OPINION OF THE COURT
MCCONNELL V. FEDERAL ELECTION COMM'N
540 U. S. ____ (2003)
SUPREME COURT OF THE UNITED STATES
NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733,
02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND
02-1756
MITCH McCONNELL, UNITED STATES SENATOR,
et al., APPELLANTS
02–1674
v.
FEDERAL ELECTION COMMISSION, et al.;
NATIONAL RIFLE ASSOCIATION, et al.,
APPELLANTS
02–1675
v.
FEDERAL ELECTION COMMISSION, et al.;
FEDERAL ELECTION COMMISSION, et al.,
APPELLANTS
02–1676
v.
MITCH McCONNELL, UNITED STATES SENATOR,
et al.;
JOHN McCAIN, UNITED STATES SENATOR, et al.,
APPELLANTS
02–1702
v.
MITCH McCONNELL, UNITED STATES SENATOR,
et al.;
REPUBLICAN NATIONAL COMMITTEE, et al.,
APPELLANTS
02–1727
v.
FEDERAL ELECTION COMMISSION, et al.;
NATIONAL RIGHT TO LIFE COMMITTEE, INC.,
et al., APPELLANTS
02–1733
v.
FEDERAL ELECTION COMMISSION, et al.;
AMERICAN CIVIL LIBERTIES UNION, APPELLANTS
02–1734
v.
FEDERAL ELECTION COMMISSION, et al.;
VICTORIA JACKSON GRAY ADAMS, et al.,
APPELLANTS
02–1740
v.
FEDERAL ELECTION COMMISSION, et al.;
RON PAUL, UNITED STATES CONGRESSMAN, et al.,
APPELLANTS
02–1747
v.
FEDERAL ELECTION COMMISSION, et al.;
CALIFORNIA DEMOCRATIC PARTY, et al.,
APPELLANTS
02–1753
v.
FEDERAL ELECTION COMMISSION, et al.;
AMERICAN FEDERATION OF LABOR AND CONGRESS OF
INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS
02–1755
v.
FEDERAL ELECTION COMMISSION, et al.;
CHAMBER OF COMMERCE OF THE UNITED STATES,
et al., APPELLANTS
02–1756
v.
FEDERAL ELECTION COMMISSION, et al.
on appeals from the united states district court
for the district of columbia
[December 10, 2003]
Justice Stevens and Justice
O’Connor delivered the opinion of the Court with respect to BCRA
Titles I and II.*
The Bipartisan Campaign Reform
Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments
to the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 11,
as amended, 2 U. S. C. A. §431
et seq. (main ed.
and Supp. 2003), the Communications Act of 1934, 48 Stat. 1088, as
amended, 47 U. S. C. A. §315, and other portions of the
United States Code, 18 U. S. C. A. §607 (Supp. 2003), 36
U. S. C. A. §§510–511, that are challenged in these
cases.[
Footnote 1] In this
opinion we discuss Titles I and II of BCRA. The opinion of the
Court delivered by The Chief Justice,
post, p. ___,
discusses Titles III and IV, and the opinion of the Court delivered
by Justice Breyer,
post, p. ___, discusses Title V.
I
More than a century ago the
“sober-minded Elihu Root” advocated legislation that would prohibit
political contributions by corporations in order to prevent
“ ‘the great aggregations of wealth, from using their
corporate funds, directly or indirectly,’ ” to elect
legislators who would “ ‘vote for their protection and the
advancement of their interests as against those of the
public.’ ”
United States v.
Automobile
Workers, 352 U. S. 567, 571 (1957) (quoting E.
Root, Addresses on Government and Citizenship 143 (R. Bacon &
J. Scott eds. 1916)). In Root’s opinion, such legislation would
“ ‘strik[e] at a constantly growing evil which has done more
to shake the confidence of the plain people of small means of this
country in our political institutions than any other practice which
has ever obtained since the foundation of our Government.’ ”
352 U. S., at 571. The Congress of the United States has repeatedly
enacted legislation endorsing Root’s judgment.
BCRA is the most recent federal
enactment designed “to purge national politics of what was
conceived to be the pernicious influence of ‘big money’ campaign
contributions.”
Id., at 572. As Justice Frankfurter
explained in his opinion for the Court in
Automobile
Workers, the first such enactment responded to President
Theodore Roosevelt’s call for legislation forbidding all
contributions by corporations “ ‘to any political committee or
for any political purpose.’ ”
Ibid. (quoting 40 Cong.
Rec. 96 (1906)). In his annual message to Congress in December
1905, President Roosevelt stated that “ ‘directors should not
be permitted to use stockholders’ money’ ” for political
purposes, and he recommended that “ ‘a prohibition’ ” on
corporate political contributions “ ‘would be, as far as it
went, an effective method of stopping the evils aimed at in corrupt
practices acts.’ ” 352 U. S., at 352. The resulting 1907
statute completely banned corporate contributions of “money … in
connection with” any federal election. Tillman Act, ch. 420, 34
Stat. 864. Congress soon amended the statute to require the public
disclosure of certain contributions and expenditures and to place
“maximum limits on the amounts that congressional candidates could
spend in seeking nomination and election.”
Automobile
Workers, supra, at 575–576.
In 1925 Congress extended the prohibition of
“contributions” “to include ‘anything of value,’ and made
acceptance of a corporate contribution as well as the giving of
such a contribution a crime.”
Federal Election Comm’n v.
National Right to Work Comm., 459 U. S. 197, 209 (1982) (citing
Federal Corrupt Practices Act, 1925, §§301, 313, 43 Stat. 1070,
1074). During the debates preceding that amendment, a leading
Senator characterized “ ‘the apparent hold on political
parties which business interests and certain organizations seek and
sometimes obtain by reason of liberal campaign
contributions’ ” as “ ‘one of the great political evils
of the time.’ ”
Automobile Workers, supra,
at 576 (quoting 65 Cong. Rec. 9507–9508 (1924)). We upheld the
amended statute against a constitutional challenge, observing that
“[t]he power of Congress to protect the election of President and
Vice President from corruption being clear, the choice of means to
that end presents a question primarily addressed to the judgment of
Congress.”
Burroughs v.
United
States, 290 U. S. 534, 547
(1934).
Congress’ historical concern with the
“political potentialities of wealth” and their “untoward
consequences for the democratic process,”
Automobile
Workers,
supra, at 577–578, has long reached beyond
corporate money. During and shortly after World War II, Congress
reacted to the “enormous financial outlays” made by some unions in
connection with national elections. 352 U. S., at 579. Congress
first restricted union contributions in the Hatch Act, 18 U.
S. C. §610,[
Footnote 2]
and it later prohibited “union contributions in connection with
federal elections … altogether.”
National Right to Work,
supra, at 209 (citing War Labor Disputes Act (Smith-Connally
Anti-Strike Act), ch. 144, §9, 57 Stat. 167). Congress subsequently
extended that prohibition to cover unions’ election-related
expenditures as well as contributions, and it broadened the
coverage of federal campaigns to include both primary and general
elections. Labor Management Relations Act, 1947 (Taft-Hartley Act),
61 Stat. 136. See
Automobile Workers, supra, at 578–584.
During the consideration of those measures, legislators repeatedly
voiced their concerns regarding the pernicious influence of large
campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947);
H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S. Rep.
No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H. R. Rep. No.
2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous
opinion recalling this history, Congress’ “careful legislative
adjustment of the federal election laws, in a ‘cautious advance,
step by step,’ to account for the particular legal and economic
attributes of corporations and labor organizations warrants
considerable deference.”
National Right to Work, 352 U.
S., at 209 (citations omitted).
In early 1972 Congress continued its steady
improvement of the national election laws by enacting FECA, 86
Stat. 3. As first enacted, that statute required disclosure of all
contributions exceeding $100 and of expenditures by candidates and
political committees that spent more than $1,000 per year.
Id., at 11–19. It also prohibited contributions made in
the name of another person,
id., at 19, and by Government
contractors,
id., at 10. The law ratified the earlier
prohibition on the use of corporate and union general treasury
funds for political contributions and expenditures, but it
expressly permitted corporations and unions to establish and
administer separate segregated funds (commonly known as political
action committees, or PACs) for election-related contributions and
expenditures.
Id., at 12–13.[
Footnote 3] See
Pipefitters v.
United
States, 407 U. S. 385, 409–410
(1972).
As the 1972 presidential elections made clear,
however, FECA’s passage did not deter unseemly fundraising and
campaign practices. Evidence of those practices persuaded Congress
to enact the Federal Election Campaign Act Amendments of 1974, 88
Stat. 1263. Reviewing a constitutional challenge to the amendments,
the Court of Appeals for the District of Columbia Circuit described
them as “by far the most comprehensive … reform legislation [ever]
passed by Congress concerning the election of the President,
Vice-President and members of Congress.”
Buckley v.
Valeo, 519 F. 2d 821, 831 (1975) (en banc)
(per
curiam).
The 1974 amendments closed the loophole that
had allowed candidates to use an unlimited number of political
committees for fundraising purposes and thereby to circumvent the
limits on individual committees’ receipts and disbursements. They
also limited individual political contributions to any single
candidate to $1,000 per election, with an overall annual limitation
of $25,000 by any contributor; imposed ceilings on spending by
candidates and political parties for national conventions; required
reporting and public disclosure of contributions and expenditures
exceeding certain limits; and established the Federal Election
Commission (FEC) to administer and enforce the legislation.
Id., at 831–834
.
The Court of Appeals upheld the 1974
amendments almost in their entirety.[
Footnote 4] It concluded that the clear and compelling
interest in preserving the integrity of the electoral process
provided a sufficient basis for sustaining the substantive
provisions of the Act.
Id., at 841. The court’s opinion
relied heavily on findings that large contributions facilitated
access to public officials[
Footnote
5] and described methods of evading the contribution limits
that had enabled contributors of massive sums to avoid disclosure.
Id., at 837–841.[
Footnote
6]
The Court of Appeals upheld the provisions
establishing contribution and expenditure limitations on the theory
that they should be viewed as regulations of conduct rather than
speech.
Id., at 840–841 (citing
United States v.
O’Brien, 391 U. S. 367, 376–377
(1968)). This Court, however, concluded that each set of
limitations raised serious—though different—concerns under the
First Amendment.
Buckley v.
Valeo,
424 U. S. 1, 14–23 (1976)
(per
curiam). We treated the limitations on candidate and
individual expenditures as direct restraints on speech, but we
observed that the contribution limitations, in contrast, imposed
only “a marginal restriction upon the contributor’s ability to
engage in free communication.”
Id., at 20–21. Considering
the “deeply disturbing examples” of corruption related to candidate
contributions discussed in the Court of Appeals’ opinion, we
determined that limiting contributions served an interest in
protecting “the integrity of our system of representative
democracy.”
Id., at 26–27. In the end, the Act’s primary
purpose—“to limit the actuality and appearance of corruption
resulting from large individual financial contributions”—provided
“a constitutionally sufficient justification for the $1,000
contribution limitation.”
Id., at 26.
We prefaced our analysis of the $1,000
limitation on expenditures by observing that it broadly encompassed
every expenditure “ ‘relative to a clearly identified
candidate.’ ”
Id., at 39 (quoting 18 U. S. C.
§608(e)(1) (1970 ed., Supp. IV)). To avoid vagueness concerns we
construed that phrase to apply only to “communications that in
express terms advocate the election or defeat of a clearly
identified candidate for federal office.” 424 U. S., at 42– 44. We
concluded, however, that as so narrowed, the provision would not
provide effective protection against the dangers of
quid pro
quo arrangements, because persons and groups could eschew
expenditures that expressly advocated the election or defeat of a
clearly identified candidate while remaining “free to spend as much
as they want to promote the candidate and his views.”
Id.,
at 45. We also rejected the argument that the expenditure limits
were necessary to prevent attempts to circumvent the Act’s
contribution limits, because FECA already treated expenditures
controlled by or coordinated with the candidate as contributions,
and we were not persuaded that independent expenditures posed the
same risk of real or apparent corruption as coordinated
expenditures.
Id., at 46–47. We therefore held that
Congress’ interest in preventing real or apparent corruption was
inadequate to justify the heavy burdens on the freedoms of
expression and association that the expenditure limits imposed.
We upheld all of the disclosure and reporting
requirements in the Act that were challenged on appeal to this
Court after finding that they vindicated three important interests:
providing the electorate with relevant information about the
candidates and their supporters; deterring actual corruption and
discouraging the use of money for improper purposes; and
facilitating enforcement of the prohibitions in the Act.
Id., at 66–68. In order to avoid an overbreadth problem,
however, we placed the same narrowing construction on the term
“expenditure” in the disclosure context that we had adopted in the
context of the expenditure limitations. Thus, we construed the
reporting requirement for persons making expenditures of more than
$100 in a year “to reach only funds used for communications that
expressly advocate the election or defeat of a clearly identified
candidate.”
Id., at 80 (footnote omitted).
Our opinion in
Buckley addressed
issues that primarily related to contributions and expenditures by
individuals, since none of the parties challenged the prohibition
on contributions by corporations and labor unions. We noted,
however, that the statute authorized the use of corporate and union
resources to form and administer segregated funds that could be
used for political purposes.
Id., at 28–29, n. 31;
see also n. 3,
supra.
Three important developments in the years
after our decision in
Buckley persuaded Congress that
further legislation was necessary to regulate the role that
corporations, unions, and wealthy contributors play in the
electoral process. As a preface to our discussion of the specific
provisions of BCRA, we comment briefly on the increased importance
of “soft money,” the proliferation of “issue ads,” and the
disturbing findings of a Senate investigation into campaign
practices related to the 1996 federal elections.
Soft Money
Under FECA, “contributions”
must be made with funds that are subject to the Act’s disclosure
requirements and source and amount limitations. Such funds are
known as “federal” or “hard” money. FECA defines the term
“contribution,” however, to include only the gift or advance of
anything of value “made by any person for the purpose of
influencing any election for Federal office.” 2 U. S. C.
§431(8)(A)(i) (emphasis added). Donations made solely for the
purpose of influencing state or local elections are therefore
unaffected by FECA’s requirements and prohibitions. As a result,
prior to the enactment of BCRA, federal law permitted corporations
and unions, as well as individuals who had already made the maximum
permissible contributions to federal candidates, to contribute
“nonfederal money”—also known as “soft money”—to political parties
for activities intended to influence state or local elections.
Shortly after
Buckley
was decided, questions arose concerning the treatment of
contributions intended to influence both federal and state
elections. Although a literal reading of FECA’s definition of
“contribution” would have required such activities to be funded
with hard money, the FEC ruled that political parties could fund
mixed-purpose activities—including get-out-the-vote drives and
generic party advertising—in part with soft money.[
Footnote 7] In 1995 the FEC concluded that
the parties could also use soft money to defray the costs of
“legislative advocacy media advertisements,” even if the ads
mentioned the name of a federal candidate, so long as they did not
expressly advocate the candidate’s election or defeat. FEC Advisory
Op. 1995–25.
As the permissible uses of soft money
expanded, the amount of soft money raised and spent by the national
political parties increased exponentially. Of the two major
parties’ total spending, soft money accounted for 5% ($21.6
million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in
1992, 30% ($272 million) in 1996, and 42% ($498 million) in
2000.[
Footnote 8] The national
parties transferred large amounts of their soft money to the state
parties, which were allowed to use a larger percentage of soft
money to finance mixed-purpose activities under FEC rules.[
Footnote 9] In the year 2000, for
example, the national parties diverted $280 million—more than half
of their soft money—to state parties.
Many contributions of soft money were
dramatically larger than the contributions of hard money permitted
by FECA. For example, in 1996 the top five corporate soft-money
donors gave, in total, more than $9 million in nonfederal funds to
the two national party committees.[
Footnote 10] In the most recent election cycle the
political parties raised almost $300 million—60% of their total
soft-money fundraising—from just 800 donors, each of which
contributed a minimum of $120,000.[
Footnote 11] Moreover, the largest corporate donors often
made substantial contributions to both parties.[
Footnote 12] Such practices corroborate
evidence indicating that many corporate contributions were
motivated by a desire for access to candidates and a fear of being
placed at a disadvantage in the legislative process relative to
other contributors, rather than by ideological support for the
candidates and parties.[
Footnote
13]
Not only were such soft-money contributions
often designed to gain access to federal candidates, but they were
in many cases solicited by the candidates themselves. Candidates
often directed potential donors to party committees and tax-exempt
organizations that could legally accept soft money. For example, a
federal legislator running for reelection solicited soft money from
a supporter by advising him that even though he had already
“contributed the legal maximum” to the campaign committee, he could
still make an additional contribution to a joint program supporting
federal, state, and local candidates of his party.[
Footnote 14] Such solicitations were not
uncommon.[
Footnote 15]
The solicitation, transfer, and use of soft
money thus enabled parties and candidates to circumvent FECA’s
limitations on the source and amount of contributions in connection
with federal elections.
Issue Advertising
In Buckley we construed
FECA’s disclosure and reporting requirements, as well as its
expenditure limitations, “to reach only funds used for
communications that expressly advocate the election or defeat of a
clearly identified candidate.” 424 U. S., at 80 (footnote omitted).
As a result of that strict reading of the statute, the use or
omission of “magic words” such as “Elect John Smith” or “Vote
Against Jane Doe” marked a bright statutory line separating
“express advocacy” from “issue advocacy.” See
id., at 44,
n. 52. Express advocacy was subject to FECA’s limitations and could
be financed only using hard money. The political parties, in other
words, could not use soft money to sponsor ads that used any magic
words, and corporations and unions could not fund such ads out of
their general treasuries. So-called issue ads, on the other hand,
not only could be financed with soft money, but could be aired
without disclosing the identity of, or any other information about,
their sponsors.
While the distinction between
“issue” and express advocacy seemed neat in theory, the two
categories of advertisements proved functionally identical in
important respects. Both were used to advocate the election or
defeat of clearly identified federal candidates, even though the
so-called issue ads eschewed the use of magic words.[
Footnote 16] Little difference existed,
for example, 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.”[
Footnote 17] Indeed,
campaign professionals testified that the most effective campaign
ads, like the most effective commercials for products such as
Coca-Cola, should, and did, avoid the use of the magic
words.[
Footnote 18]
Moreover, the conclusion that such ads were specifically intended
to affect election results was confirmed by the fact that almost
all of them aired in the 60 days immediately preceding a federal
election.[
Footnote 19]
Corporations and unions spent hundreds of millions of dollars of
their general funds to pay for these ads,[
Footnote 20] and those expenditures, like soft-money
donations to the political parties, were unregulated under FECA.
Indeed, the ads were attractive to organizations and candidates
precisely because they were beyond FECA’s reach, enabling
candidates and their parties to work closely with friendly interest
groups to sponsor so-called issue ads when the candidates
themselves were running out of money.[
Footnote 21]
Because FECA’s disclosure requirements did not
apply to so-called issue ads, sponsors of such ads often used
misleading names to conceal their identity. “Citizens for Better
Medicare,” for instance, was not a grassroots organization of
citizens, as its name might suggest, but was instead a platform for
an association of drug manufacturers.[
Footnote 22] And “Republicans for Clean Air,” which ran
ads in the 2000 Republican Presidential primary, was actually an
organization consisting of just two individuals—brothers who
together spent $25 million on ads supporting their favored
candidate.[
Footnote 23]
While the public may not have been fully
informed about the sponsorship of so-called issue ads, the record
indicates that candidates and officeholders often were. A former
Senator confirmed that candidates and officials knew who their
friends were and “sometimes suggest[ed] that corporations or
individuals make donations to interest groups that run ‘issue
ads.’ ”[
Footnote 24] As
with soft-money contributions, political parties and candidates
used the availability of so-called issue ads to circumvent FECA’s
limitations, asking donors who contributed their permitted quota of
hard money to give money to nonprofit corporations to spend on
“issue” advocacy.[
Footnote
25]
Senate Committee Investigation
In 1998 the Senate Committee
on Governmental Affairs issued a six-volume report summarizing the
results of an extensive investigation into the campaign practices
in the 1996 federal elections. The report gave particular attention
to the effect of soft money on the American political system,
including elected officials’ practice of granting special access in
return for political contributions.
The committee’s principal
findings relating to Democratic Party fundraising were set forth in
the majority’s report, while the minority report primarily
described Republican practices. The two reports reached consensus,
however, on certain central propositions. They agreed that the
“soft money loophole” had led to a “meltdown” of the campaign
finance system that had been intended “to keep corporate, union and
large individual contributions from influencing the electoral
process.”[Footnote 26] One
Senator stated that “the hearings provided overwhelming evi- dence
that the twin loopholes of soft money and bogus issue advertising
have virtually destroyed our campaign finance laws, leaving us with
little more than a pile of legal rubble.”[Footnote 27]
The report was critical of both parties’
methods of raising soft money, as well as their use of those funds.
It concluded that both parties promised and provided special access
to candidates and senior Government officials in exchange for large
soft-money contributions. The Committee majority described the
White House coffees that rewarded major donors with access to
President Clinton,[Footnote
28] and the courtesies extended to an international businessman
named Roger Tamraz, who candidly acknowledged that his donations of
about $300,000 to the DNC and to state parties were motivated by
his interest in gaining the Federal Government’s support for an
oil-line project in the Caucasus.[Footnote 29] The minority described the promotional
materials used by the RNC’s two principal donor programs, “Team
100” and the “Republican Eagles,” which promised “special access to
high-ranking Republican elected officials, including governors,
senators, and representatives.”[Footnote 30] One fundraising letter recited that the
chairman of the RNC had personally escorted a donor on appointments
that “ ‘turned out to be very significant in legislation
affecting public utility holding companies’ ” and made the
donor “ ‘a hero in his industry.’ ”[
Footnote 31]
In 1996 both parties began to use large
amounts of soft money to pay for issue advertising designed to
influence federal elections. The Committee found such ads highly
problematic for two reasons. Since they accomplished the same
purposes as express advocacy (which could lawfully be funded only
with hard money), the ads enabled unions, corporations, and wealthy
contributors to circumvent protections that FECA was intended to
provide. Moreover, though ostensibly independent of the candidates,
the ads were often actually coordinated with, and controlled by,
the campaigns.[
Footnote 32]
The ads thus provided a means for evading FECA’s candidate
contribution limits.
The report also emphasized the role of state
and local parties. While the FEC’s allocation regime permitted
national parties to use soft money to pay for up to 40% of the
costs of both generic voter activities and issue advertising, they
allowed state and local parties to use larger percentages of soft
money for those purposes.[
Footnote 33] For that reason, national parties often made
substantial transfers of soft money to “state and local political
parties for ‘generic voter activities’ that in fact ultimately
benefit[ed] federal candidates because the funds for all practical
purposes remain[ed] under the control of the national committees.”
The report concluded that “[t]he use of such soft money thus
allow[ed] more corporate, union treasury, and large contributions
from wealthy individuals into the system.”[
Footnote 34]
The report discussed potential reforms,
including a ban on soft money at the national and state party
levels and restrictions on sham issue advocacy by nonparty
groups.[
Footnote 35] The
majority expressed the view that a ban on the raising of soft money
by national party committees would effectively address the use of
union and corporate general treasury funds in the federal political
process only if it required that candidate-specific ads be funded
with hard money.[
Footnote
36] The minority similarly recommended the elimination of
soft-money contributions to political parties from individuals,
corporations, and unions, as well as “reforms addressing candidate
advertisements masquerading as issue ads.”[
Footnote 37]
II
In BCRA, Congress enacted many of
the committee’s proposed reforms. BCRA’s central provisions are
designed to address Congress’ concerns about the increasing use of
soft money and issue advertising to influence federal elections.
Title I regulates the use of soft money by political parties,
officeholders, and candidates. Title II primarily prohibits
corporations and labor unions from using general treasury funds for
communications that are intended to, or have the effect of,
influencing the outcome of federal elections.
Section 403 of BCRA provides
special rules for actions challenging the constitutionality of any
of the Act’s provisions. 2 U. S. C. A. §437h note (Supp.
2003). Eleven such actions were filed promptly after the statute
went into effect in March 2002. As required by §403, those actions
were filed in the District Court for the District of Columbia and
heard by a three-judge court. Section 403 directed the District
Court to advance the cases on the docket and to expedite their
disposition “to the greatest possible extent.” The court received a
voluminous record compiled by the parties and ultimately delivered
a decision embodied in a two-judge
per curiam opinion and
three separate, lengthy opinions, each of which contained extensive
commentary on the facts and a careful analysis of the legal issues.
251 F. Supp. 2d 176 (2003). The three judges reached unanimity on
certain issues but differed on many. Their judgment, entered on May
1, 2003, held some parts of BCRA unconstitutional and upheld
others. 251 F. Supp. 2d 948.
As authorized by §403, all of the losing
parties filed direct appeals to this Court within 10 days. 2 U.
S. C. A. §437h note. On June 5, 2003, we noted probable
jurisdiction and ordered the parties to comply with an expedited
briefing schedule and present their oral arguments at a special
hearing on September 8, 2003. 539 U. S. ___. To simplify the
presentation, we directed the parties challenging provisions of
BCRA to proceed first on all issues, whether or not they prevailed
on any issue in the District Court.
Ibid. Mindful of
§403’s instruction that we expedite our disposition of these
appeals to the greatest extent possible, we also consider each of
the issues in order. Accordingly, we first turn our attention to
Title I of BCRA.
III
Title I is Congress’ effort to
plug the soft-money loophole. The cornerstone of Title I is new
FECA §323(a), which prohibits national party committees and their
agents from soliciting, receiving, directing, or spending any soft
money. 2 U. S. C. A. §441i(a) (Supp. 2003).[
Footnote 38] In short, §323(a) takes
national parties out of the soft-money business.
