CITIZENS UNITED v.

FEDERAL ELECTION
COMMISSION
caselaw.findlaw.com/us-supreme-court/08-205.html

United States Supreme Court

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, (2010)

No. 08-205

Argued: March 24, 2009 Decided: January 21, 2010

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law
prohibits corporations and unions from using their general treasury funds to make independent
expenditures for speech that is an "electioneering communication" or for speech that expressly
advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering
communication is "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 election,
§434(f)(3)(A), and that is "publicly distributed," 11 CFR §100.29(a)(2), which in "the case of a
candidate for nomination for President ... 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 may establish a political action committee (PAC) for
express advocacy or electioneering communications purposes. 2 U. S. C. §441b(b)(2). In
McConnell v. Federal Election Comm'n, 540 U. S. 93, 203-209, this Court upheld limits on
electioneering communications in a facial challenge, relying on the holding in Austin v.
Michigan Chamber of Commerce, 494 U. S. 652, that political speech may be banned based
on the speaker's corporate identity.

In January 2008, appellant Citizens United, a nonprofit corporation, released a

documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her
party's Presidential nomination. Anticipating that it would make Hillary available on cable
television through video-on-demand within 30 days of primary elections, Citizens United
produced television ads to run on broadcast and cable television. Concerned about possible
civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief,
arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer,
disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as
applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction
and granted appellee Federal Election Commission (FEC) summary judgment.

Held:

1/113
 1. Because the question whether §441b applies to Hillary cannot be resolved on other,
narrower grounds without chilling political speech, this Court must consider the continuing
effect of the speech suppression upheld in Austin. Pp. 5-20.

(a) Citizen United's narrower arguments--that Hillary is not an "electioneering

communication"covered by §441b because it is not "publicly distributed" under 11 CFR
§100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm'n v.
Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b unconstitutional as
applied to speech that was not "express advocacy or its functional equivalent," id., at 481
(opinion of Roberts, C. J.), determining that a communication "is the functional equivalent of
express advocacy only if [it] is susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate," id., at 469-470; that §441b should be
invalidated as applied to movies shown through video-on-demand because this delivery
system has a lower risk of distorting the political process than do television ads; and that there
should be an exception to §441b's ban for nonprofit corporate political speech funded
overwhelming by individuals--are not sustainable under a fair reading of the statute. Pp. 5-12.

(b) Thus, this case cannot be resolved on a narrower ground without chilling political
speech, speech that is central to the First Amendment's meaning and purpose. Citizens United
did not waive this challenge to Austin when it stipulated to dismissing the facial challenge
below, since (1) even if such a challenge could be waived, this Court may reconsider Austin
and §441b's facial validity here because the District Court "passed upon" the issue, Lebron v.
National Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughout the litigation,
Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3)
the parties cannot enter into a stipulation that prevents the Court from considering remedies
necessary to resolve a claim that has been preserved. Because Citizen United's narrower
arguments are not sustainable, this Court must, in an exercise of its judicial responsibility,
consider §441b's facial validity. Any other course would prolong the substantial, nationwide
chilling effect caused by §441b's corporate expenditure ban. This conclusion is further
supported by the following: (1) the uncertainty caused by the Government's litigating position;
(2) substantial time would be required to clarify §441b's application on the points raised by the
Government's position in order to avoid any chilling effect caused by an improper
interpretation; and (3) because speech itself is of primary importance to the integrity of the
election process, any speech arguably within the reach of rules created for regulating political
speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict
sense. However, given its complexity and the deference courts show to administrative
determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of
defending against FEC enforcement must ask a governmental agency for prior permission to
speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC
power analogous to the type of government practices that the First Amendment was drawn to
prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that
a statute that chills speech can and must be invalidated where its facial invalidity has been
demonstrated. Pp. 12-20.

2/113
 2. Austin is overruled, and thus provides no basis for allowing the Government to limit
corporate independent expenditures. Hence, §441b's restrictions on such expenditures are
invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that
upheld BCRA §203's extension of §441b's restrictions on independent corporate expenditures
is also overruled. Pp. 20-51.

(a) Although the First Amendment provides that "Congress shall make no law ...
abridging the freedom of speech," §441b's prohibition on corporate independent expenditures
is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact
that a PAC created by a corporation can still speak, for a PAC is a separate association from
the corporation. Because speech is an essential mechanism of democracy--it is the means to
hold officials accountable to the people--political speech must prevail against laws that would
suppress it by design or inadvertence. Laws burdening such 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." WRTL, 551 U. S.,at 464. This
language provides a sufficient framework for protecting the interests in this case. Premised on
mistrust of governmental power, the First Amendment stands against attempts to disfavor
certain subjects or viewpoints or to distinguish among different speakers, which may be a
means to control content. The Government may also commit a constitutional wrong when by
law it identifies certain preferred speakers. There is no basis for the proposition that, in the
political speech context, the Government may impose restrictions on certain disfavored
speakers. Both history and logic lead to this conclusion. Pp. 20-25.

(b) The Court has recognized that the First Amendment applies to corporations, e.g.,
First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to
the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428-429.
Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court
upheld limits on direct contributions to candidates, 18 U. S. C. §608(b), recognizing a
governmental interest in preventing quid pro quo corruption. 424 U. S., at 25-26. However, the
Court invalidated §608(e)'s expenditure ban, which applied to individuals, corporations, and
unions, because it "fail[ed] to serve any substantial governmental interest in stemming the
reality or appearance of corruption in the electoral process," id., at 47-48. While Buckley did
not consider a separate ban on corporate and union independent expenditures found in §610,
had that provision been challenged in Buckley'swake, it could not have been squared with the
precedent's reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine
to suggest that §608(e)'s expenditure ban would have been constitutional had it applied to
corporations and unions but not individuals. Notwithstanding this precedent, Congress soon
recodified §610's corporate and union expenditure ban at 2 U. S. C. §441b, the provision at
issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that
the Government lacks the power to restrict political speech based on the speaker's corporate
identity. 435 U.S., at 784-785. Thus the law stood until Austin upheld a corporate independent
expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental

3/113
interest in preventing "the corrosive and distorting effects of immense aggregations of
[corporate] wealth ... that have little or no correlation to the public's support for the
corporation's political ideas." 494 U. S., at 660. Pp. 25-32.

(c) This Court is confronted with conflicting lines of precedent: a pre-Austin line
forbidding speech restrictions based on the speaker's corporate identity and a post-Austin line
permitting them. Neither Austin's antidistortion rationale nor the Government's other
justifications support §441b's restrictions. Pp. 32-47.

(1) The First Amendment prohibits Congress from fining or jailing citizens, or
associations of citizens, for engaging in political speech, but Austin's antidistortion rationale
would permit the Government to ban political speech because the speaker is an association
with a corporate form. Political speech is "indispensable to decisionmaking in a democracy,
and this is no less true because the speech comes from a corporation." Bellotti, supra, at 777
(footnote omitted). This protection is inconsistent with Austin's rationale, which is meant to
prevent corporations from obtaining " 'an unfair advantage in the political marketplace' " by
using " 'resources amassed in the economic marketplace.' " 494 U. S., at 659. First
Amendment protections do not depend on the speaker's "financial ability to engage in public
discussion." Buckley, supra, at 49. These conclusions were reaffirmed when the Court
invalidated a BCRA provision that increased the cap on contributions to one candidate if the
opponent made certain expenditures from personal funds. Davis v. Federal Election Comm'n,
554 U. S. ___, ___. Distinguishing wealthy individuals from corporations based on the latter's
special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It
is irrelevant for First Amendment purposes that corporate funds may "have little or no
correlation to the public's support for the corporation's political ideas." Austin, supra, at 660. All
speakers, including individuals and the media, use money amassed from the economic
marketplace to fund their speech, and the First Amendment protects the resulting speech.
Under the antidistortion rationale, Congress could also ban political speech of media
corporations. Although currently exempt from §441b, they accumulate wealth with the help of
their corporate form, may have aggregations of wealth, and may express views "hav[ing] little
or no correlation to the public's support" for those views. Differential treatment of media
corporations and other corporations cannot be squared with the First Amendment, and there is
no support for the view that the Amendment's original meaning would permit suppressing
media corporations' political speech. Austin interferes with the "open marketplace" of ideas
protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S.
196, 208. Its censorship is vast in its reach, suppressing the speech of both for-profit and
nonprofit, both small and large, corporations. Pp. 32-40.

(2) This reasoning also shows the invalidity of the Government's other arguments. It
reasons that corporate political speech can be banned to prevent corruption or its appearance.
The Buckley Court found this rationale "sufficiently important" to allow contribution limits but
refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not
do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at
788, n. 26, this Court now concludes that independent expenditures, including those made by

4/113
corporations, do not give rise to corruption or the appearance of corruption. That speakers
may have influence over or access to elected officials does not mean that those officials are
corrupt. And the appearance of influence or access will not cause the electorate to lose faith in
this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40-45.

(3) The Government's asserted interest in protecting shareholders from being

compelled to fund corporate speech, like the antidistortion rationale, would allow the
Government to ban political speech even of media corporations. The statute is underinclusive;
it only protects a dissenting shareholder's interests in certain media for 30 or 60 days before
an election when such interests would be implicated in any media at any time. It is also
overinclusive because it covers all corporations, including those with one shareholder. P. 46.

(4) Because §441b is not limited to corporations or associations created in foreign

countries or funded predominately by foreign shareholders, it would be overbroad even if the
Court were to recognize a compelling governmental interest in limiting foreign influence over
the Nation's political process. Pp. 46-47.

(d) The relevant factors in deciding whether to adhere to stare decisis, beyond
workability--the precedent's antiquity, the reliance interests at stake, and whether the decision
was well reasoned--counsel in favor of abandoning Austin, which itself contravened the
precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is
also undermined by experience since its announcement. Political speech is so ingrained in this
country's culture that speakers find ways around campaign finance laws. 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.
In addition, no serious reliance issues are at stake. Thus, due consideration leads to the
conclusion that Austin should be overruled. The Court returns to the principle established in
Buckley and Bellotti that the Government may not suppress political speech based on the
speaker's corporate identity. No sufficient governmental interest justifies limits on the political
speech of nonprofit or for-profit corporations. Pp. 47-50.

3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself.
Pp. 50-57.

(a) Disclaimer and disclosure requirements may burden the ability to speak, but they
"impose no ceiling on campaign-related activities," Buckley, 424 U. S., at 64, or " ' "prevent
anyone from speaking," ' " McConnell, supra, at 201. The Buckley Court explained that
disclosure can be justified by a governmental interest in providing "the electorate with
information" about election-related spending sources. The McConnell Court applied this
interest in rejecting facial challenges to §§201 and 311. 540 U. S., at 196. However, the Court
acknowledged that as-applied challenges would be available if a group could show a
" 'reasonable probability' " that disclosing its contributors' names would " 'subject them to
threats, harassment, or reprisals from either Government officials or private parties.' " Id., at
198. Pp. 50-52.

5/113
 (b) The disclaimer and disclosure requirements are valid as applied to Citizens United's
ads. They fall within BCRA's "electioneering communication" definition: They referred to then-
Senator Clinton by name shortly before a primary and contained pejorative references to her
candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at
196, and "insure that the voters are fully informed" about who is speaking, Buckley, supra, at
76. At the very least, they avoid confusion by making clear that the ads are not funded by a
candidate or political party. Citizens United's arguments that §311 is underinclusive because it
requires disclaimers for broadcast advertisements but not for print or Internet advertising and
that §311 decreases the quantity and effectiveness of the group's speech were rejected in
McConnell. This Court also rejects their contention that §201's disclosure requirements must
be confined to speech that is the functional equivalent of express advocacy under WRTL's test
for restrictions on independent expenditures, 551 U. S., at 469-476 (opinion of Roberts, C.J.).
Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such
requirements have been upheld in Buckley and McConnell. Citizens United's argument that no
informational interest justifies applying §201 to its ads is similar to the argument this Court
rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements
can chill donations by exposing donors to retaliation, but offers no evidence that itsmembers
face the type of threats, harassment, or reprisals that might make §201 unconstitutional as
applied. Pp. 52-55.

(c) For these same reasons, this Court affirms the application of the §§201 and 311
disclaimer and disclosure requirements to Hillary. Pp. 55-56.

Reversed in part, affirmed in part, and remanded.

Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia and Alito, JJ.,
joined, in which Thomas, J., joined as to all but Part IV, and in which Stevens, Ginsburg, Breyer, and
Sotomayor, JJ., joined as to Part IV. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined.
Scalia, J., filed a concurring opinion, in which Alito, J., joined, and in which Thomas, J., joined in part.
Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Breyer, and
Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part.

CITIZENS UNITED, APPELLANT v. FEDERAL

ELECTION COMMISSION

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

[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
6/113
for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits
on electioneering communications were upheld in McConnell v. Federal Election Comm'n, 540
U. S. 93, 203-209 (2003). The holding of McConnell rested to a large extent on an earlier case,
Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (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," Federal
Election Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (Scalia, J.,
concurring in part and concurring in judgment). 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." App. 255a-257a. 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.
7/113
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. Id., at 26a-27a. 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. 2 U. S. C. §441b (2000 ed.); see McConnell, supra, at 204, and n. 87; Federal
Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 249 (1986) (MCFL).
BCRA §203 amended §441b to prohibit any "electioneering communication" as well. 2 U. S. C.
§441b(b)(2) (2006 ed.). 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. §434(f)(3)(A). The
Federal Election Commission's (FEC) regulations further define an electioneering
communication as a communication that is "publicly distributed." 11 CFR §100.29(a)(2) (2009).
"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. 2 U. S. C. §441b(b)(2). 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. Ibid.

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, 530 F. Supp.
2d 274 (DC 2008) (per curiam), and then granted the FEC's motion for summary judgment,
App. 261a-262a. See id., at 261a ("Based on the reasoning of our prior opinion, we find that
the [FEC] is entitled to judgment as a matter of law. See Citizen[s] United v. FEC, 530 F. Supp.

8/113
2d 274 (D.D.C. 2008) (denying Citizens United's request for a preliminary injunction)"). 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."
530 F. Supp. 2d, at 279. 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." Id., at 281.

We noted probable jurisdiction. 555 U. S. ___ (2008). 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. See 557 U. S. ___ (2009).

II

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.

Citizens United contends that §441b does not cover Hillary, as a matter of statutory
interpretation, because the film does not qualify as an "electioneering communication."
§441b(b)(2). Citizens United raises this issue for the first time before us, but we consider the
issue because "it was addressed by the court below." Lebron v. National Railroad Passenger
Corporation, 513 U. S. 374, 379 (1995); see 530 F. Supp. 2d, at 277, n. 6. Under the definition
of electioneering communication, the video-on-demand showing of Hillary on cable television
would have been a "cable . . . communication" that "refer[red] to a clearly identified candidate
for Federal office" and that was made within 30 days of a primary election. 2 U. S. C. §434(f)
(3)(A)(i). Citizens United, however, argues that Hillary was not "publicly distributed," because a
single video-on-demand transmission is sent only to a requesting cable converter box and
each separate transmission, in most instances, will be seen by just one household--not 50,000
or more persons. 11 CFR §100.29(a)(2); see §100.29(b)(3)(ii).

This argument ignores the regulation's instruction on how to determine whether a cable
transmission "[c]an be received by 50,000 or more persons." §100.29(b)(3)(ii). The regulation
provides that the number of people who can receive a cable transmission is determined by the
number of cable subscribers in the relevant area. §§100.29(b)(7)(i)(G), (ii). Here, Citizens
United wanted to use a cable video-on-demand system that had 34.5 million subscribers
nationwide. App. 256a. Thus, Hillary could have been received by 50,000 persons or more.

One amici brief asks us, alternatively, to construe the condition that the communication "
9/113
[c]an be received by 50,000 or more persons," §100.29(b)(3)(ii)(A), to require "a plausible
likelihood that the communication will be viewed by 50,000 or more potential voters"--as
opposed to requiring only that the communication is "technologically capable" of being seen by
that many people, Brief for Former Officials of the American Civil Liberties Union as Amici
Curiae 5. Whether the population and demographic statistics in a proposed viewing area
consisted of 50,000 registered voters--but not "infants, pre-teens, or otherwise electorally
ineligible recipients"--would be a required determination, subject to judicial challenge and
review, in any case where the issue was in doubt. Id., at 6.

In our view the statute cannot be saved by limiting the reach of 2 U. S. C. §441b through
this suggested interpretation. In addition to the costs and burdens of litigation, this result would
require a calculation as to the number of people a particular communication is likely to reach,
with an inaccurate estimate potentially subjecting the speaker to criminal sanctions. The First
Amendment does not permit laws that force speakers to retain a campaign finance attorney,
conduct demographic marketing research, or seek declaratory rulings before discussing the
most salient political issues of our day. Prolix laws chill speech for the same reason that vague
laws chill speech: People "of common intelligence must necessarily guess at [the law's]
meaning and differ as to its application." Connally v. General Constr. Co., 269 U. S. 385, 391
(1926). The Government may not render a ban on political speech constitutional by carving out
a limited exemption through an amorphous regulatory interpretation. We must reject the
approach suggested by the amici. Section 441b covers Hillary.

Citizens United next argues that §441b may not be applied to Hillary under the approach
taken in WRTL. McConnell decided that §441b(b)(2)'s definition of an "electioneering
communication" was facially constitutional insofar as it restricted speech that was "the
functional equivalent of express advocacy" for or against a specific candidate. 540 U. S., at
206. WRTL then found an unconstitutional application of §441b where the speech was not
"express advocacy or its functional equivalent." 551 U. S., at 481 (opinion of Roberts, C. J.). As
explained by The Chief Justice's controlling opinion in WRTL, the functional-equivalent test is
objective: "a court should find that [a communication] is the functional equivalent of express
advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate." Id., at 469-470.

Under this test, Hillary is equivalent to express advocacy. The movie, in essence, is a
feature-length negative advertisement that urges viewers to vote against Senator Clinton for
President. In light of historical footage, interviews with persons critical of her, and voiceover
narration, the film would be understood by most viewers as an extended criticism of Senator
Clinton's character and her fitness for the office of the Presidency. The narrative may contain
more suggestions and arguments than facts, but there is little doubt that the thesis of the film is
that she is unfit for the Presidency. The movie concentrates on alleged wrongdoing during the
Clinton administration, Senator Clinton's qualifications and fitness for office, and policies the
commentators predict she would pursue if elected President. It calls Senator Clinton
10/113
"Machiavellian," App. 64a, and asks whether she is "the most qualified to hit the ground
running if elected President," id., at 88a. The narrator reminds viewers that "Americans have
never been keen on dynasties" and that "a vote for Hillary is a vote to continue 20 years of a
Bush or a Clinton in the White House," id., at 143a-144a.

Citizens United argues that Hillary is just "a documentary film that examines certain
historical events." Brief for Appellant 35. We disagree. The movie's consistent emphasis is on
the relevance of these events to Senator Clinton's candidacy for President. The narrator
begins by asking "could [Senator Clinton] become the first female President in the history of
the United States?" App. 35a. And the narrator reiterates the movie's message in his closing
line: "Finally, before America decides on our next president, voters should need no reminders
of ... what's at stake--the well being and prosperity of our nation." Id., at 144a-145a.

As the District Court found, there is no reasonable interpretation of Hillary other than as an
appeal to vote against Senator Clinton. Under the standard stated in McConnell and further
elaborated in WRTL, the film qualifies as the functional equivalent of express advocacy.

Citizens United further contends that §441b should be invalidated as applied to movies
shown through video-on-demand, arguing that this delivery system has a lower risk of
distorting the political process than do television ads. Cf. McConnell, supra, at 207. On what
we might call conventional television, advertising spots reach viewers who have chosen a
channel or a program for reasons unrelated to the advertising. With video-on-demand, by
contrast, the viewer selects a program after taking "a series of affirmative steps": subscribing to
cable; navigating through various menus; and selecting the program. See Reno v. American
Civil Liberties Union, 521 U. S. 844, 867 (1997).

While some means of communication may be less effective than others at influencing the
public in different contexts, any effort by the Judiciary to decide which means of
communications are to be preferred for the particular type of message and speaker would
raise questions as to the courts' own lawful authority. Substantial questions would arise if
courts were to begin saying what means of speech should be preferred or disfavored. And in
all events, those differentiations might soon prove to be irrelevant or outdated by technologies
that are in rapid flux. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 639 (1994).

Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw,
constitutional lines based on the particular media or technology used to disseminate political
speech from a particular speaker. It must be noted, moreover, that this undertaking would
require substantial litigation over an extended time, all to interpret a law that beyond doubt
discloses serious First Amendment flaws. The interpretive process itself would create an
inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine
distinctions that, in the end, would themselves be questionable. First Amendment standards,
however, "must give the benefit of any doubt to protecting rather than stifling speech." WRTL,
551 U. S., at 469 (opinion of Roberts, C. J.) (citing New York Times Co. v. Sullivan, 376 U. S.
11/113
254, 269-270 (1964)).

Citizens United also asks us to carve out an exception to §441b's expenditure ban for
nonprofit corporate political speech funded overwhelmingly by individuals. As an alternative to
reconsidering Austin, the Government also seems to prefer this approach. This line of analysis,
however, would be unavailing.

In MCFL, the Court found unconstitutional §441b's restrictions on corporate expenditures

as applied to nonprofit corporations that were formed for the sole purpose of promoting
political ideas, did not engage in business activities, and did not accept contributions from for-
profit corporations or labor unions. 479 U. S., at 263-264; see also 11 CFR §114.10. BCRA's
so-called Wellstone Amendment applied §441b's expenditure ban to all nonprofit corporations.
See 2 U. S. C. §441b(c)(6); McConnell, 540 U. S., at 209. McConnell then interpreted the
Wellstone Amendment to retain the MCFL exemption to §441b's expenditure prohibition. 540
U. S., at 211. Citizens United does not qualify for the MCFL exemption, however, since some
funds used to make the movie were donations from for-profit corporations.

The Government suggests we could find BCRA's Wellstone Amendment unconstitutional,

sever it from the statute, and hold that Citizens United's speech is exempt from §441b's ban
under BCRA's Snowe-Jeffords Amendment, §441b(c)(2). See Tr. of Oral Arg. 37-38 (Sept. 9,
2009). The Snowe-Jeffords Amendment operates as a backup provision that only takes effect
if the Wellstone Amendment is invalidated. See McConnell, supra, at 339 (Kennedy, J.,
concurring in judgment in part and dissenting in part). The Snowe-Jeffords Amendment would
exempt from §441b's expenditure ban the political speech of certain nonprofit corporations if
the speech were funded "exclusively" by individual donors and the funds were maintained in a
segregated account. §441b(c)(2). Citizens United would not qualify for the Snowe-Jeffords
exemption, under its terms as written, because Hillary was funded in part with donations from
for-profit corporations.

Consequently, to hold for Citizens United on this argument, the Court would be required to
revise the text of MCFL, sever BCRA's Wellstone Amendment, §441b(c)(6), and ignore the
plain text of BCRA's Snowe-Jeffords Amendment, §441b(c)(2). If the Court decided to create a
de minimis exception to MCFL or the Snowe-Jeffords Amendment, the result would be to allow
for-profit corporate general treasury funds to be spent for independent expenditures that
support candidates. There is no principled basis for doing this without rewriting Austin's holding
that the Government can restrict corporate independent expenditures for political speech.

Though it is true that the Court should construe statutes as necessary to avoid
constitutional questions, the series of steps suggested would be difficult to take in view of the
language of the statute. In addition to those difficulties the Government's suggestion is
troubling for still another reason. The Government does not say that it agrees with the
interpretation it wants us to consider. See Supp. Brief for Appellee 3, n. 1 ("Some courts" have

12/113
implied a de minimis exception, and "appellant would appear to be covered by these
decisions"). Presumably it would find textual difficulties in this approach too. The Government,
like any party, can make arguments in the alternative; but it ought to say if there is merit to an
alternative proposal instead of merely suggesting it. This is especially true in the context of the
First Amendment. As the Government stated, this case "would require a remand" to apply a de
minimis standard. Tr. of Oral Arg. 39 (Sept. 9, 2009). Applying this standard would thus require
case-by-case determinations. But archetypical political speech would be chilled in the
meantime. " 'First Amendment freedoms need breathing space to survive.' " WRTL, supra, at
468-469 (opinion of Roberts, C. J.) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). We
decline to adopt an interpretation that requires intricate case-by-case determinations to verify
whether political speech is banned, especially if we are convinced that, in the end, this
corporation has a constitutional right to speak on this subject.

