Interest Groups Unleashed


Edited by: Paul S. Herrnson, Christopher J. Deering & Clyde Wilcox

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    About the Editors

    Paul S. Herrnson is the Director of the Center for American Politics and Citizenship, Professor of Government and Politics, and Distinguished Scholar-Teacher at the University of Maryland. He has published several books, including Congressional Elections: Campaigning at Home and in Washington (2012), The Financiers of Congressional Elections (2003), and Voting Technology: The Not-so-Simple Act of Casting a Ballot (2008). He has received several teaching awards and has served as an American Political Science Association congressional fellow and president of the Southern Political Science Association.

    Christopher J. Deering is a Professor of Political Science at George Washington University. He is coauthor of Committees in Congress (3rd ed., 1997), and has written on committees, leadership, Congress's role in foreign and national security policymaking, federalism, and executive-legislative relations. He is a former American Political Science Association congressional fellow and Brookings research fellow.

    Clyde Wilcox is Professor of Government at Georgetown University. He has published a number of books and articles on campaign finance, interest groups, religion and politics, gender politics, public opinion, and science fiction and politics. He is coauthor of The Interest Group Society (2008) and Interest Groups in American Campaigns: The New Face of Electioneering (2005). He has served as an expert witness in federal cases about campaign finance and has lectured about American elections throughout the U.S. and abroad.

    About the Contributors

    Robert G. Boatright is an Associate Professor of Political Science at Clark University. He is the author of Interest Groups and Campaign Finance Reform in the United States and Canada (2011) and Expressive Politics: Issues Strategies of Congressional Challengers (2004), and the editor of Campaign Finance: The Problems and Consequences of Reform (2011). He has written several articles and book chapters on campaign finance, congressional elections, and interest groups. He is currently completing a book on congressional primary challenges.

    Peter L. Francia is an Associate Professor of Political Science at East Carolina University. He has authored numerous publications on U.S. elections, campaign finance, and the political and electoral activities of labor unions and business groups, including the book, The Future of Organized Labor in American Politics (2006). Most recently, Francia served as an associate editor on the reference volume, Guide to Interest Groups and Lobbying in the United States (2011).

    Michael Franz is an Associate Professor of Government and Legal Studies at Bowdoin College. His research interests include campaign finance and political advertising. He is the author or coauthor of four books, including Choices and Changes: Interest Groups in the Electoral Process (2008) and The Persuasive Power of Campaign Advertising (2011). He is currently the codirector of the Wesleyan Media Project, which tracks and codes political ads on television.

    Jake Haselswerdt is a PhD candidate in the Political Science Department at George Washington University. He is currently working on a dissertation on the political causes and consequences of tax breaks. His research interests include Congress, public policy, and American political economy. He has presented his work at the annual meetings of the American Political Science Association, the Midwest Political Science Association, and the Social Science History Association.

    David Karpf is an Assistant Professor of Media and Public Affairs at George Washington University. He previously served as a postdoctoral research associate at the Taubman Center for Public Policy at Brown University. His research, which has appeared in the Journal of Information Technology and Politics focuses on the Internet's effects on political competition and political organizations, how changes to the media and technological environment affect the political economy of interest group mobilization, and how these changes give rise to new types of political institutions and processes.

    Jonathan Mummolo is a doctoral student in Georgetown University's Department of Government. He has written on various facets of the Tea Party, including the movement's impact on elections and policy. His research interests include social movements, race and ethnicity, intergroup relations and elections. Prior to beginning graduate study, Mummolo worked as a newspaper reporter, and has written for The Washington Post, Newsweek and Newsday.

    John J. Pitney Jr. is the Roy P. Crocker Professor of American Politics at Claremont McKenna College in Claremont, California. A former American Political Science Association congressional fellow, he has written extensively on congressional politics, presidential campaigns, interest groups, political parties, and public policy. He is author of The Art of Political Warfare (2001) and coauthor of American Government and Politics: Deliberation, Democracy, and Citizenship (2010) as well as Epic Journey: the 2008 Elections and American Politics (2011). His current research interests include the 2012 election and the politics of autism.

    Suzanne M. Robbins is an Assistant Professor of Government at George Mason University. Her research investigates how institutional rules structure the behavior of political organizations throughout the political process. In addition, she studies the role of information, the creation of campaign finance networks, and the structure of group networks. Of particular interest are how context and information effect behavior and political and policy outcomes. Her research has appeared in Policy Studies Journal and Political Research Quarterly as well as chapters in edited volumes.

    Ronald G. Shaiko is a Senior Fellow and the Associate Director for Curricular and Research Programs at The Nelson A. Rockefeller Center for Public Policy and the Social Sciences at Dartmouth College. He served as the Fulbright Distinguished Chair in American Politics at the University of Warsaw in 2000–2001. From 1990 to 2000, he taught at American University, where he founded and served as the academic director of the Lobbying Institute. He served as an APSA congressional fellow in 1993–94 and as a democracy fellow at USAID in 1998–99. He has authored and edited three books, published more than thirty journal articles and chapters, and more than a dozen U.S. government reports.


    Money, information, nationally recognizable leaders, dues paying members or followers, economic clout, and the capacity to mobilize supporters or help shape the public agenda are among the major resources interest groups marshal to influence public policy. A group's goals and the specific mix of assets it possesses go a long way toward explaining the strategies and tactics it uses. These factors also help explain the balance of power among groups associated with different sides of policy issues. The political, legal, and technological environments in which groups operate also structure interest group strategies, tactics, and political clout. These have been subject to substantial change in recent years, creating new opportunities and challenges for interest groups seeking to influence the policy making process. How various groups have responded to these changes is the major focus of this book.

    The rights of citizens to organize and petition government are enshrined in the First Amendment to the Constitution. Groups of farmers, workers, bankers, religious activists, environmentalists and others long have used their money, personal energy, and political connections to influence national government. The executive branch and the courts have been the targets of some interest group efforts, but most lobbying is directed toward Congress.

    Interest groups also have used elections to influence federal policymaking. Many have capitalized on the fact that politicians are highly attuned to things that are relevant to their tenure in office by making campaign contributions, expenditures, and endorsements, and by recruiting volunteers. Because the Constitution does not explicitly mention the rights of interest groups to participate in elections, groups have had to operate under changing regulations, particularly in the area of campaign finance.

    In the 1970s and 1980s, for example, most interest groups first made decisions about whether they would be involved in elections, and then they decided what form their participation would take and the level of resources they would commit to it. Many groups formed political action committees (PACs) to raise money from individuals that they could contribute directly to candidates or spend independently (without a candidate's knowledge or consent) to influence electoral outcomes. Others communicated endorsements directly to group members. And still others sent volunteers into the field to help candidates and parties.

    In the 1994 elections, conservative interest groups helped Republicans gain fifty-four seats in the U.S. House of Representatives and eight Senate seats to end a generation of Democratic control of Congress. That election did more than bring a new partisan regime to Congress; it also fundamentally altered the relationship between interest groups and lawmakers. GOP leaders sought to deny access to labor unions and other groups that had supported Democratic candidates, and worked closely with conservative groups to enact legislation inspired by the party's Contract with America. More fundamentally, the House Republican leadership hatched a plan—dubbed the K Street Project—to build a network between corporations, trade associations, and lawmakers. The leaders encouraged interest groups to hire former GOP lawmakers and staff as lobbyists, who could then work closely with Congress.

    For the next five election cycles, labor unions, environmental groups, and other liberal organizations sought to develop new strategies and to increase their efforts to help the Democrats regain control of Congress, including working throughout the election cycle to increase the number of competitive seats. In 2006 their efforts bore fruit and in 2008 Democrats expanded their majority in Congress and won control of the White House.