The remaining provisions of new
FECA §323 largely reinforce the restrictions in §323(a). New FECA
§323(b) prevents the wholesale shift of soft-money influence from
national to state party committees by prohibiting state and local
party committees from using such funds for activities that affect
federal elections. 2 U. S. C. A. §441i(b). These “Federal
election activit[ies],” defined in new FECA §301(20)(A), are almost
identical to the mixed-purpose activities that have long been
regulated under the FEC’s pre-BCRA allocation regime. 2 U.
S. C. A. §431(20)(A). New FECA §323(d) reinforces these
soft-money restrictions by prohibiting political parties from
soliciting and donating funds to tax-exempt organizations that
engage in electioneering activities. 2 U. S. C. A.
§441i(d). New FECA §323(e) restricts federal candidates and
officeholders from receiving, spending, or soliciting soft money in
connection with federal elections and limits their ability to do so
in connection with state and local elections. 2 U.
S. C. A. §441i(e). Finally, new FECA §323(f) prevents
circumvention of the restrictions on national, state, and local
party committees by prohibiting state and local candidates from
raising and spending soft money to fund advertisements and other
public communications that promote or attack federal candidates. 2
U. S. C. A. §441i(f).
Plaintiffs mount a facial First Amendment
challenge to new FECA §323, as well as challenges based on the
Elections Clause, U. S. Const., Art. I, §4, principles of
federalism, and the equal protection component of the Due Process
Clause. We address these challenges in turn.
A
In
Buckley and
subsequent cases, we have subjected restrictions on campaign
expenditures to closer scrutiny than limits on campaign
contributions. See,
e.g., Federal Election Comm’n
v.
Beaumont, 539 U. S. ___, ___ (2003) (slip op., at 14);
see also
Nixon v.
Shrink Missouri Government PAC,
528 U. S. 377, 387–388 (2000);
Buckley, 424 U. S., at 19. In these cases we have
recognized that contribution limits, unlike limits on expenditures,
“entai[l] only a marginal restriction upon the contributor’s
ability to engage in free communication.”
Id., at 20; see
also,
e.g., Beaumont,
supra, at ___
(slip op., at 14);
Shrink Missouri,
supra, at
386–388. In
Buckley we said that:
“A contribution serves as a general expression of
support for the candidate and his views, but does not communicate
the underlying basis for the support. The quantity of communication
by the contributor does not increase perceptibly with the size of
the contribution, since the expression rests solely on the
undifferentiated, symbolic act of contributing. At most, the size
of the contribution provides a very rough index of the intensity of
the contributor’s support for the candidate. A limitation on the
amount of money a person may give to a candidate or campaign
organization thus involves little direct restraint on his political
communication, for it permits the symbolic expression of support
evidenced by a contribution but does not in any way infringe the
contributor’s freedom to discuss candidates and issues. While
contributions may result in political expression if spent by a
candidate or an association to present views to the voters, the
transformation of contributions into political debate involves
speech by someone other than the contributor.” 424 U. S., at 21
(footnote omitted).
Because the communicative value of large
contributions inheres mainly in their ability to facilitate the
speech of their recipients, we have said that contribution limits
impose serious burdens on free speech only if they are so low as to
“preven[t] candidates and political committees from amassing the
resources necessary for effective advocacy.”
Ibid.
We have recognized that contribution limits
may bear “more heavily on the associational right than on freedom
to speak,”
Shrink Missouri,
supra, at 388, since
contributions serve “to affiliate a person with a candidate” and
“enabl[e] like-minded persons to pool their resources,”
Buckley, 424 U. S., at 22. Unlike expenditure limits,
however, which “preclud[e] most associations from effectively
amplifying the voice of their adherents,” contribution limits both
“leave the contributor free to become a member of any political
association and to assist personally in the association’s efforts
on behalf of candidates,” and allow associations “to aggregate
large sums of money to promote effective advocacy.”
Ibid.
The “overall effect” of dollar limits on contributions is “merely
to require candidates and political committees to raise funds from
a greater number of persons.”
Id., at 21–22. Thus, a
contribution limit involving even “ ‘significant
interference’ ” with associational rights is nevertheless
valid if it satisfies the “lesser demand” of being “ ‘closely
drawn’ ” to match a “ ‘sufficiently important
interest.’ ”
Beaumont,
supra, at ___ (slip
op., at 15) (quoting
Shrink Missouri,
supra, at
387–388).[
Footnote 39]
Our treatment of contribution restrictions
reflects more than the limited burdens they impose on First
Amendment freedoms. It also reflects the importance of the
interests that underlie contribution limits—interests in preventing
“both the actual corruption threatened by large financial
contributions and the eroding of public confidence in the electoral
process through the appearance of corruption.”
National Right
to Work, 459 U. S., at 208; see also
Federal Election
Comm’n v.
Colorado Republican Federal Campaign Comm.,
533 U. S. 431, 440–441 (2001)
(Colorado II). We have said that these interests directly
implicate “ ‘the integrity of our electoral process, and, not
less, the responsibility of the individual citizen for the
successful functioning of that process.’ ”
National Right
to Work, supra, at 208 (quoting
Automobile
Workers, 352 U. S., at 570). Because the electoral process is
the very “means through which a free society democratically
translates political speech into concrete governmental action,”
Shrink Missouri, 528 U. S., at 401 (Breyer, J.,
concurring), contribution limits, like other measures aimed at
protecting the integrity of the process, tangibly benefit public
participation in political debate. For that reason, when reviewing
Congress’ decision to enact contribution limits, “there is no place
for a strong presumption against constitutionality, of the sort
often thought to accompany the words ‘strict scrutiny.’ ”
Id., at 400 (Breyer, J., concurring). The less rigorous
standard of review we have applied to contribution limits
(
Buckley’s “closely drawn” scrutiny) shows proper
deference to Congress’ ability to weigh competing constitutional
interests in an area in which it enjoys particular expertise. It
also provides Congress with sufficient room to anticipate and
respond to concerns about circumvention of regulations designed to
protect the integrity of the political process.
Our application of this less rigorous degree
of scrutiny has given rise to significant criticism in the past
from our dissenting colleagues. See,
e.g.,
Shrink
Missouri, 528 U. S., at 405–410 (Kennedy, J., dissenting);
id., at 410–420 (Thomas, J., dissenting);
Colorado
Republican Federal Campaign Comm. v.
Federal Election
Comm’n, 518 U. S. 604, 635–644 (1996)
(Colorado I) (Thomas, J., dissenting). We have rejected
such criticism in previous cases for the reasons identified above.
We are also mindful of the fact that in its lengthy deliberations
leading to the enactment of BCRA, Congress properly relied on the
recognition of its authority contained in
Buckley and its
progeny. Considerations of
stare decisis, buttressed by
the respect that the Legislative and Judicial Branches owe to one
another, provide additional powerful reasons for adhering to the
analysis of contribution limits that the Court has consistently
followed since
Buckley was decided. See
Hilton v.
South Carolina Public Railways Comm’n, 502 U. S. 197, 202
(1991).[
Footnote 40]
Like the contribution limits we upheld in
Buckley, §323’s restrictions have only a marginal impact
on the ability of contributors, candidates, officeholders, and
parties to engage in effective political speech.
Beaumont,
539 U. S., at ___ (slip op., at 14). Complex as its provisions may
be, §323, in the main, does little more than regulate the ability
of wealthy individuals, corporations, and unions to contribute
large sums of money to influence federal elections, federal
candidates, and federal officeholders.
Plaintiffs contend that we must apply strict
scrutiny to §323 because many of its provisions restrict not only
contributions but also the spending and solicitation of funds
raised outside of FECA’s contribution limits. But for purposes of
determining the level of scrutiny, it is irrelevant that Congress
chose in §323 to regulate contributions on the demand rather than
the supply side. See,
e.g.,
National Right to Work,
supra, at 206–211 (upholding a provision restricting PACs’
ability to solicit funds). The relevant inquiry is whether the
mechanism adopted to implement the contribution limit, or to
prevent circumvention of that limit, burdens speech in a way that a
direct restriction on the contribution itself would not. That is
not the case here.
For example, while §323(a) prohibits national
parties from receiving or spending nonfederal money, and §323(b)
prohibits state party committees from spending nonfederal money on
federal election activities, neither provision in any way limits
the total amount of money parties can spend. 2 U.
S. C. A. §§441i(a), (b) (Supp. 2003). Rather, they simply
limit the source and individual amount of donations. That they do
so by prohibiting the spending of soft money does not render them
expenditure limitations.[
Footnote 41]
Similarly, the solicitation provisions of
§323(a) and §323(e), which restrict the ability of national party
committees, federal candidates, and federal officeholders to
solicit nonfederal funds, leave open ample opportunities for
soliciting federal funds on behalf of entities subject to FECA’s
source and amount restrictions. Even §323(d), which on its face
enacts a blanket ban on party solicitations of funds to certain
tax-exempt organizations, nevertheless allows parties to solicit
funds to the organizations’ federal PACs. 2 U. S. C. A.
§441i(d). As for those organizations that cannot or do not
administer PACs, parties remain free to donate federal funds
directly to such organizations, and may solicit funds expressly for
that purpose. See
infra, at 72–73 (construing §323(d)’s
restriction on donations by parties to apply only to donations from
a party committee’s nonfederal or soft-money account). And as with
§323(a), §323(d) places no limits on other means of endorsing
tax-exempt organizations or any restrictions on solicitations by
party officers acting in their individual capacities. 2 U.
S. C. A. §§441i(a), (d).
Section 323 thus shows “due regard for the
reality that solicitation is characteristically intertwined with
informative and perhaps persuasive speech seeking support for
particular causes or for particular views.”
Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620, 632
(1980). The fact that party committees and federal candidates and
officeholders must now ask only for limited dollar amounts or
request that a corporation or union contribute money through its
PAC in no way alters or impairs the political message “intertwined”
with the solicitation. Cf.
Riley v.
National
Federation of Blind of N. C., Inc., 487 U. S. 781, 795
(1988) (treating solicitation restriction that required fundraisers
to disclose particular information as a content-based regulation
subject to strict scrutiny because it “necessarily alter[ed] the
content of the speech”). And rather than chill such solicitations,
as was the case in
Schaumburg, the restriction here tends
to increase the dissemination of information by forcing parties,
candidates, and officeholders to solicit from a wider array of
potential donors. As with direct limits on contributions,
therefore, §323’s spending and solicitation restrictions have only
a marginal impact on political speech.[
Footnote 42]
Finally, plaintiffs contend that the type of
associational burdens that §323 imposes are fundamentally different
from the burdens that accompanied
Buckley’s contribution
limits, and merit the type of strict scrutiny we have applied to
attempts to regulate the internal processes of political parties.
E.g.,
California Democratic Party v.
Jones, 530 U. S. 567, 573–574 (2000). In
making this argument, plaintiffs greatly exaggerate the effect of
§323, contending that it precludes
any collaboration among
national, state, and local committees of the same party in
fundraising and electioneering activities. We do not read the
provisions in that way. See
infra, at 51–52. Section 323
merely subjects a greater percentage of contributions to parties
and candidates to FECA’s source and amount limitations.
Buckley has already acknowledged that such limitations
“leave the contributor free to become a member of any political
association and to assist personally in the association’s efforts
on behalf of candidates.” 424 U. S., at 22. The modest impact that
§323 has on the ability of committees within a party to associate
with each other does not independently occasion strict scrutiny.
None of this is to suggest that the alleged associational burdens
imposed on parties by §323 have no place in the First Amendment
analysis; it is only that we account for them in the application,
rather than the choice, of the appropriate level of
scrutiny.[
Footnote 43]
With these principles in mind, we apply the
less rigorous scrutiny applicable to contribution limits to
evaluate the constitutionality of new FECA §323. Because the five
challenged provisions of §323 implicate different First Amendment
concerns, we discuss them separately. We are mindful, however, that
Congress enacted §323 as an integrated whole to vindicate the
Government’s important interest in preventing corruption and the
appearance of corruption.
New FECA §323(a)’s Restrictions on National
Party Committees
The core of Title I is new
FECA §323(a), which provides that “national committee[s] of a
political party … may not solicit, receive, or direct to another
person a contribution, donation, or transfer of funds or any other
thing of value, or spend any funds, that are not subject to the
limitations, prohibitions, and reporting requirements of this Act.”
2 U. S. C. A. §441i(a)(1) (Supp. 2003). The prohibition
extends to “any officer or agent acting on behalf of such a
national committee, and any entity that is directly or indirectly
established, financed, or maintained, or controlled by such a
national committee.” §441(a)(2).
The main goal of §323(a) is
modest. In large part, it simply effects a return to the scheme
that was approved in Buckley and that was subverted by the
creation of the FEC’s allocation regime, which permitted the
political parties to fund federal electioneering efforts with a
combination of hard and soft money. See
supra, at 11–13,
and n. 7. Under that allocation regime, national parties were
able to use vast amounts of soft money in their efforts to elect
federal candidates. Consequently, as long as they directed the
money to the political parties, donors could contribute large
amounts of soft money for use in activities designed to influence
federal elections.[
Footnote
44] New §323(a) is designed to put a stop to that practice.
1.
Governmental Interests Underlying
New FECA §323(a)
The Government defends
§323(a)’s ban on national parties’ involvement with soft money as
necessary to prevent the actual and apparent corruption of federal
candidates and officeholders. Our cases have made clear that the
prevention of corruption or its appearance constitutes a
sufficiently important interest to justify political contribution
limits. We have not limited that interest to the elimination of
cash-for-votes exchanges. In Buckley, we expressly rejected
the argument that antibribery laws provided a less restrictive
alternative to FECA’s contribution limits, noting that such laws
“deal[t] with only the most blatant and specific attempts of those
with money to influence government action.” 424 U. S., at 28. Thus,
“[i]n speaking of ‘improper influence’ and ‘opportunities for
abuse’ in addition to ‘
quid pro quo arrangements,’ we
[have] recognized a concern not confined to bribery of public
officials, but extending to the broader threat from politicians too
compliant with the wishes of large contributors.”
Shrink
Missouri, 528 U. S., at 389; see also
Colorado II,
533 U. S., at 441 (acknowledging that corruption extends beyond
explicit cash-for-votes agreements to “undue influence on an
officeholder’s judgment”).
Of “almost equal” importance has
been the Government’s interest in combating the appearance or
perception of corruption engendered by large campaign
contributions.
Buckley,
supra, at 27; see also
Shrink Missouri, supra, at 390;
Federal Election
Comm’n v.
National Conservative Political Action
Comm., 470
U. S. 480, 496–497 (1985). Take away Congress’ authority to
regulate the appearance of undue influence and “the cynical
assumption that large donors call the tune could jeopardize the
willingness of voters to take part in democratic governance.”
Shrink Missouri, 528 U. S., at 390; see also
id.,
at 401 (Breyer, J., concurring). And because the First Amendment
does not require Congress to ignore the fact that “candidates,
donors, and parties test the limits of the current law,”
Colorado II, 533 U. S., at 457, these interests have been
sufficient to justify not only contribution limits themselves, but
laws preventing the circumvention of such limits,
id., at
456 (“[A]ll Members of the Court agree that circumvention is a
valid theory of corruption”).
“The quantum of empirical evidence needed to
satisfy heightened judicial scrutiny of legislative judgments will
vary up or down with the novelty or the plausibility of the
justification raised.”
Shrink Missouri, supra, at 391. The
idea that large contributions to a national party can corrupt or,
at the very least, create the appearance of corruption of federal
candidates and officeholders is neither novel nor implausible. For
nearly 30 years, FECA has placed strict dollar limits and source
restrictions on contributions that individuals and other entities
can give to national, state, and local party committees for the
purpose of influencing a federal election. The premise behind these
restrictions has been, and continues to be, that contributions to a
federal candidate’s party in aid of that candidate’s campaign
threaten to create—no less than would a direct contribution to the
candidate—a sense of obligation. See
Buckley,
supra, at 38 (upholding FECA’s $25,000 limit on aggregate
yearly contributions to a candidate, political committee, and
political party committee as a “quite modest restraint … to prevent
evasion of the $1,000 contribution limitation” by, among other
things, “huge contributions to the candidate’s political party”).
This is particularly true of contributions to national parties,
with which federal candidates and officeholders enjoy a special
relationship and unity of interest. This close affiliation has
placed national parties in a unique position, “whether they like it
or not,” to serve as “agents for spending on behalf of those who
seek to produce obligated officeholders.”
Colorado II,
supra, at 452; see also
Shrink Missouri,
supra, at 406 (Kennedy, J., dissenting) (“[Respondent]
asks us to evaluate his speech claim in the context of a system
which favors candidates and officeholders whose campaigns are
supported by
soft money, usually funneled through political
parties” (emphasis added)). As discussed below, rather than
resist that role, the national parties have actively embraced
it.
The question for present purposes is whether
large
soft-money contributions to national party
committees have a corrupting influence or give rise to the
appearance of corruption. Both common sense and the ample record in
these cases confirm Congress’ belief that they do. As set forth
above,
supra, at 11–13, and n. 7, the FEC’s
allocation regime has invited widespread circumvention of FECA’s
limits on contributions to parties for the purpose of influencing
federal elections. Under this system, corporate, union, and wealthy
individual donors have been free to contribute substantial sums of
soft money to the national parties, which the parties can spend for
the specific purpose of influencing a particular candidate’s
federal election. It is not only plausible, but likely, that
candidates would feel grateful for such donations and that donors
would seek to exploit that gratitude.[
Footnote 45]
The evidence in the record shows that
candidates and donors alike have in fact exploited the soft-money
loophole, the former to increase their prospects of election and
the latter to create debt on the part of officeholders, with the
national parties serving as willing intermediaries. Thus, despite
FECA’s hard-money limits on direct contributions to candidates,
federal officeholders have commonly asked donors to make soft-money
donations to national and state committees “solely in order to
assist federal campaigns,” including the officeholder’s own. 251
F. Supp. 2d, at 472 (Kollar-Kotelly, J.) (quoting declaration
of Wade Randlett, CEO, Dashboard Technology ¶ ;¶ ;6–9 (hereinafter
Randlett Decl.), App. 713–714); see also 251 F. Supp. 2d, at
471–473, 478–479 (Kollar-Kotelly, J.);
id., at 842–843
(Leon, J.). Parties kept tallies of the amounts of soft money
raised by each officeholder, and “the amount of money a Member of
Congress raise[d] for the national political committees often
affect[ed] the amount the committees g[a]ve to assist the Member’s
campaign.”
Id., at 474–475 (Kollar-Kotelly, J.). Donors
often asked that their contributions be credited to particular
candidates, and the parties obliged, irrespective of whether the
funds were hard or soft.
Id., at 477–478 (Kollar-Kotelly,
J.);
id., at 824, 847 (Leon, J.). National party
committees often teamed with individual candidates’ campaign
committees to create joint fundraising committees, which enabled
the candidates to take advantage of the party’s higher contribution
limits while still allowing donors to give to their preferred
candidate.
Id., at 478 (Kollar-Kotelly, J.);
id.,
at 847–848 (Leon, J.); see also App. 1286 (Krasno & Sorauf
Expert Report (characterizing the joint fundraising committee as
one “in which Senate candidates in effect rais[e] soft money for
use in their own races”)). Even when not participating directly in
the fundraising, federal officeholders were well aware of the
identities of the donors: National party committees would
distribute lists of potential or actual donors, or donors
themselves would report their generosity to officeholders. 251
F. Supp. 2d, at 487–488 (Kollar-Kotelly, J.) (“[F]or a Member
not to know the identities of these donors, he or she must actively
avoid such knowledge, as it is provided by the national political
parties and the donors themselves”);
id., at 853–855
(Leon, J.).
For their part, lobbyists, CEOs, and wealthy
individuals alike all have candidly admitted donating substantial
sums of soft money to national committees not on ideological
grounds, but for the express purpose of securing influence over
federal officials. For example, a former lobbyist and partner at a
lobbying firm in Washington, D. C., stated in his
declaration:
“ ‘You are doing a favor for somebody by
making a large [soft-money] donation and they appreciate it.
Ordinarily, people feel inclined to reciprocate favors. Do a bigger
favor for someone—that is, write a larger check—and they feel even
more compelled to reciprocate. In my experience, overt words are
rarely exchanged about contributions, but people do have
understandings.’ ”
Id., at 493 (Kollar-Kotelly, J.)
(quoting declaration of Robert Rozen, partner, Ernst & Young ¶
;14; see 8–R Defs. Exhs., Tab 33).[
Footnote 46]
Particularly telling is the fact that, in 1996 and
2000, more than half of the top 50 soft-money donors gave
substantial sums to
both major national parties, leaving
room for no other conclusion but that these donors were seeking
influence, or avoiding retaliation, rather than promoting any
particular ideology. See,
e.g., 251 F. Supp. 2d, at
508–510 (Kollar-Kotelly, J.) (citing Mann Expert Report Tbls. 5–6);
251 F. Supp. 2d, at 509 (“ ‘Giving soft money to both
parties, the Republicans and the Democrats, makes no sense at all
unless the donor feels that he or she is buying access.’ ”
(quoting declaration of former Sen. Dale Bumpers ¶ ;15, App.
175)).[
Footnote 47]
The evidence from the federal officeholders’
perspective is similar. For example, one former Senator described
the influence purchased by nonfederal donations as follows:
“ ‘Too often, Members’ first thought is not
what is right or what they believe, but how it will affect
fundraising. Who, after all, can seriously contend that a $100,000
donation does not alter the way one thinks about—and quite possibly
votes on—an issue? … When you don’t pay the piper that
finances your campaigns, you will never get any more money from
that piper. Since money is the mother’s milk of politics, you never
want to be in that situation.’ ” 251 F. Supp. 2d, at 481
(Kollar-Kotelly, J.) (quoting declaration of former Sen. Alan
Simpson ¶ ;10 (hereinafter Simpson Decl.), App. 811); 251
F. Supp. 2d, at 851 (Leon, J.) (same).
See also
id., at 489 (Kollar-Kotelly, J.)
(“ ‘The majority of those who contribute to political parties
do so for business reasons, to gain access to influential Members
of Congress and to get to know new Members.” (quoting Hickmott
Decl., Exh. A, ¶ ;46)). By bringing soft-money donors and federal
candidates and officeholders together, “[p]arties are thus
necessarily the instruments of some contributors whose object is
not to support the party’s message or to elect party candidates
across the board, but rather to support a specific candidate for
the sake of a position on one narrow issue, or even to support any
candidate who will be obliged to the contributors.”
Colorado
II, 533 U. S., at 451–452.
Plaintiffs argue that without concrete
evidence of an instance in which a federal officeholder has
actually switched a vote (or, presumably, evidence of a specific
instance where the public believes a vote was switched), Congress
has not shown that there exists real or apparent corruption. But
the record is to the contrary. The evidence connects soft money to
manipulations of the legislative calendar, leading to Congress’
failure to enact, among other things, generic drug legislation,
tort reform, and tobacco legislation. See,
e.g., 251 F.
Supp. 2d, at 482 (Kollar-Kotelly, J.);
id., at 852 (Leon,
J.); App. 390–394 (declaration of Sen. John McCain ¶ ;¶ ;5, 8–11
(hereinafter McCain Decl.)); App. 811 (Simpson Decl. ¶ ;10)
(“Donations from the tobacco industry to Republicans scuttled
tobacco legislation, just as contributions from the trial lawyers
to Democrats stopped tort reform”); App. 805 (declaration of former
Sen. Paul Simon ¶ ;¶ ;13–14). To claim that such actions do not
change legislative outcomes surely misunderstands the legislative
process.
More importantly, plaintiffs conceive of
corruption too narrowly. Our cases have firmly established that
Congress’ legitimate interest extends beyond preventing simple
cash-for-votes corruption to curbing “undue influence on an
officeholder’s judgment, and the appearance of such influence.”
Colorado II,
supra, at 441. Many of the “deeply
disturbing examples” of corruption cited by this Court in
Buckley, 424 U. S., at 27, to justify FECA’s contribution
limits were not episodes of vote buying, but evidence that various
corporate interests had given substantial donations to gain access
to high-level government officials. See
Buckley, 519
F. 2d, at 821, 839–840, n. 36; nn. 5–6,
supra.
Even if that access did not secure actual influence, it certainly
gave the “appearance of such influence.”
Colorado II,
supra, at 441; see also 519 F. 2d
, at 838.
The record in the present case is replete with
similar examples of national party committees peddling access to
federal candidates and officeholders in exchange for large
soft-money donations. See 251 F. Supp. 2d, at 492–506
(Kollar-Kotelly, J.). As one former Senator put it:
“ ‘Special interests who give large amounts of
soft money to political parties do in fact achieve their
objectives. They do get special access. Sitting Senators and House
Members have limited amounts of time, but they make time available
in their schedules to meet with representatives of business and
unions and wealthy individuals who gave large sums to their
parties. These are not idle chit-chats about the philosophy of
democracy… . Senators are pressed by their benefactors to
introduce legislation, to amend legislation, to block legislation,
and to vote on legislation in a certain way.’ ”
Id.,
at 496 (Kollar-Kotelly, J.) (quoting declaration of former Sen.
Warren Rudman ¶ ;7 (hereinafter Rudman Decl.), App. 742); 251 F.
Supp. 2d, at 858 (Leon, J.) (same).
So pervasive is this practice that the six national
party committees actually furnish their own menus of opportunities
for access to would-be soft-money donors, with increased prices
reflecting an increased level of access. For example, the DCCC
offers a range of donor options, starting with the $10,000-per-year
Business Forum program, and going up to the $100,000-per-year
National Finance Board program. The latter entitles the donor to
bimonthly conference calls with the Democratic House leadership and
chair of the DCCC, complimentary invitations to all DCCC
fundraising events, two private dinners with the Democratic House
leadership and ranking members, and two retreats with the
Democratic House leader and DCCC chair in Telluride, Colorado, and
Hyannisport, Massachusetts.