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. See Morse v. Frederick, 551 U. S. 393, 403 (2007). 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.

Citizens United stipulated to dismissing count 5 of its complaint, which raised a facial
challenge to §441b, even though count 3 raised an as-applied challenge. See App. 23a (count
3: "As applied to Hillary, [§441b] is unconstitutional under the First Amendment guarantees of
free expression and association"). The Government argues that Citizens United waived its
challenge to Austin by dismissing count 5. We disagree.

First, even if a party could somehow waive a facial challenge while preserving an as-applied
challenge, that would not prevent the Court from reconsidering Austin or addressing the facial
validity of §441b in this case. "Our practice 'permit[s] review of an issue not pressed [below] so
long as it has been passed upon . . . .' " Lebron, 513 U. S., at 379 (quoting United States v.
Williams, 504 U. S. 36, 41 (1992); first alteration in original). And here, the District Court
addressed Citizens United's facial challenge. See 530 F. Supp. 2d, at 278 ("Citizens wants us
to enjoin the operation of BCRA §203 as a facially unconstitutional burden on the First
Amendment right to freedom of speech"). In rejecting the claim, it noted that it "would have to
overrule McConnell" for Citizens United to prevail on its facial challenge and that "[o]nly the
Supreme Court may overrule its decisions." Ibid. (citing Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U. S. 477, 484 (1989)). The District Court did not
provide much analysis regarding the facial challenge because it could not ignore the controlling
Supreme Court decisions in Austin or McConnell. Even so, the District Court did " 'pas[s]
upon' " the issue. Lebron, supra, at 379. Furthermore, the District Court's later opinion, which
13/113
granted the FEC summary judgment, was "[b]ased on the reasoning of [its] prior opinion,"
which included the discussion of the facial challenge. App. 261a (citing 530 F. Supp. 2d 274).
After the District Court addressed the facial validity of the statute, Citizens United raised its
challenge to Austin in this Court. See Brief for Appellant 30 ("Austin was wrongly decided and
should be overruled"); id., at 30-32. In these circumstances, it is necessary to consider
Citizens United's challenge to Austin and the facial validity of §441b's expenditure ban.

Second, throughout the litigation, Citizens United has asserted a claim that the FEC has
violated its First Amendment right to free speech. All concede that this claim is properly before
us. And " '[o]nce a federal claim is properly presented, a party can make any argument in
support of that claim; parties are not limited to the precise arguments they made below.' "
Lebron, supra, at 379 (quoting Yee v. Escondido, 503 U. S. 519, 534 (1992); alteration in
original). Citizens United's argument that Austin should be overruled is "not a new claim."
Lebron, 513 U. S., at 379. Rather, it is--at most--"a new argument to support what has been [a]
consistent claim: that [the FEC] did not accord [Citizens United] the rights it was obliged to
provide by the First Amendment." Ibid.

Third, the distinction between facial and as-applied challenges is not so well defined that it
has some automatic effect or that it must always control the pleadings and disposition in every
case involving a constitutional challenge. The distinction is both instructive and necessary, for
it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a
complaint. See United States v. Treasury Employees, 513 U. S. 454, 477-478 (1995)
(contrasting "a facial challenge" with "a narrower remedy"). The parties cannot enter into a
stipulation that prevents the Court from considering certain remedies if those remedies are
necessary to resolve a claim that has been preserved. Citizens United has preserved its First
Amendment challenge to §441b as applied to the facts of its case; and given all the
circumstances, we cannot easily address that issue without assuming a premise--the
permissibility of restricting corporate political speech--that is itself in doubt. See Fallon, As-
Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000)
("[O]nce a case is brought, no general categorical line bars a court from making broader
pronouncements of invalidity in properly 'as-applied' cases"); id., at 1327-1328. As our request
for supplemental briefing implied, Citizens United's claim implicates the validity of Austin, which
in turn implicates the facial validity of §441b.

When the statute now at issue came before the Court in McConnell, both the majority and
the dissenting opinions considered the question of its facial validity. The holding and validity of
Austin were essential to the reasoning of the McConnell majority opinion, which upheld
BCRA's extension of §441b. See 540 U. S., at 205 (quoting Austin, 494 U. S., at 660).
McConnell permitted federal felony punishment for speech by all corporations, including
nonprofit ones, that speak on prohibited subjects shortly before federal elections. See 540
U. S., at 203-209. Four Members of the McConnell Court would have overruled Austin,
including Chief Justice Rehnquist, who had joined the Court's opinion in Austin but
reconsidered that conclusion. See 540 U. S., at 256-262 (Scalia, J., concurring in part,
concurring in judgment in part, and dissenting in part); id., at 273-275 (Thomas, J., concurring in

14/113
part, concurring in result in part, concurring in judgment in part, and dissenting in part); id., at
322-338 (opinion of Kennedy, J., joined by Rehnquist, C. J., and Scalia, J.). That inquiry into the
facial validity of the statute was facilitated by the extensive record, which was "over 100,000
pages" long, made in the three-judge District Court. McConnell v. Federal Election Comm'n,
251 F. Supp. 2d 176, 209 (DC 2003) (per curiam) (McConnell I). It is not the case, then, that
the Court today is premature in interpreting §441b " 'on the basis of [a] factually barebones
recor[d].' " Washington State Grange v. Washington State Republican Party, 552 U. S. 442,
450 (2008) (quoting Sabri v. United States, 541 U. S. 600, 609 (2004)).

The McConnell majority considered whether the statute was facially invalid. An as-applied
challenge was brought in Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U. S.
410, 411-412 (2006) (per curiam), and the Court confirmed that the challenge could be
maintained. Then, in WRTL, the controlling opinion of the Court not only entertained an as-
applied challenge but also sustained it. Three Justices noted that they would continue to
maintain the position that the record in McConnell demonstrated the invalidity of the Act on its
face. 551 U. S., at 485-504 (opinion of Scalia, J.). The controlling opinion in WRTL, which
refrained from holding the statute invalid except as applied to the facts then before the Court,
was a careful attempt to accept the essential elements of the Court's opinion in McConnell,
while vindicating the First Amendment arguments made by the WRTL parties. 551 U. S., at
482 (opinion of Roberts, C. J.).

As noted above, Citizens United's narrower arguments are not sustainable under a fair
reading of the statute. In the exercise of its judicial responsibility, it is necessary then for the
Court to consider the facial validity of §441b. Any other course of decision would prolong the
substantial, nation-wide chilling effect caused by §441b's prohibitions on corporate
expenditures. Consideration of the facial validity of §441b is further supported by the following
reasons.

First is the uncertainty caused by the litigating position of the Government. As discussed
above, see Part II-D, supra, the Government suggests, as an alternative argument, that an as-
applied challenge might have merit. This argument proceeds on the premise that the nonprofit
corporation involved here may have received only de minimis donations from for-profit
corporations and that some nonprofit corporations may be exempted from the operation of the
statute. The Government also suggests that an as-applied challenge to §441b's ban on books
may be successful, although it would defend §441b's ban as applied to almost every other
form of media including pamphlets. See Tr. of Oral Arg. 65-66 (Sept. 9, 2009). The
Government thus, by its own position, contributes to the uncertainty that §441b causes. When
the Government holds out the possibility of ruling for Citizens United on a narrow ground yet
refrains from adopting that position, the added uncertainty demonstrates the necessity to
address the question of statutory validity.

Second, substantial time would be required to bring clarity to the application of the statutory
provision on these points in order to avoid any chilling effect caused by some improper
interpretation. See Part II-C, supra. It is well known that the public begins to concentrate on
elections only in the weeks immediately before they are held. There are short timeframes in
15/113
which speech can have influence. The need or relevance of the speech will often first be
apparent at this stage in the campaign. The decision to speak is made in the heat of political
campaigns, when speakers react to messages conveyed by others. A speaker's ability to
engage in political speech that could have a chance of persuading voters is stifled if the
speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the
election will be over and the litigants in most cases will have neither the incentive nor, perhaps,
the resources to carry on, even if they could establish that the case is not moot because the
issue is "capable of repetition, yet evading review." WRTL, supra, at 462 (opinion of Roberts,
C. J.) (citing Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern Pacific Terminal Co. v.
ICC, 219 U. S. 498, 515 (1911)). Here, Citizens United decided to litigate its case to the end.
Today, Citizens United finally learns, two years after the fact, whether it could have spoken
during the 2008 Presidential primary--long after the opportunity to persuade primary voters has
passed.

Third is the primary importance of speech itself to the integrity of the election process. As
additional rules are created for regulating political speech, any speech arguably within their
reach is chilled. See Part II-A, supra. Campaign finance regulations now impose "unique and
complex rules" on "71 distinct entities." Brief for Seven Former Chairmen of FEC et al. as
Amici Curiae 11-12. These entities are subject to separate rules for 33 different types of
political speech. Id., at 14-15, n. 10. The FEC has adopted 568 pages of regulations, 1,278
pages of explanations and justifications for those regulations, and 1,771 advisory opinions
since 1975. See id., at 6, n. 7. In fact, after this Court in WRTL adopted an objective "appeal to
vote" test for determining whether a communication was the functional equivalent of express
advocacy, 551 U. S., at 470 (opinion of Roberts, C. J.), the FEC adopted a two-part, 11-factor
balancing test to implement WRTL's ruling. See 11 CFR §114.15; Brief for Wyoming Liberty
Group et al. as Amici Curiae 17-27 (filed Jan. 15, 2009).

This regulatory scheme may not be a prior restraint on speech in the strict sense of that
term, for prospective speakers are not compelled by law to seek an advisory opinion from the
FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712-
713 (1931). As a practical matter, however, given the complexity of the regulations and the
deference courts show to administrative determinations, a speaker who wants to avoid threats
of criminal liability and the heavy costs of defending against FEC enforcement must ask a
governmental agency for prior permission to speak. See 2 U. S. C. §437f; 11 CFR §112.1.
These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC
power analogous to licensing laws implemented in 16th- and 17th-century England, laws and
governmental practices of the sort that the First Amendment was drawn to prohibit. See
Thomas v. Chicago Park Dist., 534 U. S. 316, 320 (2002); Lovell v. City of Griffin, 303 U. S.
444, 451-452 (1938); Near, supra, at 713-714. Because the FEC's "business is to censor,
there inheres the danger that [it] may well be less responsive than a court--part of an
independent branch of government--to the constitutionally protected interests in free
expression." Freedman v. Maryland, 380 U. S. 51, 57-58 (1965). When the FEC issues
advisory opinions that prohibit speech, "[m]any persons, rather than undertake the
considerable burden (and sometimes risk) of vindicating their rights through case-by-case
16/113
litigation, will choose simply to abstain from protected speech--harming not only themselves
but society as a whole, which is deprived of an uninhibited marketplace of ideas." Virginia v.
Hicks, 539 U. S. 113, 119 (2003) (citation omitted). Consequently, "the censor's determination
may in practice be final." Freedman, supra, at 58.

This is precisely what WRTL sought to avoid. WRTL said that First Amendment standards
"must eschew 'the open-ended rough-and-tumble of factors,' which 'invit[es] complex argument
in a trial court and a virtually inevitable appeal.' " 551 U. S., at 469 (opinion of Roberts, C. J.)
(quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547
(1995); alteration in original). Yet, the FEC has created a regime that allows it to select what
political speech is safe for public consumption by applying ambiguous tests. If parties want to
avoid litigation and the possibility of civil and criminal penalties, they must either refrain from
speaking or ask the FEC to issue an advisory opinion approving of the political speech in
question. Government officials pore over each word of a text to see if, in their judgment, it
accords with the 11-factor test they have promulgated. This is an unprecedented governmental
intervention into the realm of speech.

The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this
case to invoke the earlier precedents that a statute which chills speech can and must be
invalidated where its facial invalidity has been demonstrated. See WRTL, supra, at 482-483
(Alito, J., concurring); Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940). For these reasons we
find it necessary to reconsider Austin.

III

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, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of
Stratton, 536 U. S. 150, 153 (2002); imposing a burden by impounding proceeds on receipts or
royalties, Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105,
108, 123 (1991); seeking to exact a cost after the speech occurs, New York Times Co. v.
Sullivan, 376 U. S., at 267; and subjecting the speaker to criminal penalties, Brandenburg v.
Ohio, 395 U. S. 444, 445 (1969) (per curiam).

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
17/113
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. See McConnell, 540 U. S., at 330-333 (opinion of Kennedy, J.). 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. See id., at 330-
332 (quoting MCFL, 479 U. S., at 253-254).

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:

" 'These reports must contain information regarding the amount of cash on hand; the total amount
of receipts, detailed by 10 different categories; the identification of each political committee and
candidate's authorized or affiliated committee making contributions, and any persons making
loans, providing rebates, refunds, dividends, or interest or any other offset to operating
expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by
12 different categories; the names of all authorized or affiliated committees to whom expenditures
aggregating over $200 have been made; persons to whom loan repayments or refunds have been
made; the total sum of all contributions, operating expenses, outstanding debts and obligations,
and the settlement terms of the retirement of any debt or obligation.' " 540 U. S., at 331 -332
(quoting MCFL, supra, at 253-254).

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. See Brief for Seven Former
Chairmen of FEC et al. as Amici Curiae 11 (citing FEC, Summary of PAC Activity 1990-2006,
online at http://www.fec.gov/press/press2007/ 20071009pac/sumhistory.pdf); IRS, Statistics of
Income: 2006, Corporation Income Tax Returns2 (2009) (hereinafter Statistics of Income) (5.8
million for-profit corporations filed 2006 tax returns). 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." Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were
the Court to uphold these restrictions, the Government could repress speech by silencing
18/113
certain voices at any of the various points in the speech process. See McConnell, supra, at
251 (opinion of Scalia, J.) (Government could repress speech by "attacking all levels of the
production and dissemination of ideas," for "effective public communication requires the
speaker to make use of the services of others"). 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. See Buckley, supra, at 14-15 ("In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among candidates for office is
essential"). 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." Eu v. San Francisco County Democratic Central Comm., 489 U.
S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see
Buckley, supra, at 14 ("Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of government established by our
Constitution").

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." WRTL, 551 U. S., at 464 (opinion of
Roberts, C. J.). While it might be maintained that political speech simply cannot be banned or
restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (Kennedy, J.,
concurring in judgment), the quoted language from WRTL 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. See, e.g., United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited,
too, are restrictions distinguishing among different speakers, allowing speech by some but not
others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). 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.

19/113
 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. See, e.g., Bethel School Dist. No. 403 v.
Fraser, 478 U. S. 675, 683 (1986) (protecting the "function of public school education"); Jones
v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering "the
legitimate penological objectives of the corrections system" (internal quotation marks omitted));
Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring "the capacity of the Government to
discharge its [military] responsibilities" (internal quotation marks omitted)); Civil Service
Comm'n v. Letter Carriers, 413 U. S. 548, 557 (1973) ("[F]ederal service should depend upon
meritorious performance rather than political service"). 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. Bellotti,
supra, at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977); Time,
Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975);
Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v.
Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974);
New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385
U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int'l Pictures Corp.
v. Regents of Univ. of N. Y., 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S.
495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997); Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512
U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492
U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc.
v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829
(1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch,
Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6
(1970).
20/113
 This protection has been extended by explicit holdings to the context of political speech.
See, e.g., Button, 371 U. S., at 428-429; Grosjean v. American Press Co., 297 U. S. 233, 244
(1936). Under the rationale of these precedents, political speech does not lose First
Amendment protection "simply because its source is a corporation." Bellotti, supra, at 784; see
Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion)
("The identity of the speaker is not decisive in determining whether speech is protected.
Corporations and other associations, like individuals, contribute to the 'discussion, debate, and
the dissemination of information and ideas' that the First Amendment seeks to foster" (quoting
Bellotti, 435 U. S.,at 783)). 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." Id., at 776; see id., at 780, n. 16.
Cf. id., at 828 (Rehnquist, J., dissenting).

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. See B. Smith, Unfree
Speech: The Folly of Campaign Finance Reform 23 (2001). Yet not until 1947 did Congress
first prohibit independent expenditures by corporations and labor unions in §304 of the Labor
Management Relations Act 1947, 61 Stat. 159 (codified at 2 U. S. C. §251 (1946 ed., Supp. I)).
In passing this Act Congress overrode the veto of President Truman, who warned that the
expenditure ban was a "dangerous intrusion on free speech." Message from the President of
the United States, H. R. Doc. No. 334, 89th Cong., 1st Sess., 9 (1947).

For almost three decades thereafter, the Court did not reach the question whether
restrictions on corporate and union expenditures are constitutional. See WRTL, 551 U. S., at
502 (opinion of Scalia, J.). The question was in the background of United States v. CIO, 335
U. S. 106 (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. Id., at
121. The Court engaged in statutory interpretation and found the statute did not cover the
publication. Id., at 121-122, and n. 20. Four Justices, however, said they would reach the
constitutional question and invalidate the Labor Management Relations Act's expenditure ban.
Id., at 155 (Rutledge, J., joined by Black, Douglas, and Murphy, JJ., concurring in result). The
concurrence explained that any " 'undue influence' " generated by a speaker's "large
expenditures" was outweighed "by the loss for democratic processes resulting from the
restrictions upon free and full public discussion." Id., at 143.

In United States v. Automobile Workers, 352 U. S. 567 (1957), the Court again encountered
the independent expenditure ban, which had been recodified at 18 U. S. C. §610 (1952 ed.).
See 62 Stat. 723-724. 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. 352 U. S., at 591. Three Justices dissented,
arguing that the Court should have reached the constitutional question and that the ban on
independent expenditures was unconstitutional:

21/113
 "Under our Constitution it is We The People who are sovereign. The people have the final say.
The legislators are their spokesmen. The people determine through their votes the destiny of the
nation. It is therefore important--vitally important--that all channels of communications be open to
them during every election, that no point of view be restrained or barred, and that the people have
access to the views of every group in the community." Id., at 593 (opinion of Douglas, J., joined
by Warren, C. J., and Black, J.).

The dissent concluded that deeming a particular group "too powerful" was not a "justificatio[n]
for withholding First Amendment rights from any group--labor or corporate." Id., at 597. The
Court did not get another opportunity to consider the constitutional question in that case; for
after a remand, a jury found the defendants not guilty. See Hayward, Revisiting the Fable of
Reform, 45 Harv. J. Legis. 421, 463 (2008).

Later, in Pipefitters v. United States, 407 U. S. 385, 400-401 (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, 424 U. S. 1, 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) (1970 ed., Supp. V), see 88 Stat. 1265, an independent expenditure ban separate
from §610 that applied to individuals as well as corporations and labor unions, Buckley, 424
U. S., at 23, 39, and n. 45.

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." Id., at 25; see id., at 26. 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," id., at 47-48,
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,"
id., at 47. Buckley invalidated §608(e)'s restrictions on independent expenditures, with only
one Justice dissenting. See Federal Election Comm'n v. National Conservative Political Action
Comm., 470 U. S. 480, 491, n. 3 (1985) (NCPAC).

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. See WRTL, supra,
22/113
at 487 (opinion of Scalia, J.) ("Buckley might well have been the last word on limitations on
independent expenditures"); Austin, 494 U. S., at 683 (Scalia, J., dissenting). The expenditure
ban invalidated in Buckley, §608(e), applied to corporations and unions, 424 U. S., at 23, 39,
n. 45; and some of the prevailing plaintiffs in Buckley were corporations, id., at 8. The Buckley
Court did not invoke the First Amendment's overbreadth doctrine, see Broadrick v. Oklahoma,
413 U. S. 601, 615 (1973), to suggest that §608(e)'s expenditure ban would have been
constitutional if it had applied only to corporations and not to individuals, 424 U. S., at 50.
Buckley cited with approval the Automobile Workers dissent, which argued that §610 was
unconstitutional. 424 U. S., at 43 (citing 352 U. S., at 595-596 (opinion of Douglas, J.)).

Notwithstanding this precedent, Congress recodified §610's corporate and union

expenditure ban at 2 U. S. C. §441b four months after Buckley was decided. See 90 Stat. 490.
Section 441b is the independent expenditure restriction challenged here.

Less than two years after Buckley, Bellotti, 435 U. S. 765, 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:

"We thus find no support in the First . . . Amendment, or in the decisions of this Court, for the
proposition that speech that otherwise would be within the protection of the First Amendment
loses that protection simply because its source is a corporation that cannot prove, to the
satisfaction of a court, a material effect on its business or property. . . . [That proposition]
amounts to an impermissible legislative prohibition of speech based on the identity of the interests
that spokesmen may represent in public debate over controversial issues and a requirement that
the speaker have a sufficiently great interest in the subject to justify communication.

.     .     .     .     .

"In the realm of protected speech, the legislature is constitutionally disqualified from dictating
the subjects about which persons may speak and the speakers who may address a public issue."
Id., at 784-785.

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. See ibid.

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." 494 U. S., at
23/113
695 (Kennedy, J., dissenting). 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." 494 U. S., at 660; see id., at 659
(citing MCFL, 479 U. S., at 257; NCPAC, 470 U. S., at 500-501).

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. See MCFL, supra, at 257 (FEC posited that
Congress intended to "curb the political influence of 'those who exercise control over large
aggregations of capital' " (quoting Automobile Workers, supra, at 585)); California Medical
Assn. v. Federal Election Comm'n, 453 U. S. 182, 201 (1981) (Congress believed that "differing
structures and purposes" of corporations and unions "may require different forms of regulation
in order to protect the integrity of the electoral process"). 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, see 494 U.
S., at 678 (Stevens, J., concurring), and a shareholder-protection interest, see id., at 674-675
(Brennan, J., concurring). We consider the three points in turn.

As for Austin's antidistortion rationale, the Government does little to defend it. See Tr. of
Oral Arg. 45-48 (Sept. 9, 2009). 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
24/113
contends that Austin permits it to ban corporate expenditures for almost all forms of
communication stemming from a corporation. See Part II-E, supra; Tr. of Oral Arg. 66 (Sept. 9,
2009); see also id., at 26-31 (Mar. 24, 2009). 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. The Government responds "that the FEC has never applied this
statute to a book," and if it did, "there would be quite [a] good as-applied challenge." Tr. of Oral
Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be
reconciled with the confidence and stability in civic discourse that the First Amendment must
secure.

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." Bellotti, 435 U. S., at
777 (footnote omitted); see ibid. (the worth of speech "does not depend upon the identity of its
source, whether corporation, association, union, or individual"); Buckley, 424 U. S., at 48-49 ("
[T]he concept that government may restrict the speech of some elements of our society in
order to enhance the relative voice of others is wholly foreign to the First Amendment");
Automobile Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO, 335 U. S., at 154-155
(Rutledge, J., concurring in result). 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.' " 494 U. S., at 659 (quoting MCFL,
supra, at 257). 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."
424 U. S., at 48; see Bellotti, supra, at 791, n. 30. Buckley was specific in stating that "the
skyrocketing cost of political campaigns" could not sustain the governmental prohibition. 424
U. S., at 26. The First Amendment's protections do not depend on the speaker's "financial
ability to engage in public discussion." Id., at 49.

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. See Davis v. Federal Election Comm'n, 554 U. S. ___, ___ (2008) (slip
op., at 16) ("Leveling electoral opportunities means making and implementing judgments about
which strengths should be permitted to contribute to the outcome of an election. The
Constitution, however, confers upon voters, not Congress, the power to choose the Members
of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use
the election laws to influence the voters' choices"). 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." 494 U. S., at 658-659. This does not

25/113
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." Id., at
680 (Scalia, J., dissenting).

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." Id., at 660 (majority
opinion). 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. See id., at 707 (Kennedy, J., dissenting) ("Many persons can trace their
funds to corporations, if not in the form of donations, then in the form of dividends, interest, or
salary").