    The heightened competition for control of Congress and the White House combined with the polarization of the parties to raise the stakes for groups affected by the federal government. This new reality led many groups to increase their electoral involvement, in part, by searching for new methods of participation and challenging campaign finance laws. Recent Supreme Court decisions, most notably Citizens United v. Federal Election Commission, freed many interest groups from the legal constraints that had previously limited their revenue sources and political activities. These rulings have enabled groups to raise unlimited funds from the general treasuries of corporations, trade associations, labor unions, and other groups and to spend these funds to explicitly attack federal candidates. The rise of social media provided groups (and candidates and political parties) with new means for electioneering. We selected Interest Groups Unleashed as the title for this book to highlight the fact that so many aspects of the strategic environment that served to regulate group activity in the past have been weakened recently or eliminated altogether.

    As a result of this confluence of forces, interest groups no longer channel their electoral activity solely through PACs. Some groups use at least one other type of organizational entity, such as a 527 committee, a super PAC, or one or more 501(c) organizations. Moreover, some interests have organized into entities that are not groups in the traditional sense. That is, they are neither a set of professionals and volunteers who work together in an office, nor are they a cadre of leaders that farms out its fundraising and advertising efforts to direct mail and communications experts. Rather, they consist of a website that enables individuals to make campaign contributions, disseminate political information, or organize events without consulting a hierarchy of organizational leaders.

    The groups that participate in contemporary federal elections are more diverse, and they can choose to raise their funds from a wider array of sources and participate in a broader range of activities than in the past. The complexity of the entities groups can currently use for electoral action, and the limited reporting requirements associated with some of these entities, has made group activity in federal elections less transparent. But all groups are not created equal; nor do all groups, regardless of resources, choose to participate in the same way. Indeed, as the chapters in this volume demonstrate, the emergence of new opportunities for fundraising, spending, and organizing have had a significant effect on how many interest groups participate in federal elections and little effect on others.

    It is not too much of a stretch to say that no recent Supreme Court decision has become so widely covered in the media as Citizens United v. FEC—perhaps with the obvious exception Bush v. Gore. Indeed, a Lexis-Nexus search for the case name in U.S. newspapers and the wire services for a two-year period from January 2010 to December 2011 results in nearly 1,700 hits. “Since the Supreme Court's Citizens United decision” or “most notably in Citizens United,” and variants thereof, have become virtual catchphrases in American campaign journalism. Such phrases also appear frequently in the pages that follow. For that reason, we have provided two somewhat extended excerpts of the Court's majority opinion, written by Justice Anthony Kennedy, and the dissenting opinion, written by Justice John Paul Stevens, for students and instructors who might want to place the chapters that follow in their legal context. The full opinions (along with two other separate opinions) are, of course, readily available online. But they are both lengthy and densely packed with internal legal citations. So much so, that they are difficult to read. Our edited versions retain the essential structures of the two opinions but without some unnecessary legal analysis and the disruptive citations. We hope readers will find them useful.

    This project could not have come to fruition without the participation of numerous individuals. First, and foremost, we owe a debt of gratitude to our chapter authors. They were good natured about our badgering them to uncover what, if any, innovations the groups they were researching employed in the 2010 election, responsive to our suggestions for revision, and never complained about what they probably perceived to be a never-ending stream of reminders about deadlines. We wish to thank the interest group leaders who consented to be interviewed, provide documents, and participate in other ways in the project. Acknowledgments also are due to the Federal Election Commission and Center for Responsive Politics, which for many years have provided scholars, journalists, and others interested in money and politics with information about the financing of federal election campaigns. Many thanks to Charisse Kiino at Sage/CQ Press for supporting the project from start to finish, to Brittany Bauhaus who ably managed the book through the production process, and to Gretchen Treadwell for her helpful copyediting. Finally, we wish to thank Mike Charlebois of the Center for American Politics and Citizenship at the University of Maryland for helping to manage the project.

    Paul S.Herrnson
    Christopher J.Deering
  • Appendix: Citizens United v. Federal Election Commission (2010)

    Opinion For the Court, Justice Anthony M.Kennedy
    Dissenting Opinion, Justice John PaulStevens

    On January 21, 2010, the Supreme Court handed down its much anticipated decision in Citizens United v. Federal Election Commission. In this case the court faced the issue of whether a partisan documentary (“Hillary the Movie”) financed by corporate money was protected “political speech” or whether it could be regulated as “campaign speech” (via the Bipartisan Campaign Reform Act of 2002). In this sweeping and highly controversial decision, the court struck down the provisions of the law prohibiting corporations, unions, and other groups from spending general treasury funds to advocate expressly the election or defeat of a federal candidate. Corporations and trade unions would still be prohibited from directly contributing to federal candidates but they would be free to spend as much as they wished as independent participants in the electoral process. And in 2010 many did just that.

    As with many consequential Court decisions of recent years, this one was split 5–4. Justice Anthony Kennedy's opinion for the Court (ie, the majority) was supported by the conservative members of the court—Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Kennedy argues, in effect, that a previous decision by the Court in Austin v. Michigan Chamber of Commerce (1990) should be overruled and that corporations’ freedom of speech, even in elections, cannot be limited. Justice Stevens's dissenting opinion represented the liberal wing of the Court—as he was joined by Justices Ginsberg, Breyer, and Sotomayor. Justice Stevens argues, in effect, that overruling Austin is an unwarranted and hasty violation of the principal of stare decisis and that regulation of corporate (or union) speech is a reasonable government protection against the potential for corruption and imbalance that it poses to the electoral process.

    Extended excerpts of these two main opinions are presented below. Both opinions are quite long in the original. To make them more readable the “syllabus,” the internal legal citations in both opinions, the footnotes to Justice Stevens's opinion, and a couple of narrow additional dissents have been removed. In addition, certain sections of each decision [indicated by notes within brackets] and other less essential portions have been edited out of the text (and indicated by ellipses). The two opinions follow.

    No. 08–205 __ (2010)



    [January 21, 2010]

    JUSTICE KENNEDY delivered the opinion of the Court.

    Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm'n (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce (1990). Austin had held that political speech may be banned based on the speaker's corporate identity.

    In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles.” We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us.


    Citizens United is a nonprofit corporation. It brought this action in the United States District Court for the District of Columbia. A three-judge court later convened to hear the cause. The resulting judgment gives rise to this appeal.

    Citizens United has an annual budget of about $12 million. Most of its funds are from donations by individuals; but, in addition, it accepts a small portion of its funds from for-profit corporations.

    In January 2008, Citizens United released a film entitled Hillary: The Movie. We refer to the film as Hillary. It is a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party's 2008 Presidential primary elections. Hillary mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video on-demand.

    Video-on-demand allows digital cable subscribers to select programming from various menus, including movies, television shows, sports, news, and music. The viewer can watch the program at any time and can elect to rewind or pause the program. In December 2007, a cable company offered, for a payment of $1.2 million, to make Hillary available on a video-on-demand channel called “Elections ’08.” Some video-on-demand services require viewers to pay a small fee to view a selected program, but here the proposal was to make Hillary available to viewers free of charge.

    To implement the proposal, Citizens United was prepared to pay for the video-on-demand; and to promote the film, it produced two 10-second ads and one 30-second ad for Hillary. Each ad includes a short (and, in our view, pejorative) statement about Senator Clinton, followed by the name of the movie and the movie's Website address. Citizens United desired to promote the video-on-demand offering by running advertisements on broadcast and cable television.


    Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited—and still does prohibit — corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. BCRA §203 amended §441b to prohibit any “electioneering communication” as well. An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. The Federal Election Commission's (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” “In the case of a candidate for nomination for President … publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election … is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes. The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union.


    Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections. It feared, however, that both the film and the ads would be covered by §441b's ban on corporate funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g. In December 2007, Citizens United sought declaratory and injunctive relief against the FEC. It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie.

    The District Court denied Citizens United's motion for a preliminary injunction and then granted the FEC's motion for summary judgment. The court held that §441b was facially constitutional under McConnell, and that §441b was constitutional as applied to Hillary because it was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” The court also rejected Citizens United's challenge to BCRA's disclaimer and disclosure requirements. It noted that “the Supreme Court has written approvingly of disclosure provisions triggered by political speech even though the speech itself was constitutionally protected under the First Amendment.”

    We noted probable jurisdiction. The case was reargued in this Court after the Court asked the parties to file supplemental briefs addressing whether we should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U. S. C. §441b.


    Before considering whether Austin should be overruled, we first address whether Citizens United's claim that §441b cannot be applied to Hillary may be resolved on other, narrower grounds….

    [A detailed rebuttal of these narrower grounds follows.]

    …. As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin.


    The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process—all laws found to be invalid: restrictions requiring a permit at the outset, imposing a burden by impounding proceeds on receipts or royalties, seeking to exact a cost after the speech occurs, and subjecting the speaker to criminal penalties.

    The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.

    Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. A PAC is a separate association from the corporation. So the PAC exemption from §441b's expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days.

    And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur…. PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.

    Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

    Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”

    For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language from [Wisconsin Right to Life] provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.

    Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.

    Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

    The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions.

    The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue.

    We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.


    The Court has recognized that First Amendment protection extends to corporations….

    …. This protection has been extended by explicit holdings to the context of political speech. Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”

    At least since the latter part of the 19th century, the laws of some States and of the United States imposed a ban on corporate direct contributions to candidates. Yet not until 1947 did Congress first prohibit independent expenditures by corporations and labor unions in §304 of the Labor Management Relations Act 1947. In passing this Act Congress overrode the veto of President Truman, who warned that the expenditure ban was a “dangerous intrusion on free speech.”

    For almost three decades thereafter, the Court did not reach the question whether restrictions on corporate and union expenditures are constitutional. The question was in the background of United States v. CIO (1948). There, a labor union endorsed a congressional candidate in its weekly periodical. The Court stated that “the gravest doubt would arise in our minds as to [the federal expenditure prohibition's] constitutionality” if it were construed to suppress that writing.”…

    In United States v. Automobile Workers (1957) the Court again encountered the independent expenditure ban, which had been recodified at 18 U. S. C. §610 (1952 ed.). After holding only that a union television broadcast that endorsed candidates was covered by the statute, the Court “[r]efus[ed] to anticipate constitutional questions” and remanded for the trial to proceed….

    Later, in Pipefitters v. United States (1972), the Court reversed a conviction for expenditure of union funds for political speech—again without reaching the constitutional question. The Court would not resolve that question for another four years.


    In Buckley the Court addressed various challenges to the Federal Election Campaign Act of 1971 (FECA) as amended in 1974. These amendments created 18 U. S. C. §608(e), an independent expenditure ban separate from §610 that applied to individuals as well as corporations and labor unions.

    Before addressing the constitutionality of §608(e)'s independent expenditure ban, Buckley first upheld §608(b), FECA's limits on direct contributions to candidates. The Buckley Court recognized a “sufficiently important” governmental interest in “the prevention of corruption and the appearance of corruption.” This followed from the Court's concern that large contributions could be given “to secure a political quid pro quo.” Ibid.

    The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that “the independent expenditure ceiling … fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” because “[t]he absence of prearrangement and coordination … alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate”. Buckley invalidated §608(e)'s restrictions on independent expenditures, with only one Justice dissenting.

    Buckley did not consider §610's separate ban on corporate and union independent expenditures, the prohibition that had also been in the background in CIO, Automobile Workers, and Pipefitters. Had §610 been challenged in the wake of Buckley, however, it could not have been squared with the reasoning and analysis of that precedent. The expenditure ban invalidated in Buckley, §608(e), applied to corporations and unions; and some of the prevailing plaintiffs in Buckley were corporations. The Buckley Court did not invoke the First Amendment's overbreadth doctrine to suggest that §608(e)'s expenditure ban would have been constitutional if it had applied only to corporations and not to individuals. Buckley cited with approval the Automobile Workers dissent, which argued that §610 was unconstitutional.

    Notwithstanding this precedent, Congress recodified §610's corporate and union expenditure ban at 2 U. S. C. §441b four months after Buckley was decided. Section 441b is the independent expenditure restriction challenged here.

    Less than two years after Buckley, [First National Bank of Boston v.] Bellotti (1978) reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker's corporate identity. Bellotti could not have been clearer when it struck down a state-law prohibition on corporate independent expenditures related to referenda issues….

    It is important to note that the reasoning and holding of Bellotti did not rest on the existence of a viewpoint-discriminatory statute. It rested on the principle that the Government lacks the power to ban corporations from speaking.

    Bellotti did not address the constitutionality of the State's ban on corporate independent expenditures to support candidates. In our view, however, that restriction would have been unconstitutional under Bellotti's central principle: that the First Amendment does not allow political speech restrictions based on a speaker's corporate identity.


    Thus the law stood until Austin. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court's] history.” There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition.

    To bypass Buckley and Bellotti, the Austin Court identified a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compelling governmental interest in preventing “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.”


    The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker's corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker's corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged the same proposition before this Court. In neither of these cases did the Court adopt the proposition.

    In its defense of the corporate-speech restrictions in §441b, the Government notes the antidistortion rationale on which Austin and its progeny rest in part, yet it all but abandons reliance upon it. It argues instead that two other compelling interests support Austin's holding that corporate expenditure restrictions are constitutional: an anticorruption interest and a shareholder-protection interest. We consider the three points in turn.


    As for Austin's antidistortion rationale, the Government does little to defend it. And with good reason, for the rationale cannot support §441b.

    If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books.

    Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” This protection for speech is inconsistent with Austin's antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corporations from obtaining “‘an unfair advantage in the political marketplace’” by using “‘resources amassed in the economic marketplace.’” But Buckley rejected the premise that the Government has an interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections.” Buckley was specific in stating that “the skyrocketing cost of political campaigns” could not sustain the governmental prohibition. The First Amendment's protections do not depend on the speaker's “financial ability to engage in public discussion.”

    The Court reaffirmed these conclusions when it invalidated the BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. The rule that political speech cannot be limited based on a speaker's wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker's identity.

    Either as support for its antidistortion rationale or as a further argument, the Austin majority undertook to distinguish wealthy individuals from corporations on the ground that “[s]tate law grants corporations special advantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” This does not suffice, however, to allow laws prohibiting speech. “It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.”

    It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public's support for the corporation's political ideas.” All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas.

    Austin's antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. Media corporations are now exempt from §441b's ban on corporate expenditures. Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporations often “have little or no correlation to the public's support” for those views. Thus, under the Government's reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment.

    The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

    The law's exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.

    There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era — newspapers owned by individuals. At the founding, speech was open, comprehensive, and vital to society's definition of itself; there were no limits on the sources of speech and knowledge. The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.

    Austin interferes with the “open marketplace” of ideas protected by the First Amendment. It permits the Government to ban the political speech of millions of associations of citizens. Most of these are small corporations without large amounts of wealth. See Supp. This fact belies the Government's argument that the statute is justified on the ground that it prevents the “distorting effects of immense aggregations of wealth.” It is not even aimed at amassed wealth.

