Pipefitters v.
United
States, 407 U. S.
385, 402-412 (1972);
United States v.
CIO,
335 U. S. 106,
113-115 (1948). The current law grew out of a "popular feeling" in
the late 19th century "that aggregated capital unduly influenced
politics, an influence not stopping short of corruption."
Automobile Workers, supra, at 570. A demand for
congressional action gathered force in the campaign of 1904, which
made a national issue of the political leverage exerted through
corporate contributions, and after the election and new revelations
of corporate political overreaching, President Theodore Roosevelt
made banning corporate political contributions a legislative
priority. R. Mutch, Campaigns, Congress, and Courts: The Making of
Federal Campaign Finance Law 1-8 (1988); see
Automobile
Workers, 352 U. S., at 571-575. Although some congressional
proposals would have "prohibited political contributions by [only]
certain classes of corporations," id., at 573, the momentum was
"for elections 'free from the power of money,'" id., at 575
(citation omitted), and Congress acted on the President's call for
an outright ban, not with half measures, but with the Tillman Act,
ch. 420, 34 Stat. 864. This "first federal campaign finance law,"
Mutch,
supra, at
153
xvii, banned "any corporation whatever" from making "a money
contribution in connection with" federal elections, 34 Stat.
864-865.
Since 1907, there has been continual congressional attention to
corporate political activity, sometimes resulting in refinement of
the law, sometimes in overhaul.3 One feature, however, has stayed
intact throughout this "careful legislative adjustment of the
federal electoral laws,"
National Right to Work, supra, at
209, and much of the periodic amendment was meant to strengthen the
original, core prohibition on direct corporate contributions. The
Foreign Corrupt Practices Act of 1925, for example, broadened the
ban on contributions to include "anything of value," and
criminalized the act of receiving a contribution to match the
criminality of making one. Ch. 368, §§ 302, 313, 43 Stat.
1070,1074. So, in another instance, the 1947 Labor Management
Relations Act drew labor unions permanently within the law's reach
and invigorated the earlier prohibition to include "expenditure[s]"
as well. Ch. 120, § 304, 61 Stat. 159; see
Pipe fitters,
supra, at 402.
Today, as in 1907, the law focuses on the "special
characteristics of the corporate structure" that threaten the
integrity of the political process.
National Right to Work,
459 U. S., at 209; see
id., at 207; see also
Austin
v.
Michigan Chamber of Commerce, 494 U. S. 652, 658-659
(1990);
Massachusetts Citizens for Life, 479 U. S., at
257-258;
Federal Election Comm'n v.
National Conservative
Political Action Comm., 470 U. S. 480, 500-501
(1985). As we explained it in
Austin,
3 See,
e. g., Act of June 25, 1910, ch. 392, 36 Stat.
822; Act of Aug. 19, 1911, ch. 33, 37 Stat. 25; Federal Corrupt
Practices Act, 1925, ch. 368, 43 Stat. 1070; Act of July 19, 1940
(Hatch Act), 54 Stat. 767; War Labor Disputes Act, 1943, ch. 144, §
9, 57 Stat. 167; Labor Management Relations Act, 1947, §304, 61
Stat. 159; Act of Oct. 31, 1951, §21, 65 Stat. 718; Federal
Election Campaign Act of 1971 (FECA), 86 Stat. 3; FECA Amendments
of 1974, 88 Stat. 1263; FECA Amendments of 1976, 90 Stat. 475; FECA
Amendments of 1979, 93 Stat. 1339; Bipartisan Campaign Reform Act
of 2002, 116 Stat. 81.
154
"State law grants corporations special advantages-such as
limited liability, perpetual life, and favorable treatment of the
accumulation and distribution of assetsthat enhance their ability
to attract capital and to deploy their resources in ways that
maximize the return on their shareholders' investments. These
state-created advantages not only allow corporations to playa
dominant role in the Nation's economy, but also permit them to use
'resources amassed in the economic marketplace' to obtain 'an
unfair advantage in the political marketplace.'" 494 U. S., at
658-659 (quoting Massachusetts Citizens for Life, supra, at
257).