Austin's antidistortion rationale would produce the dangerous, and unacceptable,

consequence that Congress could ban political speech of media corporations. See McConnell,
540 U. S., at 283 (opinion of Thomas, J.) ("The chilling endpoint of the Court's reasoning is not
difficult to foresee: outright regulation of the press"). Cf. Tornillo, 418 U. S., at 250 (alleging the
existence of "vast accumulations of unreviewable power in the modern media empires").
Media corporations are now exempt from §441b's ban on corporate expenditures. See 2
U. S. C. §§431(9)(B)(i), 434(f)(3)(B)(i). 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. Austin, 494 U. S., at 660. 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. "We have
consistently rejected the proposition that the institutional press has any constitutional privilege
beyond that of other speakers." Id., at 691 (Scalia, J., dissenting) (citing Bellotti, 435 U. S., at
782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985)
(Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting); id., at 773 (White, J.,
concurring in judgment). 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
26/113
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. See McIntyre v. Ohio Elections
Comm'n, 514 U. S. 334, 360-361 (1995) (Thomas, J., concurring in judgment). 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. See McConnell,
540 U. S., at 252-253 (opinion of Scalia, J.); Grosjean, 297 U. S., at 245-248; Near, 283 U. S.,
at 713-714. 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. See McIntyre, 514 U. S., at 341-
343; id., at 367 (Thomas, J., concurring in judgment). 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. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967)
("Any number of people could join in such proliferating polemics, and rebuttals could come
from all sides"); G. Wood, Creation of the American Republic 1776-1787, p. 6 (1969) ("[I]t is not
surprising that the intellectual sources of [the Americans'] Revolutionary thought were profuse
and various"). 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.
New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see ibid. (ideas
"may compete" in this marketplace "without government interference"); McConnell, supra, at
274 (opinion of Thomas, J.). It permits the Government to ban the political speech of millions of
associations of citizens. See Statistics of Income 2 (5.8 million for-profit corporations filed 2006
tax returns). Most of these are small corporations without large amounts of wealth. See Supp.
Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96%
of the 3 million businesses that belong to the U. S. Chamber of Commerce have fewer than
100 employees); M. Keightley, Congressional Research Service Report for Congress,
Business Organizational Choices: Taxation and Responses to Legislative Changes 10 (2009)
(more than 75% of corporations whose income is taxed under federal law, see 26 U. S. C.
§301, have less than $1 million in receipts per year). 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." Austin, 494 U. S., at 660. It is not even aimed at amassed
wealth.
27/113
 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." McConnell, supra,
at 257-258 (opinion of Scalia, J.). And "the electorate [has been] deprived of information,
knowledge and opinion vital to its function." CIO, 335 U. S., at 144 (Rutledge, J., concurring in
result). 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." The Federalist No. 10, p. 130 (B. Wright ed. 1961) (J. Madison). Factions should be
checked by permitting them all to speak, see ibid., 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. "[T]he First Amendment protects the right of
corporations to petition legislative and administrative bodies." Bellotti, 435 U. S., at 792, n. 31
(citing California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510-511 (1972);
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137-138
(1961)). 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. Brief for State of Montana et al. as Amici Curiae
19. 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. See, e.g., WRTL, 551 U. S., at 503-504 (opinion of Scalia, J.) ("In
the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to
[26 U. S. C. §527 organizations]"). 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.

28/113
 2

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. 424 U. S., at 25. 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." Id., at 45.

With regard to large direct contributions, Buckley reasoned that they could be given "to
secure a political quid pro quo," id., at 26, and that "the scope of such pernicious practices can
never be reliably ascertained," id., at 27. The practices Buckley noted would be covered by
bribery laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrangement were proved. See
Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo, 519 F. 2d 821, 839-840, and nn. 36-
38 (CADC 1975) (en banc) (per curiam)). 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. MCFL, 479 U. S., at 260; NCPAC, 470
U. S., at 500; Federal Election Comm'n v. National Right to Work Comm., 459 U. S. 197, 210
(1982) (NRWC). 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.

"The absence of prearrangement and coordination of an expenditure with the candidate or

his agent not only undermines the value of the expenditure to the candidate, but also alleviates
the danger that expenditures will be given as a quid pro quo for improper commitments from
the candidate." Buckley, 424 U. S., at 47; see ibid. (independent expenditures have a
"substantially diminished potential for abuse"). 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 for-profit
corporations. The Government does not claim that these expenditures have corrupted the
political process in those States. See Supp. Brief for Appellee 18, n. 3; Supp. Brief for
Chamber of Commerce of the United States of America as Amicus Curiae 8-9, n. 5.

A single footnote in Bellotti purported to leave open the possibility that corporate
independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For
the reasons explained above, we now conclude that independent expenditures, including those
made by corporations, do not give rise to corruption or the appearance of corruption. Dicta in
Bellotti's footnote suggested that "a corporation's right to speak on issues of general public
interest implies no comparable right in the quite different context of participation in a political
campaign for election to public office." Ibid. Citing the portion of Buckley that invalidated the
federal independent expenditure ban, 424 U. S., at 46, and a law review student comment,
29/113
Bellotti surmised that "Congress might well be able to demonstrate the existence of a danger
of real or apparent corruption in independent expenditures by corporations to influence
candidate elections." 435 U. S., at 788, n. 26. Buckley, however, struck down a ban on
independent expenditures to support candidates that covered corporations, 424 U. S., at 23,
39, n. 45, and explained that "the distinction between discussion of issues and candidates and
advocacy of election or defeat of candidates may often dissolve in practical application," id., at
42. Bellotti's dictum is thus supported only by a law review student comment, which
misinterpreted Buckley. See Comment, The Regulation of Union Political Activity: Majority and
Minority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408 (1977) (suggesting that
"corporations and labor unions should be held to different and more stringent standards than
an individual or other associations under a regulatory scheme for campaign financing").

Seizing on this aside in Bellotti's footnote, the Court in NRWC did say there is a "sufficient"
governmental interest in "ensur[ing] that substantial aggregations of wealth amassed" by
corporations would not "be used to incur political debts from legislators who are aided by the
contributions." 459 U. S., at 207-208 (citing Automobile Workers, 352 U. S., at 579); see 459
U. S., at 210, and n. 7; NCPAC, supra, at 500-501 (NRWC suggested a governmental interest
in restricting "the influence of political war chests funneled through the corporate form").
NRWC, however,has little relevance here. NRWC decided no more than that a restriction on a
corporation's ability to solicit funds for its segregated PAC, which made direct contributions to
candidates, did not violate the First Amendment. 459 U. S., at 206. NRWC thus involved
contribution limits, see NCPAC, supra, at 495-496, which, unlike limits on independent
expenditures, have been an accepted means to prevent quid pro quo corruption, see
McConnell, 540 U. S., at 136-138, and n. 40; MCFL, supra, at 259-260. Citizens United has
not made direct contributions to candidates, and it has not suggested that the Court should
reconsider whether contribution limits should be subjected to rigorous First Amendment
scrutiny.

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.
See McConnell, supra, at 296-298 (opinion of Kennedy, J.) (citing Buckley, supra, at 26-28, 30,
46-48); NCPAC, 470 U. S., at 497 ("The hallmark of corruption is the financial quid pro quo:
dollars for political favors"); id., at 498. The fact that speakers may have influence over or
access to elected officials does not mean that these officials are corrupt:

"Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an
elected representative to favor certain policies, and, by necessary corollary, to favor the voters and
contributors who support those policies. It is well understood that a substantial and legitimate
reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over
another is that the candidate will respond by producing those political outcomes the supporter
favors. Democracy is premised on responsiveness." McConnell, 540 U. S., at 297 (opinion of
Kennedy, J.).

Reliance on a "generic favoritism or influence theory . . . is at odds with standard First

Amendment analyses because it is unbounded and susceptible to no limiting principle." Id., at
30/113
296.

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. See Buckley, supra, at 46. 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. McConnell, supra, at 144 (quoting Nixon v. Shrink Missouri Government PAC, 528
U. S. 377, 390 (2000)).

Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton
held that a judge was required to recuse himself "when a person with a personal stake in a
particular case had a significant and disproportionate influence in placing the judge on the
case by raising funds or directing the judge's election campaign when the case was pending or
imminent." Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant's due
process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46
(1975). Caperton's holding was limited to the rule that the judge must be recused, not that the
litigant's political speech could be banned.

The McConnell record was "over 100,000 pages" long, McConnell I, 251 F. Supp. 2d, at
209, yet it "does not have any direct examples of votes being exchanged for . . . expenditures,"
id., at 560 (opinion of Kollar-Kotelly, J.). 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. See 251 F. Supp. 2d, at
555-557 (opinion of Kollar-Kotelly, J.). 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. McConnell, supra, at 125, 130-131, 146-152;
see McConnell I, 251 F. Supp. 2d, at 471-481, 491-506 (opinion of Kollar-Kotelly, J.); id., at
842-843, 858-859 (opinion of Leon, J.). 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.

31/113
 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. See supra, at
35-37. Assume, for example, that a shareholder of a corporation that owns a newspaper
disagrees with the political views the newspaper expresses. See Austin, 494 U. S., at 687
(Scalia, J., dissenting). 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."
Bellotti, 435 U. S., at 794; see id., at 794, n. 34.

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.
Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to "foreign national[s]"). 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. See Broadrick, 413 U. S., at 615.

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." Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (overruling
Michigan v. Jackson, 475 U. S. 625 (1986)). We have also examined whether "experience has
pointed up the precedent's shortcomings." Pearson v. Callahan, 555 U. S. ___, ___ (2009)
(slip op., at 8) (overruling Saucier v. Katz, 533 U. S. 194 (2001)).

These considerations counsel in favor of rejecting Austin, which itself contravened this
32/113
Court's earlier precedents in Buckley and Bellotti. "This Court has not hesitated to overrule
decisions offensive to the First Amendment." WRTL, 551 U. S., at 500 (opinion of Scalia, J.).
"[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest
decision." Helvering v. Hallock, 309 U. S. 106, 119 (1940).

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. Tr. of
Oral Arg. 48 (Sept. 9, 2009); see id., at 45-46. 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, see Brief for Campaign Finance Scholars as Amici Curiae; Hayward,
45 Harv. J. Legis. 421; R. Mutch, Campaigns, Congress, and Courts 33-35, 153-157 (1988).
See Austin, supra, at 659 (quoting MCFL, 479 U. S., at 257-258; NCPAC, 470 U. S., at 500-
501); MCFL, supra, at 257 (quoting Automobile Workers, 352 U. S., at 585); NCPAC, supra, at
500 (quoting NRWC, 459 U. S., at 210); id., at 208 ("The history of the movement to regulate
the political contributions and expenditures of corporations and labor unions is set forth in great
detail in [Automobile Workers], supra, at 570-584, and we need only summarize the
development here").

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. See,
e.g., McConnell, 540 U. S., at 176-177 ("Given BCRA's tighter restrictions on the raising and
spending of soft money, the incentives . . . to exploit [26 U. S. C. §527] organizations will only
increase"). 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. See Part II-C, supra. Today, 30-second television ads may be the most
effective way to convey a political message. See McConnell, supra, at 261 (opinion of Scalia,
J.). 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. See 2 U. S. C. §441b(a); MCFL,
supra, at 249. 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.
33/113
 No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee, 501
U. S. 808, 828 (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." Marbury v.
Madison, 1 Cranch 137, 177 (1803).

Due consideration leads to this conclusion: Austin, 494 U. S. 652, 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." Brief for Appellee 33, n. 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. See
540 U. S., at 203-209. The McConnell Court relied on the antidistortion interest recognized in
Austin to uphold a greater restriction on speech than the restriction upheld in Austin, see 540
U. S., at 205, and we have found this interest unconvincing and insufficient. This part of
McConnell is now overruled.

IV

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.' " 2 U. S. C. §441d(d)(2). 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

34/113
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. 2 U. S. C. §434(f)(1). 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. §434(f)(2).

Disclaimer and disclosure requirements may burden the ability to speak, but they "impose
no ceiling on campaign-related activities," Buckley, 424 U. S.,at 64, and "do not prevent
anyone from speaking," McConnell, supra, at 201 (internal quotation marks and brackets
omitted). The Court has subjected these requirements to "exacting scrutiny," which requires a
"substantial relation" between the disclosure requirement and a "sufficiently important"
governmental interest. Buckley, supra, at 64, 66 (internal quotation marks omitted); see
McConnell, supra, at 231-232.

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. 424 U. S., at 66. The McConnell Court applied this interest in rejecting facial
challenges to BCRA §§201 and 311. 540 U. S., at 196. There was evidence in the record that
independent groups were running election-related advertisements " 'while hiding behind
dubious and misleading names.' " Id., at 197 (quoting McConnell I, 251 F. Supp. 2d, at 237).
The Court therefore upheld BCRA §§201 and 311 on the ground that they would help citizens
" 'make informed choices in the political marketplace.' " 540 U. S., at 197 (quoting McConnell I,
supra, at 237); see 540 U. S., at 231.

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.' " Id., at 198 (quoting Buckley, supra, at 74).

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. 11 CFR §114.15(b)(3)(ii). The regulations, however, do not
exempt those communications from the disclaimer and disclosure requirements in BCRA
§§201 and 311. See 72 Fed. Reg. 72901 (2007).

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
35/113
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. See 530 F. Supp. 2d, at 276, nn. 2-4. The
disclaimers required by §311 "provid[e] the electorate with information," McConnell, supra, at
196, and "insure that the voters are fully informed" about the person or group who is speaking,
Buckley, supra, at 76; see also Bellotti, 435 U. S., at 792, n. 32 ("Identification of the source of
advertising may be required as a means of disclosure, so that the people will be able to
evaluate the arguments to which they are being subjected"). 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 WRTL limited 2 U. S. C. §441b's restrictions on independent expenditures
to express advocacy and its functional equivalent. 551 U. S., at 469-476 (opinion of Roberts, C.
J.). 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. See, e.g., MCFL, 479 U. S., at 262. In Buckley, the
Court upheld a disclosure requirement for independent expenditures even though it invalidated
a provision that imposed a ceiling on those expenditures. 424 U. S., at 75-76. In McConnell,
three Justices who would have found §441b to be unconstitutional nonetheless voted to
uphold BCRA's disclosure and disclaimer requirements. 540 U. S., at 321 (opinion of Kennedy,
J., joined by Rehnquist, C. J., and Scalia, J.). And the Court has upheld registration and
disclosure requirements on lobbyists, even though Congress has no power to ban lobbying
itself. United States v. Harriss, 347 U. S. 612, 625 (1954) (Congress "has merely provided for a
modicum of information from those who for hire attempt to influence legislation or who collect
or spend funds for that purpose"). 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.
36/113
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.
See Brief for Institute for Justice as Amicus Curiae 13-16; Brief for Alliance Defense Fund as
Amicus Curiae 16-22. 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. 540 U. S., at 198.
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, see Bellotti,
supra, at 794, and n. 34, 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. See McConnell, 540 U. S., at 128 ("[T]he public may not
have been fully informed about the sponsorship of so-called issue ads"); id., at 196-197
(quoting McConnell I, 251 F. Supp. 2d, at 237). 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." 540 U. S., at 259 (opinion of Scalia, J.); see MCFL,
supra, at 261. 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
37/113
circles of Government, some officials sought, by persuasion, to discourage its distribution. See
Smoodin, "Compulsory" Viewing for Every Citizen: Mr. Smith and the Rhetoric of Reception,
35 Cinema Journal 3, 19, and n. 52 (Winter 1996) (citing Mr. Smith Riles Washington, Time,
Oct. 30, 1939, p. 49); Nugent, Capra's Capitol Offense, N. Y. Times, Oct. 29, 1939, p. X5.
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 Youtube.com 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. 2 U. S. C. §431(9)(A)(i). 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." McConnell, supra, at 341 (opinion of Kennedy, J.).

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.

CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION

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

[January 21, 2010]

Chief Justice Roberts, with whom J ustice Alito joins, concurring.

38/113
 The Government urges us in this case to uphold a direct prohibition on political speech. It
asks us to embrace a theory of the First Amendment that would allow censorship not only of
television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other
medium that corporations and unions might find useful in expressing their views on matters of
public concern. Its theory, if accepted, would empower the Government to prohibit newspapers
from running editorials or opinion pieces supporting or opposing candidates for office, so long
as the newspapers were owned by corporations--as the major ones are. First Amendment
rights could be confined to individuals, subverting the vibrant public discourse that is at the
foundation of our democracy.

The Court properly rejects that theory, and I join its opinion in full. The First Amendment
protects more than just the individual on a soapbox and the lonely pamphleteer.I write
separately to address the important principles of judicial restraint and stare decisis implicated
in this case.

Judging the constitutionality of an Act of Congress is "the gravest and most delicate duty
that this Court is called upon to perform." Blodgett v. Holden, 275 U. S. 142, 147-148 (1927)
(Holmes, J., concurring). Because the stakes are so high, our standard practice is to refrain
from addressing constitutional questions except when necessary to rule on particular claims
before us. See Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring).
This policy underlies both our willingness to construe ambiguous statutes to avoid
constitutional problems and our practice " 'never to formulate a rule of constitutional law
broader than is required by the precise facts to which it is to be applied.' " United States v.
Raines, 362 U. S. 17, 21 (1960) (quoting Liverpool, New York & Philadelphia S. S. Co. v.
Commissioners of Emigration, 113 U. S. 33, 39 (1885)).

The majority and dissent are united in expressing allegiance to these principles. Ante, at
12; post, at 14 (Stevens, J., concurring in part and dissenting in part). But I cannot agree with my
dissenting colleagues on how these principles apply in this case.

The majority's step-by-step analysis accords with our standard practice of avoiding broad
constitutional questions except when necessary to decide the case before us. The majority
begins by addressing--and quite properly rejecting--Citizens United's statutory claim that 2
U. S. C. §441b does not actually cover its production and distribution of Hillary: The Movie
(hereinafter Hillary). If there were a valid basis for deciding this statutory claim in Citizens
United's favor (and thereby avoiding constitutional adjudication), it would be proper to do so.
Indeed, that is precisely the approach the Court took just last Term in Northwest Austin
Municipal Util. Dist. No. One v. Holder, 557 U. S. ___ (2009), when eight Members of the Court
agreed to decide the case on statutory grounds instead of reaching the appellant's broader
argument that the Voting Rights Act is unconstitutional.

It is only because the majority rejects Citizens United's statutory claim that it proceeds to
consider the group's various constitutional arguments, beginning with its narrowest claim (that
39/113
Hillary is not the functional equivalent of express advocacy) and proceeding to its broadest
claim (that Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990) should be
overruled). This is the same order of operations followed by the controlling opinion in Federal
Election Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL). There the
appellant was able to prevail on its narrowest constitutional argument because its broadcast
ads did not qualify as the functional equivalent of express advocacy; there was thus no need to
go on to address the broader claim that McConnell v. Federal Election Comm'n, 540 U. S. 93
(2003), should be overruled. WRTL, 551 U. S.,at 482; id., at 482-483 (Alito, J., concurring). This
case is different--not, as the dissent suggests, because the approach taken in WRTL has been
deemed a "failure," post, at 11, but because, in the absence of any valid narrower ground of
decision, there is no way to avoid Citizens United's broader constitutional argument.

The dissent advocates an approach to addressing Citizens United's claims that I find quite
perplexing. It presumably agrees with the majority that Citizens United's narrower statutory and
constitutional arguments lack merit--otherwise its conclusion that the group should lose this
case would make no sense. Despite agreeing that these narrower arguments fail, however, the
dissent argues that the majority should nonetheless latch on to one of them in order to avoid
reaching the broader constitutional question of whether Austin remains good law. It even
suggests that the Court's failure to adopt one of these concededly meritless arguments is a
sign that the majority is not "serious about judicial restraint." Post, at 16.

This approach is based on a false premise: that our practice of avoiding unnecessary (and
unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to
interpret the law. It should go without saying, however, that we cannot embrace a narrow
ground of decision simply because it is narrow; it must also be right. Thus while it is true that "
[i]f it is not necessary to decide more, it is necessary not to decide more," post, at 14 (internal
quotation marks omitted), sometimes it is necessary to decide more. There is a difference
between judicial restraint and judicial abdication. When constitutional questions are
"indispensably necessary" to resolving the case at hand, "the court must meet and decide
them." Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11, 558) (CC Va. 1833) (Marshall, C. J.).

Because it is necessary to reach Citizens United's broader argument that Austin should be
overruled, the debate over whether to consider this claim on an as-applied or facial basis
strikes me as largely beside the point. Citizens United has standing--it is being injured by the
Government's enforcement of the Act. Citizens United has a constitutional claim--the Act
violates the First Amendment, because it prohibits political speech. The Government has a
defense--the Act may be enforced, consistent with the First Amendment, against corporations.
Whether the claim or the defense prevails is the question before us.

Given the nature of that claim and defense, it makes no difference of any substance
whether this case is resolved by invalidating the statute on its face or only as applied to
Citizens United. Even if considered in as-applied terms, a holding in this case that the Act may
not be applied to Citizens United--because corporations as well as individuals enjoy the
pertinent First Amendment rights--would mean that any other corporation raising the same

40/113
challenge would also win. Likewise, a conclusion that the Act may be applied to Citizens
United--because it is constitutional to prohibit corporate political speech--would similarly
govern future cases. Regardless whether we label Citizens United's claim a "facial" or "as-
applied" challenge, the consequences of the Court's decision are the same.1

II

The text and purpose of the First Amendment point in the same direction: Congress may
not prohibit political speech, even if the speaker is a corporation or union. What makes this
case difficult is the need to confront our prior decision in Austin.

This is the first case in which we have been asked to overrule Austin, and thus it is also the
first in which we have had reason to consider how much weight to give stare decisis in
assessing its continued validity. The dissent erroneously declares that the Court "reaffirmed"
Austin's holding in subsequent cases--namely, Federal Election Comm'n v. Beaumont, 539
U. S. 146 (2003); McConnell; and WRTL. Post, at 48-50. Not so. Not a single party in any of
those cases asked us to overrule Austin, and as the dissent points out, post, at 4-6, the Court
generally does not consider constitutional arguments that have not properly been raised.
Austin's validity was therefore not directly at issue in the cases the dissent cites. The Court's
unwillingness to overturn Austin in those cases cannot be understood as a reaffirmation of that
decision.

Fidelity to precedent--the policy of stare decisis--is vital to the proper exercise of the judicial
function. "Stare decisis is the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of the judicial process." Payne
v. Tennessee, 501 U. S. 808, 827 (1991). For these reasons, we have long recognized that
departures from precedent are inappropriate in the absence of a "special justification." Arizona
v. Rumsey, 467 U. S. 203, 212 (1984).

At the same time, stare decisis is neither an "inexorable command," Lawrence v. Texas,
539 U. S. 558, 577 (2003), nor "a mechanical formula of adherence to the latest decision,"
Helvering v. Hallock, 309 U. S. 106, 119 (1940), especially in constitutional cases, see United
States v. Scott, 437 U. S. 82, 101 (1978). If it were, segregation would be legal, minimum wage
laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects
without first obtaining warrants. See Plessy v. Ferguson, 163 U. S. 537 (1896), overruled by
Brown v. Board of Education, 347 U. S. 483 (1954); Adkins v. Children's Hospital of D. C., 261
U. S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937);
Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S.
347 (1967). As the dissent properly notes, none of us has viewed stare decisis in such

41/113
absolute terms. Post, at 17; see also, e.g., Randall v. Sorrell, 548 U. S. 230, 274-281 (2006)
(Stevens, J., dissenting) (urging the Court to overrule its invalidation of limits on independent
expenditures on political speech in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)).

Stare decisis is instead a "principle of policy." Helvering, supra, at 119. When considering
whether to reexamine a prior erroneous holding, we must balance the importance of having
constitutional questions decided against the importance of having them decided right. As
Justice Jackson explained, this requires a "sober appraisal of the disadvantages of the
innovation as well as those of the questioned case, a weighing of practical effects of one
against the other." Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).

In conducting this balancing, we must keep in mind that stare decisis is not an end in itself.
It is instead "the means by which we ensure that the law will not merely change erratically, but
will develop in a principled and intelligible fashion." Vasquez v. Hillery, 474 U. S. 254, 265
(1986). Its greatest purpose is to serve a constitutional ideal--the rule of law. It follows that in
the unusual circumstance when fidelity to any particular precedent does more to damage this
constitutional ideal than to advance it, we must be more willing to depart from that precedent.