    The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” Factions should be checked by permitting them all to speak and by entrusting the people to judge what is true and what is false.

    The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin's antidistortion rationale all the more an aberration. Corporate executives and employees counsel Members of Congress and Presidential administrations on many issues, as a matter of routine and often in private. An amici brief filed on behalf of Montana and 25 other States notes that lobbying and corporate communications with elected officials occur on a regular basis. When that phenomenon is coupled with §441b, the result is that smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government. That cooperation may sometimes be voluntary, or it may be at the demand of a Government official who uses his or her authority, influence, and power to threaten corporations to support the Government's policies. Those kinds of interactions are often unknown and unseen. The speech that §441b forbids, though, is public, and all can judge its content and purpose. References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.

    Even if §441b's expenditure ban were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.

    When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.


    What we have said also shows the invalidity of other arguments made by the Government. For the most part relinquishing the antidistortion rationale, the Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. In Buckley, the Court found this interest “sufficiently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. When Buckley examined an expenditure ban, it found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.”

    With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” and that “the scope of such pernicious practices can never be reliably ascertained.” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement were proved. The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here.

    Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government's interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by forprofit corporations. The Government does not claim that these expenditures have corrupted the political process in those States….

    When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt…. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corporation or any other speaker

    The McConnell record was “over 100,000 pages” long, yet it “does not have any direct examples of votes being exchanged for … expenditures” This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.


    The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. This asserted interest, like Austin's antidistortion rationale, would allow the Government to ban the political speech even of media corporations. Assume, for example, that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. Under the Government's view, that potential disagreement could give the Government the authority to restrict the media corporation's political speech. The First Amendment does not allow that power. There is, furthermore, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.”

    Those reasons are sufficient to reject this shareholder protection interest; and, moreover, the statute is both underinclusive and overinclusive. As to the first, if Congress had been seeking to protect dissenting shareholders, it would not have banned corporate speech in only certain media within 30 or 60 days before an election. A dissenting shareholder's interests would be implicated by speech in any media at any time. As to the second, the statute is overinclusive because it covers all corporations, including nonprofit corporations and for-profit corporations with only single shareholders. As to other corporations, the remedy is not to restrict speech but to consider and explore other regulatory mechanisms. The regulatory mechanism here, based on speech, contravenes the First Amendment.


    We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process. Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.


    Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” We have also examined whether “experience has pointed up the precedent's shortcomings.”

    These considerations counsel in favor of rejecting Austin, which itself contravened this Court's earlier precedents in Buckley and Bellotti….

    For the reasons above, it must be concluded that Austin was not well reasoned. The Government defends Austin, relying almost entirely on “the quid pro quo interest, the corruption interest or the shareholder interest,” and not Austin's expressed antidistortion rationale. When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished. Austin abandoned First Amendment principles, furthermore, by relying on language in some of our precedents that traces back to the Automobile Workers Court's flawed historical account of campaign finance laws.

    Austin is undermined by experience since its announcement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws.

    Our Nation's speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.

    Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.

    No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee (1991), reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions. Here, though, parties have been prevented from acting—corporations have been banned from making independent expenditures. Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty “to say what the law is.”

    Due consideration leads to this conclusion: Austin should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.


    Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section 203, but also 2 U. S. C. 441b's prohibition on the use of corporate treasury funds for express advocacy.” 12. Section 441b's restrictions on corporate independent expenditures are therefore invalid and cannot be applied to Hillary.

    Given our conclusion we are further required to overrule the part of McConnell that upheld BCRA §203's extension of §441b's restrictions on corporate independent expenditures. The McConnell Court relied on the antidistortion interest recognized in Austin to uphold a greater restriction on speech than the restriction upheld in Austin and we have found this interest unconvincing and insufficient. This part of McConnell is now overruled.


    Citizens United next challenges BCRA's disclaimer and disclosure provisions as applied to Hillary and the three advertisements for the movie. Under BCRA §311, televised electioneering communications funded by anyone other than a candidate must include a disclaimer that “‘_______ is responsible for the content of this advertising.’” The required statement must be made in a “clearly spoken manner,” and displayed on the screen in a “clearly readable manner” for at least four seconds. Ibid. It must state that the communication “is not authorized by any candidate or candidate's committee;” it must also display the name and address (or Web site address) of the person or group that funded the advertisement. §441d(a)(3). Under BCRA §201, any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC. That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors.

    Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign related activities,” Buckley, and “do not prevent anyone from speaking.” The Court has subjected these requirements to “exacting scrutiny,” which requires a “substantial relation” between the disclosure requirement and a “sufficiently important” governmental interest.

    In Buckley, the Court explained that disclosure could be justified based on a governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending. The McConnell Court applied this interest in rejecting facial challenges to BCRA §§201 and 311. There was evidence in the record that independent groups were running election-related advertisements “‘while hiding behind dubious and misleading names.’” The Court therefore upheld BCRA §§201 and 311 on the ground that they would help citizens “‘make informed choices in the political marketplace.’”

    Although both provisions were facially upheld, the Court acknowledged that as-applied challenges would be available if a group could show a “‘reasonable probability’” that disclosure of its contributors’ names “‘will subject them to threats, harassment, or reprisals from either Government officials or private parties.’” For the reasons stated below, we find the statute valid as applied to the ads for the movie and to the movie itself.


    Citizens United sought to broadcast one 30-second and two 10-second ads to promote Hillary. Under FEC regulations, a communication that “[p]roposes a commercial transaction” was not subject to 2 U. S. C. §441b's restrictions on corporate or union funding of electioneering communications. The regulations, however, do not exempt those communications from the disclaimer and disclosure requirements in BCRA §§201 and 311.

    Citizens United argues that the disclaimer requirements in §311 are unconstitutional as applied to its ads. It contends that the governmental interest in providing information to the electorate does not justify requiring disclaimers for any commercial advertisements, including the ones at issue here. We disagree. The ads fall within BCRA's definition of an “electioneering communication”: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. The disclaimers required by §311 “provid[e] the electorate with information,” and “insure that the voters are fully informed” about the person or group who is speaking. At the very least, the disclaimers avoid confusion by making clear that the ads are not funded by a candidate or political party.

    Citizens United argues that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising. It asserts that §311 decreases both the quantity and effectiveness of the group's speech by forcing it to devote four seconds of each advertisement to the spoken disclaimer. We rejected these arguments in McConnell, supra, at 230–231. And we now adhere to that decision as it pertains to the disclosure provisions.

    As a final point, Citizens United claims that, in any event, the disclosure requirements in §201 must be confined to speech that is the functional equivalent of express advocacy. The principal opinion in Wisconsin Right to Life limited 2 U. S. C. §441b's restrictions on independent expenditures to express advocacy and its functional equivalent. Citizens United seeks to import a similar distinction into BCRA's disclosure requirements. We reject this contention.

    The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. In McConnell, three Justices who would have found §441b to be unconstitutional nonetheless voted to uphold BCRA's disclosure and disclaimer requirements. And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. For these reasons, we reject Citizens United's contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.

    Citizens United also disputes that an informational interest justifies the application of §201 to its ads, which only attempt to persuade viewers to see the film. Even if it disclosed the funding sources for the ads, Citizens United says, the information would not help viewers make informed choices in the political marketplace. This is similar to the argument rejected above with respect to disclaimers. Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election. Because the informational interest alone is sufficient to justify application of §201 to these ads, it is not necessary to consider the Government's other asserted interests.