Id., at 504–505
(Kollar-Kotelly, J.); see also
id., at 506 (describing
records indicating that DNC offered meetings with President in
return for large donations);
id., at 502–503 (describing
RNC’s various donor programs);
id., at 503–504 (same for
NRSC);
id., at 500–503 (same for DSCC);
id., at
504 (same for NRCC). Similarly, “the RNC’s donor programs offer
greater access to federal office holders as the donations grow
larger, with the highest level and most personal access offered to
the largest soft money donors.”
Id., at 500–503 (finding,
further, that the RNC holds out the prospect of access to
officeholders to attract soft-money donations and encourages
officeholders to meet with large soft-money donors); accord,
id., at 860–861 (Leon, J.).
Despite this evidence and the close ties that
candidates and officeholders have with their parties, Justice
Kennedy would limit Congress’ regulatory interest
only to
the prevention of the actual or apparent
quid pro quo
corruption “inherent in” contributions made directly to,
contributions made at the express behest of, and expenditures made
in coordination with, a federal officeholder or candidate.
Post, at 8–10, 15. Regulation of any other donation or
expenditure—regardless of its size, the recipient’s relationship to
the candidate or officeholder, its potential impact on a
candidate’s election, its value to the candidate, or its unabashed
and explicit intent to purchase influence—would, according to
Justice Kennedy, simply be out of bounds. This crabbed view of
corruption, and particularly of the appearance of corruption,
ignores precedent, common sense, and the realities of political
fundraising exposed by the record in this litigation.[
Footnote 48]
Justice Kennedy’s interpretation of the First
Amendment would render Congress powerless to address more subtle
but equally dispiriting forms of corruption. Just as troubling to a
functioning democracy as classic
quid pro quo corruption
is the danger that officeholders will decide issues not on the
merits or the desires of their constituencies, but according to the
wishes of those who have made large financial contributions valued
by the officeholder. Even if it occurs only occasionally, the
potential for such undue influence is manifest. And unlike straight
cash-for-votes transactions, such corruption is neither easily
detected nor practical to criminalize. The best means of prevention
is to identify and to remove the temptation. The evidence set forth
above, which is but a sampling of the reams of disquieting evidence
contained in the record, convincingly demonstrates that soft-money
contributions to political parties carry with them just such
temptation.
Justice Kennedy likewise takes too narrow a
view of the appearance of corruption. He asserts that only those
transactions with “inherent corruption potential,” which he again
limits to contributions directly to candidates, justify the
inference “that regulating the conduct will stem the appearance of
real corruption.”
Post, at 14.[
Footnote 49] In our view, however, Congress is not
required to ignore historical evidence regarding a particular
practice or to view conduct in isolation from its context. To be
sure, mere political favoritism or opportunity for influence alone
is insufficient to justify regulation.
Post, at 12–14. As
the record demonstrates, it is the manner in which parties have
sold access to federal candidates and officeholders that
has given rise to the appearance of undue influence. Implicit (and,
as the record shows, sometimes explicit) in the sale of access is
the suggestion that money buys influence. It is no surprise then
that purchasers of such access unabashedly admit that they are
seeking to purchase just such influence. It was not unwarranted for
Congress to conclude that the selling of access gives rise to the
appearance of corruption.
In sum, there is substantial evidence to
support Congress’ determination that large soft-money contributions
to national political parties give rise to corruption and the
appearance of corruption.
2.
New FECA §323(a)’s Restriction on
Spending and Receiving Soft Money
Plaintiffs and The Chief
Justice contend that §323(a) is impermissibly overbroad because it
subjects
all funds raised and spent by national parties to
FECA’s hard-money source and amount limits, including, for example,
funds spent on purely state and local elections in which no federal
office is at stake.[
Footnote
50]
Post, 2–5 (Rehnquist, C. J., dissenting).
Such activities, The Chief Justice asserts, pose “little or no
potential to corrupt … federal candidates or officeholders.”
Post, at 5 (dissenting opinion). This observation is
beside the point. Section 323(a), like the remainder of §323,
regulates
contributions, not activities. As the record
demonstrates, it is the close relationship between federal
officeholders and the national parties, as well as the means by
which parties have traded on that relationship, that have made all
large soft-money contributions to national parties suspect.
As one expert noted,
“ ‘[t]here is no meaningful distinction between the national
party committees and the public officials who control them.’ ”
251 F. Supp. 2d, at 468–469 (Kollar-Kotelly, J.) (quoting Mann
Expert Report 29). The national committees of the two major parties
are both run by, and largely composed of, federal officeholders and
candidates. Indeed, of the six national committees of the two major
parties, four are composed entirely of federal officeholders.
Ibid. The nexus between national parties and federal
officeholders prompted one of Title I’s framers to conclude:
“Because the national parties operate at the
national level, and are inextricably intertwined with federal
officeholders and candidates, who raise the money for the national
party committees, there is a close connection between the funding
of the national parties and the corrupting dangers of soft money on
the federal political process. The only effective way to address
this [soft-money] problem of corruption is to ban entirely all
raising and spending of soft money by the national parties.” 148
Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays).
Given this close connection and alignment of
interests, large soft-money contributions to national parties are
likely to create actual or apparent indebtedness on the part of
federal officeholders, regardless of how those funds are ultimately
used.
This close affiliation has also placed
national parties in a position to sell access to federal
officeholders in exchange for soft-money contributions that the
party can then use for its own purposes. Access to federal
officeholders is the most valuable favor the national party
committees are able to give in exchange for large donations. The
fact that officeholders comply by donating their valuable time
indicates either that officeholders place substantial value on the
soft-money contribution themselves, without regard to their end
use, or that national committees are able to exert considerable
control over federal officeholders. See,
e.g., App.
1196–1198 (Expert Report of Donald P. Green, Yale University)
(“Once elected to legislative office, public officials enter an
environment in which political parties-in-government control the
resources crucial to subsequent electoral success and legislative
power. Political parties organize the legislative caucuses that
make committee assignments”); App. 1298 (Krasno & Sorauf Expert
Report) (indicating that officeholders’ re-election prospects are
significantly influenced by attitudes of party leadership). Either
way, large soft-money donations to national party committees are
likely to buy donors preferential access to federal officeholders
no matter the ends to which their contributions are eventually put.
As discussed above, Congress had sufficient grounds to regulate the
appearance of undue influence associated with this practice. The
Government’s strong interests in preventing corruption, and in
particular the appearance of corruption, are thus sufficient to
justify subjecting all donations to national parties to the source,
amount, and disclosure limitations of FECA.[
Footnote 51]
3.
New FECA §323(a)’s Restriction on
Soliciting or Directing Soft Money
Plaintiffs also contend that
§323(a)’s prohibition on national parties’ soliciting or directing
soft-money contributions is substantially overbroad. The reach of
the solicitation prohibition, however, is limited. It bars only
solicitations of soft money by national party committees and by
party officers in their official capacities. The committees remain
free to solicit hard money on their own behalf, as well as to
solicit hard money on behalf of state committees and state and
local candidates.[Footnote
52] They also can contribute hard money to state committees and
to candidates. In accordance with FEC regulations, furthermore,
officers of national parties are free to solicit soft money in
their individual capacities, or, if they are also officials of
state parties, in that capacity. See 67 Fed. Reg. 49083
(2002).
This limited restriction on
solicitation follows sensibly from the prohibition on national
committees’ receiving soft money. The same observations that led us
to approve the latter compel us to reach the same conclusion
regarding the former. A national committee is likely to respond
favorably to a donation made at its request regardless of whether
the recipient is the committee itself or another entity. This
principle accords with common sense and appears elsewhere in
federal laws. E.g., 18 U. S. C. §201(b)(2) (prohibition
on public officials “demand[ing] [or] seek[ing] … anything of value
personally
or for any other person or entity …” (emphasis
added)); 5 CFR §2635.203(f)(2) (2003) (restriction on gifts to
federal employees encompasses gifts “[g]iven to any other person,
including any charitable organization, on the basis of designation,
recommendation, or other specification by the employee”).
Plaintiffs argue that BCRA itself demonstrates
the overbreadth of §323(a)’s solicitation ban. They point in
particular to §323(e), which allows federal candidates and
officeholders to solicit limited amounts of soft money from
individual donors under certain circumstances. Compare 2 U.
S. C. A §441i(a) with §441i(e) (Supp. 2003). The
differences between §§323(a) and 323(e), however, are without
constitutional significance. We have recognized that “the
‘differing structures and purposes’ of different entities ‘may
require different forms of regulation in order to protect the
integrity of the electoral process,’ ”
National Right to
Work, 459 U. S., at 210, and we respect Congress’ decision to
proceed in incremental steps in the area of campaign finance
regulation, see
Federal Election Comm’n v.
Massachusetts Citizens for Life, Inc., 479
U. S. 238, 258, n. 11 (1986)
(MCFL);
Buckley, 424 U. S., at 105. The differences between the
two provisions reflect Congress’ reasonable judgments about the
function played by national committees and the interactions between
committees and officeholders, subjects about which Members of
Congress have vastly superior knowledge.
4.
New FECA §323(a)’s Application to
Minor Parties
The McConnell and political
party plaintiffs contend that §323(a) is substantially overbroad
and must be stricken on its face because it impermissibly infringes
the speech and associational rights of minor parties such as the
Libertarian National Committee, which, owing to their slim
prospects for electoral success and the fact that they receive few
large soft-money contributions from corporate sources, pose no
threat of corruption comparable to that posed by the RNC and DNC.
In Buckley, we rejected a similar argument concerning limits
on contributions to minor-party candidates, noting that “any
attempt to exclude minor parties and independents en masse from the
Act’s contribution limitations overlooks the fact that minor-party
candidates may win elective office or have a substantial impact on
the outcome of an election.” 424 U. S., at 34–35. We have thus
recognized that the relevance of the interest in avoiding actual or
apparent corruption is not a function of the number of legislators
a given party manages to elect. It applies as much to a minor party
that manages to elect only one of its members to federal office as
it does to a major party whose members make up a majority of
Congress. It is therefore reasonable to require that all parties
and all candidates follow the same set of rules designed to protect
the integrity of the electoral process.
We add that nothing in §323(a)
prevents individuals from pooling resources to start a new national
party.
Post, at 5 (Kennedy, J., dissenting). Only when an
organization has gained official status, which carries with it
significant benefits for its members, will the proscriptions of
§323(a) apply. Even then, a nascent or struggling minor party can
bring an as-applied challenge if §323(a) prevents it from “amassing
the resources necessary for effective advocacy.”
Buckley,
supra, at 21.
5.
New FECA §323(a)’s Associational
Burdens
Finally, plaintiffs assert
that §323(a) is unconstitutional because it impermissibly
interferes with the ability of national committees to associate
with state and local committees. By way of example, plaintiffs
point to the Republican Victory Plans, whereby the RNC acts in
concert with the state and local committees of a given State to
plan and implement joint, full-ticket fundraising and
electioneering programs. See App. 693, 694–697 (declaration of John
Peschong, RNC Western Reg. Political Dir. (describing the
Republican Victory Plans)). The political parties assert that
§323(a) outlaws any participation in Victory Plans by RNC
officers, including merely sitting down at a table and engaging in
collective decisionmaking about how soft money will be solicited,
received, and spent. Such associational burdens, they argue, are
too great for the First Amendment to bear.
We are not persuaded by this
argument because it hinges on an unnaturally broad reading of the
terms “spend,” “receive,” “direct,” and “solicit.” 2 U.
S. C. A. §441i(a) (Supp. 2003). Nothing on the face of
§323(a) prohibits national party officers, whether acting in their
official or individual capacities, from sitting down with state and
local party committees or candidates to plan and advise how to
raise and spend soft money. As long as the national party officer
does not personally spend, receive, direct, or solicit soft money,
§323(a) permits a wide range of joint planning and electioneering
activity. Intervenor-defendants, the principal drafters and
proponents of the legislation, concede as much. Brief for
Intervenor-Defendants Sen. John McCain et al. in No. 02– 1674
et al., p. 22 (“BCRA leaves parties and candidates free
to coordinate campaign plans and activities, political messages,
and fundraising goals with one another”). The FEC’s current
definitions of §323(a)’s terms are consistent with that view. See,
e.g., 11 CFR §300.2(m) (2002) (defining “solicit” as “to
ask … another person” (emphasis added)); §300.2(n)
(defining “direct” as “to
ask a person who has expressed
an intent to make a contribution . . . to make that contribution …
including through a conduit or intermediary” (emphasis added));
§300.2(c) (laying out the factors that determine whether an entity
will be considered to be controlled by a national committee).
Given the straightforward meaning of this
provision, Justice Kennedy is incorrect that “[a] national party’s
mere involvement in the strategic planning of fundraising for a
state ballot initiative” or its assistance in developing a state
party’s Levin-money fundraising efforts risks a finding that the
officers are in “ ‘indirect control’ ” of the state party
and subject to criminal penalties.
Post, at 5–6. Moreover,
§323(a) leaves national party committee officers entirely free to
participate, in their official capacities, with state and local
parties and candidates in soliciting and spending hard money; party
officials may also solicit soft money in their unofficial
capacities.
Accordingly, we reject the plaintiffs’ First
Amendment challenge to new FECA §323(a).
New FECA §323(b)’s Restrictions on State and
Local Party Committees
In constructing a coherent
scheme of campaign finance regulation, Congress recognized that,
given the close ties between federal candidates and state party
committees, BCRA’s restrictions on national committee activity
would rapidly become ineffective if state and local committees
remained available as a conduit for soft-money donations.[Footnote 53] Section 323(b) is
designed to foreclose wholesale evasion of §323(a)’s anticorruption
measures by sharply curbing state committees’ ability to use large
soft-money contributions to influence federal elections. The core
of §323(b) is a straightforward contribution regulation: It
prevents donors from contributing nonfederal funds to state and
local party committees to help finance “Federal election activity.”
2 U. S. C A. §441i(b)(1) (Supp. 2003). The term “Federal
election activity” encompasses four distinct categories of
electioneering: (1) voter registration activity during the 120 days
preceding a regularly scheduled federal election; (2) voter
identification, get-out-the-vote (GOTV), and generic campaign
activity[Footnote 54] that
is “conducted in connection with an election in which a candidate
for Federal office appears on the ballot”; (3) any “public
communication”[Footnote 55]
that “refers to a clearly identified candidate for Federal office”
and “promotes,” “supports,” “attacks,” or “opposes” a candidate for
that office; and (4) the services provided by a state committee
employee who dedicates more than 25% of his or her time to
“activities in connection with a Federal election.”
§§431(20)(A)(i)–(iv). The Act explicitly excludes several
categories of activity from this definition: public communications
that refer solely to nonfederal candidates;[Footnote 56] contributions to nonfederal
candidates;[Footnote 57]
state and local political conventions; and the cost of grassroots
campaign materials like bumper stickers that refer only to state
candidates. §431(20)(B). All activities that fall within the
statutory definition must be funded with hard money.
§441i(b)(1).
Section 323(b)(2), the
so-called Levin Amendment, carves out an exception to this general
rule. A refinement on the pre-BCRA regime that permitted parties to
pay for certain activities with a mix of federal and nonfederal
funds, the Levin Amendment allows state and local party committees
to pay for certain types of federal election activity with an
allocated ratio of hard money and “Levin funds”—that is, funds
raised within an annual limit of $10,000 per person. 2 U.
S. C. A. §441i(b)(2). Except for the $10,000 cap and
certain related restrictions to prevent circumvention of that
limit, §323(b)(2) leaves regulation of such contributions to the
States.[Footnote
58]
The scope of the Levin Amendment is
limited in two ways. First, state and local parties can use Levin
money to fund only activities that fall within categories (1) and
(2) of the statute’s definition of federal election
activity—namely, voter registration activity, voter identification
drives, GOTV drives, and generic campaign activities. 2 U.
S. C. A. §441i(b)(2)(A). And not all of these activities
qualify: Levin funds cannot be used to pay for any activities that
refer to “a clearly identified candidate for Federal office”; they
likewise cannot be used to fund broadcast communications unless
they refer “solely to a clearly identified candidate for State or
local office.” §§441i(b)(2)(B)(i)–(ii).
Second, both the Levin funds and the
allocated portion of hard money used to pay for such activities
must be raised entirely by the state or local committee that spends
them. §441i(b)(2)(B)(iv). This means that a state party committee
cannot use Levin funds transferred from other party committees to
cover the Levin funds portion of a Levin Amendment expenditure. It
also means that a state party committee cannot use hard money
transferred from other party committees to cover the hard-money
portion of a Levin Amendment expenditure. Furthermore, national
committees, federal candidates, and federal officeholders generally
may not solicit Levin funds on behalf of state committees, and
state committees may not team up to raise Levin funds.
§441i(b)(2)(C). They can, however, jointly raise the hard money
used to make Levin expenditures.
1. Governmental Interests Underlying
New FECA §323(b)
We begin by noting that, in
addressing the problem of soft-money contributions to state
committees, Congress both drew a conclusion and made a prediction.
Its conclusion, based on the evidence before it, was that the
corrupting influence of soft money does not insinuate itself into
the political process solely through national party committees.
Rather, state committees function as an alternate avenue for
precisely the same corrupting forces.[Footnote 59] Indeed, both candidates and parties already
ask donors who have reached the limit on their direct contributions
to donate to state committees.[Footnote 60] There is at least as much evidence as there
was in Buckley that such donations have been made with the
intent—and in at least some cases the effect—of gaining influence
over federal officeholders.[
Footnote 61] Section 323(b) thus promotes an important
governmental interest by confronting the corrupting influence that
soft-money donations to political parties already have.
Congress also made a prediction.
Having been taught the hard lesson of circumvention by the entire
history of campaign finance regulation, Congress knew that
soft-money donors would react to §323(a) by scrambling to find
another way to purchase influence. It was “neither novel nor
implausible,”
Shrink Missouri, 528 U. S., at 391, for
Congress to conclude that political parties would react to §323(a)
by directing soft-money contributors to the state committees, and
that federal candidates would be just as indebted to these
contributors as they had been to those who had formerly contributed
to the national parties. We “must accord substantial deference to
the predictive judgments of Congress,”
Turner Broadcasting
System, Inc. v.
FCC, 512 U. S. 622, 665
(1994), particularly when, as here, those predictions are so firmly
rooted in relevant history and common sense. Preventing corrupting
activity from shifting wholesale to state committees and thereby
eviscerating FECA clearly qualifies as an important governmental
interest.
2.
New FECA §323(b)’s
Tailoring
Plaintiffs argue that even if
some legitimate interest might be served by §323(b), the
provision’s restrictions are unjustifiably burdensome and therefore
cannot be considered “closely drawn” to match the Government’s
objectives. They advance three main contentions in support of this
proposition. First, they argue that the provision is substantially
overbroad because it federalizes activities that pose no
conceivable risk of corrupting or appearing to corrupt federal
officeholders. Second, they argue that the Levin Amendment imposes
an unconstitutional burden on the associational rights of political
parties. Finally, they argue that the provision prevents them from
amassing the resources they need to engage in effective advocacy.
We address these points in turn.
a. §323(b)’s Application to Federal
Election Activity
Plaintiffs assert that
§323(b) represents a new brand of pervasive federal regulation of
state-focused electioneering activities that cannot possibly
corrupt or appear to corrupt federal officeholders and thus goes
well beyond Congress’ concerns about the corruption of the federal
electoral process. We disagree.
It is true that §323(b)
captures some activities that affect state campaigns for nonfederal
offices. But these are the same sorts of activities that already
were covered by the FEC’s pre-BCRA allocation rules, and thus had
to be funded in part by hard money, because they affect federal as
well as state elections. See 11 CFR §106.5 (2002). As a practical
matter, BCRA merely codifies the principles of the FEC’s allocation
regime while at the same time justifiably adjusting the formulas
applicable to these activities in order to restore the efficacy of
FECA’s longtime statutory restriction—approved by the Court and
eroded by the FEC’s allocation regime—on contributions to state and
local party committees for the purpose of influencing federal
elections. See 2 U. S. C. §§431(8)(A), 441a(a)(1)(C); see also
Buckley, 424 U. S., at 38 (upholding FECA’s $25,000 limit on
aggregate contributions to candidates and political committees);
cf.
California Medical Assn. v.
Federal Election
Comm’n, 453
U. S. 182 (1981) (upholding FECA’s $5,000 limit on
contributions to multicandidate political committees).
Like the rest of Title I, §323(b) is premised
on Congress’ judgment that if a large donation is capable of
putting a federal candidate in the debt of the contributor, it
poses a threat of corruption or the appearance of corruption. As we
explain below, §323(b) is narrowly focused on regulating
contributions that pose the greatest risk of this kind of
corruption: those contributions to state and local parties that can
be used to benefit federal candidates directly. Further, these
regulations all are reasonably tailored, with various temporal and
substantive limitations designed to focus the regulations on the
important anti-corruption interests to be served. We conclude that
§323(b) is a closely-drawn means of countering both corruption and
the appearance of corruption.
The first two categories of “Federal election
activity,” voter registration efforts, §301(20)(A)(i), and voter
identification, GOTV, and generic campaign activities conducted in
connection with a federal election, §301(20)(A)(ii), clearly
capture activity that benefits federal candidates. Common sense
dictates, and it was “undisputed” below, that a party’s efforts to
register voters sympathetic to that party directly assist the
party’s candidates for federal office. 251 F. Supp. 2d, at 460
(Kollar-Kotelly, J.). It is equally clear that federal candidates
reap substantial rewards from any efforts that increase the number
of like-minded registered voters who actually go to the
polls.[
Footnote 62] See,
e.g.,
id., at 459 (“ ‘[The evidence] shows
quite clearly that a campaign that mobilizes residents of a highly
Republican precinct will produce a harvest of votes for Republican
candidates for both state and federal offices. A campaign need not
mention federal candidates to have a direct effect on voting for
such a candidate… . [G]eneric campaign activity has a direct
effect on federal elections’ ” (quoting Green Expert Report
14)). Representatives of the four major congressional campaign
committees confirmed that they “ ‘transfe[r] federal and
nonfederal money to state and/or local party committees for’ ”
both voter registration and get-out-the-vote activities, and that
“ ‘[t]hese efforts have a significant effect on the election
of federal candidates.’ ” 251 F. Supp. 2d, at 459, 461
(citations omitted).
The record also makes quite clear that federal
officeholders are grateful for contributions to state and local
parties that can be converted into GOTV-type efforts. See
id., at 459 (quoting a letter thanking a California
Democratic Party donor and noting that CDP’s voter registration and
GOTV efforts would help “ ‘increase the number of Californian
Democrats in the United States Congress’ ” and “ ‘deliver
California’s 54 electoral votes’ ” to the Democratic
presidential candidate).
Because voter registration, voter
identification, GOTV, and generic campaign activity all confer
substantial benefits on federal candidates, the funding of such
activities creates a significant risk of actual and apparent
corruption. Section 323(b) is a reasonable response to that risk.
Its contribution limitations are focused on the subset of voter
registration activity that is most likely to affect the election
prospects of federal candidates: activity that occurs within 120
days before a federal election. And if the voter registration drive
does not specifically mention a federal candidate, state committees
can take advantage of the Levin Amendment’s higher contribution
limits and relaxed source restrictions. 2 U. S. C. A.
§§441i(b)(2)(B)(i)–(ii) (Supp. 2003). Similarly, the contribution
limits applicable to §301(20)(A)(ii) activities target only those
voter identification, GOTV, and generic campaign efforts that occur
“in connection with an election in which a candidate for a Federal
office appears on the ballot.” 2 U. S. C. A.
§431(20)(A)(ii). Appropriately, in implementing this subsection,
the FEC has categorically excluded all activity that takes place
during the run-up to elections when no federal office is at
stake.[
Footnote 63]
Furthermore, state committees can take advantage of the Levin
Amendment’s higher contribution limits to fund any §301(A)(20)(i)
and §301(A)(20)(ii) activities that do not specifically mention a
federal candidate. 2 U. S. C. A. §§441i(b)(2)(B)(i)–(ii).
The prohibition on the use of soft money in connection with these
activities is therefore closely drawn to meet the sufficiently
important governmental interests of avoiding corruption and its
appearance.
“Public communications” that promote or attack
a candidate for federal office—the third category of “Federal
election activity,” §301(20)(A)(iii)—also undoubtedly have a
dramatic effect on federal elections. Such ads were a prime
motivating force behind BCRA’s passage. See 3 1998 Senate Report
4535 (additional views of Sen. Collins) (“[T]he hearings provided
overwhelming evidence that the twin loopholes of soft money and
bogus issue advertising have virtually destroyed our campaign
finance laws, leaving us with little more than a pile of legal
rubble”). As explained below, any public communication that
promotes or attacks a clearly identified federal candidate directly
affects the election in which he is participating. The record on
this score could scarcely be more abundant. Given the overwhelming
tendency of public communications, as carefully defined in
§301(20)(A)(iii), to benefit directly federal candidates, we hold
that application of §323(b)’s contribution caps to such
communications is also closely drawn to the anticorruption interest
it is intended to address.[
Footnote 64]
As for the final category of “Federal election
activity,” §301(20)(A)(iv), we find that Congress’ interest in
preventing circumvention of §323(b)’s other restrictions justifies
the requirement that state and local parties spend federal funds to
pay the salary of any employee spending more than 25% of his or her
compensated time on activities in connection with a federal
election. In the absence of this provision, a party might use soft
money to pay for the equivalent of a full-time employee engaged in
federal electioneering, by the simple expedient of dividing the
federal workload among multiple employees. Plaintiffs have
suggested no reason for us to strike down this provision.