Thus, for example, if the precedent under consideration itself departed from the Court's
jurisprudence, returning to the " 'intrinsically sounder' doctrine established in prior cases" may
"better serv[e] the values of stare decisis than would following [the] more recently decided case
inconsistent with the decisions that came before it." Adarand Constructors, Inc. v. Peńa, 515
U. S. 200, 231 (1995); see also Helvering, supra, at 119; Randall, supra, at 274 (Stevens, J.,
dissenting). Abrogating the errant precedent, rather than reaffirming or extending it, might
better preserve the law's coherence and curtail the precedent's disruptive effects.

Likewise, if adherence to a precedent actually impedes the stable and orderly adjudication
of future cases, its stare decisis effect is also diminished. This can happen in a number of
circumstances, such as when the precedent's validity is so hotly contested that it cannot
reliably function as a basis for decision in future cases, when its rationale threatens to upend
our settled jurisprudence in related areas of law, and when the precedent's underlying
reasoning has become so discredited that the Court cannot keep the precedent alive without
jury-rigging new and different justifications to shore up the original mistake. See, e.g., Pearson
v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 10); Montejo v. Louisiana, 556 U. S. ___,
___ (2009) (slip op., at 13) (stare decisis does not control when adherence to the prior
decision requires "fundamentally revising its theoretical basis").

These considerations weigh against retaining our decision in Austin. First, as the majority
explains, that decision was an "aberration" insofar as it departed from the robust protections
we had granted political speech in our earlier cases. Ante, at 39; see also Buckley, supra; First
Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978). Austin underminedthe careful line that
Buckley drew to distinguish limits on contributions to candidates from limits on independent
expenditures on speech. Buckley rejected the asserted government interest in regulating
42/113
independent expenditures, concluding that "restrict[ing] the speech of some elements of our
society in order to enhance the relative voice of others is wholly foreign to the First
Amendment." 424 U. S., at 48-49; see also Bellotti, supra, at 790-791; Citizens Against Rent
Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 295 (1981). Austin, however,
allowed the Government to prohibit these same expenditures out of concern for "the corrosive
and distorting effects of immense aggregations of wealth" in the marketplace of ideas. 494
U. S., at 660. Austin's reasoning was--and remains--inconsistent with Buckley's explicit
repudiation of any government interest in "equalizing the relative ability of individuals and
groups to influence the outcome of elections." 424 U. S., at 48-49.

Austin was also inconsistent with Bellotti's clear rejection of the idea that "speech that
otherwise would be within the protection of the First Amendment loses that protection simply
because its source is a corporation." 435 U. S., at 784. The dissent correctly points out that
Bellotti involved a referendum rather than a candidate election, and that Bellotti itself noted this
factual distinction, id., at 788, n. 26; post, at 52. But this distinction does not explain why
corporations may be subject to prohibitions on speech in candidate elections when individuals
may not.

Second, the validity of Austin's rationale--itself adopted over two "spirited dissents," Payne,
501 U. S., at 829--has proved to be the consistent subject of dispute among Members of this
Court ever since. See, e.g., WRTL, 551 U. S., at 483 (Scalia, J., joined by Kennedy and Thomas,
JJ., concurring in part and concurring in judgment); McConnell, 540 U. S., at 247, 264, 286
(opinions of Scalia, Thomas, and Kennedy, JJ.); Beaumont, 539 U. S., at 163, 164 (opinions of
Kennedy and Thomas, JJ.). The simple fact that one of our decisions remains controversial is, of
course, insufficient to justify overruling it. But it does undermine the precedent's ability to
contribute to the stable and orderly development of the law. In such circumstances, it is
entirely appropriate for the Court--which in this case is squarely asked to reconsider Austin's
validity for the first time--to address the matter with a greater willingness to consider new
approaches capable of restoring our doctrine to sounder footing.

Third, the Austin decision is uniquely destabilizing because it threatens to subvert our
Court's decisions even outside the particular context of corporate express advocacy. The First
Amendment theory underlying Austin's holding is extraordinarily broad. Austin's logic would
authorize government prohibition of political speech by a category of speakers in the name of
equality--a point that most scholars acknowledge (and many celebrate), but that the dissent
denies. Compare, e.g., Garrett, New Voices in Politics: Justice Marshall's Jurisprudence on
Law and Politics, 52 Howard L. J. 655, 669 (2009) (Austin "has been understood by most
commentators to be an opinion driven by equality considerations, albeit disguised in the
language of 'political corruption' ") with post, at 74 (Austin's rationale "is manifestly not just an
'equalizing' ideal in disguise").2

It should not be surprising, then, that Members of the Court have relied on Austin's
expansive logic to justify greater incursions on the First Amendment, even outside the original
context of corporate advocacy on behalf of candidates running for office. See, e.g., Davis v.
Federal Election Comm'n, 554 U. S. ___, ___ (2008) (slip op., at 7-8) (Stevens, J., concurring in
43/113
part and dissenting in part) (relying on Austin and other cases to justify restrictions on
campaign spending by individual candidates, explaining that "there is no reason that their
logic--specifically, their concerns about the corrosive and distorting effects of wealth on our
political process--is not equally applicable in the context of individual wealth"); McConnell,
supra, at 203-209 (extending Austin beyond its original context to cover not only the "functional
equivalent" of express advocacy by corporations, but also electioneering speech conducted by
labor unions). The dissent in this case succumbs to the same temptation, suggesting that
Austin justifies prohibiting corporate speech because such speech might unduly influence "the
market for legislation." Post, at 82. The dissent reads Austin to permit restrictions on corporate
speech based on nothing more than the fact that the corporate form may help individuals
coordinate and present their views more effectively. Post, at 82. A speaker's ability to
persuade, however, provides no basis for government regulation of free and open public
debate on what the laws should be.

If taken seriously, Austin's logic would apply most directly to newspapers and other media
corporations. They have a more profound impact on public discourse than most other
speakers. These corporate entities are, for the time being, not subject to §441b's otherwise
generally applicable prohibitions on corporate political speech. But this is simply a matter of
legislative grace. The fact that the law currently grants a favored position to media
corporations is no reason to overlook the danger inherent in accepting a theory that would
allow government restrictions on their political speech. See generally McConnell, supra, at
283-286 (Thomas, J., concurring in part, concurring in judgment in part, and dissenting in part).

These readings of Austin do no more than carry that decision's reasoning to its logical
endpoint. In doing so, they highlight the threat Austin poses to First Amendment rights
generally, even outside its specific factual context of corporate express advocacy. Because
Austin is so difficult to confine to its facts--and because its logic threatens to undermine our
First Amendment jurisprudence and the nature of public discourse more broadly--the costs of
giving it stare decisis effect are unusually high.

Finally and most importantly, the Government's own effort to defend Austin--or, more
accurately, to defend something that is not quite Austin--underscores its weakness as a
precedent of the Court. The Government concedes that Austin "is not the most lucid opinion,"
yet asks us to reaffirm its holding. Tr. of Oral Arg. 62 (Sept. 9, 2009). But while invoking stare
decisis to support this position, the Government never once evenmentions the compelling
interest that Austin relied upon in the first place: the need to diminish "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." 494 U. S., at 660.

Instead of endorsing Austin on its own terms, the Government urges us to reaffirm Austin's
specific holding on the basis of two new and potentially expansive interests--the need to
prevent actual or apparent quid pro quo corruption, and the need to protect corporate
shareholders. See Supp. Brief for Appellee 8-10, 12-13. Those interests may or may not
support the result in Austin, but they were plainly not part of the reasoning on which Austin
44/113
relied.

To its credit, the Government forthrightly concedes that Austin did not embrace either of the
new rationales it now urges upon us. See, e.g., Supp. Brief for Appellee 11 ("The Court did not
decide in Austin ... whether the compelling interest in preventing actual or apparent corruption
provides a constitutionally sufficient justification for prohibiting the use of corporate treasury
funds for independent electioneering"); Tr. of Oral Arg. 45 (Sept. 9, 2009) ("Austin did not
articulate what we believe to be the strongest compelling interest"); id., at 61 ("[The Court:] I
take it we have never accepted your shareholder protection interest. This is a new argument.
[The Government:] I think that that's fair"); id., at 64 ("[The Court:] In other words, you are
asking us to uphold Austin on the basis of two arguments, two principles, two compelling
interests we have never accepted in [the context of limits on political expenditures]. [The
Government:] [I]n this particular context, fair enough").

To be clear: The Court in Austin nowhere relied upon the only arguments the Government
now raises to support that decision. In fact, the only opinion in Austinendorsing the
Government's argument based on the threat of quid pro quo corruption was Justice Stevens's
concurrence. 494 U. S., at 678. The Court itself did not do so, despite the fact that the
concurrence highlighted the argument. Moreover, the Court's only discussion of shareholder
protection in Austin appeared in a section of the opinion that sought merely to distinguish
Austin's facts from those of Federal Election Comm'n v. Massachusetts Citizens for Life, Inc.,
479 U. S. 238 (1986). Austin, supra, at 663. Nowhere did Austin suggest that the goal of
protecting shareholders is itself a compelling interest authorizing restrictions on First
Amendment rights.

To the extent that the Government's case for reaffirming Austin depends on radically
reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine
of preservation, not transformation. It counsels deference to past mistakes, but provides no
justification for making new ones. There is therefore no basis for the Court to give precedential
sway to reasoning that it has never accepted, simply because that reasoning happens to
support a conclusion reached on different grounds that have since been abandoned or
discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It
would effectively license the Court to invent and adopt new principles of constitutional law
solely for the purpose of rationalizing its past errors, without a proper analysis of whether those
principles have merit on their own. This approach would allow the Court's past missteps to
spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed
to protect.

None of this is to say that the Government is barred from making new arguments to support
the outcome in Austin. On the contrary, it is free to do so. And of course the Court is free to
accept them. But the Government's new arguments must stand or fall on their own; they are
not entitled to receive the special deference we accord to precedent. They are, as grounds to

45/113
support Austin, literally unprecedented. Moreover, to the extent the Government relies on new
arguments--and declines to defend Austin on its own terms--we may reasonably infer that it
lacks confidence in that decision's original justification.

Because continued adherence to Austin threatens to subvert the "principled and intelligible"
development of our First Amendment jurisprudence, Vasquez, 474 U. S., at 265, I support the
Court's determination to overrule that decision.

*  *  *

We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs
to help us carry out our obligation to decide the necessary constitutional questions according to
law. We have also had the benefit of a comprehensive dissent that has helped ensure that the
Court has considered all the relevant issues. This careful consideration convinces me that
Congress violates the First Amendment when it decrees that some speakers may not engage
in political speech at election time, when it matters most.

CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION

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

[January 21, 2010]

Justice Scalia, with whom Justice Alito joins, and with whom Justice Thomas joins in part,
concurring.

I join the opinion of the Court.1

I write separately to address Justice Stevens' discussion of "Original Understandings," post, at

34 (opinion concurring in part and dissenting in part) (hereinafter referred to as the dissent).
This section of the dissent purports to show that today's decision is not supported by the
original understanding of the First Amendment. The dissent attempts this demonstration,
however, in splendid isolation from the text of the First Amendment. It never shows why "the
freedom of speech" that was the right of Englishmen did not include the freedom to speak in
association with other individuals, including association in the corporate form. To be sure, in
1791 (as now) corporations could pursue only the objectives set forth in their charters; but the
dissent provides no evidence that their speech in the pursuit of those objectives could be
censored.

Instead of taking this straightforward approach to determining the Amendment's meaning,

the dissent embarks on a detailed exploration of the Framers' views about the "role of
corporations in society." Post, at 35. The Framers didn't like corporations, the dissent
concludes, and therefore it follows (as night the day) that corporations had no rights of free
46/113
speech. Of course the Framers' personal affection or disaffection for corporations is relevant
only insofar as it can be thought to be reflected in the understood meaning of the text they
enacted--not, as the dissent suggests, as a freestanding substitute for that text. But the
dissent's distortion of proper analysis is even worse than that. Though faced with a
constitutional text that makes no distinction between types of speakers, the dissent feels no
necessity to provide even an isolated statement from the founding era to the effect that
corporations are not covered, but places the burden on petitioners to bring forward statements
showing that they are ("there is not a scintilla of evidence to support the notion that anyone
believed [the First Amendment] would preclude regulatory distinctions based on the corporate
form," post, at 34-35).

Despite the corporation-hating quotations the dissent has dredged up, it is far from clear
that by the end of the 18th century corporations were despised. If so, how came there to be so
many of them? The dissent's statement that there were few business corporations during the
eighteenth century--"only a few hundred during all of the 18th century"--is misleading. Post, at
35, n. 53. There were approximately 335 charters issued to business corporations in the
United States by the end of the 18th century.2 See 2 J. Davis, Essays in the Earlier History of
American Corporations 24 (1917) (reprint 2006) (hereinafter Davis). This was a "considerable
extension of corporate enterprise in the field of business," Davis 8, and represented
"unprecedented growth," id., at 309. Moreover, what seems like a small number by today's
standards surely does not indicate the relative importance of corporations when the Nation
was considerably smaller. As I have previously noted, "[b]y the end of the eighteenth century
the corporation was a familiar figure in American economic life." McConnell v. Federal Election
Comm'n, 540 U. S. 93, 256 (2003) (Scalia, J., concurring in part, concurring in judgment in part,
and dissenting in part) (quoting C. Cooke, Corporation Trust and Company 92 (1951)
(hereinafter Cooke)).

Even if we thought it proper to apply the dissent's approach of excluding from First
Amendment coverage what the Founders disliked, and even if we agreed that the Founders
disliked founding-era corporations; modern corporations might not qualify for exclusion. Most
of the Founders' resentment towards corporations was directed at the state-granted monopoly
privileges that individually chartered corporations enjoyed.3 Modern corporations do not have
such privileges, and would probably have been favored by most of our enterprising Founders--
excluding, perhaps, Thomas Jefferson and others favoring perpetuation of an agrarian society.
Moreover, if the Founders' specific intent with respect to corporations is what matters, why
does the dissent ignore the Founders' views about other legal entities that have more in
common with modern business corporations than the founding-era corporations? At the time of
the founding, religious, educational, and literary corporations were incorporated under general
incorporation statutes, much as business corporations are today.4 See Davis 16-17; R.
Seavoy, Origins of the American Business Corporation, 1784-1855, p. 5 (1982); Cooke 94.
There were also small unincorporated business associations, which some have argued were
the " 'true progenitors' " of today's business corporations. Friedman 200 (quoting S. Livermore,

47/113
Early American Land Companies: Their Influence on Corporate Development 216 (1939)); see
also Davis 33. Were all of these silently excluded from the protections of the First
Amendment?

The lack of a textual exception for speech by corporations cannot be explained on the
ground that such organizations did not exist or did not speak. To the contrary, colleges, towns
and cities, religious institutions, and guilds had long been organized as corporations at
common law and under the King's charter, see 1 W. Blackstone, Commentaries on the Laws of
England 455-473 (1765); 1 S. Kyd, A Treatise on the Law of Corporations 1-32, 63 (1793)
(reprinted 2006), and as I have discussed, the practice of incorporation only expanded in the
United States. Both corporations and voluntary associations actively petitioned the
Government and expressed their views in newspapers and pamphlets. For example: An
antislavery Quaker corporation petitioned the First Congress, distributed pamphlets, and
communicated through the press in 1790. W. diGiacomantonio, "For the Gratification of a
Volunteering Society": Antislavery and Pressure Group Politics in the First Federal Congress,
15 J. Early Republic 169 (1995). The New York Sons of Liberty sent a circular to colonies
farther south in 1766. P. Maier, From Resistance to Revolution 79-80 (1972). And the Society
for the Relief and Instruction of Poor Germans circulated a biweekly paper from 1755 to 1757.
Adams, The Colonial German-language Press and the American Revolution, in The Press &
the American Revolution 151, 161-162 (B. Bailyn & J. Hench eds. 1980). The dissent offers no
evidence--none whatever--that the First Amendment's unqualified text was originally
understood to exclude such associational speech from its protection.5

Historical evidence relating to the textually similar clause "the freedom of . . . the press" also
provides no support for the proposition that the First Amendment excludes conduct of artificial
legal entities from the scope of its protection. The freedom of "the press" was widely
understood to protect the publishing activities of individual editors and printers. See McIntyre
v. Ohio Elections Comm'n, 514 U. S. 334, 360 (1995) (Thomas, J., concurring in judgment); see
also McConnell, 540 U. S., at 252-253 (opinion of Scalia, J.). But these individuals often acted
through newspapers, which (much like corporations) had their own names, outlived the
individuals who had founded them, could be bought and sold, were sometimes owned by more
than one person, and were operated for profit. See generally F. Mott, American Journalism: A
History of Newspapers in the United States Through 250 Years 3-164 (1941); J. Smith,
Freedom's Fetters (1956). Their activities were not stripped of First Amendment protection
simply because they were carried out under the banner of an artificial legal entity. And the
notion which follows from the dissent's view, that modern newspapers, since they are
incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.6

In passing, the dissent also claims that the Court's conception of corruption is unhistorical.
The Framers "would have been appalled," it says, by the evidence of corruption in the
congressional findings supporting the Bipartisan Campaign Reform Act of 2002. Post, at 61.
For this proposition, the dissent cites a law review article arguing that "corruption" was
originally understood to include "moral decay" and even actions taken by citizens in pursuit of
private rather than public ends. Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev.

48/113
341, 373, 378 (2009). It is hard to see how this has anything to do with what sort of corruption
can be combated by restrictions on political speech. Moreover, if speech can be prohibited
because, in the view of the Government, it leads to "moral decay" or does not serve "public
ends," then there is no limit to the Government's censorship power.

The dissent says that when the Framers "constitutionalized the right to free speech in the
First Amendment, it was the free speech of individual Americans that they had in mind." Post,
at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of
individual men and women--not, for example, of trees or polar bears. But the individual
person's right to speak includes the right to speak in association with other individual persons.
Surely the dissent does not believe that speech by the Republican Party or the Democratic
Party can be censored because it is not the speech of "an individual American." It is the
speech of many individual Americans, who have associated in a common cause, giving the
leadership of the party the right to speak on their behalf. The association of individuals in a
business corporation is no different--or at least it cannot be denied the right to speak on the
simplistic ground that it is not "an individual American."7

But to return to, and summarize, my principal point, which is the conformity of today's
opinion with the original meaning of the First Amendment. The Amendment is written in terms
of "speech," not speakers. Its text offers no foothold for excluding any category of speaker,
from single individuals to partnerships of individuals, to unincorporated associations of
individuals, to incorporated associations of individuals--and the dissent offers no evidence
about the original meaning of the text to support any such exclusion. We are therefore simply
left with the question whether the speech at issue in this case is "speech" covered by the First
Amendment. No one says otherwise. A documentary film critical of a potential Presidential
candidate is core political speech, and its nature as such does not change simply because it
was funded by a corporation. Nor does the character of that funding produce any reduction
whatever in the "inherent worth of the speech" and "its capacity for informing the public," First
Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978). Indeed, to exclude or impede
corporate speech is to muzzle the principal agents of the modern free economy. We should
celebrate rather than condemn the addition of this speech to the public debate.

CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION

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

[January 21, 2010]

with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring in
Justice Stevens,
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
49/113
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," ante, at 1. All that the parties
dispute is whether Citizens United had a right to use the funds in its general treasury to pay
forbroadcasts 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, ch. 420, 34 Stat. 864. 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., 459 U. S. 197, 209 (1982) (NRWC),
and have accepted the "legislative judgment that the special characteristics of the corporate
structure require particularly careful regulation," id., at 209-210. 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, 494 U. S.
652 (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, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v.

50/113
Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238
(1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182
(1981).

In his landmark concurrence in Ashwander v. TVA, 297 U. S. 288, 346 (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 .1 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
importantto explain why the Court should not be deciding that question.

Scope of the Case

The first reason is that the question was not properly brought before us. In declaring §203
of BCRA facially unconstitutional on the ground that corporations' electoral expenditures may
not be regulated any more stringently than those of individuals, the majority decides this case
on a basis relinquished below, not included in the questions presented to us by the litigants,
and argued here only in response to the Court's invitation. This procedure is unusual and
inadvisable for a court.2 Our colleagues' suggestion that "we are asked to reconsider Austin
and, in effect, McConnell," ante, at 1, would be more accurate if rephrased to state that "we
have asked ourselves" to reconsider those cases.

In the District Court, Citizens United initially raised a facial challenge to the constitutionality
of §203. App. 23a-24a. In its motion for summary judgment, however, Citizens United
expressly abandoned its facial challenge, 1:07-cv-2240-RCL-RWR, Docket Entry No. 52, pp. 1-
2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id., Nos. 53 (May 22,
2008), 54 (May 23, 2008), App. 6a. The District Court therefore resolved the case on
alternative grounds, 3 and in its jurisdictional statement to this Court, Citizens United properly
advised us that it was raising only "an as-applied challenge to the constitutionality of ... BCRA
§203." Juris. Statement 5. The jurisdictional statement never so much as cited Austin, the key
case the majority today overrules. And not one of the questions presented suggested that
Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed
to dismiss. In fact, not one of those questions raised an issue based on Citizens United's
corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens
51/113
United injected its request to overrule Austin, it never sought a declaration that §203 was
facially unconstitutional as to all corporations and unions; instead it argued only that the statute
could not be applied to it because it was "funded overwhelmingly by individuals." Brief for
Appellant 29; see also id., at 10, 12, 16, 28 (affirming "as applied" character of challenge to
§203); Tr. of Oral Arg. 4-9 (Mar. 24, 2009) (counsel for Citizens United conceding that §203
could be applied to General Motors); id., at 55 (counsel for Citizens United stating that "we
accept the Court's decision in Wisconsin Right to Life").

" 'It is only in exceptional cases coming here from the federal courts that questions not
pressed or passed upon below are reviewed,' " Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)), and it is "only in
the most exceptional cases" that we will consider issues outside the questions presented,
Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976). The appellant in this case did not so much
as assert an exceptional circumstance, and one searches the majority opinion in vain for the
mention of any. That is unsurprising, for none exists.

Setting the case for reargument was a constructive step, but it did not cure this fundamental
problem. Essentially, five Justices were unhappy with the limited nature of the case before us,
so they changed the case to give themselves an opportunity to change the law.

As-Applied and Facial Challenges

This Court has repeatedly emphasized in recent years that "[f]acial challenges are
disfavored." Washington State Grange v. Washington State Republican Party, 552 U. S. 442,
450 (2008); see also Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329
(2006) ("[T]he 'normal rule' is that 'partial, rather than facial, invalidation is the required course,'
such that a 'statute may ... be declared invalid to the extent that it reaches too far, but
otherwise left intact' " (quoting Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985);
alteration in original)). By declaring §203 facially unconstitutional, our colleagues have turned
an as-applied challenge into a facial challenge, in defiance of this principle.

This is not merely a technical defect in the Court's decision. The unnecessary resort to a
facial inquiry "run[s] contrary to the fundamental principle of judicial restraint that courts should
neither anticipate a question of constitutional law in advance of the necessity of deciding it nor
formulate a rule of constitutional law broader than is required by the precise facts to which it is
to be applied." Washington State Grange, 552 U. S., at 450 (internal quotation marks omitted).
Scanting that principle "threaten[s] to short circuit the democratic process by preventing laws
embodying the will of the people from being implemented in a manner consistent with the
Constitution." Id., at 451. These concerns are heightened when judges overrule settled
doctrine upon which the legislature has relied. The Court operates with a sledge hammer rather
than a scalpel when it strikes down one of Congress' most significant efforts to regulate the
role that corporations and unions play in electoral politics. It compounds the offense by
implicitly striking down a great many state laws as well.