Hence, the public interest in "restrict[ing] the influence of
political war chests funneled through the corporate form."
National Conservative Political Action Comm., supra, at
500-501; see
National Right to Work, supra, at 207
("[S]ubstantial aggregations of wealth amassed by the special
advantages which go with the corporate form of organization should
not be converted into political 'war chests' which could be used to
incur political debts from legislators").
As these excerpts from recent opinions show, not only has the
original ban on direct corporate contributions endured, but so have
the original rationales for the law. In barring corporate earnings
from conversion into political "war chests," the ban was and is
intended to "preven[t] corruption or the appearance of corruption."
National Conservative Political Action Comm., supra, at
496-497; see also
First Nat. Bank of Boston v.
Bellotti, 435
U. S. 765, 788, n. 26 (1978) ("The importance of the
governmental interest in preventing [corruption] has never been
doubted"). But the ban has always done further duty in protecting
"the individuals who have paid money into a corporation or union
for purposes other than the support of candidates from having that
money used to support political candidates to whom they may be
opposed."
National Right to Work, supra, at 208;
155
see
CIO, 335 U. S., at 113; see also
Austin,
supra, at 673-678 (Brennan, J., concurring).
Quite aside from war-chest corruption and the interests of
contributors and owners, however, another reason for regulating
corporate electoral involvement has emerged with restrictions on
individual contributions, and recent cases have recognized that
restricting contributions by various organizations hedges against
their use as conduits for "circumvention of [valid] contribution
limits."
Federal Election Comm'n v.
Colorado Republican
Federal Campaign Comm., 533 U. S. 431, 456, and
n. 18 (2001); see
Austin, supra, at 664. To the degree that
a corporation could contribute to political candidates, the
individuals "who created it, who own it, or whom it employs,"
Cedric Kushner Promotions, Ltd. v.
King, 533 U. S. 158, 163
(2001), could exceed the bounds imposed on their own contributions
by diverting money through the corporation, cf.
Colorado
Republican, 533 U. S., at 446-447. As we said on the subject of
limiting coordinated expenditures by political parties, experience
"demonstrates how candidates, donors, and parties test the limits
of the current law, and it shows beyond serious doubt how
contribution limits would be eroded if inducement to circumvent
them were enhanced."
Id., at 457.
In sum, our cases on campaign finance regulation represent
respect for the "legislative judgment that the special
characteristics of the corporate structure require particularly
careful regulation."
National Right to Work, supra, at
209-210. And we have understood that such deference to legislative
choice is warranted particularly when Congress regulates campaign
contributions, carrying as they do a plain threat to political
integrity and a plain warrant to counter the appearance and reality
of corruption and the misuse of corporate advantages. See,
e.
g., Buckley v.
Valeo, 424 U. S. 1, 26-28, 47
(1976)
(per curiam). As we said in
Colorado
Republican, "limits on contributions are more clearly justified
by a link to political corruption than limits on other
156
kinds of ... political spending are (corruption being understood
not only as
quid pro quo agreements, but also as undue
influence on an officeholder's judgment, and the appearance of such
influence)." 533 U. S., at 440-441 (citation omitted).
B
That historical prologue would discourage any broadside attack
on corporate campaign finance regulation or regulation of corporate
contributions, and NCRL accordingly questions § 441b only to the
extent the law places nonprofit advocacy corporations like itself
under the general ban on direct contributions. But not even this
more focused challenge can claim a blank slate, for Judge Gregory
rightly said in his dissent that our explanation in
National
Right to Work all but decided the issue against NCRL's
position.
National Right to Work addressed the provision of § 441b
restricting a nonstock corporation to its membership when
soliciting contributions to its PAC,4 and we considered whether a
nonprofit advocacy corporation without members of the usual sort
could be held to violate the law by soliciting a donation to its
PAC from any individual who had at one time contributed to the
corporation. See 459 U. S., at 199200. We sustained the FEC's
position that a fund drive as broad as this went beyond the
solicitation of "members" permitted by § 441b, and we invoked the
history distilled above in holding that the statutory restriction
was no infringement on those First Amendment associational rights
closely akin to speech.