    Last, Citizens United argues that disclosure requirements can chill donations to an organization by exposing donors to retaliation. Some amici point to recent events in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation. In McConnell, the Court recognized that §201 would be unconstitutional as applied to an organization if there were a reasonable probability that the group's members would face threats, harassment, or reprisals if their names were disclosed. The examples cited by amici are cause for concern. Citizens United, however, has offered no evidence that its members may face similar threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation.

    Shareholder objections raised through the procedures of corporate democracy can be more effective today because modern technology makes disclosures rapid and informative. A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. It must be noted, furthermore, that many of Congress’ findings in passing BCRA were premised on a system without adequate disclosure. With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are “‘in the pocket’ of so-called moneyed interests.” The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.


    For the same reasons we uphold the application of BCRA §§201 and 311 to the ads, we affirm their application to Hillary. We find no constitutional impediment to the application of BCRA's disclaimer and disclosure requirements to a movie broadcast via video-on-demand. And there has been no showing that, as applied in this case, these requirements would impose a chill on speech or expression.


    When word concerning the plot of the movie Mr. Smith Goes to Washington reached the circles of Government, some officials sought, by persuasion, to discourage its distribution. Under Austin, though, officials could have done more than discourage its distribution—they could have banned the film. After all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.

    Modern day movies, television comedies, or skits on might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute's purpose and design. Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation's course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”

    The judgment of the District Court is reversed with respect to the constitutionality of 2 U. S. C. §441b's restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA's disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion.

    It is so ordered.

    Opinion of Stevens, J.



    [January 21, 2010]

    Justice Stevens, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring in part and dissenting in part.

    The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United's nor any other corporation's speech has been “banned.” All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

    The basic premise underlying the Court's ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court's disposition of this case.

    In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

    The majority's approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm. (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.” The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life (2007), McConnell v. FEC (2003), FEC v. Beaumont (2003), FEC v. Massachusetts Citizens for Life, Inc. (1986), FEC v. National Right to Work Committee (1982), and California Medical Assn. v. FEC (1981).

    In his landmark concurrence in Ashwander v. TVA (1936) Justice Brandeis stressed the importance of adhering to rules the Court has “developed … for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court's analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally. I regret the length of what follows, but the importance and novelty of the Court's opinion require a full response. Although I concur in the Court's decision to sustain BCRA's disclosure provisions and join Part IV of its opinion, I emphatically dissent from its principal holding.


    The Court's ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question….

    [Justice Stevens here reviews why the scope of the case, as-applied challenges, facial challenges and other narrower challenges could and should have been the basis for a decision.]

    This brief tour of alternative grounds on which the case could have been decided is not meant to show that any of these grounds is ideal, though each is perfectly “valid.” It is meant to show that there were principled, narrower paths that a Court that was serious about judicial restraint could have taken. There was also the straightforward path: applying Austin and McConnell, just as the District Court did in holding that the funding of Citizens United's film can be regulated under them. The only thing preventing the majority from affirming the District Court, or adopting a narrower ground that would retain Austin, is its disdain for Austin.


    The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any other. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine. “[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” No such justification exists in this case, and to the contrary there are powerful prudential reasons to keep faith with our precedents.17

    The Court's central argument for why stare decisis ought to be trumped is that it does not like Austin. The opinion “was not well reasoned,” our colleagues assert, and it conflicts with First Amendment principles. This, of course, is the Court's merits argument, the many defects in which we will soon consider. I am perfectly willing to concede that if one of our precedents were dead wrong in its reasoning or irreconcilable with the rest of our doctrine, there would be a compelling basis for revisiting it. But neither is true of Austin, as I explain at length in Parts III and IV, and restating a merits argument with additional vigor does not give it extra weight in the stare decisis calculus….

    In the end, the Court's rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today's ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.” Vasquez v. Hillery (1986).


    The novelty of the Court's procedural dereliction and its approach to stare decisis is matched by the novelty of its ruling on the merits. The ruling rests on several premises. First, the Court claims that Austin and McConnell have “banned” corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speaker's identity as a corporation. Third, it claims that Austin and McConnell were radical outliers in our First Amendment tradition and our campaign finance jurisprudence. Each of these claims is wrong.

    The So-Called “Ban”

    Pervading the Court's analysis is the ominous image of a “categorical ba[n]” on corporate speech. Indeed, the majority invokes the specter of a “ban” on nearly every page of its opinion. Ante, at 1, 4, 7, 10, 11, 12, 13, 16, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 33, 35, 38, 40, 42, 45, 46, 47, 49, 54, 56. This characterization is highly misleading, and needs to be corrected.

    In fact it already has been. Our cases have repeatedly pointed out that, “[c]ontrary to the [majority's] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending.” For starters, both statutes provide exemptions for PACs, separate segregated funds established by a corporation for political purposes. “The ability to form and administer separate segregated funds,” we observed in McConnell, “has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court's unanimous view.”….

    …. At the time Citizens United brought this lawsuit, the only types of speech that could be regulated under §203 were: (1) broadcast, cable, or satellite communications; (2) capable of reaching at least 50,000 persons in the relevant electorate; (3) made within 30 days of a primary or 60 days of a general federal election; (4) by a labor union or a non-MCFL, nonmedia corporation; (5) paid for with general treasury funds; and (6) “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The category of communications meeting all of these criteria is not trivial, but the notion that corporate political speech has been “suppress[ed] … altogether,” that corporations have been “exclu[ded] … from the general public dialogue,” or that a work of fiction such as Mr. Smith Goes to Washington might be covered is nonsense. Even the plaintiffs in McConnell, who had every incentive to depict BCRA as negatively as possible, declined to argue that §203's prohibition on certain uses of general treasury funds amounts to a complete ban.

    In many ways, then, §203 functions as a source restriction or a time, place, and manner restriction. It applies in a viewpoint-neutral fashion to a narrow subset of advocacy messages about clearly identified candidates for federal office, made during discrete time periods through discrete channels. In the case at hand, all Citizens United needed to do to broadcast Hillary right before the primary was to abjure business contributions or use the funds in its PAC, which by its own account is “one of the most active conservative PACs in America.”

    So let us be clear: Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor;” and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue. Laws such as §203 target a class of communications that is especially likely to corrupt the political process, that is at least one degree removed from the views of individual citizens, and that may not even reflect the views of those who pay for it. Such laws burden political speech, and that is always a serious matter, demanding careful scrutiny. But the majority's incessant talk of a “ban” aims at a straw man.

    Identity-Based Distinctions

    The second pillar of the Court's opinion is its assertion that “the Government cannot restrict political speech based on the speaker's … identity.” The case on which it relies for this proposition is First Nat. Bank of Boston v. Bellotti (1978). As I shall explain, the holding in that case was far narrower than the Court implies. Like its paeans to unfettered discourse, the Court's denunciation of identity-based distinctions may have rhetorical appeal but it obscures reality.

    “Our jurisprudence over the past 216 years has rejected an absolutist interpretation” of the First Amendment. The First Amendment provides that “Congress shall make no law… abridging the freedom of speech, or of the press.” Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker's identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems.46 In contrast to the blanket rule that the majority espouses, our cases recognize that the Government's interests may be more or less compelling with respect to different classes of speakers….

    …. If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government's ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.

    In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.

    Our First Amendment Tradition

    A third fulcrum of the Court's opinion is the idea that Austin and McConnell are radical outliers, “aberration[s],” in our First Amendment tradition. The Court has it exactly backwards. It is today's holding that is the radical departure from what had been settled First Amendment law. To see why, it is useful to take a long view….