The problem goes still deeper, for the Court does all of this on the basis of pure
52/113
speculation. Had Citizens United maintained a facial challenge, and thus argued that there are
virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties
could have developed, through the normal process of litigation, a record about the actual
effects of §203, its actual burdens and its actual benefits, on all manner of corporations and
unions.4 "Claims of facial invalidity often rest on speculation," and consequently "raise the risk
of premature interpretation of statutes on the basis of factually barebones records." Id., at 450
(internal quotation marks omitted). In this case, the record is not simply incomplete or
unsatisfactory; it is nonexistent. Congress crafted BCRA in response to a virtual mountain of
research on the corruption that previous legislation had failed to avert. The Court now negates
Congress' efforts without a shred of evidence on how §203 or its state-law counterparts have
been affecting any entity other than Citizens United.5

Faced with this gaping empirical hole, the majority throws up its hands. Were we to confine
our inquiry to Citizens United's as-applied challenge, it protests, we would commence an
"extended" process of "draw[ing], and then redraw[ing], constitutional lines based on the
particular media or technology used to disseminate political speech from a particular speaker."
Ante, at 9. While tacitly acknowledging that some applications of §203 might be found
constitutional, the majority thus posits a future in which novel First Amendment standards must
be devised on an ad hoc basis, and then leaps from this unfounded prediction to the
unfounded conclusion that such complexity counsels the abandonment of all normal restraint.
Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new
technologies, may raise some unanticipated difficulties at the margins. The fluid nature of
electioneering communications does not make this case special. The fact that a Court can
hypothesize situations in which a statute might, at some point down the line, pose some
unforeseen as-applied problems, does not come close to meeting the standard for a facial
challenge.6

The majority proposes several other justifications for the sweep of its ruling. It suggests that
a facial ruling is necessary because, if the Court were to continue on its normal course of
resolving as-applied challenges as they present themselves, that process would itselfrun afoul
of the First Amendment. See, e.g., ante, at 9 (as-applied review process "would raise
questions as to the courts' own lawful authority"); ibid. ("Courts, too, are bound by the First
Amendment"). This suggestion is perplexing. Our colleagues elsewhere trumpet "our duty 'to
say what the law is,' " even when our predecessors on the bench and our counterparts in
Congress have interpreted the law differently. Ante, at 49 (quoting Marbury v. Madison, 1
Cranch 137, 177 (1803)). We do not typically say what the law is not as a hedge against future
judicial error. The possibility that later courts will misapply a constitutional provision does not
give us a basis for pretermitting litigation relating to that provision.7

The majority suggests that a facial ruling is necessary because anything less would chill too
much protected speech. See ante, at 9-10, 12, 16-20. In addition to begging the question what
types of corporate spending are constitutionally protected and to what extent, this claim rests
on the assertion that some significant number of corporations have been cowed into
quiescence by FEC " 'censor[ship].' " Ante, at 18-19. That assertion is unsubstantiated, and it
53/113
is hard to square with practical experience. It is particularly hard to square with the legal
landscape following WRTL, which held that a corporate communication could be regulated
under §203 only if it was "susceptible of no reasonable interpretation other than as an appeal
to vote for or against a specific candidate." 551 U. S., at 470 (opinion of Roberts, C. J.) (emphasis
added). The whole point of this test was to make §203 as simple and speech-protective as
possible. The Court does not explain how, in the span of a single election cycle, it has
determined The Chief Justice's project to be a failure. In this respect, too, the majority's critique of
line-drawing collapses into a critique of the as-applied review method generally.8

The majority suggests that, even though it expressly dismissed its facial challenge, Citizens
United nevertheless preserved it--not as a freestanding "claim," but as a potential argument in
support of "a claim that the FEC has violated its First Amendment right to free speech." Ante,
at 13; see also ante, at 4 (Roberts, C. J., concurring) (describing Citizens United's claim as: "[T]he
Act violates the First Amendment"). By this novel logic, virtually any submission could be
reconceptualized as "a claim that the Government has violated my rights," and it would then be
available to the Court to entertain any conceivable issue that might be relevant to that claim's
disposition. Not only the as-applied/facial distinction, but the basic relationship between
litigants and courts, would be upended if the latter had free rein to construe the former's claims
at such high levels of generality. There would be no need for plaintiffs to argue their case; they
could just cite the constitutional provisions they think relevant, and leave the rest to us.9

Finally, the majority suggests that though the scope of Citizens United's claim may be
narrow, a facial ruling is necessary as a matter of remedy. Relying on a law review article, it
asserts that Citizens United's dismissal of the facial challenge does not prevent us " 'from
making broader pronouncements of invalidity in properly "as-applied" cases.' " Ante, at 14
(quoting Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev.
1321, 1339 (2000) (hereinafter Fallon)); accord, ante, at 5 (opinion of Roberts, C. J.) ("Regardless
whether we label Citizens United's claim a 'facial' or 'as-applied' challenge, the consequences
of the Court's decision are the same"). The majority is on firmer conceptual ground here. Yet
even if one accepts this part of Professor Fallon's thesis, one must proceed to ask which as-
applied challenges, if successful, will "properly" invite or entail invalidation of the underlying
statute.10 The paradigmatic case is a judicial determination that the legislature acted with an
impermissible purpose in enacting a provision, as this carries the necessary implication that all
future as-applied challenges to the provision must prevail. See Fallon 1339-1340.

Citizens United's as-applied challenge was not of this sort. Until this Court ordered
reargument, its contention was that BCRA §203 could not lawfully be applied to a feature-
length video-on-demand film (such as Hillary) or to a nonprofit corporation exempt from
taxation under 26 U. S. C. §501(c)(4) 11 and funded overwhelmingly by individuals (such as
itself). See Brief for Appellant 16-41. Success on either of these claims would not necessarily
carry any implications for the validity of §203 as applied to other types of broadcasts, other
types of corporations, or unions. It certainly would not invalidate the statute as applied to a
large for-profit corporation. See Tr. of Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens
United emphasizing that appellant is "a small, nonprofit organization, which is very much like

54/113
[an MCFL corporation]," and affirming that its argument "definitely would not be the same" if
Hillary were distributed by General Motors).12 There is no legitimate basis for resurrecting a
facial challenge that dropped out of this case 20 months ago.

Narrower Grounds

It is all the more distressing that our colleagues have manufactured a facial challenge,
because the parties have advanced numerous ways to resolve the case that would facilitate
electioneering by nonprofit advocacy corporations such as Citizens United, without toppling
statutes and precedents. Which is to say, the majority has transgressed yet another "cardinal"
principle of the judicial process: "[I]f it is not necessary to decide more, it is necessary not to
decide more," PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004)
(Roberts, J., concurring in part and concurring in judgment).

Consider just three of the narrower grounds of decision that the majority has bypassed.
First, the Court could have ruled, on statutory grounds, that a feature-length film distributed
through video-on-demand does not qualify as an "electioneering communication" under §203
of BCRA, 2 U. S. C. §441b. BCRA defines that term to encompass certain communications
transmitted by "broadcast, cable, or satellite." §434(f)(3)(A). When Congress was developing
BCRA, the video-on-demand medium was still in its infancy, and legislators were focused on a
very different sort of programming: short advertisements run on television or radio. See
McConnell, 540 U. S., at 207. The sponsors of BCRA acknowledge that the FEC's
implementing regulations do not clearly apply to video-on-demand transmissions. See Brief for
Senator John McCain et al. as Amici Curiae 17-19. In light of this ambiguity, the distinctive
characteristics of video-on-demand, and "[t]he elementary rule ... that every reasonable
construction must be resorted to, in order to save a statute from unconstitutionality," Hooper v.
California, 155 U. S. 648, 657 (1895), the Court could have reasonably ruled that §203 does
not apply to Hillary.13

Second, the Court could have expanded the MCFL exemption to cover §501(c)(4)
nonprofits that accept only a de minimis amount of money from for-profit corporations. Citizens
United professes to be such a group: Its brief says it "is funded predominantly by donations
from individuals who support [its] ideological message." Brief for Appellant 5. Numerous Courts
of Appeal have held that de minimis business support does not, in itself, remove an otherwise
qualifying organization from the ambit of MCFL.14 This Court could have simply followed their
lead.15

Finally, let us not forget Citizens United's as-applied constitutional challenge. Precisely
because Citizens United looks so much like the MCFL organizations we have exempted from
regulation, while a feature-length video-on-demand filmlooks so unlike the types of electoral
advocacy Congress has found deserving of regulation, this challenge is a substantial one. As
the appellant's own arguments show, the Court could have easily limited the breadth of its
constitutional holding had it declined to adopt the novel notion that speakers and speech acts
must always be treated identically--and always spared expenditures restrictions--in the political
55/113
realm. Yet the Court nonetheless turns its back on the as-applied review process that has been
a staple of campaign finance litigation since Buckley v. Valeo, 424 U. S. 1 (1976) (per
curiam),and that was affirmed and expanded just two Terms ago in WRTL, 551 U. S. 449.

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," ante, at 12
(majority opinion).16 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.

II

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." Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 864 (1992). 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. Ante, at 47-48. 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, infra, at 23-89, and restating a merits argument with additional vigor
does not give it extra weight in the stare decisis calculus.

Perhaps in recognition of this point, the Court supplements its merits case with a smattering
of assertions. The Court proclaims that "Austin is undermined by experience since its
announcement." Ante, at 48. This is a curious claim to make in a case that lacks a developed
record. The majority has no empirical evidence with which to substantiate the claim; we just
have its ipse dixit that the real world has not been kind to Austin. Nor does the majority bother
to specify in what sense Austin has been "undermined." Instead it treats the reader to a string
of non sequiturs: "Our Nation's speech dynamic is changing," ante, at 48; "[s]peakers have
become adept at presenting citizens with sound bites, talking points, and scripted messages,"
ibid.; "[c]orporations ... do not have monolithic views," ibid. How any of these ruminations
weakens the force of stare decisis, escapes my comprehension.18
56/113
 The majority also contends that the Government's hesitation to rely on Austin's
antidistortion rationale "diminishe[s]" "the principle of adhering to that precedent." Ante, at 48;
see also ante, at 11 (opinion of Roberts, C. J.) (Government's litigating position is "most
importan[t]" factor undermining Austin). Why it diminishes the value of stare decisis is left
unexplained. We have never thought fit to overrule a precedent because a litigant has taken
any particular tack. Nor should we. Our decisions can often be defended on multiple grounds,
and a litigant may have strategic or case-specific reasons for emphasizing only a subset of
them. Members of the public, moreover, often rely on our bottom-line holdings far more than
our precise legal arguments; surely this is true for the legislatures that have been regulating
corporate electioneering since Austin. The task of evaluating the continued viability of
precedents falls to this Court, not to the parties.19

Although the majority opinion spends several pages making these surprising arguments, it
says almost nothing about the standard considerations we have used to determine stare
decisis value, such as the antiquity of the precedent, the workability of its legal rule, and the
reliance interests at stake. It is also conspicuously silent about McConnell, even though the
McConnell Court's decision to uphold BCRA §203 relied not only on the antidistortion logic of
Austin but also on the statute's historical pedigree, see, e.g., 540 U. S., at 115-132, 223-224,
and the need to preserve the integrity of federal campaigns, see id., at 126-129, 205-208, and
n. 88.

We have recognized that "[s]tare decisis has special force when legislators or citizens 'have
acted in reliance on a previous decision, for in this instance overruling the decision would
dislodge settled rights and expectations or require an extensive legislative response.' "
Hubbard v. United States, 514 U. S. 695, 714 (1995) (quoting Hilton v. South Carolina Public
Railways Comm'n, 502 U. S. 197, 202 (1991)). Stare decisis protects not only personal rights
involving property or contract but also the ability of the elected branches to shape their laws in
an effective and coherent fashion. Today's decision takes away a power that we have long
permitted these branches to exercise. State legislatures have relied on their authority to
regulate corporate electioneering, confirmed in Austin, for more than a century.20 The Federal
Congress has relied on this authority for a comparable stretch of time, and it specifically relied
on Austin throughout the years it spent developing and debating BCRA. The total record it
compiled was 100,000 pages long.21 Pulling out the rug beneath Congress after affirming the
constitutionality of §203 six years ago shows great disrespect for a coequal branch.

By removing one of its central components, today's ruling makes a hash out of BCRA's
"delicate and interconnected regulatory scheme." McConnell,540 U. S., at 172. Consider just
one example of the distortions that will follow: Political parties are barred under BCRA from
soliciting or spending "soft money," funds that are not subject to the statute's disclosure
requirements or its source and amount limitations. 2 U. S. C. §441i; McConnell, 540 U. S., at
122-126. Going forward, corporations and unions will be free to spend as much general
treasury money as they wish on ads that support or attack specific candidates, whereas
national parties will not be able to spend a dime of soft money on ads of any kind. The Court's

57/113
ruling thus dramatically enhances the role of corporations and unions--and the narrow interests
they represent--vis-À-vis the role of political parties--and the broad coalitions they represent--in
determining who will hold public office.22

Beyond the reliance interests at stake, the other stare decisis factors also cut against the
Court.Considerations of antiquity are significant for similar reasons. McConnell is only six
years old, but Austin has been on the books for two decades, and many of the statutes called
into question by today's opinion have been on the books for a half-century or more. The Court
points to no intervening change in circumstances that warrants revisiting Austin. Certainly
nothing relevant has changed since we decided WRTL two Terms ago. And the Court gives no
reason to think that Austin and McConnell are unworkable.

In fact, no one has argued to us that Austin's rule has proved impracticable, and not a
single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary,
leading groups representing the business community,23 organized labor,24 and the nonprofit
sector,25 together with more than half of the States,26 urge that we preserve Austin. As for
McConnell,the portions of BCRA it upheld may be prolix, but all three branches of Government
have worked to make §203 as user-friendly as possible. For instance, Congress established a
special mechanism for expedited review of constitutional challenges, see note following 2
U. S. C. §437h; the FEC has established a standardized process, with clearly defined safe
harbors, for corporations to claim that a particular electioneering communication is permissible
under WRTL, see 11 CFR §114.15 (2009);27 and, as noted above, The Chief Justice crafted his
controlling opinion in WRTL with the express goal of maximizing clarity and administrability,
551 U. S., at 469-470, 473-474. The case for stare decisis may be bolstered, we have said,
when subsequent rulings "have reduced the impact" of a precedent "while reaffirming the
decision's core ruling." Dickerson v. United States, 530 U. S. 428, 443 (2000).28

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, 474 U. S.
254, 265 (1986).

III

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,

58/113
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. Ante, at 45. 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." Austin, 494 U. S., at 660; see
also McConnell, 540 U. S., at 203-204; Beaumont, 539 U. S., at 162-163. For starters, both
statutes provide exemptions for PACs, separate segregated funds established by a corporation
for political purposes. See 2 U. S. C. §441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West
2005). "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." 540 U. S., at
203.

Under BCRA, any corporation's "stockholders and their families and its executive or
administrative personnel and their families" can pool their resources to finance electioneering
communications. 2 U. S. C. §441b(b)(4)(A)(i). A significant and growing number of
corporations avail themselves of this option; 29 during the most recent election cycle, corporate
and union PACs raised nearly a billion dollars. 30 Administering a PAC entails some
administrative burden, but so does complying with the disclaimer,disclosure, and reporting
requirements that the Court today upholds, see ante, at 51, and no one has suggested that the
burden is severe for a sophisticated for-profit corporation. To the extent the majority is worried
about this issue, it is important to keep in mind that we have no record to show how
substantial the burden really is, just the majority's own unsupported factfinding, see ante, at
21-22. Like all other natural persons, every shareholder of every corporation remains entirely
free under Austin and McConnell to do however much electioneering she pleases outside of
the corporate form. The owners of a "mom & pop" store can simply place ads in their own
names, rather than the store's. If ideologically aligned individuals wish to make unlimited
expenditures through the corporate form, they may utilize an MCFL organization that has
policies in place to avoid becoming a conduit for business or union interests. See MCFL, 479
U. S., at 263-264.

The laws upheld in Austin and McConnell leave open many additional avenues for
corporations' political speech. Consider the statutory provision we are ostensibly evaluating in
this case, BCRA §203. It has no application to genuine issue advertising--a category of
59/113
corporate speech Congress found to be far more substantial than election-related advertising,
see McConnell, 540 U. S., at 207--or to Internet, telephone, and print advocacy.31 Like
numerous statutes, it exempts media companies' news stories, commentaries, and editorials
from its electioneering restrictions, in recognition of the unique role played by the institutional
press in sustaining public debate.32 See 2 U. S. C. §434(f)(3)(B)(i); McConnell, 540 U. S., at
208-209; see also Austin, 494 U. S., at 666-668. It also allows corporations to spend unlimited
sums on political communications with their executives and shareholders, §441b(b)(2)(A); 11
CFR §114.3(a)(1), to fund additional PAC activity through trade associations, 2 U. S. C.
§441b(b)(4)(D), to distribute voting guides and voting records, 11 CFR §§114.4(c)(4)-(5), to
underwrite voter registration and voter turnout activities, §114.3(c)(4); §114.4(c)(2), to host
fundraising events for candidates within certain limits, §114.4(c); §114.2(f)(2), and to publicly
endorse candidates through a press release and press conference, §114.4(c)(6).

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;33 (2) capable of
reaching at least 50,000 persons in the relevant electorate;34 (3) made within 30 days of a
primary or 60 days of a general federal election;35 (4) by a labor union or a non-MCFL,
nonmediacorporation;36 (5) paid for with general treasury funds;37 and (6) "susceptible of no
reasonable interpretation other than as an appeal to vote for or against a specific candidate."38
The category of communications meeting all of these criteria is not trivial, but the notion that
corporate political speech has been "suppress[ed] ... altogether," ante, at 2, that corporations
have been "exclu[ded] ... from the general public dialogue," ante, at 25, or that a work of fiction
such as Mr. Smith Goes to Washington might be covered, ante, at 56-57, is nonsense.39 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. See 540 U. S., at 204.

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," Citizens United
Political Victory Fund, http://www.cupvf.org/.40

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.

60/113
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." Ante, at 30; accord, ante, at 1, 24, 26, 30,
31, 32, 33, 34, 49, 50. The case on which it relies for this proposition is First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765 (1978). As I shall explain, infra, at 52-55, 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. WRTL, 551 U. S., at 482 (opinion of Roberts, C. J.). 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,41 prisoners,42 members of the Armed Forces,43 foreigners,44 and its
own employees.45 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,47 cf. Minneapolis Star & Tribune Co.
v. Minnesota Comm'r of Revenue, 460 U. S. 575, 585 (1983) ("[D]ifferential treatment" is
constitutionally suspect "unless justified by some special characteristic" of the regulated class
of speakers (emphasis added)), and that the constitutional rights of certain categories of
speakers, in certain contexts, " 'are not automatically coextensive with the rights' " that are
normally accorded to members of our society, Morse v. Frederick, 551 U. S. 393, 396-397, 404
(2007) (quoting Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986)).

The free speech guarantee thus does not render every other public interest an illegitimate
basis for qualifying a speaker's autonomy; society could scarcely function if it did. It is fair to
say that our First Amendment doctrine has "frowned on" certain identity-based distinctions, Los
Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 47, n. 4 (1999)
(Stevens, J., dissenting), particularly those that may reflect invidious discrimination or
preferential treatment of a politically powerful group. But it is simply incorrect to suggest that
we have prohibited all legislative distinctions based on identity or content. Not even close.

The election context is distinctive in many ways, and the Court, of course, is right that the
First Amendment closely guards political speech. But in this context, too, the authority of
legislatures to enact viewpoint-neutral regulations based on content and identity is well settled.
We have, for example, allowed state-run broadcasters to exclude independent candidates
from televised debates. Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666 (1998).48
We have upheld statutes that prohibit the distribution or display of campaign materials near a
polling place. Burson v. Freeman, 504 U. S. 191 (1992).49 Although we have not reviewed
61/113
them directly, we have never cast doubt on laws that place special restrictions on campaign
spending by foreign nationals. See, e.g., 2 U. S. C. §441e(a)(1). And we have consistently
approved laws that bar Government employees, but not others, from contributing to or
participating in political activities. See n. 45, supra. These statutes burden the political
expression of one class of speakers, namely, civil servants. Yet we have sustained them on
the basis of longstanding practice and Congress' reasoned judgment that certain regulations
which leave "untouched full participation ... in political decisions at the ballot box," Civil Service
Comm'n v. Letter Carriers, 413 U. S. 548, 556 (1973) (internal quotation marks omitted), help
ensure that public officials are "sufficiently free from improper influences," id., at 564, and that
"confidence in the system of representative Government is not ... eroded to a disastrous
extent," id., at 565.

The same logic applies to this case with additional force because it is the identity of
corporations, rather than individuals, that the Legislature has taken into account. As we have
unanimously observed, legislatures are entitled to decide "that the special characteristics of
the corporate structure require particularly careful regulation" in an electoral context. NRWC,
459 U. S., at 209-210.50 Not only has the distinctive potential of corporations to corrupt the
electoral process long been recognized, but within the area of campaign finance, corporate
spending is also "furthest from the core of political expression, since corporations' First
Amendment speech and association interests are derived largely from those of their members
and of the public in receiving information," Beaumont, 539 U. S., at 161, n. 8 (citation omitted).
Campaign finance distinctions based on corporate identity tend to be less worrisome, in other
words, because the "speakers" are not natural persons, much less members of our political
community, and the governmental interests are of the highest order. Furthermore, when
corporations, as a class, are distinguished from noncorporations, as a class, there is a lesser
risk that regulatory distinctions will reflect invidious discrimination or political favoritism.

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). Ante, at 33 (quoting Buckley, 424 U. S., at 49).51 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.52

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

62/113
 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. Ante, at 39; see also ante, at 45, 56
(professing fidelity to "our law and our 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.

1. Original Understandings

Let us start from the beginning. The Court invokes "ancient First Amendment principles,"
ante, at 1 (internal quotation marks omitted), and original understandings, ante, at 37-38, to
defend today's ruling, yet it makes only a perfunctory attempt to ground its analysis in the
principles or understandings of those who drafted and ratified the Amendment. Perhaps this is
because there is not a scintilla of evidence to support the notion that anyone believed it would
preclude regulatory distinctions based on the corporate form. To the extent that the Framers'
views are discernible and relevant to the disposition of this case, they would appear to cut
strongly against the majority's position.

This is not only because the Framers and their contemporaries conceived of speech more
narrowly than we now think of it, see Bork, Neutral Principles and Some First Amendment
Problems, 47 Ind. L. J. 1, 22 (1971), but also because they held very different views about the
nature of the First Amendment right and the role of corporations in society. Those few
corporations that existed at the founding were authorized by grant of a special legislative
charter.53 Corporate sponsors would petition the legislature, and the legislature, if amenable,
would issue a charter that specified the corporation's powers and purposes and "authoritatively
fixed the scope and content of corporate organization," including "the internal structure of the
corporation." J. Hurst, The Legitimacy of the Business Corporation in the Law of the United
States 1780-1970, pp. 15-16 (1970) (reprint 2004). Corporations were created, supervised,
and conceptualized as quasi-public entities, "designed to serve a social function for the state."
Handlin & Handlin, Origin of the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945).
It was "assumed that [they] were legally privileged organizations that had to be closely
scrutinized by the legislature because their purposes had to be made consistent with public
welfare." R. Seavoy, Origins of the American Business Corporation, 1784-1855, p. 5 (1982).

The individualized charter mode of incorporation reflected the "cloud of disfavor under
which corporations labored" in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the
Law of Corporations §2, p. 8 (rev. ed. 2006); see also Louis K. Liggett Co. v. Lee, 288 U. S.
517, 548-549 (1933) (Brandeis, J., dissenting) (discussing fears of the "evils" of business
corporations); L. Friedman, A History of American Law 194 (2d ed. 1985) ("The word 'soulless'
constantly recurs in debates over corporations... . Corporations, it was feared, could
concentrate the worst urges of whole groups of men"). Thomas Jefferson famously fretted that
corporations would subvert the Republic.54 General incorporation statutes, and widespread
acceptance of business corporations as socially useful actors, did not emerge until the 1800's.

63/113
See Hansmann & Kraakman, The End of History for Corporate Law, 89 Geo. L. J. 439, 440
(2001) (hereinafter Hansmann & Kraakman) ("[A]ll general business corporation statutes
appear to date from well after 1800").