Id., at 206-209. We concluded that
the congressional judgment to regulate corporate political
involvement
4 Section 441b(b)(4)(A) bars a corporation from soliciting
contributions to a PAC established by the corporation, except from
stockholders or other specified categories of persons. Section
441b(b)(4)(C), the specific provision at issue in
National Right
to Work, provides, in relevant part, that § 441b(b)(4)(A)
"shall not prevent a ... corporation without capital stock ... from
soliciting contributions to [a PAC established by the corporation]
from members of such ... corporation."
157
"warrants considerable deference" and "reflects a permissible
assessment of the dangers posed by [corporations] to the electoral
process."
Id., at 207-211.
It would be hard to read our conclusion in
National Right to
Work, that the PAC solicitation restrictions were
constitutional, except on the practical understanding that the
corporation's capacity to make contributions was legitimately
limited to indirect donations within the scope allowed to P ACs.
See,
e. g., id., at 208 (reviewing both "the statutory
prohibitions and exceptions"). In fact, we specifically rejected
the argument made here, that deference to congressional judgments
about proper limits on corporate contributions turns on details of
corporate form or the affluence of particular corporations. In the
same breath, we remarked on the broad applicability of § 441b to
"corporations and labor unions without great financial resources,
as well as those more fortunately situated," and made a point of
refusing to "second-guess a legislative determination as to the
need for prophylactic measures where corruption is the evil
feared."
Id., at 210.
Later cases have repeatedly acknowledged, without questioning,
the reading of
National Right to Work as generally approving
the § 441b prohibition on direct contributions, even by nonprofit
corporations "without great financial resources."
Ibid. In
National Conservative Political Action Committee, for
example, we not only spoke of
National Right to Work as
consistent with "the well-established constitutional validity of
legislative regulation of corporate contributions to candidates for
public office," but went on to reaffirm that the Court in that case
had "rightly concluded that Congress might include, along with
labor unions and corporations traditionally prohibited from making
contributions to political candidates, membership corporations,
though contributions by the latter might not exhibit all of the
evil that contributions by traditional economically organized
corporations exhibit." 470 U. S., at 495,500; see id., at 500
(describ-
158
ing
National Right to Work as giving "proper deference to
a congressional determination of the need for a prophylactic
rule"). Relying again on
National Right to Work, we made a
similar point in
Austin when we sustained Michigan's ban on
direct corporate contributions, even though the ban "include[d]
within its scope closely held corporations that do not possess vast
reservoirs of capital." 494 U. S., at 661. "Although some closely
held corporations, just as some publicly held ones, may not have
accumulated significant amounts of wealth, they receive from the
State the special benefits conferred by the corporate structure and
present the potential for distorting the political process. This
potential for distortion justifies [the state law's] general
applicability to all corporations."
Ibid.
But
National Right to Work does not stand alone in its
bearing on the issue here, and equal significance must be accorded
to
Massachusetts Citizens for Life, the very case upon which
NCRL and the Court of Appeals have placed principal reliance.
There, we held the prohibition on independent expenditures under §
441b unconstitutional as applied to a nonprofit advocacy
corporation. While the majority explained generally that the
"potential for unfair deployment of wealth for political purposes"
fell short of justifying a ban on expenditures by groups like
Massachusetts Citizens for Life that "do not pose that danger of
corruption," the majority's response to the dissent pointed to a
different resolution of the present case. 479 U. S., at 259. THE
CHIEF JUSTICE'S dissenting opinion noted that Massachusetts
Citizens for Life "was not unlike" the corporation at issue in
National Right to Work, which he read as supporting the ban
on independent expenditures. 479 U. S., at 269. Without disagreeing
about the similarity of the two organizations, the majority
nonetheless distinguished
National Right to Work on the
ground of its addressing regulation of contributions, not
expenditures. See 479 U. S., at 259-260 ("[R]estrictions on
contributions require less com-
159
pelling justification than restrictions on independent
spending"). "In light of the historical role of contributions in
the corruption of the electoral process, the need for a broad
prophylactic rule [against contributions] was thus sufficient in
[National Right to Work]." Id., at 260.