    [Justice Stevens here presents a lengthy dissertation on original understandings of the First Amendment, legislative and judicial interpretations of the Amendment, and the Court's decisions in Buckley v. Valeo and First National Bank of Boston v. Belotti

    …. In sum, over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to “‘[p]reserv[e] the integrity of the electoral process, preven[t] corruption, … sustai[n] the active, alert responsibility of the individual citizen,’” protect the expressive interests of shareholders, and “‘[p]reserv[e] … the individual citizen's confidence in government.’” These understandings provided the combined impetus behind the Tillman Act in 1907. Continuously for over 100 years, this line of “[c]ampaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries.” Time and again, we have recognized these realities in approving measures that Congress and the States have taken. None of the cases the majority cites is to the contrary. The only thing new about Austin was the dissent, with its stunning failure to appreciate the legitimacy of interests recognized in the name of democratic integrity since the days of the Progressives.


    Having explained why this is not an appropriate case in which to revisit Austin and McConnell and why these decisions sit perfectly well with “First Amendment principles,” I come at last to the interests that are at stake. The majority recognizes that Austin and McConnell may be defended on anticorruption, antidistortion, and shareholder protection rationales. It badly errs both in explaining the nature of these rationales, which overlap and complement each other, and in applying them to the case at hand.

    The Anticorruption Interest

    Undergirding the majority's approach to the merits is the claim that the only “sufficiently important governmental interest in preventing corruption or the appearance of corruption” is one that is “limited to quid pro quo corruption.” This is the same “crabbed view of corruption” that was espoused by Justice Kennedy in McConnell and squarely rejected by the Court in that case. While it is true that we have not always spoken about corruption in a clear or consistent voice, the approach taken by the majority cannot be right, in my judgment. It disregards our constitutional history and the fundamental demands of a democratic society.

    On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an “‘undue influence on an officeholder's judgment’” and from creating “‘the appearance of such influence,’” beyond the sphere of quid pro quo relationships. Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one's behalf. Corruption operates along a spectrum, and the majority's apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other's backs—and which amply supported Congress’ determination to target a limited set of especially destructive practices….

    …. Our “undue influence” cases have allowed the American people to cast a wider net through legislative experiments designed to ensure, to some minimal extent, “that officeholders will decide issues … on the merits or the desires of their constituencies,” and not “according to the wishes of those who have made large financial contributions”—or expenditures—“valued by the officeholder.” When private interests are seen to exert outsized control over officeholders solely on account of the money spent on (or withheld from) their campaigns, the result can depart so thoroughly “from what is pure or correct,” that it amounts to a “subversion … of the electoral process>’ At stake in the legislative efforts to address this threat is therefore not only the legitimacy and quality of Government but also the public's faith therein, not only “the capacity of this democracy to represent its constituents [but also] the confidence of its citizens in their capacity to govern themselves.”

    The cluster of interrelated interests threatened by such undue influence and its appearance has been well captured under the rubric of “democratic integrity.” This value has underlined a century of state and federal efforts to regulate the role of corporations in the electoral process.

    Unlike the majority's myopic focus on quid pro quo scenarios and the free-floating “First Amendment principles” on which it rests so much weight, this broader understanding of corruption has deep roots in the Nation's history. “During debates on the earliest [campaign finance] reform acts, the terms ‘corruption’ and ‘undue influence’ were used nearly interchangeably. Long before Buckley, we appreciated 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.” And whereas we have no evidence to support the notion that the Framers would have wanted corporations to have the same rights as natural persons in the electoral context, we have ample evidence to suggest that they would have been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that the Court today discounts to irrelevance. It is fair to say that “[t]he Framers were obsessed with corruption,” which they understood to encompass the dependency of public officeholders on private interests. They discussed corruption “more often in the Constitutional Convention than factions, violence, or instability.” When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of.

    Quid Pro Quo Corruption

    There is no need to take my side in the debate over the scope of the anticorruption interest to see that the Court's merits holding is wrong. Even under the majority's “crabbed view of corruption,” the Government should not lose this case.

    “The importance of the governmental interest in preventing [corruption through the creation of political debts] has never been doubted.” Even in the cases that have construed the anticorruption interest most narrowly, we have never suggested that such quid pro quo debts must take the form of outright vote buying or bribes, which have long been distinct crimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder.…It has likewise never been doubted that “[o]f almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption.” Congress may “legitimately conclude that the avoidance of the appearance of improper influence is also critical … if confidence in the system of representative Government is not to be eroded to a disastrous extent.” A democracy cannot function effectively when its constituent members believe laws are being bought and sold.

    In theory, our colleagues accept this much. As applied to BCRA §203, however, they conclude “[t]he anticorruption interest is not sufficient to displace the speech here in question.”

    Although the Court suggests that Buckley compels its conclusion, Buckley cannot sustain this reading. It is true that, in evaluating FECA's ceiling on independent expenditures by all persons, the Buckley Court found the governmental interest in preventing corruption “inadequate.” But Buckley did not evaluate corporate expenditures specifically, nor did it rule out the possibility that a future Court might find otherwise. The opinion reasoned that an expenditure limitation covering only express advocacy (i.e., magic words) would likely be ineffectual, a problem that Congress tackled in BCRA, and it concluded that “the independent advocacy restricted by [FECA §608(e)(1)] does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.” Buckley expressly contemplated that an anticorruption rationale might justify restrictions on independent expenditures at a later date, “because it may be that, in some circumstances, ‘large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions.’” Certainly Buckley did not foreclose this possibility with respect to electioneering communications made with corporate general treasury funds, an issue the Court had no occasion to consider.

    The Austin Court did not rest its holding on quid pro quo corruption, as it found the broader corruption implicated by the antidistortion and shareholder protection rationales a sufficient basis for Michigan's restriction on corporate electioneering. Concurring in that opinion, I took the position that “the danger of either the fact, or the appearance, of quid pro quo relationships [also] provides an adequate justification for state regulation” of these independent expenditures. I did not see this position as inconsistent with Buckley's analysis of individual expenditures. Corporations, as a class, tend to be more attuned to the complexities of the legislative process and more directly affected by tax and appropriations measures that receive little public scrutiny; they also have vastly more money with which to try to buy access and votes. Business corporations must engage the political process in instrumental terms if they are to maximize shareholder value. The unparalleled resources, professional lobbyists, and single-minded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.

    It is with regret rather than satisfaction that I can now say that time has borne out my concerns. The legislative and judicial proceedings relating to BCRA generated a substantial body of evidence suggesting that, as corporations grew more and more adept at crafting “issue ads” to help or harm a particular candidate, these nominally independent expenditures began to corrupt the political process in a very direct sense. The sponsors of these ads were routinely granted special access after the campaign was over; “candidates and officials knew who their friends were”. Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements. In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.

    The majority appears to think it decisive that the BCRA record does not contain “direct examples of votes being exchanged for … expenditures.” It would have been quite remarkable if Congress had created a record detailing such behavior by its own Members. Proving that a specific vote was exchanged for a specific expenditure has always been next to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. Yet, even if “[i]ngratiation and access … are not corruption” themselves, they are necessary prerequisites to it; they can create both the opportunity for, and the appearance of, quid pro quo arrangements. The influx of unlimited corporate money into the electoral realm also creates new opportunities for the mirror image of quid pro quo deals: threats, both explicit and implicit. Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests. The majority both misreads the facts and draws the wrong conclusions when it suggests that the BCRA record provides “only scant evidence that independent expenditures … ingratiate,” and that, “in any event,” none of it matters….