The Framers thus took it as a given that corporations could be comprehensively regulated
in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing
corporations from human beings, and when they constitutionalized the right to free speech in
the First Amendment, it was the free speech of individual Americans that they had in mind. 55
While individuals might join together to exercise their speech rights, business corporations, at
least, were plainly not seen as facilitating such associational or expressive ends. Even "the
notion that business corporations could invoke the First Amendment would probably have
been quite a novelty," given that "at the time, the legitimacy of every corporate activity was
thought to rest entirely in a concession of the sovereign." Shelledy, Autonomy, Debate, and
Corporate Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trustees of Dartmouth
College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall, C. J.) ("A corporation is an artificial
being, invisible, intangible, and existing only in contemplation of law. Being the mere creature
of law, it possesses only those properties which the charter of its creation confers upon it");
Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129
("The framers of the First Amendment could scarcely have anticipated its application to the
corporation form. That, of course, ought not to be dispositive. What is compelling, however, is
an understanding of who was supposed to be the beneficiary of the free speech guaranty--the
individual"). In light of these background practices and understandings, it seems to me
implausible that the Framers believed "the freedom of speech" would extend equally to all
corporate speakers, much less that it would preclude legislatures from taking limited measures
to guard against corporate capture of elections.

The Court observes that the Framers drew on diverse intellectual sources, communicated
through newspapers, and aimed to provide greater freedom of speech than had existed in
England. Ante, at 37. From these (accurate) observations, the Court concludes that "[t]he First
Amendment was certainly not understood to condone the suppression of political speech in
society's most salient media." Ibid. This conclusion is far from certain, given that many
historians believe the Framers were focused on prior restraints on publication and did not
understand the First Amendment to "prevent the subsequent punishment of such [publications]
as may be deemed contrary to the public welfare." Near v. Minnesota ex rel. Olson, 283 U. S.
697, 714 (1931). Yet, even if the majority's conclusion were correct, it would tell us only that
the First Amendment was understood to protect political speech in certain media. It would tell
us little about whether the Amendment was understood to protect general treasury
electioneering expenditures by corporations, and to what extent.

As a matter of original expectations, then, it seems absurd to think that the First
Amendment prohibits legislatures from taking into account the corporate identity of a sponsor
of electoral advocacy. As a matter of original meaning, it likewise seems baseless--unless one
evaluates the First Amendment's "principles," ante, at 1, 48, or its "purpose," ante, at 5 (opinion
of Roberts, C. J.), at such a high level of generality that the historical understandings of the

64/113
Amendment cease to be a meaningful constraint on the judicial task. This case sheds a
revelatory light on the assumption of some that an impartial judge's application of an originalist
methodology is likely to yield more determinate answers, or to play a more decisive role in the
decisional process, than his or her views about sound policy.

Justice Scaliacriticizes the foregoing discussion for failing to adduce statements from the
founding era showing that corporations were understood to be excluded from the First
Amendment's free speech guarantee. Ante, at 1-2, 9. Of course, Justice Scalia adduces no
statements to suggest the contrary proposition, or even to suggest that the contrary
proposition better reflects the kind of right that the drafters and ratifiers of the Free Speech
Clause thought they were enshrining. Although Justice Scalia makes a perfectly sensible
argument that an individual's right to speak entails a right to speak with others for a common
cause, cf. MCFL, 479 U. S. 238, he does not explain why those two rights must be precisely
identical, or why that principle applies to electioneering by corporations that serve no "common
cause." Ante, at 8. Nothing in his account dislodges my basic point that members of the
founding generation held a cautious view of corporate power and a narrow view of corporate
rights (not that they "despised" corporations, ante, at 2), and that they conceptualized speech
in individualistic terms. If no prominent Framer bothered to articulate that corporate speech
would have lesser status than individual speech, that may well be because the contrary
proposition--if not also the very notion of "corporate speech"--was inconceivable.56

Justice Scalia also emphasizes the unqualified nature of the First Amendment text. Ante, at 2,
8. Yet he would seemingly read out the Free Press Clause: How else could he claim that my
purported views on newspapers must track my views on corporations generally? Ante, at 6.57
Like virtually all modern lawyers, Justice Scalia presumably believes that the First Amendment
restricts the Executive, even though its language refers to Congress alone. In any event, the
text only leads us back to the questions who or what is guaranteed "the freedom of speech,"
and, just as critically, what that freedom consists of and under what circumstances it may be
limited. Justice Scalia appears to believe that because corporations are created and utilized by
individuals, it follows (as night the day) that their electioneering must be equally protected by
the First Amendment and equally immunized from expenditure limits. See ante, at 7-8. That
conclusion certainly does not follow as a logical matter, and Justice Scalia fails to explain why the
original public meaning leads it to follow as a matter of interpretation.

The truth is we cannot be certain how a law such as BCRA §203 meshes with the original
meaning of the First Amendment.58 I have given several reasons why I believe the Constitution
would have been understood then, and ought to be understood now, to permit reasonable
restrictions on corporate electioneering, and I will give many more reasons in the pages to
come. The Court enlists the Framers in its defense without seriously grappling with their
understandings of corporations or the free speech right, or with the republican principles that
underlay those understandings.

In fairness, our campaign finance jurisprudence has never attended very closely to the
views of the Framers, see Randall v. Sorrell, 548 U. S. 230, 280 (2006) (Stevens, J., dissenting),
whose political universe differed profoundly from that of today. We have long since held that
65/113
corporations are covered by the First Amendment, and many legal scholars have long since
rejected the concession theory of the corporation. But "historical context is usually relevant,"
ibid. (internal quotation marks omitted), and in light of the Court's effort to cast itself as
guardian of ancient values, it pays to remember that nothing in our constitutional history
dictates today's outcome. To the contrary, this history helps illuminate just how extraordinarily
dissonant the decision is.

2. Legislative and Judicial Interpretation

A century of more recent history puts to rest any notion that today's ruling is faithful to our
First Amendment tradition. At the federal level, the express distinction between corporate and
individual political spending on elections stretches back to 1907, when Congress passed the
Tillman Act, ch. 420, 34 Stat. 864, banning all corporate contributions to candidates. The
Senate Report on the legislation observed that "[t]he evils of the use of [corporate] money in
connection with political elections are so generally recognized that the committee deems it
unnecessary to make any argument in favor of the general purpose of this measure. It is in the
interest of good government and calculated to promote purity in the selection of public
officials." S. Rep. No. 3056, 59th Cong., 1st Sess., 2 (1906). President Roosevelt, in his 1905
annual message to Congress, declared:

" 'All contributions by corporations to any political committee or for any political purpose should
be forbidden by law; directors should not be permitted to use stockholders' money for such
purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method
of stopping the evils aimed at in corrupt practices acts.' " United States v. Automobile Workers,
352 U. S. 567, 572 (1957) (quoting 40 Cong. Rec. 96).

The Court has surveyed the history leading up to the Tillman Act several times, see WRTL,
551 U. S., at 508-510 (Souter, J., dissenting); McConnell, 540 U. S., at 115; Automobile
Workers, 352 U. S., at 570-575, and I will refrain from doing so again. It is enough to say that
the Act was primarily driven by two pressing concerns: first, the enormous power corporations
had come to wield in federal elections, with the accompanying threat of both actual corruption
and a public perception of corruption; and second, a respect for the interest of shareholders
and members in preventing the use of their money to support candidates they opposed. See
ibid.; United States v. CIO, 335 U. S. 106, 113 (1948); Winkler, "Other People's Money":
Corporations, Agency Costs, and Campaign Finance Law, 92 Geo. L. J. 871 (2004).

Over the years, the limitations on corporate political spending have been modified in a
number of ways, as Congress responded to changes in the American economy and political
practices that threatened to displace the commonweal. Justice Souter recently traced these
developments at length.59 WRTL, 551 U. S., at 507-519 (dissenting opinion); see also
McConnell, 540 U. S., at 115-133; McConnell, 251 F. Supp. 2d, at 188-205. The Taft-Hartley
Act of 1947 is of special significance for this case. In that Act passed more than 60 years ago,
Congress extended the prohibition on corporate support of candidates to cover not only direct
contributions, but independent expenditures as well. Labor Management Relations Act, 1947,
66/113
§304, 61 Stat. 159. The bar on contributions "was being so narrowly construed" that
corporations were easily able to defeat the purposes of the Act by supporting candidates
through other means. WRTL, 551 U. S., at 511 (Souter, J., dissenting) (citing S. Rep. No. 1,
80th Cong., 1st Sess., 38-39 (1947)).

Our colleagues emphasize that in two cases from the middle of the 20th century, several
Justices wrote separately to criticize the expenditure restriction as applied to unions, even
though the Court declined to pass on its constitutionality. Ante, at 27-28. Two features of these
cases are of far greater relevance. First, those Justices were writing separately; which is to
say, their position failed to command a majority. Prior to today, this was a fact we found
significant in evaluating precedents. Second, each case in this line expressed support for the
principle that corporate and union political speech financed with PAC funds, collected
voluntarily from the organization's stockholders or members, receives greater protection than
speech financed with general treasury funds.60

This principle was carried forward when Congress enacted comprehensive campaign
finance reform in the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, which
retained the restriction on using general treasury funds for contributions and expenditures, 2
U. S. C. §441b(a). FECA codified the option for corporations and unions to create PACs to
finance contributions and expenditures forbidden to the corporation or union itself. §441b(b).

By the time Congress passed FECA in 1971, the bar on corporate contributions and
expenditures had become such an accepted part of federal campaign finance regulation that
when a large number of plaintiffs, including several nonprofit corporations, challenged virtually
every aspect of the Act in Buckley, 424 U. S. 1, no one even bothered to argue that the bar as
such was unconstitutional. Buckley famously (or infamously) distinguished direct contributions
from independent expenditures, id., at 58-59, but its silence on corporations only reinforced
the understanding that corporate expenditures could be treated differently from individual
expenditures. "Since our decision in Buckley, Congress' power to prohibit corporations and
unions from using funds in their treasuries to finance advertisements expressly advocating the
election or defeat of candidates in federal elections has been firmly embedded in our law."
McConnell, 540 U. S., at 203.

Thus, it was unremarkable, in a 1982 case holding that Congress could bar nonprofit
corporations from soliciting nonmembers for PAC funds, that then-Justice Rehnquist wrote for
a unanimous Court that Congress' "careful legislative adjustment of the federal electoral laws,
in a cautious advance, step by step, to account for the particular legal and economic attributes
of corporations ... warrants considerable deference," and "reflects a permissible assessment of
the dangers posed by those entities to the electoral process." NRWC, 459 U. S., at 209
(internal quotation marks and citation omitted). "The governmental interest in preventing both
actual corruption and the appearance of corruption of elected representatives has long been
recognized," the unanimous Court observed, "and there is no reason why it may not ... be
accomplished by treating ... corporations ... differently from individuals." Id., at 210-211.

The corporate/individual distinction was not questioned by the Court's disposition, in 1986,
67/113
of a challenge to the expenditure restriction as applied to a distinctive type of nonprofit
corporation. In MCFL, 479 U. S. 238, we stated again "that 'the special characteristics of the
corporate structure require particularly careful regulation,' " id., at 256 (quoting NRWC, 459
U. S., at 209-210), and again we acknowledged that the Government has a legitimate interest
in "regulat[ing] the substantial aggregations of wealth amassed by the special advantages
which go with the corporate form," 479 U. S., at 257 (internal quotation marks omitted). Those
aggregations can distort the "free trade in ideas" crucial to candidate elections, ibid., at the
expense of members or shareholders who may disagree with the object of the expenditures,
id., at 260 (internal quotation marks omitted). What the Court held by a 5-to-4 vote was that a
limited class of corporations must be allowed to use their general treasury funds for
independent expenditures, because Congress' interests in protecting shareholders and
"restrict[ing] 'the influence of political war chests funneled through the corporate form,' " id., at
257 (quoting FEC v. National Conservative Political Action Comm., 470 U. S. 480, 501 (1985)
(NCPAC)), did not apply to corporations that were structurally insulated from those concerns.61

It is worth remembering for present purposes that the four MCFL dissenters, led by Chief
Justice Rehnquist, thought the Court was carrying the First Amendment too far. They would
have recognized congressional authority to bar general treasury electioneering expenditures
even by this class of nonprofits; they acknowledged that "the threat from corporate political
activity will vary depending on the particular characteristics of a given corporation," but
believed these "distinctions among corporations" were "distinctions in degree," not "in kind,"
and thus "more properly drawn by the Legislature than by the Judiciary." 479 U. S., at 268
(opinion of Rehnquist, C. J.) (internal quotation marks omitted). Not a single Justice suggested
that regulation of corporate political speech could be no more stringent than of speech by an
individual.

Four years later, in Austin, 494 U. S. 652, we considered whether corporations falling
outside the MCFL exception could be barred from using general treasury funds to make
independent expenditures in support of, or in opposition to, candidates. We held they could be.
Once again recognizing the importance of "the integrity of the marketplace of political ideas" in
candidate elections, MCFL, 479 U. S., at 257, we noted that corporations have "special
advantages--such as limited liability, perpetual life, and favorable treatment of the
accumulation and distribution of assets," 494 U. S., at 658-659--that allow them to spend
prodigious general treasury sums on campaign messages that have "little or no correlation"
with the beliefs held by actual persons, id., at 660. In light of the corrupting effects such
spending might have on the political process, ibid., we permitted the State of Michigan to limit
corporate expenditures on candidate elections to corporations' PACs, which rely on voluntary
contributions and thus "reflect actual public support for the political ideals espoused by
corporations," ibid. Notwithstanding our colleagues' insinuations that Austin deprived the public
of general "ideas," "facts," and "knowledge," ante, at 38-39, the decisionaddressed only
candidate-focused expenditures and gave the State no license to regulate corporate spending
on other matters.

In the 20 years since Austin, we have reaffirmed its holding and rationale a number of

68/113
times, see, e.g., Beaumont, 539 U. S., at 153-156, most importantly in McConnell, 540 U. S.
93, where we upheld the provision challenged here, §203 of BCRA.62 Congress crafted §203
in response to a problem created by Buckley. The Buckley Court had construed FECA's
definition of prohibited "expenditures" narrowly to avoid any problems of constitutional
vagueness, holding it applicable only to "communications that expressly advocate the election
or defeat of a clearly identified candidate," 424 U. S., at 80, i.e., statements containing so-
called "magic words" like " 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,'
'vote against,' 'defeat,' [or] 'reject,' " id., at 43-44, and n. 52. After Buckley, corporations and
unions figured out how to circumvent the limits on express advocacy by using sham "issue
ads" that "eschewed the use of magic words" but nonetheless "advocate[d] the election or
defeat of clearly identified federal candidates." McConnell, 540 U. S., at 126. "Corporations
and unions spent hundreds of millions of dollars of their general funds to pay for these ads."
Id., at 127. Congress passed §203 to address this circumvention, prohibiting corporations and
unions from using general treasury funds for electioneering communications that "refe[r] to a
clearly identified candidate," whether or not those communications use the magic words. 2
U. S. C. §434(f)(3)(A)(i)(I).

When we asked in McConnell "whether a compelling governmental interest justifie[d]" §203,

we found the question "easily answered": "We have repeatedly sustained legislation aimed at
'the corrosive and distorting effects of immense aggregations of wealth that are accumulated
with the help of the corporate form and that have little or no correlation to the public's support
for the corporation's political ideas.' " 540 U. S., at 205 (quoting Austin, 494 U. S., at 660).
These precedents "represent respect for the legislative judgment that the special
characteristics of the corporate structure require particularly careful regulation." 540 U. S., at
205 (internal quotation marks omitted). "Moreover, recent cases have recognized that certain
restrictions on corporate electoral involvement permissibly hedge against ' "circumvention of
[valid] contribution limits." ' " Ibid. (quoting Beaumont, 539 U. S., at 155, in turn quoting FEC v.
Colorado Republican Federal Campaign Comm., 533 U. S. 431, 456, and n. 18 (2001)
(Colorado II); alteration in original). BCRA, we found, is faithful to the compelling governmental
interests in " 'preserving the integrity of the electoral process, preventing corruption, ...
sustaining the active, alert responsibility of the individual citizen in a democracy for the wise
conduct of the government,' " and maintaining " 'the individual citizen's confidence in
government.' " 540 U. S., at 206-207, n. 88 (quoting Bellotti, 435 U. S., at 788-789; some
internal quotation marks and brackets omitted). What made the answer even easier than it
might have been otherwise was the option to form PACs, which give corporations, at the least,
"a constitutionally sufficient opportunity to engage in" independent expenditures. 540 U. S., at
203.

3. Buckley and Bellotti

Against this extensive background of congressional regulation of corporate campaign

spending, and our repeated affirmation of this regulation as constitutionally sound, the majority
dismisses Austin as "a significant departure from ancient First Amendment principles," ante, at
1 (internal quotation marks omitted). How does the majority attempt to justify this claim?
69/113
Selected passages from two cases, Buckley, 424 U. S. 1, and Bellotti, 435 U. S. 765, do all of
the work. In the Court's view, Buckley and Bellotti decisively rejected the possibility of
distinguishing corporations from natural persons in the 1970's; it just so happens that in every
single case in which the Court has reviewed campaign finance legislation in the decades since,
the majority failed to grasp this truth. The Federal Congress and dozens of state legislatures,
we now know, have been similarly deluded.

The majority emphasizes Buckley's statement that " '[t]he concept that government may
restrict the speech of some elements of our society in order to enhance the relative voice of
others is wholly foreign to the First Amendment.' " Ante, at 33 (quoting 424 U. S., at 48-49);
ante, at 8 (opinion of Roberts, C. J.). But this elegant phrase cannot bear the weight that our
colleagues have placed on it. For one thing, the Constitution does, in fact, permit numerous
"restrictions on the speech of some in order to prevent a few from drowning out the many": for
example, restrictions on ballot access and on legislators' floor time. Nixon v. Shrink Missouri
Government PAC, 528 U. S. 377, 402 (2000) (Breyer, J., concurring). For another, the Buckley
Court used this line in evaluating "the ancillary governmental interest in equalizing the relative
ability of individuals and groups to influence the outcome of elections." 424 U. S., at 48. It is
not apparent why this is relevant to the case before us. The majority suggests that Austin rests
on the foreign concept of speech equalization, ante, at 34; ante, at 8-10 (opinion of Roberts,
C. J.), but we made it clear in Austin (as in several cases before and since) that a restriction on
the way corporations spend their money is no mere exercise in disfavoring the voice of some
elements of our society in preference to others. Indeed, we expressly ruled that the compelling
interest supporting Michigan's statute was not one of " 'equaliz[ing] the relative influence of
speakers on elections,' " Austin, 494 U. S., at 660 (quoting id., at 705 (Kennedy, J., dissenting)),
but rather the need to confront the distinctive corrupting potential of corporate electoral
advocacy financed by general treasury dollars, id., at 659-660.

For that matter, it should go without saying that when we made this statement in Buckley,
we could not have been casting doubt on the restriction on corporate expenditures in
candidate elections, which had not been challenged as "foreign to the First Amendment," ante,
at 33 (quoting Buckley, 424 U. S., at 49), or for any other reason. Buckley's independent
expenditure analysis was focused on a very different statutory provision, 18 U. S. C. §608(e)
(1) (1970 ed., Supp. V). It is implausible to think, as the majority suggests, ante, at 29-30, that
Buckley covertly invalidated FECA's separate corporate and union campaign expenditure
restriction, §610 (now codified at 2 U. S. C. §441b), even though that restriction had been on
the books for decades before Buckley and would remain on the books, undisturbed, for
decades after.

The case on which the majority places even greater weight than Buckley, however, is
Bellotti, 435 U. S. 765, claiming it "could not have been clearer" that Bellotti's holding forbade
distinctions between corporate and individual expenditures like the one at issue here, ante, at
30. The Court's reliance is odd. The only thing about Bellotti that could not be clearer is that it
declined to adopt the majority's position. Bellotti ruled, in an explicit limitation on the scope of
its holding, that "our consideration of a corporation's right to speak on issues of general public
70/113
interest implies no comparable right in the quite different context of participation in a political
campaign for election to public office." 435 U. S., at 788, n. 26; see also id., at 787-788
(acknowledging that the interests in preserving public confidence in Government and
protecting dissenting shareholders may be "weighty ... in the context of partisan candidate
elections"). Bellotti, in other words, did not touch the question presented in Austin and
McConnell, and the opinion squarely disavowed the proposition for which the majority cites it.

The majority attempts to explain away the distinction Bellotti drew--between general
corporate speech and campaign speech intended to promote or prevent the election of specific
candidates for office--as inconsistent with the rest of the opinion and with Buckley. Ante, at 31,
42-44. Yet the basis for this distinction is perfectly coherent: The anticorruption interests that
animate regulations of corporate participation in candidate elections, the "importance" of which
"has never been doubted," 435 U. S., at 788, n. 26, do not apply equally to regulations of
corporate participation in referenda. A referendum cannot owe a political debt to a corporation,
seek to curry favor with a corporation, or fear the corporation's retaliation. Cf. Austin, 494 U. S.,
at 678 (Stevens, J., concurring); Citizens Against Rent Control/Coalition for Fair Housing v.
Berkeley, 454 U. S. 290, 299 (1981). The majority likewise overlooks the fact that, over the
past 30 years, our cases have repeatedly recognized the candidate/issue distinction. See, e.g.,
Austin, 494 U. S., at 659; NCPAC, 470 U. S., at 495-496; FCC v. League of Women Voters of
Cal., 468 U. S. 364, 371, n. 9 (1984); NRWC, 459 U. S., at 210, n. 7. The Court's critique of
Bellotti's footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical
status, while simultaneously disparaging a critical piece of its analysis as unsupported and
irreconcilable with Buckley. Bellotti, apparently, is both the font of all wisdom and internally
incoherent.

The Bellotti Court confronted a dramatically different factual situation from the one that
confronts us in this case: a state statute that barred business corporations' expenditures on
some referenda but not others. Specifically, the statute barred a business corporation "from
making contributions or expenditures 'for the purpose of ... influencing or affecting the vote on
any question submitted to the voters, other than one materially affecting any of the property,
business or assets of the corporation,' " 435 U. S., at 768 (quoting Mass. Gen. Laws Ann., ch.
55, §8 (West Supp. 1977); alteration in original), and it went so far as to provide that referenda
related to income taxation would not " 'be deemed materially to affect the property, business or
assets of the corporation,' "435 U. S., at 768. As might be guessed, the legislature had
enacted this statute in order to limit corporate speech on a proposed state constitutional
amendment to authorize a graduated income tax. The statute was a transparent attempt to
prevent corporations from spending money to defeat this amendment, which was favored by a
majority of legislators but had been repeatedly rejected by the voters. See id., at 769-770, and
n. 3. We said that "where, as here, the legislature's suppression of speech suggests an
attempt to give one side of a debatable public question an advantage in expressing its views
to the people, the First Amendment is plainly offended." Id., at 785-786 (footnote omitted).

Bellotti thus involved a viewpoint-discriminatory statute, created to effect a particular policy

outcome. Even Justice Rehnquist, in dissent, had to acknowledge that "a very persuasive

71/113
argument could be made that the [Massachusetts Legislature], desiring to impose a personal
income tax but more than once defeated in that desire by the combination of the
Commonwealth's referendum provision and corporate expenditures in opposition to such a tax,
simply decided to muzzle corporations on this sort of issue so that it could succeed in its
desire." Id., at 827, n. 6. To make matters worse, the law at issue did not make any allowance
for corporations to spend money through PACs. Id., at 768, n. 2 (opinion of the Court). This
really was a complete ban on a specific, preidentified subject. See MCFL, 479 U. S., at 259,
n. 12 (stating that 2 U. S. C. §441b's expenditure restriction "is of course distinguishable from
the complete foreclosure of any opportunity for political speech that we invalidated in the state
referendum context in ... Bellotti" (emphasis added)).

The majority grasps a quotational straw from Bellotti, that speech does not fall entirely
outside the protection of the First Amendment merely because it comes from a corporation.
Ante, at 30-31. Of course not, but no one suggests the contrary and neither Austin nor
McConnell held otherwise. They held that even though the expenditures at issue were subject
to First Amendment scrutiny, the restrictions on those expenditures were justified by a
compelling state interest. See McConnell, 540 U. S., at 205; Austin, 494 U. S., at 658, 660. We
acknowledged in Bellotti that numerous "interests of the highest importance" can justify
campaign finance regulation. 435 U. S., at 788-789. But we found no evidence that these
interests were served by the Massachusetts law. Id., at 789. We left open the possibility that
our decision might have been different if there had been "record or legislative findings that
corporate advocacy threatened imminently to undermine democratic processes, thereby
denigrating rather than serving First Amendment interests." Ibid.