C
The upshot is that, although we have never squarely held against
NCRUs position here, we could not hold for it without recasting our
understanding of the risks of harm posed by corporate political
contributions, of the expressive significance of contributions, and
of the consequent deference owed to legislative judgments on what
to do about them. NCRUs efforts, however, fail to unsettle existing
law on any of these points.
First, NCRL argues that on a class-wide basis
"[Massachusetts
Citizens for Life]-type corporations pose no potential of
threat to the political system," so that the governmental interest
in combating corruption is as weak as the Court held it to be in
relation to the particular corporation considered in
Massachusetts Citizens for Life. Brief for Respondents 19.
But this generalization does not hold up. For present purposes, we
will assume advocacy corporations are generally different from
traditional business corporations in the improbability that
contributions they might make would end up supporting causes that
some of their members would not approve. See
Massachusetts
Citizens for Life, supra, at 260-262.5 But concern about the
corrupt-
5 That said, this concern is not wholly inapplicable to advocacy
corporations, as "persons may desire that an organization use their
contributions to further a certain cause, but may not want the
organization to use their money to urge support for or opposition
to political candidates solely on the basis of that cause."
Massachusetts Citizens for Life, 479 U. S., at 261. In any
event, we have never intimated that the risk of corruption alone is
insufficient to support regulation of political contributions. See,
e. g., Austin v.
Michigan Chamber of Commerce,
494 U. S. 652,
658-659
(1990); Federal Election Comm'n v.
National Right
to Work Comm., 459
160
ing potential underlying the corporate ban may indeed be
implicated by advocacy corporations. They, like their forprofit
counterparts, benefit from significant "state-created advantages,"
Austin, supra, at 659, and may well be able to amass
substantial "political 'war chests,'"
National Right to
Work, 459 U. S., at 207. Not all corporations that qualify for
favorable tax treatment under § 501(c)(4) of the Internal Revenue
Code lack substantial resources, and the category covers some of
the Nation's most politically powerful organizations, including the
AARP, the National Rifle Association, and the Sierra Club.6
Nonprofit advocacy corporations are, moreover, no less susceptible
than traditional business companies to misuse as conduits for
circumventing the contribution limits imposed on individuals. Cf.
Austin, supra, at 664 (noting that a nonprofit corporation
is capable of "serv[ing] as a conduit for corporate political
spending").7
u. S. 197, 208 (1982); cf. Nixon v. Shrink Missouri Government
PAC, 528
6 See
http://www.aarp.org/press/disclosure.html
(as visited June 12, 2003) (available in Clerk of Court's case
file) (AARP);
http://www.give.org/ reports/index.asp
(as visited June 12, 2003) (available in Clerk of Court's case
file) (National Rifle Association and Sierra Club). These examples
answer NCRUs argument that the
Massachusetts Citizens for
Life exception is "self-limiting." See Brief for Respondents 27
("If [a
Massachusetts Citizens for Life]-type corporation
begins generating or receiving substantial business income or
business corporation contributions, by definition, it automatically
is no longer [a
Massachusetts Citizens for Life ]-type
corporation" (citing
Federal Election Comm'n v.
Massachusetts Citizens for Life, Inc., 479 U. S. 238, 263-264
(1986))). The nonprofit advocacy corporations mentioned (one of
which has, in fact, been granted
"[Massachusetts Citizens for
Life]-type" status by a Court of Appeals, see,
e. g.,
FEC v.
National Rifle Assn., 254 F.3d
173, 192 (CADC 2001)) show that "political 'war chests'" may be
amassed simply from members' contributions. 459 U. S., at 207.