Accordingly, we give “deference to [the] congressional
determination of the need for [this] prophylactic rule.”
National Conservative Political Action Comm., 470 U. S.,
at 500.
b.
Associational Burdens Imposed by
the Levin Amendment
Plaintiffs also contend that
§323(b) is unconstitutional because the Levin Amendment
unjustifiably burdens association among party committees by
forbidding transfers of Levin funds among state parties, transfers
of hard money to fund the allocable federal portion of Levin
expenditures, and joint fundraising of Levin funds by state
parties. We recognize, as we have in the past, the importance of
preserving the associational freedom of parties. See, e.g.,
California Democratic Party v.
Jones,
530 U. S. 567 (2000);
Eu v.
San Francisco County Democratic Central Comm.,
489 U. S. 214 (1989).
But not every minor restriction on parties’ otherwise unrestrained
ability to associate is of constitutional dimension. See
Colorado II, 533 U. S., at 450, n. 11.
As an initial matter, we note
that state and local parties can avoid these associational burdens
altogether by forgoing the Levin Amendment option and electing to
pay for federal election activities entirely with hard money. But
in any event, the restrictions on the use, transfer, and raising of
Levin funds are justifiable anticircumvention measures. Without the
ban on transfers of Levin funds among state committees, donors
could readily circumvent the $10,000 limit on contributions to a
committee’s Levin account by making multiple $10,000 donations to
various committees that could then transfer the donations to the
committee of choice.[
Footnote
65] The same anticircumvention goal undergirds the ban on joint
solicitation of Levin funds. Without this restriction, state and
local committees could organize “all hands” fundraisers at which
individual, corporate, or union donors could make large soft-money
donations to be divided between the committees. In that case, the
purpose, if not the letter, of §323(b)(2)’s $10,000 limit would be
thwarted: Donors could make large, visible contributions at
fundraisers, which would provide ready means for corrupting federal
officeholders. Given the delicate and interconnected regulatory
scheme at issue here, any associational burdens imposed by the
Levin Amendment restrictions are far outweighed by the need to
prevent circumvention of the entire scheme.
Section 323(b)(2)(B)(iv)’s apparent
prohibition on the transfer of hard money by a national, state, or
local committee to help fund the allocable hard-money portion of a
separate state or local committee’s Levin expenditures presents a
closer question. 2 U. S. C. A. §441i(b)(2)(B)(iv) (Supp.
2003). The Government defends the restriction as necessary to
prevent the donor committee, particularly a national committee,
from leveraging the transfer of federal money to wrest control over
the spending of the recipient committee’s Levin funds. This
purported interest is weak, particularly given the fact that
§323(a) already polices attempts by national parties to engage in
such behavior. See 2 U. S. C. A. §441i(a)(2) (extending
§323(a)’s restrictions to entities
controlled by national
party committees). However, the associational burdens posed by the
hard-money transfer restriction are so insubstantial as to be
de minimis. Party committees, including national party
committees, remain free to transfer unlimited hard money so long as
it is not used to fund Levin expenditures. State and local party
committees can thus dedicate all “homegrown” hard money to their
Levin activities while relying on outside transfers to defray the
costs of other hard-money expenditures. Given the strong
anticircumvention interest vindicated by §323(b)(2)(B)(iv)’s
restriction on the transfer of Levin funds, we will not strike down
the entire provision based upon such an attenuated claim of
associational infringement.
c.
New FECA §323(b)’s Impact on
Parties’ Ability to Engage in Effective
Advocacy
Finally, plaintiffs contend
that §323(b) is unconstitutional because its restrictions on
soft-money contributions to state and local party committees will
prevent them from engaging in effective advocacy. As Judge
Kollar-Kotelly noted, the political parties’ evidence regarding the
impact of BCRA on their revenues is “speculative and not based on
any analysis.” 251 F. Supp. 2d, at 524. If the history of
campaign finance regulation discussed above proves anything, it is
that political parties are extraordinarily flexible in adapting to
new restrictions on their fundraising abilities. Moreover, the mere
fact that §323(b) may reduce the relative amount of money available
to state and local parties to fund federal election activities is
largely inconsequential. The question is not whether §323(b)
reduces the amount of funds available over previous election
cycles, but whether it is “so radical in effect as to … drive the
sound of [the recipient’s] voice below the level of notice.” Shrink
Missouri, 528 U. S., at 397. If indeed state or local parties
can make such a showing, as-applied challenges remain
available.
We accordingly conclude that
§323(b), on its face, is closely drawn to match the important
governmental interests of preventing corruption and the appearance
of corruption.
New FECA §323(d)’s Restrictions on Parties’
Solicitations for, and Donations to, Tax-Exempt
Organizations
Section 323(d)
prohibits national, state, and local party committees, and their
agents or subsidiaries, from “solicit[ing] any funds for, or
mak[ing] or direct[ing] any donations” to, any organization
established under §501(c) of the Internal Revenue Code[Footnote 66] that makes expenditures
in connection with an election for federal office, and any
political organizations established under §527 “other than a
political committee, a State, district, or local committee of a
political party, or the authorized campaign committee of a
candidate for State or local office.”[Footnote 67] 2 U. S. C. A. §441i(d) (Supp.
2003). The District Court struck down the provision on its face. We
reverse and uphold §323(d), narrowly construing the section’s ban
on donations to apply only to the donation of funds not raised in
compliance with FECA.
1. New FECA §323(d)’s
Regulation of Solicitations
The Government
defends §323(d)’s ban on solicitations to tax-exempt organizations
engaged in political activity as preventing circumvention of Title
I’s limits on contributions of soft money to national, state, and
local party committees. That justification is entirely reasonable.
The history of Congress’ efforts at campaign finance reform well
demonstrates that “candidates, donors, and parties test the limits
of the current law.” Colorado II, 533 U. S., at 457. Absent
the solicitation provision, national, state, and local party
committees would have significant incentives to mobilize their
formidable fundraising apparatuses, including the peddling of
access to federal officeholders, into the service of like-minded
tax-exempt organizations that conduct activities benefiting their
candidates.[Footnote 68] All
of the corruption and appearance of corruption attendant on the
operation of those fundraising apparatuses would follow. Donations
made at the behest of party committees would almost certainly be
regarded by party officials, donors, and federal officeholders
alike as benefiting the party as well as its candidates. Yet, by
soliciting the donations to third-party organizations, the parties
would avoid FECA’s source-and-amount limitations, as well as its
disclosure restrictions. See 251 F. Supp. 2d, at 348
(Henderson, J.) (citing various declarations demonstrating that,
prior to BCRA, most tax-exempt organizations did not disclose the
source or amount of contributions); id., at 521
(Kollar-Kotelly, J.) (same).
Experience under the
current law demonstrates that Congress’ concerns about
circumvention are not merely hypothetical. Even without the added
incentives created by Title I, national, state, and local parties
already solicit unregulated soft-money donations to tax-exempt
organizations for the purpose of supporting federal electioneering
activity. See, e.g., 3 1998 Senate Report 4013 (“In
addition to direct contributions from the RNC to nonprofit groups,
the senior leadership of the RNC helped to raise funds for many of
the coalition’s nonprofit organizations”); id., at 5983
(minority views) (“Tax-exempt ‘issue advocacy’ groups and other
conduits were systematically used to circumvent federal campaign
finance laws”); 251 F. Supp. 2d, at 517 (Kollar-Kotelly, J.);
id., at 848 (Leon, J.). Parties and candidates have also
begun to take advantage of so-called “politician 527s,” which are
little more than soft-money fronts for the promotion of particular
federal officeholders and their interests. See id., at 519
(Kollar-Kotelly, J.) (“ ‘Virtually every member of Congress in
a formal leadership position has his or her own 527 group… .
In all, Public Citizen found 63 current members of Congress who
have their own 527s’ ” (quoting Public Citizen Congress Watch,
Congressional Leaders’ Soft Money Accounts Show Need for Campaign
Finance Reform Bills, Feb. 26, 2002, p. 6)); 251 F. Supp. 2d,
at 849–850 (Leon, J.). These 527s have been quite successful at
raising substantial sums of soft money from corporate interests, as
well as from the national parties themselves. See id., at
519–520 (Kollar-Kotelly, J.) (finding that 27 industries had each
donated over $100,000 in a single year to the top 25 politician 527
groups and that the DNC was the single largest contributor to
politician 527 groups (citing Public Citizen Congress Watch,
supra, at 10–11)); 251 F. Supp. 2d, at 850 (Leon, J.)
(same). Given BCRA’s tighter restrictions on the raising and
spending of soft money, the incentives for parties to exploit such
organizations will only increase.
Section 323(d)’s solicitation
restriction is closely drawn to prevent political parties from
using tax-exempt organizations as soft-money surrogates. Though
phrased as an absolute prohibition, the restriction does nothing
more than subject contributions solicited by parties to FECA’s
regulatory regime, leaving open substantial opportunities for
solicitation and other expressive activity in support of these
organizations. First, and most obviously, §323(d) restricts
solicitations only to those §501(c) groups “mak[ing] expenditures
or disbursements in connection with an election for Federal
office,” 2 U. S. C. A. §441i(d)(1) (Supp. 2003), and to
§527 organizations, which by definition engage in partisan
political activity, §441i(d)(2); 26 U. S. C. §527(e). Second,
parties remain free to solicit hard-money contributions to a
§501(c)’s federal PAC, as well as to §527 organizations that
already qualify as federal PACs.[Footnote 69] Third, §323(d) allows parties to endorse
qualifying organizations in ways other than direct solicitations of
unregulated donations. For example, with respect to §501(c)
organizations that are prohibited from administering PACs, parties
can solicit hard-money donations to themselves for the express
purpose of donating to these organizations. See supra, at
72–73. Finally, as with §323(a), §323(d) in no way restricts
solicitations by party officers acting in their individual
capacities. 2 U. S. C. A. §441i(d) (extending
restrictions to solicitations and donations made by “an officer or
agent acting on behalf of any such party committee”
(emphasis added)).
In challenging §323(d)’s ban on
solicitations, plaintiffs renew the argument they made with respect
to §323(a)’s solicitation restrictions: that it cannot be squared
with §323(e), which allows federal candidates and officeholders to
solicit limited donations of soft money to tax-exempt organizations
that engage in federal election activities. Compare 2 U.
S. C. A. §441i(d) with §441i(e)(4). But if §323(d)’s
restrictions on solicitations are otherwise valid, they are not
rendered unconstitutional by the mere fact that Congress chose not
to regulate the activities of another group as stringently as it
might have. See National Right to Work, 459 U. S., at 210;
see also Katzenbach v. Morgan, 384 U. S. 641, 656–657
(1966). In any event, the difference between the two provisions is
fully explained by the fact that national party officers, unlike
federal candidates and officeholders, are able to solicit soft
money on behalf of nonprofit organizations in their individual
capacities. Section 323(e), which is designed to accommodate the
individual associational and speech interests of candidates and
officeholders in lending personal support to nonprofit
organizations, also places tight content, source, and amount
restrictions on solicitations of soft money by federal candidates
and officeholders. Given those limits, as well as the less rigorous
standard of review, the greater allowances of §323(e) do not render
§323(d)’s solicitation restriction facially invalid.
2. New FECA §323(d)’s
Regulation of Donations
Section 323(d)
also prohibits national, state, and local party committees from
making or directing “any donatio[n]” to qualifying §501(c) or §527
organizations. 2 U. S. C. A. §441i(d) (Supp. 2003). The
Government again defends the restriction as an anticircumvention
measure. We agree insofar as it prohibits the donation of soft
money. Absent such a restriction, state and local party committees
could accomplish directly what the antisolicitation restrictions
prevent them from doing indirectly— namely, raising large sums of
soft money to launder through tax-exempt organizations engaging in
federal election activities. Because the party itself would be
raising and collecting the funds, the potential for corruption
would be that much greater. We will not disturb Congress’
reasonable decision to close that loophole, particularly given a
record demonstrating an already robust practice of parties’ making
such donations. See 251 F. Supp. 2d, at 517–518
(Kollar-Kotelly); id., at 848–849 (Leon, J.).
The prohibition does
raise overbreadth concerns if read to restrict donations from a
party’s federal account—i.e., funds that have already been
raised in compliance with FECA’s source, amount, and disclosure
limitations. Parties have many valid reasons for giving to
tax-exempt organizations, not the least of which is to associate
themselves with certain causes and, in so doing, to demonstrate the
values espoused by the party. A complete ban on donations prevents
parties from making even the “general expression of support” that a
contribution represents. Buckley, 424 U. S., at 21. At the
same time, prohibiting parties from donating funds already raised
in compliance with FECA does little to further Congress’ goal of
preventing corruption or the appearance of corruption of federal
candidates and officeholders.
The Government asserts that the
restriction is necessary to prevent parties from leveraging their
hard money to gain control over a tax-exempt group’s soft money.
Even if we accepted that rationale, it would at most justify a
dollar limit, not a flat ban. Moreover, any legitimate concerns
over capture are diminished by the fact that the restrictions set
forth in §§323(a) and (b) apply not only to party committees, but
to entities under their control. See 2 U. S. C. A.
§441i(a)(2) (extending prohibitions on national party committees to
“any entity that is directly or indirectly established, financed,
maintained, or controlled by such a national committee”
(emphasis added)); §441i(b)(1) (same for state and local party
committees).
These observations do not,
however, require us to sustain plaintiffs’ facial challenge to
§323(d)’s donation restriction. “When the validity of an act of the
Congress is drawn in question, and … a serious doubt of
constitutionality is raised, it is a cardinal principle that this
Court will first ascertain whether a construction of the statute is
fairly possible by which the question may be avoided.”
Crowell v. Benson, 285 U. S. 22, 62 (1932);
see also Boos v. Barry, 485 U. S. 312, 331
(1988); New York v. Ferber, 458 U. S. 747, 769, n.
24 (1982). Given our obligation to avoid constitutional problems,
we narrowly construe §323(d)’s ban to apply only to donations of
funds not raised in compliance with FECA. This construction is
consistent with the concerns animating Title I, whose purpose is to
plug the soft-money loophole. Though there is little legislative
history regarding BCRA generally, and almost nothing on §323(d)
specifically, the abuses identified in the 1998 Senate report
regarding campaign finance practices involve the use of nonprofit
organizations as conduits for large soft-money donations.
See, e.g., 3 1998 Senate Report 4565 (“The evidence
indicates that the soft-money loophole is fueling many of the
campaign abuses investigated by the Committee… . Soft money
also supplied the funds parties used to make contributions to
tax-exempt groups, which in turn used the funds to pay for
election-related activities”); id., at 4568–4569
(describing as an “egregious exampl[e]” of misuse a $4.6 million
donation of nonfederal funds by the RNC to Americans for Tax
Reform, which the organization spent on “direct mail and phone bank
operations to counter anti-Republican advertising”). We have found
no evidence that Congress was concerned about, much less that it
intended to prohibit, donations of money already fully regulated by
FECA. Given Title I’s exclusive focus on abuses related to soft
money, we would expect that if Congress meant §323(d)’s restriction
to have this dramatic and constitutionally questionable effect, it
would say so explicitly. Because there is nothing that compels us
to conclude that Congress intended “donations” to include transfers
of federal money, and because of the constitutional infirmities
such an interpretation would raise, we decline to read §323(d) in
that way. Thus, political parties remain free to make or direct
donations of money to any tax-exempt organization that has
otherwise been raised in compliance with FECA.
New FECA §323(e)’s Restrictions on
Federal Candidates and Officeholders
New FECA §323(e)
regulates the raising and soliciting of soft money by federal
candidates and officeholders. 2 U. S. C. A. §441i(e)
(Supp. 2003). It prohibits federal candidates and officeholders
from “solicit[ing], receiv[ing], direct[ing], transfer[ing], or
spend[ing]” any soft money in connection with federal elections.
§441i(e)(1)(A). It also limits the ability of federal candidates
and officeholders to solicit, receive, direct, transfer, or spend
soft money in connection with state and local elections.
§441i(e)(1)(B).[Footnote
70]
Section 323(e)’s
general prohibition on solicitations admits of a number of
exceptions. For instance, federal candidates and officeholders are
permitted to “attend, speak, or be a featured guest” at a state or
local party fundraising event. 2 U. S. C. A. §441i(e)(3).
Section 323(e) specifically provides that federal candidates and
officeholders may make solicitations of soft money to §501(c)
organizations whose primary purpose is not to engage in “Federal
election activit[ies]” as long as the solicitation does not specify
how the funds will be spent, 2 U. S. C. A.
§441i(e)(4)(A); to §501(c) organizations whose primary purpose
is to engage in “Federal election activit[ies]” as long as the
solicitations are limited to individuals and the amount solicited
does not exceed $20,000 per year per individual, 2 U.
S. C. A. §441i(e)(4)(B); and to §501(c) organizations for
the express purpose of carrying out such activities, again so long
as the amount solicited does not exceed $20,000 per year per
individual, 2 U. S. C. A. §441(e)(4)(B).
No party seriously questions the
constitutionality of §323(e)’s general ban on donations of soft
money made directly to federal candidates and officeholders, their
agents, or entities established or controlled by them. Even on the
narrowest reading of Buckley, a regulation restricting
donations to a federal candidate, regardless of the ends to which
those funds are ultimately put, qualifies as a contribution limit
subject to less rigorous scrutiny. Such donations have only
marginal speech and associational value, but at the same time pose
a substantial threat of corruption. By severing the most direct
link between the soft-money donor and the federal candidate,
§323(e)’s ban on donations of soft money is closely drawn to
prevent the corruption or the appearance of corruption of federal
candidates and officeholders.
Section 323(e)’s restrictions on
solicitations are justified as valid anticircumvention measures.
Large soft-money donations at a candidate’s or officeholder’s
behest give rise to all of the same corruption concerns posed by
contributions made directly to the candidate or officeholder.
Though the candidate may not ultimately control how the funds are
spent, the value of the donation to the candidate or officeholder
is evident from the fact of the solicitation itself. Without some
restriction on solicitations, federal candidates and officeholders
could easily avoid FECA’s contribution limits by soliciting funds
from large donors and restricted sources to like-minded
organizations engaging in federal election activities. As the
record demonstrates, even before the passage of BCRA, federal
candidates and officeholders had already begun soliciting donations
to state and local parties, as well as tax-exempt organizations, in
order to help their own, as well as their party’s, electoral cause.
See Colorado II, 533 U. S., at 458 (quoting fundraising
letter from a Congressman explaining to contributor that
“ ‘you are at the limit of what you can directly contribute to
my campaign,’ but ‘you can further help my campaign by assisting
the Colorado Republican Party’ ”); 251 F. Supp. 2d, at
479–480 (Kollar-Kotelly, J.) (surveying evidence of federal
officeholders’ soliciting funds to state and local parties);
id., at 848 (Leon, J.) (same); id., at 518
(Kollar-Kotelly, J.) (surveying evidence of federal officeholders’
soliciting funds for nonprofits for electioneering purposes);
id., at 849 (Leon, J.) (same). The incentives to do so, at
least with respect to solicitations to tax-exempt organizations,
will only increase with Title I’s restrictions on the raising and
spending of soft money by national, state, and local
parties.
Section 323(e) addresses these
concerns while accommodating the individual speech and
associational rights of federal candidates and officeholders.
Rather than place an outright ban on solicitations to tax-exempt
organizations, §323(e)(4) permits limited solicitations of soft
money. 2 U. S. C. A. §441i(e)(4). This allowance
accommodates individuals who have long served as active members of
nonprofit organizations in both their official and individual
capacities. Similarly, §§323(e)(1)(B) and 323(e)(3) preserve the
traditional fundraising role of federal officeholders by providing
limited opportunities for federal candidates and officeholders to
associate with their state and local colleagues through joint
fundraising activities. 2 U. S. C. A. §§441i(e)(1)(B),
441i(e)(3). Given these many exceptions, as well as the substantial
threat of corruption or its appearance posed by donations to or at
the behest of federal candidates and officeholders, §323(e) is
clearly constitutional. We accordingly uphold §323(e) against
plaintiffs’ First Amendment challenge.
New FECA §323(f)’s Restrictions on
State Candidates and Officeholders
The final
provision of Title I is new FECA §323(f). 2 U. S. C. A.
§441i(f) (Supp. 2003). Section 323(f) generally prohibits
candidates for state or local office, or state or local
officeholders, from spending soft money to fund “public
communications” as defined in §301(20)(A)(iii)— i.e., a
communication that “refers to a clearly identified candidate for
Federal office … and that promotes or supports a candidate for that
office, or attacks or opposes a candidate for that office.” 2 U.
S. C. A. §441i(f)(1); §431(20)(A)(iii). Exempted from
this restriction are communications made in connection with an
election for state or local office which refer only to the state or
local candidate or officeholder making the expenditure or to any
other candidate for the same state or local office.
§441i(f)(2).
Section 323(f) places
no cap on the amount of money that state or local candidates can
spend on any activity. Rather, like §§323(a) and 323(b), it limits
only the source and amount of contributions that state and local
candidates can draw on to fund expenditures that directly impact
federal elections. And, by regulating only contributions used to
fund “public communications,” §323(f) focuses narrowly on those
soft-money donations with the greatest potential to corrupt or give
rise to the appearance of corruption of federal candidates and
officeholders.
Plaintiffs advance two principal
arguments against §323(f). We have already rejected the first
argument, that the definition of “public communications” in new
FECA §301(20)(A)(iii) is unconstitutionally vague and overbroad.
See supra, 62, n. 64. We add only that, plaintiffs’
and Justice Kennedy’s contrary reading notwithstanding,
post, at 34, this provision does not prohibit a state or
local candidate from advertising that he has received a federal
officeholder’s endorsement.[Footnote 71]
The second argument, that
soft-money contributions to state and local candidates for “public
communications” do not corrupt or appear to corrupt federal
candidates, ignores both the record in this litigation and
Congress’ strong interest in preventing circumvention of otherwise
valid contribution limits. The proliferation of sham issue ads has
driven the soft-money explosion. Parties have sought out every
possible way to fund and produce these ads with soft money: They
have labored to bring them under the FEC’s allocation regime; they
have raised and transferred soft money from national to state party
committees to take advantage of favorable allocation ratios; and
they have transferred and solicited funds to tax-exempt
organizations for production of such ads. We will not upset
Congress’ eminently reasonable prediction that, with these other
avenues no longer available, state and local candidates and
officeholders will become the next conduits for the soft-money
funding of sham issue advertising. We therefore uphold §323(f)
against plaintiffs’ First Amendment challenge.[Footnote 72]
B
Several plaintiffs
contend that Title I exceeds Congress’ Election Clause authority to
“make or alter” rules governing federal elections, U. S. Const.,
Art. I, §4, and, by impairing the authority of the States to
regulate their own elections, violates constitutional principles of
federalism. In examining congressional enactments for infirmity
under the Tenth Amendment, this Court has focused its attention on
laws that commandeer the States and state officials in carrying out
federal regulatory schemes. See Printz v. United
States, 521 U.
S. 898 (1997); New York v. United States,
505 U. S. 144
(1992). By contrast, Title I of BCRA only regulates the conduct of
private parties. It imposes no requirements whatsoever upon States
or state officials, and, because it does not expressly pre-empt
state legislation, it leaves the States free to enforce their own
restrictions on the financing of state electoral campaigns. It is
true that Title I, as amended, prohibits some fundraising tactics
that would otherwise be permitted under the laws of various States,
and that it may therefore have an indirect effect on the financing
of state electoral campaigns. But these indirect effects do not
render BCRA unconstitutional. It is not uncommon for federal law to
prohibit private conduct that is legal in some States. See,
e.g., United States v. Oakland Cannabis
Buyers’ Cooperative, 532 U. S. 483 (2001).
Indeed, such conflict is inevitable in areas of law that involve
both state and federal concerns. It is not in and of itself a
marker of constitutional infirmity. See Ex parte Siebold,
100 U. S. 371,
392 (1879).
Of course, in
maintaining the federal system envisioned by the Founders, this
Court has done more than just prevent Congress from commandeering
the States. We have also policed the absolute boundaries of
congressional power under Article I. See United States v.
Morrison, 529 U. S. 598 (2000);
United States v. Lopez, 514 U. S. 549 (1995).
But plaintiffs offer no reason to believe that Congress has
overstepped its Elections Clause power in enacting BCRA. Congress
has a fully legitimate interest in maintaining the integrity of
federal officeholders and preventing corruption of federal
electoral processes through the means it has chosen. Indeed, our
above analysis turns on our finding that those interests are
sufficient to satisfy First Amendment scrutiny. Given that finding,
we cannot conclude that those interests are insufficient to ground
Congress’ exercise of its Elections Clause power. See
Morrison, supra, at 607 (respect owed to
coordinate branches “demands that we invalidate a congressional
enactment only upon a plain showing that Congress has exceeded its
constitutional bounds”).
C
Finally, plaintiffs
argue that Title I violates the equal protection component of the
Due Process Clause of the Fifth Amendment because it discriminates
against political parties in favor of special interest groups such
as the National Rifle Association (NRA), American Civil Liberties
Union (ACLU), and Sierra Club. As explained earlier, BCRA imposes
numerous restrictions on the fundraising abilities of political
parties, of which the soft-money ban is only the most prominent.
Interest groups, however, remain free to raise soft money to fund
voter registration, GOTV activities, mailings, and broadcast
advertising (other than electioneering communications). We conclude
that this disparate treatment does not offend the
Constitution.
As an initial matter,
we note that BCRA actually favors political parties in many ways.