Austin and McConnell, then, sit perfectly well with Bellotti. Indeed, all six Members of the
Austin majority had been on the Court at the time of Bellotti, and none so much as hinted in
Austin that they saw any tension between the decisions. The difference between the cases is
not that Austin and McConnell rejected First Amendment protection for corporations whereas
Bellotti accepted it. The difference is that the statute at issue in Bellotti smacked of viewpoint
discrimination, targeted one class of corporations, and provided no PAC option; and the State
has a greater interest in regulating independent corporate expenditures on candidate elections
than on referenda, because in a functioning democracy the public must have faith that its
representatives owe their positions to the people, not to the corporations with the deepest
pockets.

*  *  *

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.' " McConnell, 540 U. S., at 206-207, n. 88
(quoting Bellotti, 435 U. S., at 788-789; first alteration in original). These understandings
provided the combined impetus behind the Tillman Act in 1907, see Automobile Workers, 352
72/113
U. S., at 570-575, the Taft-Hartley Act in 1947, see WRTL, 551 U. S., at 511 (Souter, J.,
dissenting), FECA in 1971, see NRWC, 459 U. S., at 209-210, and BCRA in 2002, see
McConnell, 540 U. S., at 126-132. 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."
WRTL, 551 U. S., at 522 (Souter, J., dissenting). 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.

IV

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," ante,
at 1, 48, 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. Ante, at32-46. 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." Ante, at 43. 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. 540 U. S., at 152. 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. Id., at 150; see also, e.g., id., at 143-144, 152-154; Colorado II, 533
U. S., at 441; Shrink Missouri, 528 U. S., at 389. 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

73/113
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.

The District Court that adjudicated the initial challenge to BCRA pored over this record. In a
careful analysis, Judge Kollar-Kotelly made numerous findings about the corrupting
consequences of corporate and union independent expenditures in the years preceding
BCRA's passage. See McConnell, 251 F. Supp. 2d, at 555-560, 622-625; see also id., at 804-
805, 813, n. 143 (Leon, J.) (indicating agreement). As summarized in her own words:

"The factual findings of the Court illustrate that corporations and labor unions routinely notify
Members of Congress as soon as they air electioneering communications relevant to the
Members' elections. The record also indicates that Members express appreciation to organizations
for the airing of these election-related advertisements. Indeed, Members of Congress are
particularly grateful when negative issue advertisements are run by these organizations, leaving
the candidates free to run positive advertisements and be seen as 'above the fray.' Political
consultants testify that campaigns are quite aware of who is running advertisements on the
candidate's behalf, when they are being run, and where they are being run. Likewise, a prominent
lobbyist testifies that these organizations use issue advocacy as a means to influence various
Members of Congress.

"The Findings also demonstrate that Members of Congress seek to have corporations and
unions run these advertisements on their behalf. The Findings show that Members suggest that
corporations or individuals make donations to interest groups with the understanding that the
money contributed to these groups will assist the Member in a campaign. After the election, these
organizations often seek credit for their support... . Finally, a large majority of Americans (80%)
are of the view that corporations and other organizations that engage in electioneering
communications, which benefit specific elected officials, receive special consideration from those
officials when matters arise that affect these corporations and organizations." Id., at 623-624
(citations and footnote omitted).

Many of the relationships of dependency found by Judge Kollar-Kotelly seemed to have a

quid pro quo basis, but other arrangements were more subtle. Her analysis shows the great
difficulty in delimiting the precise scope of the quid pro quo category, as well as the adverse
consequences that all such arrangements may have. There are threats of corruption that are
far more destructive to a democratic society than the odd bribe. Yet the majority's
understanding of corruption would leave lawmakers impotent to address all but the most
discrete abuses.

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." McConnell, 540 U. S., at 153.63 When private interests are seen to exert
outsized control over officeholders solely on account of the money spent on (or withheld from)
74/113
their campaigns, the result can depart so thoroughly "from what is pure or correct" in the
conduct of Government, Webster's Third New International Dictionary 512 (1966) (defining
"corruption"), that it amounts to a "subversion ... of the electoral process," Automobile
Workers, 352 U. S., at 575. 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," WRTL, 551 U. S., at 507 (Souter, J.,
dissenting). "Take away Congress' authority to regulate the appearance of undue influence
and 'the cynical assumption that large donors call the tune could jeopardize the willingness of
voters to take part in democratic governance.' " McConnell, 540 U. S., at 144 (quoting Shrink
Missouri, 528 U. S., at 390).64

The cluster of interrelated interests threatened by such undue influence and its appearance
has been well captured under the rubric of "democratic integrity." WRTL, 551 U. S., at 522
(Souter, J., dissenting). This value has underlined a century of state and federal efforts to
regulate the role of corporations in the electoral process.65

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, ante, at 1, 48, 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." Pasquale, Reclaiming Egalitarianism in the Political Theory of
Campaign Finance Reform, 2008 U. Ill. L. Rev. 599, 601. 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." Burroughs v. United States, 290 U. S. 534, 545
(1934). 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," Teachout 348,
which they understood to encompass the dependency of public officeholders on private
interests, see id., at 373-374; see also Randall, 548 U. S., at 280 (Stevens, J., dissenting). They
discussed corruption "more often in the Constitutional Convention than factions, violence, or
instability." Teachout 352. 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," McConnell, 540 U. S., at 152, the Government should not lose this case.

75/113
 "The importance of the governmental interest in preventing [corruption through the creation
of political debts] has never been doubted." Bellotti, 435 U. S., at 788, n. 26. 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. See
McConnell, 540 U. S., at 143 ("We have not limited [the anticorruption] interest to the
elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that
antibribery laws provided a less restrictive alternative to FECA's contribution limits, noting that
such laws 'deal[t] with only the most blatant and specific attempts of those with money to
influence governmental action' " (quoting 424 U. S., at 28; alteration in original)). 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." Id., at 27. 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." Ibid. (internal quotation marks omitted; alteration in original). 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."
Ante, at 41.

Although the Court suggests that Buckley compels its conclusion, ante, at 40-44, 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." 424 U. S., at 45. 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, ibid., 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," id., at 46 (emphasis added). 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.' "
WRTL, 551 U. S., at 478 (opinion of Roberts, C. J.) (quoting Buckley, 424 U. S., at 45). 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. 494 U. S., at 658-660. Concurring
76/113
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. Id., at 678. 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. See Supp. Brief for Appellee 17 (stating that the Fortune 100
companies earned revenues of $13.1 trillion during the last election cycle). 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," McConnell, 540 U. S., at 129. 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." Ante, at 45 (internal quotation marks
omitted). 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, ibid., 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. Ibid.

In her analysis of the record, Judge Kollar-Kotelly documented the pervasiveness of this
ingratiation and explained its significance under the majority's own touchstone for defining the
scope of the anticorruption rationale, Buckley. See McConnell, 251 F. Supp. 2d, at 555-560,

77/113
622-625. Witnesses explained how political parties and candidates used corporate
independent expenditures to circumvent FECA's "hard-money" limitations. See, e.g., id., at
478-479. One former Senator candidly admitted to the District Court that " '[c]andidates whose
campaigns benefit from [phony "issue ads"] greatly appreciate the help of these groups. In fact,
Members will also be favorably disposed to those who finance these groups when they later
seek access to discuss pending legislation.' " Id., at 556 (quoting declaration of Sen. Dale
Bumpers). One prominent lobbyist went so far as to state, in uncontroverted testimony, that
" 'unregulated expenditures--whether soft money donations to the parties or issue ad
campaigns--can sometimes generate far more influence than direct campaign contributions.' "
Ibid. (quoting declaration of Wright Andrews; emphasis added). In sum, Judge Kollar-Kotelly
found, "[t]he record powerfully demonstrates that electioneering communications paid for with
the general treasury funds of labor unions and corporations endears those entities to elected
officials in a way that could be perceived by the public as corrupting." Id., at 622-623. She
concluded that the Government's interest in preventing the appearance of corruption, as that
concept was defined in Buckley, was itself sufficient to uphold BCRA §203. 251 F. Supp. 2d, at
622-625. Judge Leon agreed. See id., at 804-805 (dissenting only with respect to the
Wellstone Amendment's coverage of MCFL corporations).

When the McConnell Court affirmed the judgment of the District Court regarding §203, we
did not rest our holding on a narrow notion of quid pro quo corruption. Instead we relied on the
governmental interest in combating the unique forms of corruption threatened by corporations,
as recognized in Austin's antidistortion and shareholder protection rationales, 540 U. S., at 205
(citing Austin, 494 U. S., at 660), as well as the interest in preventing circumvention of
contribution limits, 540 U. S., at 128-129, 205, 206, n. 88. Had we felt constrained by the view
of today's Court that quid pro quo corruption and its appearance are the only interests that
count in this field, ante, at 32-46, we of course would have looked closely at that issue. And as
the analysis by Judge Kollar-Kotelly reflects, it is a very real possibility that we would have
found one or both of those interests satisfied and §203 appropriately tailored to them.

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," ante, at 42, 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.66

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., 556 U. S. ___ (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

78/113
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. Id., at ___ (slip op., at 2). "This was
not all. Blankenship spent, in addition, just over $500,000 on independent expenditures ... ' "to
support ... Brent Benjamin." ' " Id., at ___ (slip op., at 2-3) (second alteration in original).
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. Id., at ___ (slip op., at 11). "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." Ibid. "The
difficulties of inquiring into actual bias," we further noted, "simply underscore the need for
objective rules," id., at ___ (slip op., at 13)--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." See, e.g., id., at ___ (slip op., at 1) ("The basis for the [recusal] motion was that
the justice had received campaign contributions in an extraordinary amount from"
Blankenship); id., at ___ (slip op., at 3) (referencing "Blankenship's $3 million in
contributions"); id., at ___ (slip op., at 14) ("Blankenship contributed some $3 million to unseat
the incumbent and replace him with Benjamin"); id., at ___ (slip op., at 15) ("Blankenship's
campaign contributions ... had a significant and disproportionate influence on the electoral
outcome"). 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." Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5.
It underscores that "certain restrictions on corporate electoral involvement" may likewise be
needed to "hedge against circumvention of valid contribution limits." McConnell, 540 U. S., at
205 (internal quotation marks and brackets omitted); see also Colorado II, 533 U. S., at 456 ("
[A]ll Members of the Court agree that circumvention is a valid theory of corruption"). It
underscores that for-profit corporations associated with electioneering communications will

79/113
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. McConnell, 540 U. S., at 128; see also id., at 196-197.

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, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for
Justice at Stake et al. as Amici Curiae 2, 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,"
McConnell, 540 U. S., at 306 (Kennedy, J., concurring in judgment in part and dissenting in
part); see also id., at 249-250, 260-263 (Scalia, J., concurring in part, concurring in judgment in
part, and dissenting in part), 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." Colorado Republican
Federal Campaign Comm. v. FEC, 518 U. S. 604, 650 (1996) (Stevens, J., dissenting). Many of
our campaign finance precedents explicitly and forcefully affirm the propriety of such
presumptive deference. See, e.g., McConnell, 540 U. S., at 158; Beaumont, 539 U. S., at 155-
156; NRWC, 459 U. S., at 209-210. 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." Beaumont, 539 U. S., at
162, n. 9 (internal quotation marks omitted); cf. Shrink Missouri, 528 U. S., at 391 ("The
quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative
judgments will vary up or down with the novelty and plausibility of the justification raised"). 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.

80/113
 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.68 See League of United Latin
American Citizens v. Perry, 548 U. S. 399, 447 (2006) (Stevens, J., concurring in part and
dissenting in part); Vieth v. Jubelirer, 541 U. S. 267, 317 (2004) (Stevens, J., dissenting). 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." Buckley, 424 U. S., at 31.

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.' "
McConnell, 540 U. S., at 249 (opinion of Scalia, J.). 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. Pildes, The Supreme Court 2003
Term Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 137
(2004). 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." Tr. of Oral Arg. in McConnell v. FEC, O. T. 2003, No. 02-1674, p. 61. "It
would be hard to develop a scheme that could be better for incumbents." Id., at 63.

In this case, then, "there is no convincing evidence that th[e] important interests favoring
expenditure limits are fronts for incumbency protection." Randall, 548 U. S., at 279 (Stevens, J.,
dissenting). "In the meantime, a legislative judgment that 'enough is enough' should command
81/113
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." Id., at 279-280. 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, see 494 U. S., at 660 (describing "a different type of
corruption"), 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. Ante, at 34 (quoting Buckley, 424 U. S., at 48).69

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." 494 U. S., at 658-659. 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";71 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.' "
Id., at 659 (quoting MCFL, 479 U. S., at 258). " '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.' " 494 U. S., at 659 (quoting MCFL, 479 U. S., at 258).72

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.

82/113
 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." Consolidated Edison
Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 534, n. 2 (1980); see also Bellotti,
435 U. S., at 777, n. 12. Freedom of speech helps "make men free to develop their faculties,"
Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring), it respects their
"dignity and choice," Cohen v. California, 403 U. S. 15, 24 (1971), and it facilitates the value of
"individual self-realization," Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 594
(1982). 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." Beaumont, 539 U. S., at 161, n. 8.

It is an interesting question "who" is even speaking when a business corporation places an

advertisement that endorses or attacks a particular candidate. Presumably it is not the
customers or employees, who typically have no say in such matters. It cannot realistically be
said to be the shareholders, who tend to be far removed from the day-to-day decisions of the
firm and whose political preferences may be opaque to management. Perhaps the officers or
directors of the corporation have the best claim to be the ones speaking, except their fiduciary
duties generally prohibit them from using corporate funds for personal ends. Some individuals
associated with the corporation must make the decision to place the ad, but the idea that these
individuals are thereby fostering their self-expression or cultivating their critical faculties is
fanciful. It is entirely possible that the corporation's electoral message will conflict with their
personal convictions. Take away the ability to use general treasury funds for some of those
ads, and no one's autonomy, dignity, or political equality has been impinged upon in the least.

Corporate expenditures are distinguishable from individual expenditures in this respect. I

have taken the view that a legislature may place reasonable restrictions on individuals'
electioneering expenditures in the service of the governmental interests explained above, and
in recognition of the fact that such restrictions are not direct restraints on speech but rather on
its financing. See, e.g., Randall, 548 U. S., at 273 (dissenting opinion). But those restrictions
concededly present a tougher case, because the primary conduct of actual, flesh-and-blood
persons is involved. Some of those individuals might feel that they need to spend large sums
of money on behalf of a particular candidate to vindicate the intensity of their electoral
preferences. This is obviously not the situation with business corporations, as their routine
practice of giving "substantial sums to both major national parties" makes pellucidly clear.
McConnell, 540 U. S., at 148. "[C]orporate participation" in elections, any business executive
will tell you, "is more transactional than ideological." Supp. Brief for Committee for Economic
Development as Amicus Curiae 10.

In this transactional spirit, some corporations have affirmatively urged Congress to place
limits on their electioneering communications. These corporations fear that officeholders will
83/113
shake them down for supportive ads, that they will have to spend increasing sums on elections
in an ever-escalating arms race with their competitors, and that public trust in business will be
eroded. See id., at 10-19. A system that effectively forces corporations to use their
shareholders' money both to maintain access to, and to avoid retribution from, elected officials
may ultimately prove more harmful than beneficial to many corporations. It can impose a kind
of implicit tax.73

In short, regulations such as §203 and the statute upheld in Austin impose only a limited
burden on First Amendment freedoms not only because they target a narrow subset of
expenditures and leave untouched the broader "public dialogue," ante, at 25, but also because
they leave untouched the speech of natural persons. 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,' " ante, at 38 (quoting
CIO, 335 U. S., at 144 (Rutledge, J., concurring in judgment)), and this, in turn, "interferes with
the 'open marketplace' of ideas protected by the First Amendment," ante, at 38 (quoting New
York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008)).

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. See WRTL, 551 U. S.,
at 509-510 (Souter, J., dissenting) (summarizing President Roosevelt's remarks). 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. Regan 302. 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, 494 U. S., at 660, 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," Brief for American Independent Business Alliance as Amicus Curiae 11; see also
ALI, Principles of Corporate Governance: Analysis and Recommendations §2.01(a), p. 55
(1992) ("[A] corporation ... should have as its objective the conduct of business activities with a
view to enhancing corporate profit and shareholder gain"). In a state election such as the one
at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to

84/113
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, 494
U. S., at 660. 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." MCFL, 479 U. S., at 259.

In addition to this immediate drowning out of noncorporate voices, there may be deleterious
effects that follow soon thereafter. Corporate "domination" of electioneering, Austin, 494 U. S.,
at 659, 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.' " McConnell, 540 U. S., at 144
(quoting Shrink Missouri, 528 U. S., at 390). 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," ante, at 23, and disserve the goal of a public debate that is
"uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U. S. 254, 270
(1964). 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, Austin, 494 U. S., at 659, 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." Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for
Corporate Charters, 69 U. Chi. L. Rev. 1103, 1113 (2002). 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. Ibid. 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.' " NRWC, 459 U. S., at 210 (quoting California Medical Assn.,
453 U. S., at 201).
85/113
 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," ante, at 11 (opinion of
Roberts, C. J.), 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," Austin, 494 U. S.,
at 695 (Scalia, J., dissenting)).74 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," 494 U. S., at 659, 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, ante, at 19, 34, 38, 52, 54, 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, ante, at 1, 48, 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. See
ante, at 35-38, 46; ante, at 1, 11 (opinion of Roberts, C. J.); ante, at 6 (opinion of Scalia, J.). 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," 494 U. S., at 667. Our colleagues have raised
86/113
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.75 This calls to mind George Berkeley's description of philosophers: "[W]e have first
raised a dust and then complain we cannot see." Principles of Human Knowledge/Three
Dialogues 38, ¶3 (R. Woolhouse ed. 1988).

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. Ante, at 23. 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,"
Strauss 1386.

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." 494 U. S., at 660-661. 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. Ibid. It " 'allows corporate political participation without the
temptation to use corporate funds for political influence, quite possibly at odds with the
87/113
sentiments of some shareholders or members.' " McConnell, 540 U. S., at 204 (quoting
Beaumont, 539 U. S., at 163). 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."
Winkler, Beyond Bellotti, 32 Loyola (LA) L. Rev. 133, 201 (1998).

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, see Pipefitters v. United States, 407 U. S. 385, 414-415 (1972);
Winkler, 92 Geo. L. J., at 887-900, and it has been endorsed in a long line of our cases, see,
e.g., McConnell, 540 U. S., at 204-205; Beaumont, 539 U. S., at 152-154; MCFL, 479 U. S., at
258; NRWC,459 U. S., at 207-208; Pipefitters, 407 U. S., at 414-416; see also n. 60, supra.
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." NRWC, 459 U. S., at 207-208.

The Court dismisses this interest on the ground that abuses of shareholder money can be
corrected "through the procedures of corporate democracy," ante, at 46 (internal quotation
marks omitted), and, it seems, through Internet-based disclosures, ante, at 55.76 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. Blair & Stout 320; see also id., at 298-315;
Winkler, 32 Loyola (LA) L. Rev., at 165-166, 199-200. 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, see Evans, A Requiem for the Retail Investor? 95
Va. L. Rev. 1105 (2009), 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. Id., at 1117. 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

88/113
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." Austin, 494 U. S., at 677 (Brennan, J., concurring). 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. See, e.g., id., at 663 (discussing risk that corporation's "members may be ... reluctant to
withdraw as members even if they disagree with [its] political expression"). 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," id., at
660. 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
89/113
invalidate regulatory legislation thought to unfairly impinge upon established economic
interests." Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). 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.

CITIZENS UNITED, APPELLANT v. FEDERAL ELECTION COMMISSION

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

[January 21, 2010]

Justice Thomas, concurring in part and dissenting in part.

I join all but Part IV of the Court's opinion.

Political speech is entitled to robust protection under the First Amendment. Section 203 of
the Bipartisan Campaign Reform Act of 2002 (BCRA) has never been reconcilable with that
protection. By striking down §203, the Court takes an important first step toward restoring full
constitutional protection to speech that is "indispensable to the effective and intelligent use of
the processes of popular government." McConnell v. Federal Election Comm'n, 540 U. S. 93,
265 (2003) (Thomas, J., concurring in part, concurring in judgment in part, and dissenting in
part) (internal quotation marks omitted). I dissent from Part IV of the Court's opinion, however,
because the Court's constitutional analysis does not go far enough. The disclosure, disclaimer,
and reporting requirements in BCRA §§201 and 311 are also unconstitutional. See id., at 275-
277, and n. 10.

Congress may not abridge the "right to anonymous speech" based on the " 'simple interest
in providing voters with additional relevant information,' " id.,at 276 (quoting McIntyre v. Ohio
Elections Comm'n, 514 U. S. 334, 348 (1995)). In continuing to hold otherwise, the Court
misapprehends the import of "recent events" that some amici describe "in which donors to
certain causes were blacklisted, threatened, or otherwise targeted for retaliation." Ante, at 54.
The Court properly recognizes these events as "cause for concern," ibid., but fails to
acknowledge their constitutional significance. In my view, amici'ssubmissions show why the
Court's insistence on upholding §§201 and 311 will ultimately prove as misguided (and ill fated)
as was its prior approval of §203.

Amici's examplesrelate principally to Proposition 8, a state ballot proposition that California

90/113
voters narrowly passed in the 2008 general election. Proposition 8 amended California's
constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized
in California." Cal. Const., Art. I, §7.5. Any donor who gave more than $100 to any committee
supporting or opposing Proposition 8 was required to disclose his full name, street address,
occupation, employer's name (or business name, if self-employed), and the total amount of his
contributions.1 See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of
State was then required to post this information on the Internet. See §§84600-84601; §§84602-
84602.1 (West Supp. 2010); §§84602.5-84604 (West 2005); §85605 (West Supp. 2010);
§§84606-84609 (West 2005).

Some opponents of Proposition 8 compiled this information and created Web sites with
maps showing the locations of homes or businesses of Proposition 8 supporters. Many
supporters (or their customers) suffered property damage, or threats of physical violence or
death, as a result. They cited these incidents in a complaint they filed after the 2008 election,
seeking to invalidate California's mandatory disclosure laws. Supporters recounted being told:
"Consider yourself lucky. If I had a gun I would have gunned you down along with each and
every other supporter," or, "we have plans for you and your friends." Complaint in
ProtectMarriage.com--Yes on 8 v. Bowen,CaseNo. 2:09-cv-00058-MCE-DAD (ED Cal.), ¶31.
Proposition 8 opponents also allegedly harassed the measure's supporters by defacing or
damaging their property. Id., ¶32. Two religious organizations supporting Proposition 8
reportedly received through the mail envelopes containing a white powdery substance. Id.,
¶33.

Those accounts are consistent with media reports describing Proposition 8-related
retaliation. The director of the nonprofit California Musical Theater gave $1,000 to support the
initiative; he was forced to resign after artists complained to his employer. Lott & Smith, Donor
Disclosure Has Its Downsides, Wall Street Journal, Dec. 26, 2008, p. A13. The director of the
Los Angeles Film Festival was forced to resign after giving $1,500 because opponents
threatened to boycott and picket the next festival. Ibid. And a woman who had managed her
popular, family-owned restaurant for 26 years was forced to resign after she gave $100,
because "throngs of [angry] protesters" repeatedly arrived at the restaurant and "shout[ed]
'shame on you' at customers." Lopez, Prop. 8 Stance Upends Her Life, Los Angeles Times,
Dec. 14, 2008, p. B1. The police even had to "arriv[e] in riot gear one night to quell the angry
mob" at the restaurant. Ibid. Some supporters of Proposition 8 engaged in similar tactics; one
real estate businessman in San Diego who had donated to a group opposing Proposition 8
"received a letter from the Prop. 8 Executive Committee threatening to publish his company's
name if he didn't also donate to the 'Yes on 8' campaign." Donor Disclosure, supra, at A13.

The success of such intimidation tactics has apparently spawned a cottage industry that
uses forcibly disclosed donor information to pre-empt citizens' exercise of their First
Amendment rights. Before the 2008 Presidential election, a "newly formed nonprofit group ...
plann[ed] to confront donors to conservative groups, hoping to create a chilling effect that will
dry up contributions." Luo, Group Plans Campaign Against G.O.P. Donors, N. Y. Times, Aug.
8, 2008, p. A15. Its leader, "who described his effort as 'going for the jugular,' " detailed the

91/113
group's plan to send a "warning letter ... alerting donors who might be considering giving to
right-wing groups to a variety of potential dangers, including legal trouble, public exposure and
watchdog groups digging through their lives." Ibid.