7 NCRL suggests that the Government's interest in combating
circumvention of the campaign finance laws would be sufficiently
met by allowing limited contributions subject to the earmarking
rule of § 441a(a)(8), which provides that "contributions which are
in any way earmarked or otherwise directed through an intermediate
or conduit to [a] candidate" are treated as contributions to the
candidate (thus triggering the disclosure require-
161
Second, NCRL argues that application of the ban on its
contributions should be subject to a strict level of scrutiny, on
the ground that § 441b does not merely limit contributions, but
bans them on the basis of their source. Brief for Respondents
14-16. This argument, however, overlooks the basic premise we have
followed in setting First Amendment standards for reviewing
political financial restrictions: the level of scrutiny is based on
the importance of the "political activity at issue" to effective
speech or political association.
Massachusetts Citizens for
Life, 479 U. S., at 259; see
Colorado Republican, 533 U.
S., at 440-442, and nn. 6-7;
Nixon, 528 U. S., at 386-388.
Going back to
Buckley v.
Valeo, 424 U. S. 1 (1976),
restrictions on political contributions have been treated as merely
"marginal" speech restrictions subject to relatively complaisant
review under the First Amendment, because contributions lie closer
to the edges than to the core of political expression. See
Colorado Republican, supra, at 440.8 "While contributions
may result in political expression if spent by a candidate or an
association ... , the transformation of contributions into
political debate involves
ments of § 434(b)(3)(A)). Brief for Respondents 31. We rejected
this precise argument, however, in
Federal Election Comm'n
v.
Colorado Republican Federal Campaign Comm., 533 U. S. 431 (2001),
where we concluded that it "ignores the practical difficulty of
identifying and directly combating circumvention under actual
political conditions."
Id., at 462. "The earmarking
provision ... would reach only the most clumsy attempts to pass
contributions through to candidates. To treat the earmarking
provision as the outer limit of acceptable tailoring would disarm
any serious effort to limit [circumvention]."
Ibid.
8 Within the realm of contributions generally, corporate
contributions are furthest from the core of political expression,
since corporations' First Amendment speech and association
interests are derived largely from those of their members, see,
e. g., NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449, 458-459
(1958), and of the public in receiving information, see,
e. g.,
First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 777
(1978). A ban on direct corporate contributions leaves individual
members of corporations free to make their own contributions, and
deprives the public of little or no material information.
162
speech by someone other than the contributor."
Buckley,
supra, at 20-21. This is the reason that instead of requiring
contribution regulations to be narrowly tailored to serve a
compelling governmental interest, "a contribution limit involving
'significant interference' with associational rights" passes muster
if it satisfies the lesser demand of being " 'closely drawn' to
match a 'sufficiently important interest.' "
Nixon, supra,
at 387-388 (quoting
Buckley, supra, at 25); cf.
Austin, 494 U. S., at 657;
Buckley, supra, at
44-45.9
Indeed, this recognition that degree of scrutiny turns on the
nature of the activity regulated is the only practical way to
square two leading cases:
National Right to Work approved
strict solicitation limits on a PAC organized to make
contributions, see 459 U. S., at 201-202, whereas
Massachusetts
Citizens for Life applied a compelling interest test to
invalidate the ban on an advocacy corporation's expenditures in
light of PAC regulatory burdens, see 479 U. S., at 252-255; see
also id., at 265-266 (opinion of O'CONNOR, J.). Each case involved
§ 441b, after all, and the same "ban" on the same corporate
"sources" of political activity applied in both cases.
It is not that the difference between a ban and a limit is to be
ignored; it is just that the time to consider it is when applying
scrutiny at the level selected, not in selecting the standard of
review itself. But even when NCRL urges precisely that, and asserts
that § 441b is not sufficiently "closely drawn," the claim still
rests on a false premise, for NCRL is simply wrong in
characterizing § 441b as a complete ban. As we have said before,
the section "permits some participation of unions and corporations
in the federal electoral proc-
9 Judicial deference is particularly warranted where, as here,
we deal with a congressional judgment that has remained essentially
unchanged throughout a century of "careful legislative adjustment."
National Right to Work, supra, at 209; cf.
Nixon,
supra, at 391 ("The quantum of empirical evidence needed to
satisfy heightened judicial scrutiny of legislative judgments will
vary up or down with the novelty and plausibility of the
justification raised").
163
ess by allowing them to establish and pay the administrative
expenses of [PACs]."