Most obviously, party committees are entitled to receive individual
contributions that substantially exceed FECA’s limits on
contributions to nonparty political committees; individuals can
give $25,000 to political party committees whereas they can give a
maximum of $5,000 to nonparty political committees. In addition,
party committees are entitled in effect to contribute to candidates
by making coordinated expenditures, and those expenditures may
greatly exceed the contribution limits that apply to other donors.
See 2 U. S. C. A. §441a(d) (Supp. 2003).
More importantly, however,
Congress is fully entitled to consider the real-world differences
between political parties and interest groups when crafting a
system of campaign finance regulation. See National Right to
Work, 459 U. S., at 210. Interest groups do not select slates
of candidates for elections. Interest groups do not determine who
will serve on legislative committees, elect congressional
leadership, or organize legislative caucuses. Political parties
have influence and power in the legislature that vastly exceeds
that of any interest group. As a result, it is hardly surprising
that party affiliation is the primary way by which voters identify
candidates, or that parties in turn have special access to and
relationships with federal officeholders. Congress’ efforts at
campaign finance regulation may account for these salient
differences. Taken seriously, appellants’ equal protection
arguments would call into question not just Title I of BCRA, but
much of the pre-existing structure of FECA as well. We therefore
reject those arguments.
Accordingly, we affirm the
judgment of the District Court insofar as it upheld §§323(e) and
323(f). We reverse the judgment of the District Court insofar as it
invalidated §§323(a), 323(b), and 323(d).
IV
Title II of BCRA,
entitled “Noncandidate Campaign Expenditures,” is divided into two
subtitles: “Electioneering Communications” and “Independent and
Coordinated Expenditures.” We consider each challenged section of
these subtitles in turn.
BCRA §201’s Definition of
“Electioneering Communication”
The first section
of Title II, §201, comprehensively amends FECA §304, which requires
political committees to file detailed periodic financial reports
with the FEC. The amendment coins a new term, “electioneering
communication,” to replace the narrowing construction of FECA’s
disclosure provisions adopted by this Court in Buckley. As
discussed further below, that construction limited the coverage of
FECA’s disclosure requirement to communications expressly
advocating the election or defeat of particular candidates. By
contrast, the term “electioneering communication” is not so
limited, but is defined to encompass any “broadcast, cable, or
satellite communication” that
“(I) refers to a clearly identified
candidate for Federal office;
“(II) is made within—
“(aa) 60 days before a general,
special, or runoff election for the office sought by the candidate;
or
“(bb) 30 days before a primary or
preference election, or a convention or caucus of a political party
that has authority to nominate a candidate, for the office sought
by the candidate; and
“(III) in the case of a communication which refers
to a candidate other than President or Vice President, is targeted
to the relevant electorate.” 2 U. S. C. A.
§434(f)(3)(A)(i) (Supp. 2003).[Footnote 73]
New FECA §304(f)(3)(C) further provides
that a communication is “ ‘targeted to the relevant
electorate’ ” if it “can be received by 50,000 or more
persons” in the district or State the candidate seeks to represent.
2 U. S. C. A. §434(f )(3)(C).
In addition to setting forth this
definition, BCRA’s amendments to FECA §304 specify significant
disclosure requirements for persons who fund electioneering
communications. BCRA’s use of this new term is not, however,
limited to the disclosure context: A later section of the Act (BCRA
§203, which amends FECA §316(b)(2)) restricts corporations’ and
labor unions’ funding of electioneering communications. Plaintiffs
challenge the constitutionality of the new term as it applies in
both the disclosure and the expenditure contexts.
The major premise of plaintiffs’
challenge to BCRA’s use of the term “electioneering communication”
is that Buckley drew a constitutionally mandated line
between express advocacy and so-called issue advocacy, and that
speakers possess an inviolable First Amendment right to engage in
the latter category of speech. Thus, plaintiffs maintain, Congress
cannot constitutionally require disclosure of, or regulate
expenditures for, “electioneering communications” without making an
exception for those “communications” that do not meet
Buckley’s definition of express advocacy.
That position misapprehends our
prior decisions, for the express advocacy restriction was an
endpoint of statutory interpretation, not a first principle of
constitutional law. In Buckley we began by examining
then-18 U. S. C. §608(e)(1) (1970 ed., Supp. IV), which
restricted expenditures “ ‘relative to a clearly identified
candidate,’ ” and we found that the phrase “ ‘relative
to’ ” was impermissibly vague. 424 U. S., at 40–42.
We concluded that the vagueness deficiencies could “be avoided only
by reading §608(e)(1) as limited to communications that include
explicit words of advocacy of election or defeat of a
candidate.”[Footnote 74]
Id., at 43. We provided examples of words of express
advocacy, such as “ ‘vote for,’ ‘elect,’ ‘support,’ …
‘defeat,’ [and] ‘reject,’ ” id., at 44, n. 52, and
those examples eventually gave rise to what is now known as the
“magic words” requirement.
We then considered FECA’s
disclosure provisions, including 2 U. S. C. §431(f) (1970 ed.,
Supp. IV), which defined “ ‘expenditur[e]’ ” to include
the use of money or other assets “ ‘for the purpose of …
influencing’ ” a federal election. Buckley, 424 U.
S., at 77. Finding that the “ambiguity of this phrase” posed
“constitutional problems,” ibid., we noted our “obligation
to construe the statute, if that can be done consistent with the
legislature’s purpose, to avoid the shoals of vagueness,”
id., at 77–78 (citations omitted). “To insure that the
reach” of the disclosure requirement was “not impermissibly broad,
we construe[d] ‘expenditure’ for purposes of that section in the
same way we construed the terms of §608(e)—to reach only funds used
for communications that expressly advocate the election or defeat
of a clearly identified candidate.” Id., at 80 (footnote
omitted).
Thus, a plain reading of
Buckley makes clear that the express advocacy limitation,
in both the expenditure and the disclosure contexts, was the
product of statutory interpretation rather than a constitutional
command.[Footnote 75] In
narrowly reading the FECA provisions in Buckley to avoid
problems of vagueness and overbreadth, we nowhere suggested that a
statute that was neither vague nor overbroad would be required to
toe the same express advocacy line. Nor did we suggest as much in
MCFL, 479
U. S. 238 (1986), in which we addressed the scope of another
FECA expenditure limitation and confirmed the understanding that
Buckley’s express advocacy category was a product of
statutory construction.[Footnote
76]
In short, the concept of express
advocacy and the concomitant class of magic words were born of an
effort to avoid constitutional infirmities. See NLRB v.
Catholic Bishop of Chicago, 440 U. S. 490, 500
(1979) (citing Murray v. Schooner Charming Betsy,
2 Cranch 64, 118 (1804)). We have long “rigidly adhered” to the
tenet “ ‘never to formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be
applied,’ ” United States v.
Raines, 362 U. S. 17, 21 (1960)
(citation omitted), for “[t]he nature of judicial review constrains
us to consider the case that is actually before us,” James B.
Beam Distilling Co. v. Georgia, 501 U. S. 529, 547
(1991) (Blackmun, J., dissenting). Consistent with that principle,
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.
Nor are we persuaded, independent
of our precedents, that the First Amendment erects a rigid barrier
between express advocacy and so-called issue advocacy. That notion
cannot be squared with our longstanding recognition that the
presence or absence of magic words cannot meaningfully distinguish
electioneering speech from a true issue ad. See Buckley,
supra, at 45. Indeed, the unmistakable lesson from the record
in this litigation, as all three judges on the District Court
agreed, is that Buckley’s magic-words requirement is
functionally meaningless. 251 F. Supp. 2d, at 303–304
(Henderson, J.); id., at 534 (Kollar-Kotelly, J.);
id., at 875–879 (Leon, J.). Not only can advertisers
easily evade the line by eschewing the use of magic words, but they
would seldom choose to use such words even if permitted.[Footnote 77] And although the
resulting advertisements do not urge the viewer to vote for or
against a candidate in so many words, they are no less clearly
intended to influence the election.[Footnote 78] Buckley’s express advocacy line, in
short, has not aided the legislative effort to combat real or
apparent corruption, and Congress enacted BCRA to correct the flaws
it found in the existing system.
Finally we observe that new FECA
§304(f)(3)’s definition of “electioneering communication” raises
none of the vagueness concerns that drove our analysis in
Buckley. The term “electioneering communication” applies
only (1) to a broadcast (2) clearly identifying a candidate for
federal office, (3) aired within a specific time period, and (4)
targeted to an identified audience of at least 50,000 viewers or
listeners. These components are both easily understood and
objectively determinable. See Grayned v. City of
Rockford, 408 U. S. 104, 108–114 (1972). Thus,
the constitutional objection that persuaded the Court in
Buckley to limit FECA’s reach to express advocacy is
simply inapposite here.
BCRA §201’s Disclosure
Requirements
Having rejected
the notion that the First Amendment requires Congress to treat
so-called issue advocacy differently from express advocacy, we turn
to plaintiffs’ other concerns about the use of the term
“electioneering communication” in amended FECA §304’s disclosure
provisions. Under those provisions, whenever any person makes
disbursements totaling more than $10,000 during any calendar year
for the direct costs of producing and airing electioneering
communications, he must file a statement with the FEC identifying
the pertinent elections and all persons sharing the costs of the
disbursements. 2 U. S. C. A. §§434(f)(2)(A), (B), and (D)
(Supp. 2003). If the disbursements are made from a corporation’s or
labor union’s segregated account,[Footnote 79] or by a single individual who has collected
contributions from others, the statement must identify all persons
who contributed $1,000 or more to the account or the individual
during the calendar year. §§434(f)(2)(E), (F). The statement must
be filed within 24 hours of each “disclosure date”—a term defined
to include the first date and all subsequent dates on which a
person’s aggregate undisclosed expenses for electioneering
communications exceed $10,000 for that calendar year. §§434(f)(1),
(2) and (4). Another subsection further provides that the execution
of a contract to make a disbursement is itself treated as a
disbursement for purposes of FECA’s disclosure requirements.
§434(f)(5).
In addition to
the failed argument that BCRA’s amendments to FECA §304 improperly
extend to both express and issue advocacy, plaintiffs challenge
amended FECA §304’s disclosure requirements as unnecessarily (1)
requiring disclosure of the names of persons who contributed $1,000
or more to the individual or group that paid for a communication,
and (2) mandating disclosure of executory contracts for
communications that have not yet aired. The District Court rejected
the former submission but accepted the latter, finding invalid new
FECA §304(f)(5), which governs executory contracts. Relying on
BCRA’s severability provision,[Footnote 80] the court held that invalidation of the
executory contracts subsection did not render the balance of BCRA’s
amendments to FECA §304 unconstitutional. 251 F. Supp. 2d, at 242
(per curiam).
We agree with the District Court
that the important state interests that prompted the
Buckley Court to uphold FECA’s disclosure
requirements—providing the electorate with information, deterring
actual corruption and avoiding any appearance thereof, and
gathering the data necessary to enforce more substantive
electioneering restrictions—apply in full to BCRA.[Footnote 81] Accordingly, Buckley
amply supports application of FECA §304’s disclosure requirements
to the entire range of “electioneering communications.” As the
authors of the District Court’s per curiam opinion
concluded after reviewing evidence concerning the use of purported
“issue ads” to influence federal elections:
“The factual record demonstrates that
the abuse of the present law not only permits corporations and
labor unions to fund broadcast advertisements designed to influence
federal elections, but permits them to do so while concealing their
identities from the public. BCRA’s disclosure provisions require
these organizations to reveal their identities so that the public
is able to identify the source of the funding behind broadcast
advertisements influencing certain elections. Plaintiffs’ disdain
for BCRA’s disclosure pro-visions is nothing short of surprising.
Plaintiffs chal-lenge BCRA’s restrictions on electioneering
communications on the premise that they should be permitted to
spend corporate and labor union general treasury funds in the sixty
days before the federal elections on broadcast advertisements,
which refer to federal candidates, because speech needs to be
‘uninhibited, robust, and wide-open.’ McConnell Br. at 44 (quoting
New York Times Co. v. Sullivan, 376 U. S. 254, 270
(1964)). Curiously, Plaintiffs want to preserve the ability to run
these advertisements while hiding behind dubious and misleading
names like: ‘The Coalition-Americans Working for Real Change’
(funded by business organizations opposed to organized labor),
‘Citizens for Better Medicare’ (funded by the pharmaceutical
industry), ‘Republicans for Clean Air’ (funded by brothers Charles
and Sam Wyly). Findings ¶ ;¶ ;44, 51, 52. Given these tactics,
Plaintiffs never satisfactorily answer the question of how
‘uninhibited, robust, and wide-open’ speech can occur when
organizations hide themselves from the scrutiny of the voting
public. McConnell Br. at 44. Plaintiffs’ argument for striking down
BCRA’s disclosure provisions does not reinforce the precious First
Amendment values that Plaintiffs argue are trampled by BCRA, but
ignores the competing First Amendment interests of individual
citizens seeking to make informed choices in the political
marketplace.” 251 F. Supp. 2d, at 237.
The District Court
was also correct that Buckley forecloses a facial attack
on the new provision in §304 that requires disclosure of the names
of persons contributing $1,000 or more to segregated funds or
individuals that spend more than $10,000 in a calendar year on
electioneering communications. Like our earlier decision in
NAACP v. Alabama ex rel. Patterson, 357 U. S. 449
(1958),[Footnote 82]
Buckley recognized that compelled disclosures may impose
an unconstitutional burden on the freedom to associate in support
of a particular cause. Nevertheless, Buckley rejected the
contention that FECA’s disclosure requirements could not
constitutionally be applied to minor parties and independent
candidates because the Government’s interest in obtaining
information from such parties was minimal and the danger of
infringing their rights substantial. In Buckley, unlike
NAACP, we found no evidence that any party had been
exposed to economic reprisals or physical threats as a result of
the compelled disclosures. Buckley, 424 U. S., at 69–70.
We acknowledged that such a case might arise in the future,
however, and addressed the standard of proof that would then
apply:
“We recognize that unduly strict
requirements of proof could impose a heavy burden, but it does not
follow that a blanket exemption for minor parties is necessary.
Minor parties must be allowed sufficient flexibility in the proof
of injury to assure a fair consideration of their claim. The
evidence offered need show only a reasonable probability that the
compelled disclosure of a party’s contributors’ names will subject
them to threats, harassment, or reprisals from either Government
officials or private parties.” Id., at 74.
A few years later we used that standard
to resolve a minor party’s challenge to the constitutionality of
the State of Ohio’s disclosure requirements. We held that the First
Amendment prohibits States from compelling disclosures that would
subject identified persons to “threats, harassment, and reprisals,”
and that the District Court’s findings had established a
“reasonable probability” of such a result.[Footnote 83] Brown v. Socialist
Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 100 (1982).
In this litigation the District
Court applied Buckley’s evidentiary standard and
found—consistent with our conclusion in Buckley, and in
contrast to that in Brown—that the evidence did not
establish the requisite “reasonable probability” of harm to any
plaintiff group or its members. The District Court noted that some
parties had expressed such concerns, but it found a “lack of
specific evidence about the basis for these concerns.” 251
F. Supp. 2d, at 247 (per curiam). We agree, but we
note that, like our refusal to recognize a blanket exception for
minor parties in Buckley, our rejection of plaintiffs’
facial challenge to the requirement to disclose individual donors
does not foreclose possible future challenges to particular
applications of that requirement.
We also are unpersuaded by
plaintiffs’ challenge to new FECA §304(f)(5), which requires
disclosure of executory contracts for electioneering
communications:
“Contracts to disburse
“For purposes of this subsection,
a person shall be treated as having made a disbursement if the
person has executed a contract to make the disbursement.” 2 U.
S. C. A. §434(f)(5) (Supp. 2003).
In our view, this provision serves an
important purpose the District Court did not advance. BCRA’s
amendments to FECA §304 mandate disclosure only if and when a
person makes disbursements totaling more than $10,000 in any
calendar year to pay for electioneering communications. Plaintiffs
do not take issue with the use of a dollar amount, rather than the
number or dates of the ads, to identify the time when a person
paying for electioneering communications must make disclosures to
the FEC. Nor do they question the need to make the contents of
parties’ disclosure statements available to curious voters in
advance of elections. Given the relatively short time frames in
which electioneering communications are made, the interest in
assuring that disclosures are made promptly and in time to provide
relevant information to voters is unquestionably significant. Yet
fixing the deadline for filing disclosure statements based on the
date when aggregate disbursements exceed $10,000 would open a
significant loophole if advertisers were not required to disclose
executory contracts. In the absence of that requirement, political
supporters could avoid preelection disclosures concerning ads
slated to run during the final week of a campaign simply by making
a preelection downpayment of less than $10,000, with the balance
payable after the election. Indeed, if the advertiser waited to pay
that balance until the next calendar year then, as long as the
balance did not itself exceed $10,000, the advertiser might avoid
the disclosure requirements completely.
The record contains little
evidence identifying any harm that might flow from the enforcement
of §304(f)(5)’s “advance” disclosure requirement. The District
Court speculated that disclosing information about contracts “that
have not been performed, and may never be performed, may lead to
confusion and an unclear record upon which the public will evaluate
the forces operating in the political marketplace.” 251
F. Supp. 2d, at 241 (per curiam). Without evidence
relating to the frequency of nonperformance of executed contracts,
such speculation cannot outweigh the public interest in ensuring
full disclosure before an election actually takes place. It is no
doubt true that §304(f)(5) will sometimes require the filing of
disclosure statements in advance of the actual broadcast of an
advertisement.[Footnote 84]
But the same would be true in the absence of an advance disclosure
requirement, if a television station insisted on advance payment
for all of the ads covered by a contract. Thus, the possibility
that amended §304 may sometimes require disclosures prior to the
airing of an ad is as much a function of the use of disbursements
(rather than the date of an ad) to trigger the disclosure
requirement as it is a function of §304(f)(5)’s treatment of
executory contracts.
As the District Court observed,
amended FECA §304’s disclosure requirements are constitutional
because they “ ‘d[o] not prevent anyone from speaking.’ ”
Ibid. (quoting Brief for FEC in Opposition in No. 02–582
et al. (DC), p. 112). Moreover, the required disclosures
“ ‘would not have to reveal the specific content of the
advertisements, yet they would perform an important function in
informing the public about various candidates’ supporters
before election day.’ ” 251 F. Supp. 2d, at 241
(quoting Brief for FEC in Opposition, supra, at 112)
(emphasis in original). Accordingly, we affirm the judgment of the
District Court insofar as it upheld the disclosure requirements in
amended FECA §304 and rejected the facial attack on the provisions
relating to donors of $1,000 or more, and reverse that judgment
insofar as it invalidated FECA §304(f)(5).
BCRA §202’s Treatment of
“Coordinated Communications” as Contributions
Section 202 of
BCRA amends FECA §315(a)(7)(C) to provide that disbursements for
“electioneering communication[s]” that are coordinated with a
candidate or party will be treated as contributions to, and
expenditures by, that candidate or party. 2 U. S. C. A.
§441a(a)(7)(C) (Supp. 2003).[Footnote 85] The amendment clarifies the scope of the
preceding subsection, §315(a)(7)(B), which states more generally
that “expenditures made by any person in cooperation, consultation,
or concert, with, or at the request or suggestion of ” a
candidate or party will constitute contributions. 2 U. S. C.
§§441a(a)(7)(B)(i)–(ii). In Buckley we construed the statutory
term “expenditure” to reach only spending for express advocacy. 424
U. S., at 40–43, and n. 52 (addressing 18 U. S. C. §608(e)(1)
(1970 ed., Supp. IV), which placed a $1,000 cap on expenditures
“ ‘relative to a clearly identified candidate’ ”). BCRA
§202 pre-empts a possible claim that §315(a)(7)(B) is similarly
limited, such that coordinated expenditures for communications that
avoid express advocacy cannot be counted as contributions. As we
explained above, see supra, at 83–86, Buckley’s
narrow interpretation of the term “expenditure” was not a
constitutional limitation on Congress’ power to regulate federal
elections. Accordingly, there is no reason why Congress may not
treat coordinated disbursements for electioneering communications
in the same way it treats all other coordinated expenditures. We
affirm the judgment of the District Court insofar as it held that
plaintiffs had advanced “no basis for finding Section 202
unconstitutional.” 251 F. Supp. 2d, at 250.
BCRA §203’s Prohibition of
Corporate and Labor Disbursements for Electioneering
Communications
Since our
decision in Buckley, Congress’ power to prohibit corporations
and unions from using funds in their treasuries to finance
advertisements expressly advocating the election or defeat of
candidates in federal elections has been firmly embedded in our
law. The ability to form and administer separate segregated funds
authorized by FECA §316, 2 U. S. C. A. §441b (main ed.
and Supp. 2003), has provided corporations and unions with a
constitutionally sufficient opportunity to engage in express
advocacy. That has been this Court’s unanimous view,[Footnote 86] and it is not challenged in
this litigation.
Section 203 of BCRA
amends FECA §316(b)(2) to extend this rule, which previously
applied only to express advocacy, to all “electioneering
communications” covered by the definition of that term in amended
FECA §304(f)(3), discussed above. 2 U. S. C. A.
§441b(b)(2) (Supp. 2003).[Footnote 87] Thus, under BCRA, corporations and unions
may not use their general treasury funds to finance electioneering
communications, but they remain free to organize and administer
segregated funds, or PACs, for that purpose. Because corporations
can still fund electioneering communications with PAC money, it is
“simply wrong” to view the provision as a “complete ban” on
expression rather than a regulation. Beaumont, 539 U. S.,
at ___, ___ (slip op., at 15). As we explained in
Beaumont:
“The PAC option allows corporate
political participation without the temptation to use corporate
funds for political influence, quite possibly at odds with the
sentiments of some shareholders or members, and it lets the
government regulate campaign activity through registration and
disclosure, see [2 U. S. C.] §§432–434, without jeopardizing
the associational rights of advocacy organizations’ members.”
Id., at ___ (slip op., at 16) (citation omitted).
See also Austin v.
Michigan Chamber of Commerce, 494 U. S. 652, 658
(1990).
Rather than arguing that the
prohibition on the use of general treasury funds is a complete ban
that operates as a prior restraint, plaintiffs instead challenge
the expanded regulation on the grounds that it is both overbroad
and underinclusive. Our consideration of plaintiffs’ challenge is
informed by our earlier conclusion that the distinction between
express advocacy and so-called issue advocacy is not
constitutionally compelled. In that light, we must examine the
degree to which BCRA burdens First Amendment expression and
evaluate whether a compelling governmental interest justifies that
burden. Id., at 657. The latter question—whether the state
interest is compelling—is easily answered by our prior decisions
regarding campaign finance regulation, which “represent respect for
the ‘legislative judgment that the special characteristics of the
corporate structure require particularly careful
regulation.’ ” Beaumont, supra, at ___ (slip
op., at 8) (quoting National Right to Work, 459 U. S., at
209–210). We have 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.” Austin, supra, at 660; see
Beaumont, supra, at ___ (slip op., at 7–8); National
Right to Work, supra, at 209–210. Moreover, recent cases have
recognized that certain restrictions on corporate electoral
involvement permissibly hedge against “ ‘circumvention of
[valid] contribution limits.’ ” Beaumont,
supra, at ___ (slip op., at 7) (quoting Colorado
II, 533 U. S., at 456, and n. 18.)
In light of our precedents,
plaintiffs do not contest that the Government has a compelling
interest in regulating advertisements that expressly advocate the
election or defeat of a candidate for federal office. Nor do they
contend that the speech involved in so-called issue advocacy is any
more core political speech than are words of express advocacy.
After all, “the constitutional guarantee has its fullest and most
urgent application precisely to the conduct of campaigns for
political office,” Monitor Patriot Co. v.
Roy, 401 U. S. 265, 272
(1971), and “[a]dvocacy of the election or defeat of candidates for
federal office is no less entitled to protection under the First
Amendment than the discussion of political policy generally or
advocacy of the passage or defeat of legislation.”
Buckley, 424 U. S., at 48. Rather, plaintiffs argue that
the justifications that adequately support the regulation of
express advocacy do not apply to significant quantities of speech
encompassed by the definition of electioneering
communications.
This argument fails to the extent
that the issue ads broadcast during the 30- and 60-day periods
preceding federal primary and general elections are the functional
equivalent of express advocacy. The justifications for the
regulation of express advocacy apply equally to ads aired during
those periods if the ads are intended to influence the voters’
decisions and have that effect. The precise percentage of issue ads
that clearly identified a candidate and were aired during those
relatively brief preelection time spans but had no electioneering
purpose is a matter of dispute between the parties and among the
judges on the District Court. See 251 F. Supp. 2d, at 307–312
(Henderson, J.); id., at 583–587 (Kollar-Kotelly, J.);
id., at 796–798 (Leon, J.). Nevertheless, the vast
majority of ads clearly had such a purpose. Annenberg Report 13–14;
App. 1330–1348 (Krasno & Sorauf Expert Report); 251
F. Supp. 2d, at 573–578 (Kollar-Kotelly, J.); id., at
826–827 (Leon, J.). Moreover, whatever the precise percentage may
have been in the past, in the future corporations and unions may
finance genuine issue ads during those time frames by simply
avoiding any specific reference to federal candidates, or in
doubtful cases by paying for the ad from a segregated
fund.[Footnote
88]
We are therefore not persuaded
that plaintiffs have carried their heavy burden of proving that
amended FECA §316(b)(2) is overbroad. See Broadrick v.