    …. The majority's rejection of the Buckley anticorruption rationale on the ground that independent corporate expenditures “do not give rise to [quid pro quo] corruption or the appearance of corruption,” is thus unfair as well as unreasonable. Congress and outside experts have generated significant evidence corroborating this rationale, and the only reason we do not have any of the relevant materials before us is that the Government had no reason to develop a record at trial for a facial challenge the plaintiff had abandoned. The Court cannot both sua sponte choose to relitigate McConnell on appeal and then complain that the Government has failed to substantiate its case. If our colleagues were really serious about the interest in preventing quid pro quo corruption, they would remand to the District Court with instructions to commence evidentiary proceedings.

    The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co. (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Virginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin's campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran ads targeting Benjamin's opponent. “This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures … ‘“to support … Brent Benjamin.”’” Applying its common sense, this Court accepted petitioners’ argument that Blankenship's “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse himself from the appeal by Blankenship's corporation. “Though n[o] … bribe or criminal influence” was involved, we recognized that “Justice Benjamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules”—rules which will perforce turn on the appearance of bias rather than its actual existence.

    In Caperton, then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship's spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.”.…The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.

    Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the extreme difficulty of proving corruption, “prophylactic measures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption.” It underscores that “certain restrictions on corporate electoral involvement” may likewise be needed to “hedge against circumvention of valid contribution limits.” It underscores that for-profit corporations associated with electioneering communications will often prefer to use nonprofit conduits with “misleading names,” such as And For The Sake Of The Kids, “to conceal their identity” as the sponsor of those communications, thereby frustrating the utility of disclosure laws.

    And it underscores that the consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

    Deference and Incumbent Self-Protection

    Rather than show any deference to a coordinate branch of Government, the majority thus rejects the anticorruption rationale without serious analysis. 67 Today's opinion provides no clear rationale for being so dismissive of Congress, but the prior individual opinions on which it relies have offered one: the incentives of the legislators who passed BCRA. Section 203, our colleagues have suggested, may be little more than “an incumbency protection plan,” a disreputable attempt at legislative self-dealing rather than an earnest effort to facilitate First Amendment values and safeguard the legitimacy of our political system. This possibility, the Court apparently believes, licenses it to run roughshod over Congress’ handiwork.

    In my view, we should instead start by acknowledging that “Congress surely has both wisdom and experience in these matters that is far superior to ours.” Many of our campaign finance precedents explicitly and forcefully affirm the propriety of such presumptive deference. Moreover, “[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of careful legislative adjustment.” In America, incumbent legislators pass the laws that govern campaign finance, just like all other laws. To apply a level of scrutiny that effectively bars them from regulating electioneering whenever there is the faintest whiff of self-interest, is to deprive them of the ability to regulate electioneering.

    This is not to say that deference would be appropriate if there were a solid basis for believing that a legislative action was motivated by the desire to protect incumbents or that it will degrade the competitiveness of the electoral process. Along with our duty to balance competing constitutional concerns, we have a vital role to play in ensuring that elections remain at least minimally open, fair, and competitive. But it is the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment on this basis, without first confirming that the statute in question was intended to be, or will function as, a restraint on electoral competition. “Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions.”

    We have no record evidence from which to conclude that BCRA §203, or any of the dozens of state laws that the Court today calls into question, reflects or fosters such invidious discrimination. Our colleagues have opined that “‘any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.’” This kind of airy speculation could easily be turned on its head. The electioneering prohibited by §203 might well tend to favor incumbents, because incumbents have pre-existing relationships with corporations and unions, and groups that wish to procure legislative benefits may tend to support the candidate who, as a sitting officeholder, is already in a position to dispense benefits and is statistically likely to retain office. If a corporation's goal is to induce officeholders to do its bidding, the corporation would do well to cultivate stable, long-term relationships of dependency.

    So we do not have a solid theoretical basis for condemning §203 as a front for incumbent self-protection, and it seems equally if not more plausible that restrictions on corporate electioneering will be self-denying. Nor do we have a good empirical case for skepticism, as the Court's failure to cite any empirical research attests. Nor does the legislative history give reason for concern. Congress devoted years of careful study to the issues underlying BCRA; “[f]ew legislative proposals in recent years have received as much sustained public commentary or news coverage;” “[p]olitical scientists and academic experts … with no self-interest in incumbent protectio[n] were central figures in pressing the case for BCRA;” and the legislation commanded bipartisan support from the outset. Finally, it is important to remember just how incumbent-friendly congressional races were prior to BCRA's passage. As the Solicitor General aptly remarked at the time, “the evidence supports overwhelmingly that incumbents were able to get re-elected under the old system just fine.” “It would be hard to develop a scheme that could be better for incumbents.”

    In this case, then, “there is no convincing evidence that th[e] important interests favoring expenditure limits are fronts for incumbency protection.” “In the meantime, a legislative judgment that ‘enough is enough’ should command the greatest possible deference from judges interpreting a constitutional provision that, at best, has an indirect relationship to activity that affects the quantity … of repetitive speech in the marketplace of ideas.” The majority cavalierly ignores Congress’ factual findings and its constitutional judgment: It acknowledges the validity of the interest in preventing corruption, but it effectively discounts the value of that interest to zero. This is quite different from conscientious policing for impermissibly anticompetitive motive or effect in a sensitive First Amendment context. It is the denial of Congress’ authority to regulate corporate spending on elections.

    Austin and Corporate Expenditures

    Just as the majority gives short shrift to the general societal interests at stake in campaign finance regulation, it also overlooks the distinctive considerations raised by the regulation of corporate expenditures. The majority fails to appreciate that Austin's antidistortion rationale is itself an anticorruption rationale tied to the special concerns raised by corporations. Understood properly, “antidistortion” is simply a variant on the classic governmental interest in protecting against improper influences on officeholders that debilitate the democratic process. It is manifestly not just an “‘equalizing’” ideal in disguise.

    1. Antidistortion

    The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets … that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.” Unlike voters in U. S. elections, corporations may be foreign controlled.70 Unlike other interest groups, business corporations have been “effectively delegated responsibility for ensuring society's economic welfare;” they inescapably structure the life of every citizen. “‘[T]he resources in the treasury of a business corporation,’” furthermore, “‘are not an indication of popular support for the corporation's political ideas.’” “‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’”

    It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

    These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on that electioneering are less likely to encroach upon First Amendment freedoms. One fundamental concern of the First Amendment is to “protec[t] the individual's interest in self-expression.” Freedom of speech helps “make men free to develop their faculties,” it respects their “dignity and choice,” and it facilitates the value of “individual self-realization.” Corporate speech, however, is derivative speech, speech by proxy. A regulation such as BCRA §203 may affect the way in which individuals disseminate certain messages through the corporate form, but it does not prevent anyone from speaking in his or her own voice. “Within the realm of [campaign spending] generally,” corporate spending is “furthest from the core of political expression.” ….

    ….. Recognizing the weakness of a speaker-based critique of Austin, the Court places primary emphasis not on the corporation's right to electioneer, but rather on the listener's interest in hearing what every possible speaker may have to say. The Court's central argument is that laws such as §203 have “‘deprived [the electorate] of information, knowledge and opinion vital to its function,’” and this, in turn, “interferes with the ‘open marketplace’ of ideas protected by the First Amendment.”

    There are many flaws in this argument. If the overriding concern depends on the interests of the audience, surely the public's perception of the value of corporate speech should be given important weight. That perception today is the same as it was a century ago when Theodore Roosevelt delivered the speeches to Congress that, in time, led to the limited prohibition on corporate campaign expenditures that is overruled today. The distinctive threat to democratic integrity posed by corporate domination of politics was recognized at “the inception of the republic” and “has been a persistent theme in American political life” ever since. It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.

    Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfai[r] influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation's economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.” In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or no correlation” to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized. “The expenditure restrictions of [2 U. S. C.] §441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.”