National Right to Work, supra, at 201;
see also
Austin, supra, at 660;
Massachusetts Citizens
for Life, supra, at 252. The PAC option allows corporate
political participation without the temptation to use corporate
funds for political influence, quite possibly at odds with the
sentiments of some shareholders or members, and it lets the
Government regulate campaign activity through registration and
disclosure, see §§ 432-434, without jeopardizing the associational
rights of advocacy organizations' members, see
NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958)
(holding that "[c]ompelled disclosure of membership in an
organization engaged in advocacy of particular beliefs" may violate
the First Amendment).
NCRL cannot prevail, then, simply by arguing that a ban on an
advocacy corporation's direct contributions is bad tailoring. NCRL
would have to demonstrate that the law violated the First Amendment
in allowing contributions to be made only through its PAC and
subject to a PAC's administrative burdens. But a unanimous Court in
National Right to Work did not think the regulatory burdens
on P ACs, including restrictions on their ability to solicit funds,
rendered a PAC unconstitutional as an advocacy corporation's sole
avenue for making political contributions. See 459 U. S., at
201-202. There is no reason to think the burden on advocacy
corporations is any greater today, or to reach a different
conclusion here.
III
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE KENNEDY, concurring in the judgment.
My position, expressed in dissenting opinions in previous cases,
has been that the Court erred in sustaining certain state and
federal restrictions on political speech in the cam-
164
paign finance context and misapprehended basic First Amendment
principles in doing so. See
Nixon v.
Shrink Missouri
Government PAC, 528 U. S. 377, 409 (2000)
(KENNEDY, J., dissenting);
Austin v.
Michigan Chamber of
Commerce, 494 U.
S. 652, 699 (1990) (KENNEDY, J., dissenting);
Colorado
Republican Federal Campaign Comm. v.
Federal Election
Comm'n, 518 U. S.
604, 626 (1996) (KENNEDY, J., concurring in judgment and
dissenting in part). I adhere to this view, and so can give no
weight to those authorities in the instant case.
That said, it must be acknowledged that
Federal Election
Comm'n v.
Massachusetts Citizens for Life, Inc., 479 U.
S. 238 (1986)
(MCFL), contains language supporting the
Court's holding here that corporate contributions can be regulated
more closely than corporate expenditures. The language upon which
the Court relies tends to reconcile the tension between the
approach in
MCFL and the Court's earlier decision in
Federal Election Comm'n v.
National Right to Work
Comm., 459 U. S.
197 (1982).
Were we presented with a case in which the distinction between
contributions and expenditures under the whole scheme of campaign
finance regulation were under review, I might join JUSTICE THOMAS'
dissenting opinion. The Court does not undertake that comprehensive
examination here, however. And since there is language in
MCFL that supports to day's holding, I concur in the
judgment.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
I continue to believe that campaign finance laws are subject to
strict scrutiny.
Federal Election Comm'n v.
Colorado
Republican Federal Campaign Comm., 533 U. S. 431, 465-466
(2001)
(Colorado II) (THOMAS, J., dissenting);
Colorado
Republican Federal Campaign Comm. v.
Federal Election
Comm'n, 518 U. S.
604, 640 (1996)
(Colorado I) (THOMAS, J., concurring in
judgment and dissenting in part).
165
See also
Nixon v.
Shrink Missouri Government PAC,
528 U. S. 377, 427 (2000) (THOMAS, J., dissenting). As in
Colorado II, the Government does not argue here that 2 U. S.
C. § 441b survives review under that rigorous standard. Indeed, it
could not. "[U]nder traditional strict scrutiny, broad prophylactic
caps on ... giving in the political process ... are
unconstitutional,"
Colorado I, 518 U. S., at 640-641,
because, as I have explained before, they are not narrowly tailored
to meet any relevant compelling state interest, id., at 641-644;
Nixon, supra, at 427-430. See also
Colorado II,
supra, at 465-466. Accordingly, I would affirm the judgment of
the Court of Appeals and respectfully dissent from the Court's
contrary disposition.
Comments
Be the first to comment
Leave a Comment