Oklahoma, 413 U. S. 601, 613 (1973). Even if we
assumed that BCRA will inhibit some constitutionally protected
corporate and union speech, that assumption would not “justify
prohibiting all enforcement” of the law unless its application to
protected speech is substantial, “not only in an absolute sense,
but also relative to the scope of the law’s plainly legitimate
applications.” Virginia v. Hicks, 539 U. S. ___,
___ (2003) (slip op., at 5–6). 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.
Plaintiffs also argue that FECA
§316(b)(2)’s segregated-fund requirement for electioneering
communications is underinclusive because it does not apply to
advertising in the print media or on the Internet. 2 U.
S. C. A. §434(f)(3)(A) (Supp. 2003). The records
developed in this litigation and by the Senate Committee adequately
explain the reasons for this legislative choice. Congress found
that corporations and unions used soft money to finance a virtual
torrent of televised election-related ads during the periods
immediately preceding federal elections, and that remedial
legislation was needed to stanch that flow of money. 251
F. Supp. 2d, at 569–573 (Kollar-Kotelly, J.); id., at
799 (Leon, J.); 3 1998 Senate Report 4465, 4474–4481; 5
id., at 7521–7525. As we held in Buckley, “reform
may take one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind.” 424 U. S.,
at 105 (internal quotation marks and citations omitted). One might
just as well argue that the electioneering communication definition
is underinclusive because it leaves advertising 61 days in advance
of an election entirely unregulated. The record amply justifies
Congress’ line drawing.
In addition to arguing that
§316(b)(2)’s segregated-fund requirement is underinclusive, some
plaintiffs contend that it unconstitutionally discriminates in
favor of media companies. FECA §304(f)(3)(B)(i) excludes from the
definition of electioneering communications any “communication
appearing in a news story, commentary, or editorial distributed
through the facilities of any broadcasting station, unless such
facilities are owned or controlled by any political party,
political committee, or candidate.” 2 U. S. C. A.
§434(f)(3)(B)(i) (Supp. 2003). Plaintiffs argue this provision
gives free rein to media companies to engage in speech without
resort to PAC money. Section 304(f)(3)(B)(i)’s effect, however, is
much narrower than plaintiffs suggest. The provision excepts news
items and commentary only; it does not afford carte
blanche to media companies generally to ignore FECA’s
provisions. The statute’s narrow exception is wholly consistent
with First Amendment principles. “A valid distinction … exists
between corporations that are part of the media industry and other
corporations that are not involved in the regular business of
imparting news to the public.” Austin, 494 U. S., at 668.
Numerous federal statutes have drawn this distinction to ensure
that the law “does not hinder or prevent the institutional press
from reporting on, and publishing editorials about, newsworthy
events.” Ibid. (citations omitted); see, e.g., 2
U. S. C. §431(9)(B)(i) (exempting news stories, commentaries,
and editorials from FECA’s definition of “expenditure”); 15 U.
S. C. §§1801–1804 (providing a limited antitrust exemption for
newspapers); 47 U. S. C. §315(a) (excepting newscasts, news
interviews, and news documentaries from the requirement that
broadcasters provide equal time to candidates for public
office).[Footnote
89]
We affirm the District Court’s
judgment to the extent that it upheld the constitutionality of FECA
§316(b)(2); to the extent that it invalidated any part of
§316(b)(2), we reverse the judgment.
BCRA §204’s Application to
Nonprofit Corporations
Section 204 of
BCRA, which adds FECA §316(c)(6), applies the prohibition on the
use of general treasury funds to pay for electioneering
communications to not-for-profit corporations.[Footnote 90] Prior to the enactment of BCRA,
FECA required such corporations, like business corporations, to pay
for their express advocacy from segregated funds rather than from
their general treasuries. Our recent decision in Federal Election
Comm’n v. Beaumont, 539 U. S. ___ (2003), confirmed
that the requirement was valid except insofar as it applied to a
sub-category of corporations described as “MCFL
organizations,” as defined by our decision in
MCFL, 479
U. S. 238 (1986).[Footnote
91] The constitutional objection to applying FECA’s
segregated-fund requirement to so-called MCFL
organizations necessarily applies with equal force to FECA
§316(c)(6).
Our decision in
MCFL related to a carefully defined category of entities.
We identified three features of the organization at issue in that
case that were central to our holding:
“First, it was formed for the
express purpose of promoting political ideas, and cannot engage in
business activities. If political fundraising events are expressly
denominated as requests for contributions that will be used for
political purposes, including direct expenditures, these events
cannot be considered business activities. This ensures that
political resources reflect political support. Second, it
has no shareholders or other persons affiliated so as to have a
claim on its assets or earnings. This ensures that persons
connected with the organization will have no economic disincentive
for disassociating with it if they disagree with its political
activity. Third, MCFL was not established by a business
corporation or a labor union, and it is its policy not to accept
contributions from such entities. This prevents such corporations
from serving as conduits for the type of direct spending that
creates a threat to the political marketplace.” Id., at
264.
That FECA §316(c)(6)
does not, on its face, exempt MCFL organizations from its
prohibition is not a sufficient reason to invalidate the entire
section. If a reasonable limiting construction “has been or could
be placed on the challenged statute” to avoid constitutional
concerns, we should embrace it. Broadrick, 413 U. S., at
613; Buckley, 424 U. S., at 44. Because our decision in
the MCFL case was on the books for many years before BCRA
was enacted, we presume that the legislators who drafted §316(c)(6)
were fully aware that the provision could not validly apply to
MCFL-type entities. See Bowen v.
Massachusetts, 487 U. S. 879, 896
(1988); Cannon v. University of
Chicago, 441 U. S. 677, 696–697
(1979). Indeed, the Government itself concedes that §316(c)(6) does
not apply to MCFL organizations. As so construed, the
provision is plainly valid. See Austin, 494 U. S., at
661–665 (holding that a segregated-fund requirement that did not
explicitly carve out an MCFL exception could apply to a
nonprofit corporation that did not qualify for MCFL
status).
Accordingly, the judgment of the
District Court upholding §316(c)(6) as so limited is
affirmed.
BCRA §212’s Reporting Requirement
for $1,000 Expenditures
Section 212 of
BCRA amends FECA §304 to add a new disclosure requirement, FECA
§304(g), which applies to persons making independent expenditures
of $1,000 or more during the 20-day period immediately preceding an
election. Like FECA §304(f)(5), discussed above, new §304(g) treats
the execution of a contract to make a disbursement as the
functional equivalent of a payment for the goods or services
covered by the contract.[Footnote 92] In challenging this provision, plaintiffs
renew the argument we rejected in the context of §304(f)(5): that
they have a constitutional right to postpone any disclosure until
after the performance of the services purchased by their
expenditure.
The District
Court held that the challenge to FECA §304(g) was not ripe because
the FEC has issued regulations “provid[ing] Plaintiffs with the
exact remedy they seek”—that is, specifically declining to “require
disclosure of independent express advocacy expenditures prior to
their ‘publi[c] disseminat[ion].’ ” 251 F. Supp. 2d, at
251, and n. 85 (per curiam) (citing 68 Fed. Reg. 404, 452
(2003) (codified at 11 CFR §§109.10(c), (d) (2003))). We are not
certain that a regulation purporting to limit the range of
circumstances in which a speech-burdening statute will be enforced
can render nonjusticiable a facial challenge to the (concededly
broader) underlying statute. Nevertheless, we need not separately
address the constitutionality of §304(g), for our ruling as to BCRA
§201, see supra, at 82– 89, renders the issue essentially
moot.
BCRA §213’s Requirement that
Political Parties Choose Between Coordinated and Independent
Expenditures After Nominating a Candidate
Section 213 of
BCRA amends FECA §315(d)(4) to impose certain limits on party
spending during the postnomination, preelection period.[Footnote 93] At first blush, the
text of §315(d)(4)(A) appears to require political parties to make
a straightforward choice between using limited coordinated
expenditures or unlimited independent expenditures to support their
nominees. All three judges on the District Court concluded that the
provision placed an unconstitutional burden on the parties’ right
to make unlimited independent expenditures. 251 F. Supp. 2d,
at 388 (Henderson, J.); id., at 650–651 (Kollar-Kotelly, J.),
id., at 805–808 (Leon, J.). In the end, we agree with that
conclusion but believe it important to identify certain
complexities in the text of §315(d)(4) that affect our analysis of
the issue.
Section 315 of FECA
sets forth various limitations on contributions and expenditures by
individuals, political parties, and other groups. Section 315(a)(2)
restricts “contributions” by parties to $5,000 per candidate. 2 U.
S. C. A. §441a(a)(2). Because §315(a)(7) treats
expenditures that are coordinated with a candidate as contributions
to that candidate, 2 U. S. C. A. §441(a)(7) (Supp. 2003),
the $5,000 limit also operates as a cap on parties’ coordinated
expenditures. Section 315(d), however, provides that,
“[n]otwithstanding any other provision of law with respect to
limitations on expenditures or limitations on contributions,”
political parties may make “expenditures” in support of their
candidates under a formula keyed to the voting-age population of
the candidate’s home State or, in the case of a candidate for
President, the voting-age population of the United States. 2 U.
S. C. A. §§441a(d)(1)–(3) (main ed. and Supp.
2003).[Footnote 94] In the
year 2000, that formula permitted expenditures ranging from $33,780
to $67,650 for House of Representatives races, and from $67,650 to
$1.6 million for Senate races. Colorado II, 533 U. S., at
439, n. 3. We held in Colorado I that parties have a
constitutional right to make unlimited independent expenditures,
and we invalidated §315(d) to the extent that it restricted such
expenditures. As a result of that decision, §315(d) applies only to
coordinated expenditures, replacing the $5,000 cap on contributions
set out in §315(a)(2) with the more generous limitations prescribed
by §§315(d)(1)–(3). We sustained that limited application in
Colorado II, supra.
Section 213 of BCRA amends §315(d)
by adding a new paragraph (4). New §315(d)(4)(A) provides that,
after a party nominates a candidate for federal office, it must
choose between two spending options. Under the first option, a
party that “makes any independent expenditure (as defined in
section [301(17)])” is thereby barred from making “any coordinated
expenditure under this subsection.” 2 U. S. C. A.
§441a(d)(4)(A)(i) (Supp. 2003). The phrase “this subsection” is a
reference to subsection (d) of §315. Thus, the consequence of
making an independent expenditure is not a complete prohibition of
any coordinated expenditure: Although the party cannot take
advantage of the increased spending limits under §§315(d)(1)–(3),
it still may make up to $5,000 in coordinated expenditures under
§315(a)(2). As the difference between $5,000 and $1.6 million
demonstrates, however, that is a significant cost to impose on the
exercise of a constitutional right.
The second option is the converse
of the first. It provides that a party that makes any coordinated
expenditure “under this subsection” (i.e., one that
exceeds the ordinary $5,000 limit) cannot make “any independent
expenditure (as defined in section [301(17)]) with respect to the
candidate.” 2 U. S. C. A. §441a(d)(4)(A)(ii). Section
301(17) defines “ ‘independent expenditure’ ” to mean a
non-coordinated expenditure “expressly advocating the election or
defeat of a clearly identified candidate.” 2 U. S. C. A.
§431(17)(A).[Footnote 95]
Therefore, as was true of the first option, the party’s choice is
not as stark as it initially appears: The consequence of the larger
coordinated expenditure is not a complete prohibition of any
independent expenditure, but the forfeiture of the right to make
independent expenditures for express advocacy. As we
explained in our discussion of the provisions relating to
electioneering communications, supra, at 83–87, express
advocacy represents only a tiny fraction of the political
communications made for the purpose of electing or defeating
candidates during a campaign. Regardless of which option parties
choose, they remain free to make independent expenditures for the
vast majority of campaign ads that avoid the use of a few magic
words.
In sum, the coverage of new FECA
§315(d)(4) is much more limited than it initially appears. A party
that wishes to spend more than $5,000 in coordination with its
nominee is forced to forgo only the narrow category of independent
expenditures that make use of magic words. But while the category
of burdened speech is relatively small, it plainly is entitled to
First Amendment protection. See Buckley, 424 U. S., at
44–45, 48. Under §315(d)(4), a political party’s exercise of its
constitutionally protected right to engage in “core First Amendment
expression,” id., at 48, results in the loss of a valuable
statutory benefit that has been available to parties for many
years. To survive constitutional scrutiny, a provision that has
such consequences must be supported by a meaningful governmental
interest.
The interest in requiring
political parties to avoid the use of magic words is not such an
interest. We held in Buckley that a $1,000 cap on
expenditures that applied only to express advocacy could not be
justified as a means of avoiding circumvention of contribution
limits or preventing corruption and the appearance of corruption
because its restrictions could easily be evaded: “So long as
persons and groups eschew expenditures that in express terms
advocate the election or defeat of a clearly identified candidate,
they are free to spend as much as they want to promote the
candidate and his views.” Id., at 45. The same is true in
this litigation. Any claim that a restriction on independent
express advocacy serves a strong Government interest is belied by
the overwhelming evidence that the line between express advocacy
and other types of election-influencing expression is, for
Congress’ purposes, functionally meaningless. Indeed, Congress
enacted the new “electioneering communication[s]” provisions
precisely because it recognized that the express advocacy test was
woefully inadequate at capturing communications designed to
influence candidate elections. In light of that recognition, we are
hard pressed to conclude that any meaningful purpose is served by
§315(d)(4)’s burden on a party’s right to engage independently in
express advocacy.
The Government argues that
§315(d)(4) nevertheless is constitutional because it is not an
outright ban (or cap) on independent expenditures, but rather
offers parties a voluntary choice between a constitutional right
and a statutory benefit. Whatever merit that argument might have in
the abstract, it fails to account for new §315(d)(4)(B), which
provides:
“For purposes of this paragraph, all
political committees established and maintained by a national
political party (including all congressional campaign committees)
and all political committees established and maintained by a State
political party (including any subordinate committee of a State
committee) shall be considered to be a single political committee.”
2 U. S. C. A. §441a(d)(4)(B) (Supp. 2003).
Given that provision,
it simply is not the case that each party committee can make a
voluntary and independent choice between exercising its right to
engage in independent advocacy and taking advantage of the
increased limits on coordinated spending under §§315(d)(1)–(3).
Instead, the decision resides solely in the hands of the first
mover, such that a local party committee can bind both the state
and national parties to its chosen spending option.[Footnote 96] It is one thing to say that
Congress may require a party committee to give up its right to make
independent expenditures if it believes that it can accomplish more
with coordinated expenditures. It is quite another thing, however,
to say that the RNC must limit itself to $5,000 in coordinated
expenditures in support of its presidential nominee if any state or
local committee first makes an independent expenditure for an ad
that uses magic words. That odd result undermines any claim that
new §315(d)(4) can withstand constitutional scrutiny simply because
it is cast as a voluntary choice rather than an outright
prohibition on independent expenditures.
The portion of the judgment of the
District Court invalidating BCRA §213 is affirmed.
BCRA §214’s Changes in FECA’s
Provisions Covering Coordinated Expenditures
Ever since our
decision in Buckley, it has been settled that expenditures by
a noncandidate that are “controlled by or coordinated with the
candidate and his campaign” may be treated as indirect
contributions subject to FECA’s source and amount limitations. 424
U. S., at 46. Thus, FECA §315(a)(7)(B)(i) long has provided that
“expenditures made by any person in cooperation, consultation, or
concert, with, or at the request or suggestion of, a candidate, his
authorized political committees, or their agents, shall be
considered to be a contribution to such candidate.” 2 U.
S. C. A. §441a(a)(7)(B)(i) (Supp. 2003). Section 214(a)
of BCRA creates a new FECA §315(a)(7)(B)(ii) that applies the same
rule to expenditures coordinated with “a national, State, or local
committee of a political party.” 2 U. S. C. A.
§441a(a)(7)(B)(ii).[Footnote
97] Sections 214(b) and (c) direct the FEC to repeal its
current regulations[Footnote
98] and to promulgate new regulations dealing with “coordinated
communications” paid for by persons other than candidates or their
parties. Subsection (c) provides that the new “regulations shall
not require agreement or formal collaboration to establish
coordination.” 2 U. S. C. A. §441a(a) note.
Plaintiffs do not
dispute that Congress may apply the same coordination rules to
parties as to candidates. They argue instead that new FECA
§315(a)(7)(B)(ii) and its implementing regulations are overbroad
and unconstitutionally vague because they permit a finding of
coordination even in the absence of an agreement. Plaintiffs point
out that political supporters may be subjected to criminal
liability if they exceed the contribution limits with expenditures
that ultimately are deemed coordinated. Thus, they stress the
importance of a clear definition of “coordination” and argue any
definition that does not hinge on the presence of an agreement
cannot provide the “precise guidance” that the First Amendment
demands. Brief for Chamber of Commerce of the United States
et al., Appellant in No. 02–1756, p. 48. As plaintiffs readily
admit, that argument reaches beyond BCRA, calling into question
FECA’s pre-existing provisions governing expenditures coordinated
with candidates.
We are not persuaded that the
presence of an agreement marks the dividing line between
expenditures that are coordinated—and therefore may be regulated as
indirect contributions—and expenditures that truly are independent.
We repeatedly have struck down limitations on expenditures “made
totally independently of the candidate and his campaign,”
Buckley, 424 U. S., at 47, on the ground that such
limitations “impose far greater restraints on the freedom of speech
and association” than do limits on contributions and coordinated
expenditures, id., at 44, while “fail[ing] to serve any
substantial governmental interest in stemming the reality or
appearance of corruption in the electoral process,” id.,
at 47–48. See also Colorado I, 518 U. S., at 613–614
(striking down limit on expenditure made by party officials prior
to nomination of candidates and without any consultation with
potential nominees). We explained in Buckley:
“Unlike contributions, …
independent expenditures may well provide little assistance to the
candidate’s campaign and indeed may prove counterproductive. The
absence of prearrangement and coordination of an expenditure with
the candidate or his agent not only undermines the value of the
expenditure to the candidate, but also alleviates the danger that
expenditures will be given as a quid pro quo for improper
commitments from the candidate.” 424 U. S., at 47.
Thus, the rationale
for affording special protection to wholly independent expenditures
has nothing to do with the absence of an agreement and everything
to do with the functional consequences of different types of
expenditures. Independent expenditures “are poor sources of
leverage for a spender because they might be duplicative or
counterproductive from a candidate’s point of view.” Colorado
II, 533 U. S., at 446. By contrast, expenditures made after a
“wink or nod” often will be “as useful to the candidate as cash.”
Id., at 442, 446. For that reason, Congress has always
treated expenditures made “at the request or suggestion of” a
candidate as coordinated.[Footnote 99] 2 U. S. C. A. §441a(a)(7)(B)(i)
(Supp. 2003). A supporter easily could comply with a candidate’s
request or suggestion without first agreeing to do so, and the
resulting expenditure would be “ ‘virtually indistinguishable
from [a] simple contributio[n],’ ” Colorado II,
supra, at 444–445. Therefore, we cannot agree with the
submission that new FECA §315(a)(7)(B)(ii) is overbroad because it
permits a finding of coordination or cooperation notwithstanding
the absence of a pre-existing agreement.
Nor are we persuaded that the
absence of an agreement requirement renders §315(a)(7)(B)(ii)
unconstitutionally vague. An agreement has never been required to
support a finding of coordination with a candidate under
§315(a)(7)(B)(i), which refers to expenditures made “in
cooperation, consultation, or concer[t] with, or at the request or
suggestion of” a candidate. Congress used precisely the same
language in new §315(a)(7)(B)(ii) to address expenditures
coordinated with parties. FECA’s longstanding definition of
coordination “delineates its reach in words of common
understanding.” Cameron v. Johnson, 390 U. S. 611, 616
(1968). Not surprisingly, therefore, the relevant statutory
language has survived without constitutional challenge for almost
three decades. Although that fact does not insulate the definition
from constitutional scrutiny, it does undermine plaintiffs’ claim
that the language of §315(a)(7)(B)(ii) is intolerably vague.
Plaintiffs do not present any evidence that the definition has
chilled political speech, whether between candidates and their
supporters or by the supporters to the general public. See
Reno v. American Civil Liberties
Union, 521
U. S. 844, 874 (1997) (noting risk that vague statutes may
chill protected expression). And, although plaintiffs speculate
that the FEC could engage in intrusive and politically motivated
investigations into alleged coordination, they do not even attempt
to explain why an agreement requirement would solve that problem.
Moreover, the only evidence plaintiffs have adduced regarding the
enforcement of the coordination provision during its 27-year
history concerns three investigations in the late 1990’s into
groups on different sides of the political aisle. Such meager
evidence does not support the claim that §315(a)(7)(B)(ii) will
“foster ‘arbitrary and discriminatory application.’ ”
Buckley, supra, at 41, n. 48 (quoting Grayned v.
City of Rockford, 408 U. S., at 108–109). We conclude that
FECA’s definition of coordination gives “fair notice to those to
whom [it] is directed,” American Communications Assn. v.
Douds, 339 U. S. 382, 412
(1950), and is not unconstitutionally vague.
Finally, portions of plaintiffs’
challenge to BCRA §214 focus on the regulations the FEC has
promulgated under §214(c). 11 CFR §109.21 (2003). As the District
Court explained, issues concerning the regulations are not
appropriately raised in this facial challenge to BCRA, but must be
pursued in a separate proceeding. Thus, we agree with the District
Court that plaintiffs’ challenge to §§214(b) and (c) is not ripe to
the extent that the alleged constitutional infirmities are found in
the implementing regulations rather than the statute
itself.
The portions of the District Court
judgment rejecting plaintiffs’ challenges to BCRA §214 are
affirmed.
V
Many years ago we
observed that “[t]o say that Congress is without power to pass
appropriate legislation to safeguard … an election from the
improper use of money to influence the result is to deny to the
nation in a vital particular the power of self protection.”
Burroughs v. United States, 290 U. S., at 545. We
abide by that conviction in considering Congress’ most recent
effort to confine the ill effects of aggregated wealth on our
political system. We are under no illusion that BCRA will be the
last congressional statement on the matter. Money, like water, will
always find an outlet. What problems will arise, and how Congress
will respond, are concerns for another day. In the main we uphold
BCRA’s two principal, complementary features: the control of soft
money and the regulation of electioneering communications.
Accordingly, we affirm in part and reverse in part the District
Court’s judgment with respect to Titles I and II.
It is so ordered.
* Justice Souter, Justice
Ginsburg, and Justice Breyer join this opinion in its
entirety.
Footnote 1
The parties to the litigation are
described in the findings of the District Court. 251 F. Supp.
2d 176, 221–226 (DC 2003) (per curiam). For the sake of
clarity, we refer to the parties who challenged the law in the
District Court as the “plaintiffs,” referring to specific
plaintiffs by name where necessary. We refer to the parties who
intervened in defense of the law as the
“intervenor-defendants.”
Footnote 2
The Hatch Act also limited both
the amount political committees could expend and the amount they
could receive in contributions. Act of July 19, 1940, ch. 640, 54
Stat. 767. Senator Bankhead, in offering the amendment from the
Senate floor, said:
“ ‘We all know that money is
the chief source of corruption. We all know that large
contributions to political campaigns not only put the political
party under obligation to the large contributors, who demand pay in
the way of legislation, but we also know that large sums of money
are used for the purpose of conducting expensive campaigns through
the newspapers and over the radio; in the publication of all sorts
of literature, true and untrue; and for the purpose of paying the
expenses of campaigners sent out into the country to spread
propaganda, both true and untrue.’ ” United States v.
Automobile Workers, 352 U. S. 567, 577–578 (1957) (quoting
86 Cong. Rec. 2720 (1940)).
Footnote 3
As a general rule, FECA permits
corporations and unions to solicit contributions to their PACs from
their shareholders or members, but not from outsiders. 2 U.
S. C. §§441b(b)(4)(A), (C); see Federal Election
Comm’n v. National Right to Work Comm., 459 U. S. 197, 198–199, and n. 1
(1982).
Footnote 4
The court held that one
disclosure provision was unconstitutionally vague and overbroad.
Buckley v. Valeo, 519 F. 2d 821, 832 (CADC
1975) (en banc) (per curiam) (invalidating 2 U. S. C.
§437a (1970 ed., Supp. V)). No appeal was taken from that holding.
Buckley v. Valeo, 424 U. S. 1, 10, n. 7 (1976) (per
curiam).
Footnote 5
The Court of Appeals
found:
“Large contributions are intended
to, and do, gain access to the elected official after the campaign
for consideration of the contributor’s particular concerns. Senator
Mathias not only describes this but also the corollary, that the
feeling that big contributors gain special treatment produces a
reaction that the average American has no significant role in the
political process.” Buckley, 519 F. 2d, at 838
(footnotes omitted).
The court also noted:
“Congress found and the District Court confirmed
that such contributions were often made for the purpose of
furthering business or private interests by facilitating access to
government officials or influencing governmental decisions, and
that, conversely, elected officials have tended to afford special
treatment to large contributors. See S. Rep. No. 93–689,
93d Cong., 2d Sess. 4–5; Findings I, ¶ ;¶ ;108, 110, 118, 170.”
Id., at 838, n. 32.
Citing further evidence of
corruption, the court explained:
“The disclosures of illegal
corporate contributions in 1972 included the testimony of
executives that they were motivated by the perception that this was
necessary as a ‘calling card, something that would get us in the
door and make our point of view heard,’ Hearings before the
Senate Select Comm. on Presidential Campaign Activities, 93d
Cong., 1st Sess. 5442 (1973) (Ashland Oil Co.—Orin Atkins,
Chairman) or ‘in response to pressure for fear of a competitive
disadvantage that might result,’ id. at 5495, 5514
(American Airlines—George Spater, former chairman); see
Findings I, ¶ ;105. The record before Congress was replete with
specific examples of improper attempts to obtain governmental favor
in return for large campaign contributions. See Findings
I, ¶ ;¶ ;159–64.” Id., at 839, n. 37.