    In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate “domination” of electioneering, can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders “‘call the tune’” and a reduced “‘willingness of voters to take part in democratic governance.’” To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to “hold officials accountable to the people,” and disserve the goal of a public debate that is “uninhibited, robust, and wide-open.” At the least, I stress again, a legislature is entitled to credit these concerns and to take tailored measures in response.

    The majority's unwillingness to distinguish between corporations and humans similarly blinds it to the possibility that corporations’ “war chests” and their special “advantages” in the legal realm, may translate into special advantages in the market for legislation. When large numbers of citizens have a common stake in a measure that is under consideration, it may be very difficult for them to coordinate resources on behalf of their position. The corporate form, by contrast, “provides a simple way to channel rents to only those who have paid their dues, as it were. If you do not own stock, you do not benefit from the larger dividends or appreciation in the stock price caused by the passage of private interest legislation.” Corporations, that is, are uniquely equipped to seek laws that favor their owners, not simply because they have a lot of money but because of their legal and organizational structure. Remove all restrictions on their electioneering, and the door may be opened to a type of rent seeking that is “far more destructive” than what noncorporations are capable of. It is for reasons such as these that our campaign finance jurisprudence has long appreciated 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.’”

    The Court's facile depiction of corporate electioneering assumes away all of these complexities. Our colleagues ridicule the idea of regulating expenditures based on “nothing more” than a fear that corporations have a special “ability to persuade,” as if corporations were our society's ablest debaters and viewpoint-neutral laws such as §203 were created to suppress their best arguments. In their haste to knock down yet another straw man, our colleagues simply ignore the fundamental concerns of the Austin Court and the legislatures that have passed laws like §203: to safeguard the integrity, competitiveness, and democratic responsiveness of the electoral process. All of the majority's theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, “that there is no such thing as too much speech.” If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority's premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener's exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.

    None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns or in any other public forum (much less that a work of art such as Mr. Smith Goes to Washington may be banned), or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin's “concern about corporate domination of the political process,” reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral “marketplace” of ideas, the marketplace in which the actual people of this Nation determine how they will govern themselves. The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to “First Amendment principles” depends almost entirely on the listeners’ perspective, it becomes necessary to consider how listeners will actually be affected.

    In critiquing Austin's antidistortion rationale and campaign finance regulation more generally, our colleagues place tremendous weight on the example of media corporations. Yet it is not at all clear that Austin would permit §203 to be applied to them. The press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse; as the Austin Court explained, “media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public.” Our colleagues have raised some interesting and difficult questions about Congress’ authority to regulate electioneering by the press, and about how to define what constitutes the press. But that is not the case before us. Section

    203 does not apply to media corporations, and even if it did, Citizens United is not a media corporation. There would be absolutely no reason to consider the issue of media corporations if the majority did not, first, transform Citizens United's as-applied challenge into a facial challenge and, second, invent the theory that legislatures must eschew all “identity”-based distinctions and treat a local nonprofit news outlet exactly the same as General Motors. This calls to mind George Berkeley's description of philosophers: “[W]e have first raised a dust and then complain we cannot see.” It would be perfectly understandable if our colleagues feared that a campaign finance regulation such as §203 may be counterproductive or self-interested, and therefore attended carefully to the choices the Legislature has made. But the majority does not bother to consider such practical matters, or even to consult a record; it simply stipulates that “enlightened self-government” can arise only in the absence of regulation. In light of the distinctive features of corporations identified in Austin, there is no valid basis for this assumption. The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold, and when we move from the realm of economics to the realm of corporate electioneering, there may be no “reason to think the market ordering is intrinsically good at all.”

    The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.

    2. Shareholder Protection

    There is yet another way in which laws such as §203 can serve First Amendment values. Interwoven with Austin's concern to protect the integrity of the electoral process is a concern to protect the rights of shareholders from a kind of coerced speech: electioneering expenditures that do not “reflec[t] [their] support.” When corporations use general treasury funds to praise or attack a particular candidate for office, it is the shareholders, as the residual claimants, who are effectively footing the bill. Those shareholders who disagree with the corporation's electoral message may find their financial investments being used to undermine their political convictions.

    The PAC mechanism, by contrast, helps assure that those who pay for an electioneering communication actually support its content and that managers do not use general treasuries to advance personal agendas. It “‘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.’” A rule that privileges the use of PACs thus does more than facilitate the political speech of like-minded shareholders; it also curbs the rent seeking behavior of executives and respects the views of dissenters. Austin's acceptance of restrictions on general treasury spending “simply allows people who have invested in the business corporation for purely economic reasons”—the vast majority of investors, one assumes—“to avoid being taken advantage of, without sacrificing their economic objectives.”

    The concern to protect dissenting shareholders and union members has a long history in campaign finance reform. It provided a central motivation for the Tillman Act in 1907 and subsequent legislation, and it has been endorsed in a long line of our cases. Indeed, we have unanimously recognized the governmental interest in “protect[ing] the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed.”

    The Court dismisses this interest on the ground that abuses of shareholder money can be corrected “through the procedures of corporate democracy,” and, it seems, through Internet-based disclosures. I fail to understand how this addresses the concerns of dissenting union members, who will also be affected by today's ruling, and I fail to understand why the Court is so confident in these mechanisms. By “corporate democracy,” presumably the Court means the rights of shareholders to vote and to bring derivative suits for breach of fiduciary duty. In practice, however, many corporate lawyers will tell you that “these rights are so limited as to be almost nonexistent,” given the internal authority wielded by boards and managers and the expansive protections afforded by the business judgment rule. Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem. Most American households that own stock do so through intermediaries such as mutual funds and pension plans, which makes it more difficult both to monitor and to alter particular holdings. Studies show that a majority of individual investors make no trades at all during a given year. Moreover, if the corporation in question operates a PAC, an investor who sees the company's ads may not know whether they are being funded through the PAC or through the general treasury.

    If and when shareholders learn that a corporation has been spending general treasury money on objectionable electioneering, they can divest. Even assuming that they reliably learn as much, however, this solution is only partial. The injury to the shareholders’ expressive rights has already occurred; they might have preferred to keep that corporation's stock in their portfolio for any number of economic reasons; and they may incur a capital gains tax or other penalty from selling their shares, changing their pension plan, or the like. The shareholder protection rationale has been criticized as underinclusive, in that corporations also spend money on lobbying and charitable contributions in ways that any particular shareholder might disapprove. But those expenditures do not implicate the selection of public officials, an area in which “the interests of unwilling … corporate shareholders [in not being] forced to subsidize that speech” “are at their zenith.” And in any event, the question is whether shareholder protection provides a basis for regulating expenditures in the weeks before an election, not whether additional types of corporate communications might similarly be conditioned on voluntariness.

    Recognizing the limits of the shareholder protection rationale, the Austin Court did not hold it out as an adequate and independent ground for sustaining the statute in question. Rather, the Court applied it to reinforce the antidistortion rationale, in two main ways. First, the problem of dissenting shareholders shows that even if electioneering expenditures can advance the political views of some members of a corporation, they will often compromise the views of others. Second, it provides an additional reason, beyond the distinctive legal attributes of the corporate form, for doubting that these “expenditures reflect actual public support for the political ideas espoused.” The shareholder protection rationale, in other words, bolsters the conclusion that restrictions on corporate electioneering can serve both speakers’ and listeners’ interests, as well as the anticorruption interest. And it supplies yet another reason why corporate expenditures merit less protection than individual expenditures.


    Today's decision is backwards in many senses. It elevates the majority's agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court's lawmaking power. Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.

    In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority's rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

    I would affirm the judgment of the District Court.

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