Footnote 6
The court cited the intricate
scheme of the American Milk Producers, Inc., as an example of the
lengths to which contributors went to avoid their duty to
disclose:
“Since the milk producers, on
legal advice, worked on a $2500 limit per committee, they evolved a
procedure, after consultation in November 1970 with Nixon fund
raisers, to break down [their $2 million donation] into numerous
smaller contributions to hundreds of committees in various states
which could then hold the money for the President’s reelection
campaign, so as to permit the producers to meet independent
reporting requirements without disclosure.” Id., at 839,
n. 36.
The milk producers contributed
large sums to the Nixon campaign “in order to gain a meeting with
White House officials on price supports.” Ibid.
Footnote
7
In 1977 the FEC promulgated a
rule allowing parties to allocate their administrative expenses “on
a reasonable basis” between accounts containing funds raised in
compliance with FECA and accounts containing nonfederal funds,
including corporate and union donations. 11 CFR §102.6(a)(2). In
advisory opinions issued in 1978 and 1979, the FEC allowed parties
similarly to allocate the costs of voter registration and
get-out-the-vote drives between federal and nonfederal accounts.
FEC Advisory Op. 1978–10; FEC Advisory Op. 1979–17. See 251
F. Supp. 2d, at 195–197 (per curiam).
In 1990 the FEC clarified the
phrase “on a reasonable basis” by promulgating fixed allocation
rates. 11 CFR §106.5 (1991). The regulations required the
Republican National Committee (RNC) and Democratic National
Committee (DNC) to pay for at least 60% of mixed-purpose activities
(65% in presidential election years) with funds from their federal
accounts. §106.5(b)(2). By contrast, the regulations required state
and local committees to allocate similar expenditures based on the
ratio of federal to nonfederal offices on the State’s ballot,
§106.5(d)(1), which in practice meant that they could expend a
substantially greater proportion of soft money than national
parties to fund mixed-purpose activities affecting both federal and
state elections. See 251 F. Supp. 2d, at 198–199 (per
curiam).
Footnote 8
1 Defs. Exhs., Tab 1, Tbl. 2
(report of Thomas E. Mann, Chair & Sr. Fellow, Brookings
Institution (hereinafter Mann Expert Report)); 251 F. Supp.
2d, at 197–201 (per curiam).
Footnote
9
Mann Expert Report 26;
251 F. Supp. 2d, at 441 (Kollar-Kotelly, J.).
Footnote
10
Id., at 494 (Kollar-Kotelly,
J.).
Footnote
11
Mann Expert Report 24.
Footnote
12
In the 2000 election cycle, 35 of
the 50 largest soft-money donors gave to both parties; 28 of the 50
gave more than $100,000 to both parties. Mann Expert Report Tbl. 6;
see also 251 F. Supp. 2d, at 509 (Kollar-Kotelly, J.);
id., at 785, n. 77 (Leon, J.).
Footnote
13
A former chief executive officer of a
large corporation explained:
“Business and labor leaders
believe, based on their experience, that disappointed Members, and
their party colleagues, may shun or disfavor them because they have
not contributed. Equally, these leaders fear that if they refuse to
contribute (enough), competing interests who do contribute
generously will have an advantage in gaining access to and
influencing key Congressional leaders on matters of importance to
the company or union.” App. 283, ¶ ;9 (declaration of Gerald
Greenwald, United Airlines (hereinafter Greenwald
Decl.)).
Amici Curiae Committee
for Economic Development and various business leaders attest that
corporate soft-money contributions are “coerced and, at bottom,
wholly commercial” in nature, and that “[b]usiness leaders
increasingly wish to be freed from the grip of a system in which
they fear the adverse consequences of refusing to fill the coffers
of the major parties.” Brief for Committee for Economic Development
et al. as Amici Curiae 28.
Footnote
14
See 251 F. Supp. 2d, at 480
(Kollar-Kotelly, J.); id., at 842 (Leon, J.).
Footnote
15
See id., at 479–480
(Kollar-Kotelly, J.); id., at 842–843 (Leon, J.). One
former party official explained to the District Court:
“ ‘Once you’ve helped a federal candidate by
contributing hard money to his or her campaign, you are sometimes
asked to do more for the candidate by making donations of hard
and/or soft money to the national party committees, the relevant
state party (assuming it can accept corporate contributions), or an
outside group that is planning on doing an independent expenditure
or issue advertisement to help the candidate’s campaign.’ ”
Id., at 479 (Kollar-Kotelly, J.).
Footnote
16
Id., at 532–537
(Kollar-Kotelly, J.); id., at 875–879 (Leon, J.). As the
former chair of one major advocacy organization’s PAC put it,
“ ‘[i]t is foolish to believe there is any practical
difference between issue advocacy and advocacy of a political
candidate. What separates issue advocacy and political advocacy is
a line in the sand drawn on a windy day.’ ” Id., at
536–537 (Kollar-Kotelly, J.) (quoting Tanya K. Metaksa, Opening
Remarks at the American Assn. of Political Consultants Fifth
General Session on “Issue Advocacy,” Jan. 17, 1997, p. 2); 251
F. Supp. 2d, at 878–879 (Leon, J.) (same).
Footnote
17
Id., at 304 (Henderson, J.,
concurring in judgment in part and dissenting in part);
id., at 534 (Kollar-Kotelly, J.); id., at 875–879
(Leon, J.).
Footnote
18
It is undisputed that very few
ads—whether run by candidates, parties, or interest groups—used
words of express advocacy. Id., at 303 (Henderson, J.);
id., at 529 (Kollar-Kotelly, J.); id., at 874
(Leon, J.). In the 1998 election cycle, just 4% of candidate
advertisements used magic words; in 2000, that number was a mere
5%. App. 1334 (report of Jonathan S. Krasno, Yale University, &
Frank J. Sorauf, University of Minnesota, pp. 53–54 (hereinafter
Krasno & Sorauf Expert Report); see 1 Defs. Exhs., Tab 2, pp.
53–54).
Footnote
19
251 F. Supp. 2d, at 564, and
n. 6 (Kollar-Kotelly, J.) (citing report of Kenneth M.
Goldstein, University of Wisconsin-Madison, App. A, Tbl. 16; see
3–R Defs. Exhs., Tab 7); Tr. of Oral Arg. 202–203; see also 251
F. Supp. 2d, at 305 (Henderson, J.).
Footnote
20
The spending on electioneering
communications climbed dramatically during the last decade. In the
1996 election cycle, $135 to $150 million was spent on multiple
broadcasts of about 100 ads. In the next cycle (1997-1998), 77
organizations aired 423 ads at a total cost between $270 and $340
million. By the 2000 election, 130 groups spent over an estimated
$500 million on more than 1,100 different ads. Two out of every
three dollars spent on issue ads in the 2000 cycle were
attributable to the two major parties and six major interest
groups. Id., at 303–304 (Henderson, J.) (citing Annenberg
Public Policy Center, Issue Advertising in the 1999–2000 Election
Cycle 1–15 (2001) (hereinafter Annenberg Report); see 38 Defs.
Exhs., Tab 22); 251 F. Supp. 2d, at 527 (Kollar-Kotelly, J.)
(same); id., at 879 (Leon, J.) (same).
Footnote
21
Id., at 540 (Kollar-Kotelly,
J.) (quoting internal AFL-CIO Memorandum from Brian Weeks to Mike
Klein, “Electronic Buy for Illinois Senator,” (Oct. 9, 1996),
AFL-CIO 005244); 251 F. Supp. 2d, at 886 (Leon, J.)
(same).
Footnote
22
The association was known as the
Pharmaceutical Research and Manufacturers of America (PhRMA).
Id., at 232 (per curiam).
Footnote
23
Id., at 232–233. Other
examples of mysterious groups included “Voters for Campaign Truth,”
“Aretino Industries,” “Montanans for Common Sense Mining Laws,”
“American Seniors, Inc.,” “American Family Voices,” App. 1355
(Krasno & Sorauf Expert Report 71–77), and the “Coalition to
Make our Voices Heard,” 251 F. Supp. 2d, at 538
(Kollar-Kotelly, J.). Some of the actors behind these groups
frankly acknowledged that “ ‘in some places it’s much more
effective to run an ad by the ‘Coalition to Make Our Voices Heard’
than it is to say paid for by ‘the men and women of the
AFL–CIO.’ ” Ibid. (Kollar-Kotelly, J.) (quoting
report of David B. Magleby, Brigham Young University 18–19
(hereinafter Magleby Expert Report), App. 1484–1485).
Footnote
24
251 F. Supp. 2d, at 518–519
(Kollar-Kotelly, J.).
Footnote
25
Id., at 478–479
(Kollar-Kotelly, J.) (citing declaration of Robert Hickmott, Senior
V. P., Smith-Free Group, ¶ ;8 (hereinafter Hickmott Decl.);
see 6–R Defs. Exhs., Tab 19, ¶ ;8).
Footnote
26
S. Rep. No. 105–167, vol. 4,
p. 4611 (1998) (hereinafter 1998 Senate Report); 5
id., at 7515.
Footnote
27
3 id., at 4535
(additional views of Sen. Collins).
Footnote
28
1 id., at 41–42,
195–200. The report included a memorandum written by the DNC
finance chairman suggesting the use of White House coffees and
“overnights” to give major donors “quality time” with the
President, and noted that the guests accounted for $26.4 million in
contributions. Id., at 194, 196.
Footnote
29
2 id., at 2913–2914,
2921. Despite concerns about Tamraz’s background and a possible
conflict with United States foreign policy interests, he was
invited to six events attended by the President. Id., at
2920–2921. Similarly, the minority noted that in exchange for
Michael Kojima’s contribution of $500,000 to the 1992 President’s
Dinner, he and his wife had been placed at the head table with
President and Mrs. Bush. Moreover, Kojima received several
additional meetings with the President, other administration
officials, and United States embassy officials. 4 id., at
5418, 5422, 5428.
Footnote
30
The former requires an initial
contribution of $100,000, and $25,000 for each of the next three
years; the latter requires annual contributions of $15,000. 5
id., at 7968.
Footnote
31
Id., at 7971.
Footnote
32
1 id., at 49; 3
id., at 3997–4006.
Footnote
33
Id., at 4466.
Footnote
34
Ibid.
Footnote
35
Id., at 4468–4470,
4480–4481, 4491–4494.
Footnote
36
Id., at 4492.
Footnote
37
6 id., at
9394.
Footnote
38
The national party committees of
the two major political parties are: the Republican National
Committee (RNC); the Democratic National Committee (DNC); the
National Republican Senatorial Committee (NRSC); the National
Republican Congressional Committee (NRCC); the Democratic
Senatorial Campaign Committee (DSCC); and the Democratic
Congressional Campaign Committee (DCCC). 251 F. Supp. 2d, at
468 (Kollar-Kotelly, J.).
Footnote
39
Justice Kennedy accuses us of
engaging in a sleight of hand by conflating “unseemly corporate
speech” with the speech of political parties and candidates, and
then adverting to the “corporate speech rationale as if it were the
linchpin of the litigation.” Post, at 7 (opinion
concurring in part and dissenting in part). This is incorrect. The
principles set forth here and relied upon in assessing Title I are
the same principles articulated in Buckley and its progeny
that regulations of contributions to candidates, parties, and
political committees are subject to less rigorous scrutiny than
direct restraints on speech—including “unseemly corporate
speech.”
Footnote
40
Since our decision in
Buckley, we have consistently applied less rigorous
scrutiny to contribution restrictions aimed at the prevention of
corruption and the appearance of corruption. See, e.g.,
424 U. S., at 23–36 (applying less rigorous scrutiny to FECA’s
$1,000 limit on individual contributions to a candidate and FECA’s
$5,000 limit on PAC contributions to a candidate); id., at
38 (applying less rigorous scrutiny to FECA’s $25,000 aggregate
yearly limit on contributions to candidates, political party
committees, and political committees); California Medical
Assn. v. Federal Election Comm’n, 453
U. S. 182, 195–196 (1981) (plurality opinion) (applying less
rigorous scrutiny to FECA’s $5,000 limit on contributions to
multicandidate political committees); National Right to
Work, 459 U. S., at 208–211 (applying less rigorous scrutiny
to antisolicitation provision buttressing an otherwise valid
contribution limit); Colorado II, 533 U. S. 431, 456 (2001) (applying
less rigorous scrutiny to expenditures coordinated with a
candidate); Federal Election Comm’n v. Beaumont,
539 U. S.___, ___ (2003) (slip op., at 14–15) (applying less
rigorous scrutiny to provisions intended to prevent circumvention
of otherwise valid contribution limits).
Footnote
41
Indeed, Congress structured
§323(b) in such a way as to free individual, corporate, and union
donations to state committees for nonfederal elections
from federal source and amount restrictions.
Footnote
42
Justice Kennedy’s contention that
less rigorous scrutiny applies only to regulations burdening
political association, rather than political speech, misreads
Buckley. In Buckley, we recognized that
contribution limits burden both protected speech and association,
though they generally have more significant impacts on the latter.
424 U. S., at 20–22. We nevertheless applied less rigorous scrutiny
to FECA’s contribution limits because neither burden was
sufficiently weighty to overcome Congress’ countervailing interest
in protecting the integrity of the political process. See
Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 388 (2000) (“While we
did not [in Buckley] attempt to parse [the] distinctions
between the speech and association standards of scrutiny for
contribution limits, we did make it clear that those restrictions
bore more heavily on the associational right than on [the] freedom
to speak. We consequently proceeded on the understanding that a
contribution limitation surviving a claim of associational
abridgment would survive a speech challenge as well, and we held
the standard satisfied by the contribution limits under review.”
(citation omitted)). It is thus simply untrue in the campaign
finance context that all “burdens on speech necessitate strict
scrutiny review.” Post, at 29.
Footnote
43
Justice Kennedy is no doubt
correct that the associational burdens imposed by a particular
piece of campaign-finance regulation may at times be so severe as
to warrant strict scrutiny. Ibid. In light of our
interpretation of §323(a), however, see infra, at 46–47,
§323 does not present such a case. As Justice Kennedy himself
acknowledges, even “significant interference” with
“protected rights of association” are subject to less rigorous
scrutiny. Beaumont, 539 U. S., at _____ (slip op., at 15);
see post, at 28. There is thus nothing inconsistent in our
decision to account for the particular associational burdens
imposed by §323(a) when applying the appropriate level of
scrutiny.
Footnote
44
The fact that the post-1990
explosion in soft-money spending on federal electioneering was
accompanied by a series of efforts in Congress to clamp down on
such uses of soft money (culminating, of course, in BCRA)
underscores the fact that the FEC regulations permitted more than
Congress, in enacting FECA, had ever intended. See J. Cantor,
Congressional Research Service Report for Congress: Campaign
Finance Legislation in the 101st Congress (1990) (9 bills seeking
to limit the influence of soft money introduced); J. Cantor, CRS
Report for Congress: Campaign Finance Legislation in the 102nd
Congress (1991) (10 such bills introduced); J. Cantor, CRS Report
for Congress: Campaign Finance Legislation in the 103rd Congress
(1993) (16 bills); J. Cantor, CRS Report for Congress: Campaign
Finance Legislation in the 104th Congress (1996) (18 bills); see
also 251 F. Supp. 2d, at 201–206 (per curiam)
(discussing legislative efforts to curb soft money in 105th and
subsequent Congresses).
Footnote
45
Justice Kennedy contends that the
plurality’s observation in Colorado I that large
soft-money donations to a political party pose little threat of
corruption “establish[es] that” such contributions are not
corrupting. Post, at 17–18 (citing Colorado I,
518 U. S. 604, 616, 617–618 (1996)).
The cited dictum has no bearing on the present case. Colorado
I addressed an entirely different question—namely, whether
Congress could permissibly limit a party’s independent
expenditures—and did so on an entirely different set of facts. It
also had before it an evidentiary record frozen in 1990—well before
the soft-money explosion of the 1990’s. See Federal Election
Comm’n v. Colorado Republican Fed. Campaign Comm.,
839 F. Supp. 1448, 1451 (Colo. 1993).
Footnote
46
Other business leaders agreed.
For example, the chairman of the board and CEO of a major toy
company explained:
“ ‘Many in the corporate world view large soft
money donations as a cost of doing business. … I remain convinced
that in some of the more publicized cases, federal officeholders
actually appear to have sold themselves and the party cheaply. They
could have gotten even more money, because of the potential
importance of their decisions to the affected business.’ ” 251
F. Supp. 2d, at 491 (Kollar-Kotelly, J.) (quoting declaration
of Alan G. Hassenfeld, CEO, Hasbro, Inc., ¶ ;16; see 6–R Defs.
Exhs., Tab 17).
Similarly the chairman emeritus of a major airline
opined:
“ ‘Though a soft money check might be made out
to a political party, labor and business leaders know that those
checks open the doors of the offices of individual and important
Members of Congress and the Administration… . Labor and
business leaders believe—based on experience and with good
reason—that such access gives them an opportunity to shape and
affect governmental decisions and that their ability to do so
derives from the fact that they have given large sums of money to
the parties.’ ” 251 F. Supp. 2d, at 498 (Kollar-Kotelly,
J.) (quoting Greenwald Decl. ¶ ;12, App. 283–284, ¶ ;10); 251
F. Supp. 2d, at 858–859 (Leon, J.) (same).
Footnote
47
Even more troubling is evidence
in the record showing that national parties have actively exploited
the belief that contributions purchase influence or protection to
pressure donors into making contributions. As one CEO
explained:
“ ‘[I]f you’re giving a lot of soft money to
one side, the other side knows. For many economically-oriented
donors, there is a risk in giving to only one side, because the
other side may read through FEC reports and have staff or a
friendly lobbyist call and indicate that someone with interests
before a certain committee has had their contributions to the other
side noticed. They’ll get a message that basically asks: ‘Are you
sure you want to be giving only to one side? Don’t you want to have
friends on both sides of the aisle?’ If your interests are subject
to anger from the other side of the aisle, you need to fear that
you may suffer a penalty if you don’t give… . [D]uring the
1990’s, it became more and more acceptable to call someone, saying
you saw he gave to this person, so he should also give to you or
the person’s opponent.’ ” Id., at 510
(Kollar-Kotelly, J.) (quoting Randlett Decl. ¶ ;12, App. 715); 251
F. Supp. 2d, at 868 (Leon, J.) (same).
Footnote
48
In addition to finding no support
in our recent cases, see, e.g., Colorado II, 533
U. S., at 441 (defining corruption more broadly than quid pro
quo arrangements); Shrink Missouri, 528 U. S., at 389
(same), Justice Kennedy’s contention that Buckley limits
Congress to regulating contributions to a candidate ignores
Buckley itself. There, we upheld FECA’s $25,000 limit on
aggregate yearly contributions to candidates, political
committees, and party committees out of recognition
that FECA’s $1,000 limit on candidate contributions would be
meaningless if individuals could instead make “huge contributions
to the candidate’s political party.” 424 U. S., at 38. Likewise, in
California Medical Assn. v. Federal Election
Comm’n, 453
U. S. 182 (1981), we upheld FECA’s $5,000 limit on
contributions to multicandidate political committees. It is no
answer to say that such limits were justified as a means of
preventing individuals from using parties and political committees
as pass-throughs to circumvent FECA’s $1,000 limit on individual
contributions to candidates. Given FECA’s definition of
“contribution,” the $5,000 and $25,000 limits restricted not only
the source and amount of funds available to parties and political
committees to make candidate contributions, but also the source and
amount of funds available to engage in express advocacy and
numerous other noncoordinated expenditures. If indeed the First
Amendment prohibited Congress from regulating contributions to fund
the latter, the otherwise-easy-to-remedy exploitation of parties as
pass-throughs (e.g., a strict limit on donations that
could be used to fund candidate contributions) would have provided
insufficient justification for such overbroad
legislation.
Footnote
49
At another point, describing our
“flawed reasoning,” Justice Kennedy seems to suggest that Congress’
interest in regulating the appearance of corruption extends only to
those contributions that actually “create … corrupt donor
favoritism among … officeholders.” Post, at 16. This
latter formulation would render Congress’ interest in stemming the
appearance of corruption indistinguishable from its interest in
preventing actual corruption.
Footnote
50
In support of this claim, the
political party plaintiffs assert that, in 2001, the RNC spent
$15.6 million of nonfederal funds (30% of the nonfederal amount
raised that year) on purely state and local election activity,
including contributions to state and local candidates, transfers to
state parties, and direct spending. See Tr. of Oral Arg. 102–103
(statement of counsel Bobby R. Burchfield); 251 F. Supp. 2d, at
336–337 (Henderson, J.); id., at 464–465 (Kollar-Kotelly,
J.); id., at 830 (Leon, J.).
Footnote
51
The close relationship of federal
officeholders and candidates to their parties answers not only The
Chief Justice’s concerns about §323(a), but also his fear that our
analysis of §323’s remaining provisions bespeaks no limiting
principle. Post, at 6–7 (dissenting opinion). As set forth
in our discussion of those provisions, the record demonstrates
close ties between federal officeholders and the state and local
committees of their parties. That close relationship makes state
and local parties effective conduits for donors desiring to corrupt
federal candidates and officeholders. Thus, in upholding §§323(b),
(d), and (f), we rely not only on the fact that they regulate
contributions used to fund activities influencing federal
elections, but also that they regulate contributions to or at the
behest of entities uniquely positioned to serve as conduits for
corruption. We agree with The Chief Justice that Congress could not
regulate financial contributions to political talk show hosts or
newspaper editors on the sole basis that their activities conferred
a benefit on the candidate. Post, at 7
(dissenting opinion).
Footnote
52
Plaintiffs claim that the option
of soliciting hard money for state and local candidates is an
illusory one, since several States prohibit state and local
candidates from establishing multiple campaign accounts, which
would preclude them from establishing separate accounts for federal
funds. See Cal. Fair Pol. Practs. Comm’n Advisory Op. A–91–448
(Dec. 16, 1991), 1991 WL 772902; Colo. Const., Art. XXVIII, §2(3);
Iowa Code §56.5A (Supp. 2003); and Ohio Rev. Code Ann. §3517.10(J)
(Anderson Supp. 2002). Plaintiffs maintain that §323(a) combines
with these state laws to make it impossible for state and local
candidates to receive hard-money donations. But the challenge we
are considering is a facial one, and on its face §323(a) permits
solicitations. The fact that a handful of States might interfere
with the mechanism Congress has chosen for such solicitations is an
argument that may be addressed in an as-applied
challenge.
Footnote
53
Even opponents of campaign
finance reform acknowledged that “a prohibition of soft money
donations to national party committees alone would be wholly
ineffective.” The Constitution and Campaign Reform: Hearings on S.
522 before the Senate Committee on Rules and Administration, 106th
Cong., 2d Sess., 301 (2000) (statement of Bobby R. Burchfield,
Partner, Covington & Burling).
Footnote
54
Generic campaign activity
promotes a political party rather than a specific candidate. 2 U.
S. C. A. §431(21).
Footnote
55
A public communication is “a
communication by means of any broadcast, cable, or satellite
communication, newspaper, magazine, outdoor advertising facility,
mass mailing, or telephone bank to the general public, or any other
form of general public political advertising.” §431(22).
Footnote
56
So long as the communication does
not constitute voter registration, voter identification, GOTV, or
generic campaign activity. §431(20)(B)(i).
Footnote
57
Unless the contribution is
earmarked for federal election activity.
§431(20)(B)(ii).
Footnote
58
The statute gives the FEC
responsibility for setting the allocation ratio. §441i(b)(2)(A);
see also 11 CFR §300.33(b) (2003) (defining allocation
ratios).
Footnote
59
One former Senator
noted:
“ ‘The fact is that much of
what state and local parties do helps to elect federal candidates.
The national parties know it; the candidates know it; the state and
local parties know it. If state and local parties can use soft
money for activities that affect federal elections, then the
problem will not be solved at all. The same enormous incentives to
raise the money will exist; the same large contributions by
corporations, unions, and wealthy individuals will be made; the
federal candidates who benefit from state party use of these funds
will know exactly whom their benefactors are; the same degree of
beholdenness and obligation will arise; the same distortions on the
legislative process will occur; and the same public cynicism will
erode the foundations of our democracy—except it will all be worse
in the public’s mind because a perceived reform was undercut once
again by a loophole that allows big money into the system.’ ”
251 F. Supp. 2d, at 467 (Kollar-Kotelly, J.) (quoting Rudman
Decl. ¶ ;19, App. 746).
Footnote
60
E.g., 251 F. Supp.
2d, at 479 (Kollar-Kotelly, J.) (“ ‘It is … not uncommon for
the RNC to put interested donors in touch with various state
parties. This often occurs when a donor has reached his or her
federal dollar limits to the RNC, but wishes to make additional
contributions to the state party’ ” (quoting declaration of
Thomas Josefiak, RNC Chief Counsel ¶ ;68, App 308)); see also
Colorado II, 533 U. S., at 458 (quoting Congressman Wayne
Allard’s Aug. 27, 1996, fundraising letter informing the recipient
that “ ‘you are at the limit of what you can directly
contribute to my campaign,’ ” but “ ‘you can further help
my campaign by assisting the Colorado Republican Party’ ”);
251 F. Supp 2d, at 454 (Kollar-Kotelly, J.) (“ ‘Both political
parties have found spending soft money with its accompanying hard
money match through their state parties to work smoothly, for the
most part, and state officials readily acknowledge they are simply
‘pass throughs’ to the vendors providing the broadcast ads or
direct mail’ ” (quoting Magleby Expert Report 37, App.
1510–1511.)).
Footnote
61
The 1998 Senate Report found
that, in exchange for a substantial donation to state
Democratic committees and candidates, the DNC arranged meetings for
the donor with the President and other federal officials. 1 1998
Senate Report 43–44; 2 id., at 2907–2931; 5 id.,
at 7519. That same Report also detailed how Native American tribes
that operated casinos made sizable soft-money contributions to
state Democratic committees in apparent exchange for access and
influence. 1 id., at 44–46; 2 id., at 3167–3194;
see also McCain Decl., Exh. I (Weisskopf, The Busy Back-Door Men,
Time, Mar. 31, 1997, p. 40)).
Footnote
62
Since voter identification is a
necessary precondition of any GOTV program, the findings regarding
GOTV funding obviously apply with equal force to the funding of
voter identification efforts.
Footnote
63
With respect to GOTV, voter
identification, and other generic campaign activity, the FEC has
interpreted §323(b) to apply only to those activities conducted
after the earliest filing deadline for access to the federal
election ballot or, in States that do not conduct primaries, after
January 1 of even-numbered years. 11 CFR §100.24(a)(1) (2002). Any
activities conducted outside of those periods are completely exempt
from regulation under §323(b). Of course, this facial challenge
does not present the question of the FEC regulations’
constitutionality. But the fact that the statute provides this
basis for the FEC reasonably to narrow §301(20)(A)(ii) further
calls into question plaintiffs’ claims of facial overbreadth. See
Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973).
Footnote
64
We likewise reject the argument
that §301(20)(A)(iii) is unconstitutionally vague. The words
“promote,” “oppose,” “attack,” and “support” clearly set forth the
confines within which potential party speakers must act in order to
avoid triggering the provision. These words “provide explicit
standards for those who apply them” and “give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited.” Grayned v. City of
Rockford, 408 U. S. 104, 108–109 (1972). This is
particularly the case here, since actions taken by political
parties are presumed to be in connection with election campaigns.
See Buckley, 424 U. S., at 79 (noting that a general
requirement that political committees disclose their expenditures
raised no vagueness problems because the term “political committee”
“need only encompass organizations that are under the control of a
candidate or the major purpose of which is the nomination or
election of a candidate” and thus a political committee’s
expenditures “are, by definition, campaign related”). Furthermore,
should plaintiffs feel that they need further guidance, they are
able to seek advisory opinions for clarification, see 2 U.
S. C. §437f (a)(1), and thereby “remove any doubt there
may be as to the meaning of the law,” Civil Service Comm’n
v. Letter Carriers, 413 U. S. 548, 580
(1973).
Footnote
65
Any doubts that donors would
engage in such a seemingly complex scheme are put to rest by the
record evidence in Buckley itself. See n. 6,
supra (setting forth the Court of Appeals’ findings
regarding the efforts of milk producers to obtain a meeting with
White House officials).
Footnote
66
Section 501(c) organizations are
groups generally exempted from taxation under the Internal Revenue
Code. 26 U. S. C. §501(a). These include §501(c)(3) charitable
and educational organizations, as well as §501(c)(4) social welfare
groups.
Footnote
67
Section 527 “political
organizations” are, unlike §501(c) groups, organized for the
express purpose of engaging in partisan political activity. They
include any “party, committee, association, fund, or other
organization (whether or not incorporated) organized and operated
primarily for the purpose of directly or indirectly accepting
contributions or making expenditures” for the purpose of
“influencing or attempting to influence the selection, nomination,
or appointment of any individual for Federal, State, or local
public office.” 26 U. S. C. §527(e).
Footnote
68
The record shows that many of the
targeted tax-exempt organizations engage in sophisticated and
effective electioneering activities for the purpose of influencing
federal elections, including waging broadcast campaigns promoting
or attacking particular candidates and conducting large-scale voter
registration and GOTV drives. For instance, during the final weeks
of the 2000 presidential campaign, the NAACP’s National Voter Fund
registered more than 200,000 people, promoted a GOTV hotline, ran
three newspaper print ads, and made several direct mailings. 251
F. Supp. 2d, at 348–349 (Henderson, J.). The NAACP reports
that the program turned out one million additional African-American
voters and increased turnout over 1996 among targeted groups by 22%
in New York, 50% in Florida, and 140% in Missouri. Ibid.
The effort, which cost $10 million, was funded primarily by a $7
million contribution from an anonymous donor. Id., at 349
(citing cross-examination of Donald P. Green, Yale University
15–20, Exh. 3; see I Defs. Refiling Trs. on Pub. Record); 251
F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same); id.,
at 851 (Leon, J.) (same); see also id., at 349 (Henderson,
J.) (stating that in 2000 the National Abortion and Reproductive
Rights Action League (NARAL) spent $7.5 million and mobilized 2.1
million pro-choice voters (citing declaration of Mary Jane
Gallagher, Exec. V. P., NARAL, 8, App. 271–272, ¶ ;24)); 251
F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same).
Footnote
69
Notably, the FEC has interpreted
§323(d)(2) to permit state, district, and local party committees to
solicit donations to §527 organizations that are state-registered
PACs, that support only state or local candidates, and that do not
make expenditures or disbursements in connection with federal
elections. 11 CFR §300.37(a)(3)(iv) (2003). The agency determined
that this interpretation of “political committee”—at least with
respect to state, district, and local committees—was consistent
with BCRA’s fundamental purpose of prohibiting soft money from
being used in connection with federal elections. 67 Fed. Reg. 49106
(2002).
Footnote
70
Section 323(e)(1)(B) tightly
constrains the ability of federal candidates and officeholders to
solicit or spend nonfederal money in connection with state or local
elections. Contributions cannot exceed FECA’s analogous hard-money
contribution limits or come from prohibited sources. In effect,
§323(e)(1)(B) doubles the limits on what individuals can contribute
to or at the behest of federal candidates and officeholders, while
restricting the use of the additional funds to activities not
related to federal elections. If the federal candidate or
officeholder is also a candidate for state or local office, he or
she may solicit, receive, and spend an unlimited amount of
nonfederal money in connection with that election, subject only to
state regulation and the requirement that such solicitation or
expenditures refer only to the relevant state or local office. 2 U.
S. C. A. §441i(e)(2).
Footnote
71
See 148 Cong. Rec. S2143 (Mar.
20, 2002) (statement of Sen. Feingold) (Section 323(f) does not
prohibit “spending non-federal money to run advertisements that
mention that [state or local candidates] have been endorsed by a
Federal candidate or say that they identify with a position of a
named Federal candidate, so long as those advertisements do not
support, attack, promote or oppose the Federal
candidate”).
Footnote
72
Justice Kennedy faults our
“unwillingness” to confront that “Title I’s entirety … look[s] very
much like an incumbency protection plan,” citing §323(e), which
provides officeholders and candidates with greater opportunities to
solicit soft money than §§323(a) and (d) permit party officers.
Post, at 23–24. But, §323(e) applies to both officeholders
and candidates and allows only minimally greater
opportunities for solicitation out of regard for the fact that
candidates and officeholders, unlike party officers, can never step
out of their official roles. Supra, at 70–71; 42 U.
S. C. A. §441i(e). Any concern that Congress might
opportunistically pass campaign-finance regulation for self-serving
ends is taken into account by the applicable level of scrutiny.
Congress must show concrete evidence that a particular type of
financial transaction is corrupting or gives rise to the appearance
of corruption and that the chosen means of regulation are closely
drawn to address that real or apparent corruption. It has done so
here. At bottom, Justice Kennedy has long disagreed with the basic
holding of Buckley and its progeny that less rigorous
scrutiny—which shows a measure of deference to Congress in an area
where it enjoys particular expertise—applies to assess limits on
campaign contributions. Colorado II, 533 U. S., at 465
(Thomas, J., dissenting) (joining Justice Thomas for the
proposition that “Buckley should be overrruled” (citation
omitted)); Shrink Missouri, 528 U. S., at 405–410
(Kennedy, J., dissenting).
Footnote
73
BCRA also provides a “backup”
definition of “electioneering communication,” which would become
effective if the primary definition were “held to be
constitutionally insufficient by final judicial decision to support
the regulation provided herein.” 2 U. S. C. A.
§434(f)(3)(A)(ii). We uphold all applications of the primary
definition and accordingly have no occasion to discuss the backup
definition.
Footnote
74
We then held that, so construed,
the expenditure restriction did not advance a substantial
government interest, because independent express advocacy did not
pose a danger of real or apparent corruption, and the line between
express advocacy and other electioneering activities was easily
circumvented. Concluding that §608(e)(1)’s heavy First Amendment
burden was not justified, we invalidated the provision.
Buckley, 424 U. S., at 45–48.
Footnote
75
Our adoption of a narrowing
construction was consistent with our vagueness and overbreadth
doctrines. See Broadrick, 413 U. S., at 613;
Grayned, 408 U. S., at 108–114.
Footnote
76
The provision at issue in
MCFL—2 U. S. C. §441b (1982 ed.)—required
corporations and unions to use separate segregated funds, rather
than general treasury moneys, on expenditures made “ ‘in
connection with’ ” a federal election. MCFL, 479 U.
S., at 241. We noted that Buckley had limited the
statutory term “ ‘expenditure’ ” to words of express
advocacy “in order to avoid problems of overbreadth.” 479 U. S., at
248. We held that “a similar construction” must apply to
the expenditure limitation before us in MCFL and that the
reach of 2 U. S. C. §441b was therefore constrained to express
advocacy. 479 U. S., at 249 (emphasis added).
Footnote
77
As one major-party political
consultant testified, “ ‘it is rarely advisable to use such
clumsy words as “vote for” or “vote against.” ’ ” 251
F. Supp. 2d, at 305 (Henderson, J.) (quoting declaration of
Douglas L. Bailey, founder, Bailey, Deardourff & Assoc., 1–2,
App. 24, ¶ ;3). He explained: “ ‘All advertising professionals
understand that the most effective advertising leads the viewer to
his or her own conclusion without forcing it down their
throat.’ ” 251 F. Supp. 2d, at 305 (Henderson, J.). Other
political professionals and academics confirm that the use of magic
words has become an anachronism. See id., at 531
(Kollar-Kotelly, J.) (quoting declaration of Raymond D. Strother,
Pres., Strother/Duffy/Strother ¶ ;4, 9 Defs. Exhs., Tab 40); see
Unsealed Pp. Vol., Tab 7); App. 1334–1335 (Krasno & Sorauf
Expert Report)); see also 251 F. Supp. 2d, at 305 (Henderson,
J.); id., at 532 (Kollar-Kotelly, J.); id., at
875–76 (Leon, J.).
Footnote
78
One striking example is an ad
that a group called “Citizens for Reform” sponsored during the 1996
Montana congressional race, in which Bill Yellowtail was a
candidate. The ad stated:
“Who is Bill Yellowtail? He
preaches family values but took a swing at his wife. And
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.” 5 1998 Senate Report 6305 (minority
views).
The notion that this advertisement was designed
purely to discuss the issue of family values strains
credulity.
Footnote
79
As discussed below,
infra, at 97–103, BCRA §203 bars corporations and labor
unions from funding electioneering communications with money from
their general treasuries, instead requiring them to establish a
“separate segregated fund” for such expenditures. 2 U.
S. C. A. §441b(b)(2).
Footnote
80
Section 401 of BCRA
provides:
“If any provision of this Act or
amendment made by this Act . . ., or the application of a provision
or amendment to any person or circumstance, is held to be
unconstitutional, the remainder of this Act and amendments made by
this Act, and the application of the provisions and amendment to
any person or circumstance, shall not be affected by the holding.”
2 U. S. C. A. §454 note.
Footnote
81
The disclosure requirements that
BCRA §201 added to FECA §304 are actually somewhat less intrusive
than the comparable requirements that have long applied to persons
making independent expenditures. For example, the previous version
of §304 required groups making independent expenditures to identify
donors who contributed more than $200. 2 U. S. C. §434(c)(2)(C)
(2000 ed.). The comparable requirement in the amendments applies
only to donors of $1,000 or more. 2 U. S. C. A.
§§434(f)(2)(E), (F) (Supp. 2003).
Footnote
82
NAACP v.
Alabama arose out of a judgment holding the NAACP in
contempt for refusing to produce the names and addresses of its
members and agents in Alabama. The NAACP “made an uncontroverted
showing that on past occasions revelation of the identity of its
rank-and-file members ha[d] exposed these members to economic
reprisal, loss of employment, threat of physical coercion, and
other manifestations of public hostility.” 357 U. S., at 462. We
thought it apparent that the compelled disclosure would “affect
adversely” the NAACP and its members’ ability “to pursue their
collective effort to foster beliefs which they admittedly have the
right to advocate.” Id., at 462–463. Under these
circumstances, we concluded that Alabama’s interest in determining
whether the NAACP was doing business in the State was plainly
insufficient to justify its production order. Id., at
464–466.
Footnote
83
We stated:
“The District Court properly
applied the Buckley test to the facts of this case. The
District Court found ‘substantial evidence of both governmental and
private hostility toward and harassment of [Socialist Workers Party
(SWP)] members and supporters.’ Appellees introduced proof of
specific incidents of private and government hostility toward the
SWP and its members within the four years preceding the trial.
These incidents, many of which occurred in Ohio and neighboring
States, included threatening phone calls and hate mail, the burning
of SWP literature, the destruction of SWP members’ property, police
harassment of a party candidate, and the firing of shots at an SWP
office. There was also evidence that in the 12-month period before
trial 22 SWP members, including 4 in Ohio, were fired because of
their party membership. Although appellants contend that two of the
Ohio firings were not politically motivated, the evidence amply
supports the District Court’s conclusion that ‘private hostility
and harassment toward SWP members make it difficult for them to
maintain employment.’ The District Court also found a past history
of Government harassment of the SWP.” Brown v.
Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 98–99 (1982) (paragraph
break omitted).
Footnote
84
We cannot judge the likelihood
that this will occur, as the record contains little if any
description of the contractual provisions that commonly govern
payments for electioneering communications. Nor does the record
contain any evidence relating to Justice Kennedy’s speculation,
post, at 39–40, that advance disclosure may disadvantage
an advertiser.
Footnote
85
New FECA §315(a)(7)(C) reads as
follows:
“if —
“(i) any person makes, or
contracts to make, any disbursement for any electioneering
communication (within the meaning of section 434(f)(3) of this
title); and
“(ii) such disbursement is
coordinated with a candidate or an authorized committee of such
candidate, a Federal, State, or local political party or committee
thereof, or an agent or official of any such candidate, party, or
committee;
such disbursement or contracting shall be treated as
a contribution to the candidate supported by the electioneering
communication or that candidate’s party and as an expenditure by
that candidate or that candidate’s party. . . .” 2 U.
S. C. A. §441a(a)(7)(C).
Footnote
86
We have explained:
“The statutory purpose of §441b …
is to prohibit contributions or expenditures by corporations or
labor organizations in connection with federal elections. 2 U.
S. C. §441b(a). The section, however, permits some
participation of unions and corporations in the federal electoral
process by allowing them to establish and pay the administrative
expenses of ‘separate segregated fund[s],’ which may be ‘utilized
for political purposes.’ 2 U. S. C. §441b(b)(2)(C). The Act
restricts the operations of such segregated funds, however, by
making it unlawful for a corporation to solicit contributions to a
fund established by it from persons other than its ‘stockholders
and their families and its executive or administrative personnel
and their families.’ 2 U. S. C. §441b(b)(4)(A).” National
Right to Work, 459 U. S., at 201–202.
Footnote
87
The amendment is straightforward.
Prior to BCRA, FECA §316(a) made it “unlawful … for any corporation
whatever, or any labor organization, to make a contribution or
expenditure in connection with” certain federal elections. 2 U.
S. C. §441b(a) (2000 ed.). BCRA amends FECA §316(b)(2)’s
definition of the term “contribution or expenditure” to include
“any applicable electioneering communication.” 2 U.
S. C. A. §441b(b)(2) (Supp. 2003).
Footnote
88
As Justice Kennedy emphasizes in
dissent, post, at 44–45, we assume that the interests that
justify the regulation of campaign speech might not apply to the
regulation of genuine issue ads. The premise that apparently
underlies Justice Kennedy’s principal submission is a conclusion
that the two categories of speech are nevertheless entitled to the
same constitutional protection. If that is correct, Justice Kennedy
must take issue with the basic holding in Buckley and,
indeed, with our recognition in First Nat. Bank of Boston
v. Bellotti, 435 U. S. 765 (1978),
that unusually important interests underlie the regulation of
corporations’ campaign-related speech. In Bellotti we
cited Buckley, among other cases, for the proposition that
“[p]reserving the integrity of the electoral process, preventing
corruption, and ‘sustain[ing] the active, alert responsibility of
the individual citizen in a democracy for the wise conduct of the
government’ are interests of the highest importance.” 435 U. S., at
788–789 (citations and footnote omitted). “Preservation of the
individual citizen’s confidence in government,” we added, “is
equally important.” Id., at 789. BCRA’s fidelity to those
imperatives sets it apart from the statute in
Bellotti—and, for that matter, from the Ohio statute
banning the distribution of anonymous campaign literature, struck
down in McIntyre v. Ohio Elections
Comm’n, 514 U. S. 334
(1995).
Footnote
89
In a different but somewhat
related argument, one set of plaintiffs contends that political
campaigns and issue advocacy involve press activities, and that
BCRA therefore interferes with speakers’ rights under the Freedom
of the Press Clause. U. S. Const., Amdt. 1. We affirm the District
Court’s conclusion that this contention lacks merit.
Footnote
90
The statutory scheme is somewhat
complex. In its provision dealing with “Rules Relating to
Electioneering Communications,” BCRA §203(c)(2) (adding FECA
§316(c)(2)) makes a blanket exception for designated nonprofit
organizations, which reads as follows:
“Exception
“Notwithstanding paragraph (1),
the term ‘applicable electioneering communication’ does not include
a communication by a section 501(c)(4) organization or a political
organization (as defined in section 527(e)(1) of Title 26) made
under section 434(f)(2)(E) or (F) of this title if the
communication is paid for exclusively by funds provided directly by
individuals who are United States citizens or nationals or lawfully
admitted for permanent residence (as defined in section 1101(a)(20)
of Title 8). For purposes of the preceding sentence, the term
‘provided directly by individuals’ does not include funds the
source of which is an entity described in subsection (a) of this
section.” 2 U. S. C. A. §441b(c)(2) (Supp.
2003).
BCRA §204, however, amends FECA
§316(c) to exclude “targeted communications” from that exception.
New FECA §316(c)(6) states that the §316(c)(2) exception “shall not
apply in the case of a targeted communication that is made by an
organization described” in §316(b)(2). 2 U. S. C. A. ¶
;441b(c)(6)(A). Subparagraph (B) then defines the term “targeted
communication” for the purpose of the provision as including all
electioneering communications. The parties and the judges on the
District Court have assumed that amended FECA §316(c)(6) completely
canceled the exemption for nonprofit corporations set forth in
§316(c)(2). 251 F. Supp. 2d, at 804 (Leon, J.) (“Section 204
completely cancels out the exemption for all nonprofit corporations
provided by Section 203”).
Footnote
91
“[A] unanimous Court in
National Right to Work did not think the regulatory
burdens on PACs, including restrictions on their ability to solicit
funds, rendered a PAC unconstitutional as an advocacy 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.” Beaumont, 539 U. S., at ___ (slip op.,
at 16).
Footnote
92
New FECA §304(g)
provides:
“Time for reporting certain expenditures
“(1) Expenditures aggregating
$1,000
“(A) Initial report
“A person (including a political
committee) that makes or contracts to make independent expenditures
aggregating $1,000 or more after the 20th day, but more than 24
hours, before the date of an election shall file a report
describing the expenditures within 24 hours.
“(B) Additional reports
“After a person files a report
under subparagraph (A), the person shall file an additional report
within 24 hours after each time the person makes or contracts to
make independent expenditures aggregating an additional $1,000 with
respect to the same election as that to which the initial report
relates.” 2 U. S. C. A. §434 (Supp. 2003).
Footnote
93
New FECA §315(d)(4) reads as
follows:
“Independent versus coordinated
expenditures by party
“(A) In general
“On or after the date on which a
political party nominates a candidate, no committee of the
political party may make—
“(i) any coordinated expenditure
under this subsection with respect to the candidate during the
election cycle at any time after it makes any independent
expenditure (as defined in section 431(17) of this title) with
respect to the candidate during the election cycle; or
“(ii) any independent expenditure
(as defined in section 431(17) of this title) with respect to the
candidate during the election cycle at any time after it makes any
coordinated expenditure under this subsection with respect to the
candidate during the election cycle.
“(B) Application
“For purposes of this paragraph,
all political committees established and maintained by a national
political party (including all congressional campaign committees)
and all political committees established and maintained by a State
political party (including any subordinate committee of a State
committee) shall be considered to be a single political
committee.
“(C) Transfers
“A committee of a political party
that makes coordinated expenditures under this subsection with
respect to a candidate shall not, during an election cycle,
transfer any funds to, assign authority to make coordinated
expenditures under this subsection to, or receive a transfer of
funds from, a committee of the political party that has made or
intends to make an independent expenditure with respect to the
candidate.” 2 U. S. C. A. §441a(d)(4) (Supp.
2003).
Footnote
94
After exempting political parties
from the general contribution and expenditure limitations of the
statute, 2 U. S. C. A. §441a(d)(1), FECA §315(d) imposes
the following substitute limitations on party spending:
“(2) The national committee of a
political party may not make any expenditure in connection with the
general election campaign of any candidate for President of the
United States who is affiliated with such party which exceeds an
amount equal to 2 cents multiplied by the voting age population of
the United States (as certified under subsection (e) of this
section). Any expenditure under this paragraph shall be in addition
to any expenditure by a national committee of a political party
serving as the principal campaign committee of a candidate for
office of President of the United States.
“(3) The national committee of a
political party, or a State committee of a political party,
including any subordinate committee of a State committee, may not
make any expenditure in connection with the general election
campaign of a candidate for Federal office in a State who is
affiliated with such party which exceeds—
“(A) in the case of a candidate
for election to the office of Senator, or of Representative from a
State which is entitled to only one Representative, the greater
of—
“(i) 2 cents multiplied by the
voting age population of the State (as certified under subsection
(e) of this section); or
“(ii) $20,000; and
“(B) in the case of a candidate
for election to the officer of Representative, Delegate, or
Resident Commissioner in any other State, $10,000.” 2 U. S. C.
§§441a(d)(2)–(3).
Footnote
95
As amended by BCRA, §301(17)
provides:
“Independent
expenditure
“The term ‘independent
expenditure’ means an expenditure by a person—
“(A) expressly advocating the
election or defeat of a clearly identified candidate;
and
“(B) that is not made in concert
or cooperation with or at the request or suggestion of such
candidate, the candidate’s authorized political committee, or their
agents, or a political party committee or its agents.” 2 U.
S. C. A. §431(17) (Supp. 2003).
The version of the definition
prior to its amendment by BCRA also included the phrase “expressly
advocating the election or defeat of a clearly identified
candidate.” 2 U. S. C. §431(17) (2000 ed.). That definition
had been adopted in 1976, presumably to reflect the narrowing
construction that the Court adopted in Buckley. Federal
Election Campaign Act Amendments of 1976, 90 Stat. 475.
Footnote
96
Although the District Court and
all the parties to this litigation endorse the interpretation set
forth in the text, it is not clear that subparagraph (B) should be
read so broadly: The reference to “a State” instead of “the States”
suggests that Congress meant to distinguish between committees
associated with the party for each State (which would be grouped
together by State, with each grouping treated as a single committee
for purposes of the choice) and committees associated with a
national party (which would likewise be grouped together and
treated as a separate political committee). We need not resolve the
interpretive puzzle, however, because even under the more limited
reading a local party committee would be able to tie the hands of a
state committee or other local committees in the same
State.
Footnote
97
The italicized portion of the
following partial quotation of FECA §315(a)(7) was added by §214 of
BCRA:
“For purposes of this
subsection—
“(A) contributions to a named
candidate made to any political committee authorized by such
candidate to accept contributions on his behalf shall be considered
to be contributions made to such candidate;
“(B)(i) expenditures made by any
person in cooperation, consultation, or concert, with, or at the
request or suggestion of, a candidate, his authorized political
committees, or their agents, shall be considered to be a
contribution to such candidate;
“(ii) expenditures made by any
person (other than a candidate or candidate’s authorized committee)
in cooperation, consultation, or concert with, or at the request or
suggestion of, a national, State, or local committee of a political
party, shall be considered to be contributions made to such party
committee … .” 2 U. S. C. A. §441a(a)(7) (Supp.
2003).
Footnote
98
Pre-BCRA FEC regulations defined
coordinated expenditures to include expenditures made “[a]t the
request or suggestion of” a candidate or party; communications in
which a candidate or party “exercised control or decision-making
authority over the content, timing, location, mode, intended
audience, volume of distribution, or frequency of placement”; and
communications produced “[a]fter substantial discussion or
negotiation” with a party or candidate, “the result of which is
collaboration or agreement.” 11 CFR §100.23(c)(2)
(2001).
Footnote
99
Contrary to plaintiffs’
contention, the statutory framework was not significantly different
at the time of our decision in Buckley. The relevant
provision, 18 U. S. C. §608(e)(1), treated as coordinated any
expenditures “authorized or requested by the candidate.”
(Emphasis added.) And the legislative history, on which we relied
for “guidance in differentiating individual expenditures that are
contributions … from those treated as independent expenditures,”
described as “independent” an expenditure made by a supporter
“ ‘completely on his own, and not at the request or suggestion
of the candidate or his agen[t].’ ” 424 U. S., at 46–47, n. 53
(quoting S. Rep. No. 93–689, p. 18 (1974)).
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