These instances of retaliation sufficiently demonstrate why this Court should invalidate
mandatory disclosure and reporting requirements. But amici present evidence of yet another
reason to do so--the threat of retaliation from elected officials. As amici's submissions make
clear, this threat extends far beyond a single ballot proposition in California. For example, a
candidate challenging an incumbent state attorney general reported that some members of the
State's business community feared donating to his campaign because they did not want to
cross the incumbent; in his words, " 'I go to so many people and hear the same thing: "I sure
hope you beat [the incumbent], but I can't afford to have my name on your records. He might
come after me next." ' " Strassel, Challenging Spitzerism at the Polls, Wall Street Journal, Aug.
1, 2008, p. A11. The incumbent won reelection in 2008.

My point is not to express any view on the merits of the political controversies I describe.
Rather, it is to demonstrate--using real-world, recent examples--the fallacy in the Court's
conclusion that "[d]isclaimer and disclosure requirements ... impose no ceiling on campaign-
related activities, and do not prevent anyone from speaking." Ante, at 51 (internal quotation
marks and citations omitted). Of course they do. Disclaimer and disclosure requirements
enable private citizens and elected officials to implement political strategies specifically
calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First
Amendment rights.

The Court nevertheless insists that as-applied challenges to disclosure requirements will
suffice to vindicate those speech rights, as long as potential plaintiffs can "show a reasonable
probability that disclosure ... will subject them to threats, harassment, or reprisals from either
Government officials or private parties." Ante, at 52 (internal quotation marks omitted). But the
Court's opinion itself proves the irony in this compromise. In correctly explaining why it must
address the facial constitutionality of §203, see ante, at 5-20,the Court recognizes that "[t]he
First Amendment does not permit laws that force speakers to ... seek declaratory rulings
before discussing the most salient political issues of our day," ante, at 7; that as-applied
challenges to §203 "would require substantial litigation over an extended time" and result in an
"interpretive process [that] itself would create an inevitable, pervasive, and serious risk of
chilling protected speech pending the drawing of fine distinctions that, in the end, would
themselves be questionable," ante, at 9-10; that "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," ante, at 12; and that avoiding a facial challenge to §203 "would prolong the
substantial, nation-wide chilling effect" that §203 causes, ante, at 16. This logic, of course,
applies equally to as-applied challenges to §§201 and 311.

Irony aside, the Court's promise that as-applied challenges will adequately protect speech is
a hollow assurance. Now more than ever, §§201 and 311 will chill protected speech because--
as California voters can attest--"the advent of the Internet" enables "prompt disclosure of
expenditures," which "provide[s]" political opponents "with the information needed" to intimidate
92/113
and retaliate against their foes. Ante, at 55. Thus, "disclosure permits citizens ... to react to the
speech of [their political opponents] in a proper"--or undeniably improper--"way" long before a
plaintiff could prevail on an as-applied challenge.2 Ibid.

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to
death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening
warning letters as the price for engaging in "core political speech, the 'primary object of First
Amendment protection.' " McConnell, 540 U. S., at 264(Thomas, J., concurring in part,
concurring in judgment in part, and dissenting in part) (quoting Nixon v. Shrink Missouri
Government PAC, 528 U. S. 377, 410-411 (2000) (Thomas, J., dissenting)). Accordingly, I
respectfully dissent from the Court's judgment upholding BCRA §§201 and 311.

FOOTNOTES

Footnote 1
The dissent suggests that I am "much too quick" to reach this conclusion because I "ignore"
Citizens United's narrower arguments. Post, at 13, n. 12. But in fact I do not ignore those
arguments; on the contrary, I (and my colleagues in the majority) appropriately consider and
reject them on their merits, before addressing Citizens United's broader claims. Supra, at 2-3;
ante, at 5-12.

Footnote 2
See also, e.g., R. Hasen, The Supreme Court and Election Law: Judging Equality from Baker
v. Carr to Bush v. Gore 114 (2003) ("Austin represents the first and only case [before
McConnell] in which a majority of the Court accepted, in deed if not in word, the equality
rationale as a permissible state interest"); Strauss, Corruption, Equality, and Campaign
Finance Reform, 94 Colum. L. Rev. 1369, 1369, and n. 1 (1994) (noting that Austin's rationale
was based on equalizing political speech); Ashdown, Controlling Campaign Spending and the
"New Corruption": Waiting for the Court, 44 Vand. L. Rev. 767, 781 (1991); Eule, Promoting
Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 108-111.

FOOTNOTES

Footnote 1
Justice Thomas does not join Part IV of the Court's opinion.

Footnote 2
93/113
 The dissent protests that 1791 rather than 1800 should be the relevant date, and that "[m]ore
than half of the century's total business charters were issued between 1796 and 1800." Post,
at 35, n. 53. I used 1800 only because the dissent did. But in any case, it is surely fanciful to
think that a consensus of hostility towards corporations was transformed into general favor at
some magical moment between 1791 and 1796.

Footnote 3
"[P]eople in 1800 identified corporations with franchised monopolies." L. Friedman, A History
of American Law 194 (2d ed. 1985) (hereinafter Friedman). "The chief cause for the changed
popular attitude towards business corporations that marked the opening of the nineteenth
century was the elimination of their inherent monopolistic character. This was accomplished
primarily by an extension of the principle of free incorporation under general laws." 1 W.
Fletcher, Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006).

Footnote 4
At times (though not always) the dissent seems to exclude such non-"business corporations"
from its denial of free speech rights. See post, at 37. Finding in a seemingly categorical text a
distinction between the rights of business corporations and the rights of non-business
corporations is even more imaginative than finding a distinction between the rights of all
corporations and the rights of other associations.

Footnote 5
The best the dissent can come up with is that "[p]ostratification practice" supports its reading
of the First Amendment. Post, at 40, n. 56. For this proposition, the dissent cites Justice
White's statement (in dissent) that "[t]he common law was generally interpreted as prohibiting
corporate political participation," First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 819
(1978). The sole authority Justice White cited for this proposition, id., at 819, n. 14, was a law-
review note that made no such claim. To the contrary, it stated that the cases dealing with the
propriety of corporate political expenditures were "few." Note, Corporate Political Affairs
Programs, 70 Yale L. J. 821, 852 (1961). More specifically, the note cites only two holdings to
that effect, one by a Federal District Court, and one by the Supreme Court of Montana. Id., at
852, n. 197. Of course even if the common law was "generally interpreted" to prohibit
corporate political expenditures as ultra vires, that would have nothing to do with whether
political expenditures that were authorized by a corporation's charter could constitutionally be
suppressed.

As additional "[p]ostratification practice," the dissent notes that the Court "did not recognize
any First Amendment protections for corporations until the middle part of the 20th century."
Post, at 40, n. 56. But it did that in Grosjean v. American Press Co., 297 U. S. 233 (1936), a
case involving freedom of the press--which the dissent acknowledges did cover corporations
from the outset. The relative recency of that first case is unsurprising. All of our First

94/113
Amendment jurisprudence was slow to develop. We did not consider application of the First
Amendment to speech restrictions other than prior restraints until 1919, see Schenck v. United
States, 249 U. S. 47 (1919); we did not invalidate a state law on First Amendment grounds
until 1931, see Stromberg v. California, 283 U. S. 359 (1931), and a federal law until 1965, see
Lamont v. Postmaster General, 381 U. S. 301 (1965).

Footnote 6
The dissent seeks to avoid this conclusion (and to turn a liability into an asset) by interpreting
the Freedom of the Press Clause to refer to the institutional press (thus demonstrating,
according to the dissent, that the Founders "did draw distinctions--explicit distinctions--
between types of 'speakers,' or speech outlets or forms "). Post, at 40 and n. 57. It is passing
strange to interpret the phrase "the freedom of speech, or of the press" to mean, not
everyone's right to speak or publish, but rather everyone's right to speak or the institutional
press's right to publish. No one thought that is what it meant. Patriot Noah Webster's 1828
dictionary contains, under the word "press," the following entry:

"Liberty of the press, in civil policy, is the free right of publishing books, pamphlets, or
papers without previous restraint; or the unrestrained right which every citizen enjoys of
publishing his thoughts and opinions, subject only to punishment for publishing what is
pernicious to morals or to the peace of the state." 2 American Dictionary of the English
Language (1828) (reprinted 1970).

As the Court's opinion describes, ante, at 36, our jurisprudence agrees with Noah Webster
and contradicts the dissent.

"The liberty of the press is not confined to newspapers and periodicals. It necessarily
embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends
every sort of publication which affords a vehicle of information and opinion." Lovell v. City of
Griffin, 303 U. S. 444, 452 (1938).

Footnote 7
The dissent says that " 'speech' " refers to oral communications of human beings, and since
corporations are not human beings they cannot speak. Post, at 37, n. 55. This is sophistry. The
authorized spokesman of a corporation is a human being, who speaks on behalf of the human
beings who have formed that association--just as the spokesman of an unincorporated
association speaks on behalf of its members. The power to publish thoughts, no less than the
power to speak thoughts, belongs only to human beings, but the dissent sees no problem with
a corporation's enjoying the freedom of the press.

The same footnote asserts that "it has been 'claimed that the notion of institutional speech .
. . did not exist in post-revolutionary America.' " This is quoted from a law-review article by a
Bigelow Fellow at the University of Chicago (Fagundes, State Actors as First Amendment
Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006)), which offers as the sole support for its

95/113
statement a treatise dealing with government speech, M. Yudof, When Government Speaks
42-50 (1983). The cited pages of that treatise provide no support whatever for the statement--
unless, as seems overwhelmingly likely, the "institutional speech" referred to was speech by
the subject of the law-review article, governmental institutions.

The other authority cited in the footnote, a law-review article by a professor at Washington
and Lee Law School, Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995), in fact
contradicts the dissent, in that it would accord free-speech protection to associations.

FOOTNOTES

Footnote 1
Specifically, Part I, infra, at 4-17, addresses the procedural history of the case and the
narrower grounds of decision the majority has bypassed. Part II, infra, at 17-23, addresses
stare decisis. Part III, infra, at 23-56, addresses the Court's assumptions that BCRA "bans"
corporate speech, that identity-based distinctions may not be drawn in the political realm, and
that Austin and McConnell were outliers in our First Amendment tradition. Part IV, infra, at 56-
89, addresses the Court's treatment of the anticorruption, antidistortion, and shareholder
protection rationales for regulating corporate electioneering.

Footnote 2
See Yee v. Escondido, 503 U. S. 519, 535 (1992) ("[U]nder this Court's Rule 14.1(a), only
questions set forth in the petition, or fairly included therein, will be considered by the Court"
(internal quotation marks and alteration omitted)); Wood v. Allen, ante, at __ (slip op., at 13) ("
[T]he fact that petitioner discussed [an] issue in the text of his petition for certiorari does not
bring it before us. Rule 14.1(a) requires that a subsidiary question be fairly included in the
question presented for our review" (internal quotation marks and brackets omitted)); Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168-169 (2004) ("We ordinarily do not
decide in the first instance issues not decided below" (internal quotation marks omitted)).

Footnote 3
The majority states that, in denying Citizens United's motion for a preliminary injunction, the
District Court "addressed" the facial validity of BCRA §203. Ante, at 13. That is true, in the
narrow sense that the court observed the issue was foreclosed by McConnell v. FEC, 540
U. S. 93 (2003). See 530 F. Supp. 2d 274, 278 (DC 2008) (per curiam). Yet as explained
above, Citizens United subsequently dismissed its facial challenge, so that by the time the
District Court granted the Federal Election Commission's (FEC) motion for summary judgment,
App. 261a-262a, any question about statutory validity had dropped out of the case. That latter
ruling by the District Court was the "final decision" from which Citizens United appealed to this

96/113
Court under BCRA §403(a)(3). As regards the lower court decision that has come before us,
the claim that §203 is facially unconstitutional was neither pressed nor passed upon in any
form.

Footnote 4
Shortly before Citizens United mooted the issue by abandoning its facial challenge, the
Government advised the District Court that it "require[d] time to develop a factual record
regarding [the] facial challenge." 1:07-cv-2240-RCL-RWR, Docket Entry No. 47, p. 4 (Mar. 26,
2008). By reinstating a claim that Citizens United abandoned, the Court gives it a perverse
litigating advantage over its adversary, which was deprived of the opportunity to gather and
present information necessary to its rebuttal.

Footnote 5
In fact, we do not even have a good evidentiary record of how §203 has been affecting
Citizens United, which never submitted to the District Court the details of Hillary's funding or its
own finances. We likewise have no evidence of how §203 and comparable state laws were
expected to affect corporations and unions in the future.

It is true, as the majority points out, that the McConnell Court evaluated the facial validity of
§203 in light of an extensive record. See ante, at 15. But that record is not before us in this
case. And in any event, the majority's argument for striking down §203 depends on its
contention that the statute has proved too "chilling" in practice--and in particular on the
contention that the controlling opinion in WRTL, 551 U. S. 449 (2007), failed to bring sufficient
clarity and "breathing space" to this area of law. See ante, at 12, 16-20. We have no record
with which to assess that claim. The Court complains at length about the burdens of complying
with §203, but we have no meaningful evidence to show how regulated corporations and
unions have experienced its restrictions.

Footnote 6
Our cases recognize a "type of facial challenge in the First Amendment context under which a
law may be overturned as impermissibly overbroad because a substantial number of its
applications are unconstitutional." Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449, n. 6 (2008) (internal quotation marks omitted). Citizens United has
not made an overbreadth argument, and "[w]e generally do not apply the strong medicine of
overbreadth analysis where the parties fail to describe the instances of arguable overbreadth
of the contested law," ibid. (internal quotation marks omitted). If our colleagues nonetheless
concluded that §203's fatal flaw is that it affects too much protected speech, they should have
invalidated it for overbreadth and given guidance as to which applications are permissible, so
that Congress could go about repairing the error.

Footnote 7
97/113
 Also perplexing is the majority's attempt to pass blame to the Government for its litigating
position. By "hold[ing] out the possibility of ruling for Citizens United on a narrow ground yet
refrain[ing] from adopting that position," the majority says, the Government has caused "added
uncertainty [that] demonstrates the necessity to address the question of statutory validity."
Ante, at 17. Our colleagues have apparently never heard of an alternative argument. Like
every litigant, the Government would prefer to win its case outright; failing that, it would prefer
to lose on a narrow ground. The fact that there are numerous different ways this case could be
decided, and that the Government acknowledges as much, does not demonstrate anything
about the propriety of a facial ruling.

Footnote 8
The majority's "chilling" argument is particularly inapposite with respect to 2 U. S. C. §441b's
longstanding restriction on the use of corporate general treasury funds for express advocacy. If
there was ever any significant uncertainty about what counts as the functional equivalent of
express advocacy, there has been little doubt about what counts as express advocacy since
the "magic words" test of Buckley v. Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam). Yet even
though Citizens United's briefs never once mention §441b's restriction on express advocacy;
even though this restriction does not generate chilling concerns; and even though no one has
suggested that Hillary counts as express advocacy; the majority nonetheless reaches out to
opine that this statutory provision is "invalid" as well. Ante, at 50.

Footnote 9
The majority adds that the distinction between facial and as-applied challenges does not have
"some automatic effect" that mechanically controls the judicial task. Ante, at 14. I agree, but it
does not follow that in any given case we should ignore the distinction, much less invert it.

Footnote 10
Professor Fallon proposes an intricate answer to this question that the majority ignores. Fallon
1327-1359. It bears mention that our colleagues have previously cited Professor Fallon's
article for the exact opposite point from the one they wish to make today. In Gonzales v.
Carhart, 550 U. S. 124 (2007), the Court explained that "[i]t is neither our obligation nor within
our traditional institutional role to resolve questions of constitutionality with respect to each
potential situation that might develop," and "[f]or this reason, '[a]s-applied challenges are the
basic building blocks of constitutional adjudication.' " Id., at 168 (opinion for the Court by
Kennedy, J.) (quoting Fallon 1328 (second alteration in original)).

Footnote 11
Internal Revenue Code section 501(c)(4) applies, inter alia, to nonprofit organizations
"operated exclusively for the promotion of social welfare, ... the net earnings of which are
devoted exclusively to charitable, educational, or recreational purposes."

98/113
Footnote 12
The Chief Justice is
therefore much too quick when he suggests that, "[e]ven if considered in as-
applied terms, a holding in this case that the Act may not be applied to Citizens United--
because corporations as well as individuals enjoy the pertinent First Amendment rights--would
mean that any other corporation raising the same challenge would also win." Ante, at 4
(concurring opinion). That conclusion would only follow if the Court were to ignore Citizens
United's plausible as-applied arguments and instead take the implausible position that all
corporations and all types of expendituresenjoy the same First Amendment protections, which
always trump the interests in regulation. At times, the majority appears to endorse this extreme
view. At other times, however, it appears to suggest that nonprofit corporations have a better
claim to First Amendment protection than for-profit corporations, see ante, at 20, 39,
"advocacy" organizations have a better claim than other nonprofits, ante, at 20, domestic
corporations have a better claim than foreign corporations, ante, at 46-47, small corporations
have a better claim than large corporations, ante, at 38-40, and printed matter has a better
claim than broadcast communications, ante,at 33. The majority never uses a multinational
business corporation in its hypotheticals.

Footnote 13
The Court entirely ignores this statutory argument. It concludes that §203 applies to Hillary on
the basis of the film's content, ante, at 7-8, without considering the possibility that §203 does
not apply to video-on-demand transmissions generally.

Footnote 14
See Colorado Right to Life Comm., Inc. v. Coffman, 498 F. 3d 1137, 1148 (CA10 2007)
(adopting this rule and noting that "every other circuit to have addressed this issue" has done
likewise); Brief for Independent Sector as Amicus Curiae 10-11 (collecting cases). The Court
rejects this solution in part because the Government "merely suggest[s] it"and "does not say
that it agrees with the interpretation." Ante, at 11. Our colleagues would thus punish a
defendant for showing insufficient excitement about a ground it has advanced, at the same
time that they decide the case on a ground the plaintiff expressly abandoned. The Court also
protests that a de minimis standard would "requir[e] intricate case-by-case determinations."
Ante, at 12. But de minimis tests need not be intricate at all. A test that granted MCFL status to
§501(c)(4) organizations if they received less than a fixed dollar amount of business donations
in the previous year, or if such donations represent less than a fixed percentage of their total
assets, would be perfectly easy to understand and administer.

Footnote 15
Another bypassed ground, not briefed by the parties, would have been to revive the Snowe-
Jeffords Amendment in BCRA §203(c), allowing certain nonprofit corporations to pay for
electioneering communications with general treasury funds, to the extent they can trace the
99/113
payments to individual contributions. See Brief for National Rifle Association as Amicus Curiae
5-15 (arguing forcefully that Congress intended this result).

Footnote 16
The Chief Justice finds
our discussion of these narrower solutions "quite perplexing" because we
suggest that the Court should "latch on to one of them in order to avoid reaching the broader
constitutional question," without doing the same ourselves. Ante, at 3. There is nothing
perplexing about the matter, because we are not similarly situated to our colleagues in the
majority. We do not share their view of the First Amendment. Our reading of the Constitution
would not lead us to strike down any statutes or overturn any precedents in this case, and we
therefore have no occasion to practice constitutional avoidance or to vindicate Citizens
United's as-applied challenge. Each of the arguments made above is surely at least as strong
as the statutory argument the Court accepted in last year's Voting Rights Act case, Northwest
Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. __ (2009).

Footnote 17
I will have more to say shortly about the merits--about why Austin and McConnell are not
doctrinal outliers, as the Court contends, and why their logic is not only defensible but also
compelling. For present purposes, I limit the discussion to stare-decisis-specific
considerations.

Footnote 18
The Chief Justice suggests that Austin has been undermined by subsequent dissenting opinions.
Ante, at 9. Under this view, it appears that the more times the Court stands by a precedent in
the face of requests to overrule it, the weaker that precedent becomes. The Chief Justice further
suggests that Austin "is uniquely destabilizing because it threatens to subvert our Court's
decisions even outside" its particular facts, as when we applied its reasoning in McConnell.
Ante, at 9. Once again, the theory seems to be that the more we utilize a precedent, the more
we call it into question. For those who believe Austin was correctly decided--as the Federal
Government and the States have long believed, as the majority of Justices to have served on
the Court since Austin have believed, and as we continue to believe--there is nothing
"destabilizing" about the prospect of its continued application. It is gutting campaign finance
laws across the country, as the Court does today, that will be destabilizing.

Footnote 19
Additionally, the majority cites some recent scholarship challenging the historical account of
campaign finance law given in United States v. Automobile Workers, 352 U. S. 567 (1957).
Ante, at 48. Austin did not so much as allude to this historical account, much less rely on it.
Even if the scholarship cited by the majority is correct that certain campaign finance reforms
were less deliberate or less benignly motivated than Automobile Workers suggested, the point
remains that this body of law has played a significant and broadly accepted role in American
100/113
political life for decades upon decades.

Footnote 20
See Brief for State of Montana et al. as Amici Curiae 5-13; see also Supp. Brief for Senator
John McCain et al. as Amici Curiae 1a-8a (listing 24 States that presently limit or prohibit
independent electioneering expenditures from corporate general treasuries).

Footnote 21
Magleby, The Importance of the Record in McConnell v. FEC, 3 Election L. J. 285 (2004).

Footnote 22
To be sure, the majority may respond that Congress can correct the imbalance by removing
BCRA's soft-money limits. Cf. Tr. of Oral Arg. 24 (Sept. 9, 2009) (query of Kennedy, J.). But this
is no response to any legislature that takes campaign finance regulation seriously. It merely
illustrates the breadth of the majority's deregulatory vision.

Footnote 23
See Brief for Committee for Economic Development as Amicus Curiae; Brief for American
Independent Business Alliance as Amicus Curiae. But see Supp. Brief for Chamber of
Commerce of the United States of America as Amicus Curiae.

Footnote 24
See Brief for American Federation of Labor and Congress of Industrial Organizations as
Amicus Curiae 3, 9.

Footnote 25
See Brief for Independent Sector as Amicus Curiae 16-20.

Footnote 26
See Brief for State of Montana et al. as Amici Curiae.

Footnote 27
The FEC established this process following the Court's June 2007 decision in that case, 551
U. S. 449. In the brief interval between the establishment of this process and the 2008 election,
corporations and unions used it to make $108.5 million in electioneering communications.
Supp. Brief for Appellee 22-23; FEC, Electioneering Communication Summary, online at
http://fec.gov/finance/disclosure/ECSummary.shtml (all Internet materials as visited Jan. 18,
2010, and available in Clerk of Court's case file).
101/113
Footnote 28
Concedely, Austin and McConnell were constitutional decisions, and we have often said that
"claims of stare decisis are at the weakest in that field, where our mistakes cannot be
corrected by Congress." Vieth v. Jubelirer, 541 U. S. 267, 305 (2004) (plurality opinion). As a
general matter, this principle is a sound one. But the principle only takes on real force when an
earlier ruling has obstructed the normal democratic process; it is the fear of making "mistakes
[that] cannot be corrected by Congress," ibid., that motivates us to review constitutional
precedents with a more critical eye. Austin and McConnell did not obstruct state or
congressional legislative power in any way. Although it is unclear how high a bar today's
decision will pose to future attempts to regulate corporate electioneering, it will clearly restrain
much legislative action.

Footnote 29
See FEC, Number of Federal PAC's Increases, http://fec.gov/press/
press2008/20080812paccount.shtml.

Footnote 30
See Supp. Brief for Appellee 16 (citing FEC statistics placing this figure at $840 million). The
majority finds the PAC option inadequate in part because "[a] PAC is a separate association
from the corporation." Ante, at 21. The formal "separateness" of PACs from their host
corporations--which administer and control the PACs but which cannot funnel general treasury
funds into them or force members to support them--is, of course, the whole point of the PAC
mechanism.

Footnote 31
Roaming far afield from the case at hand, the majority worries that the Government will use
§203 to ban books, pamphlets, and blogs. Ante, at 20, 33, 49. Yet by its plain terms, §203
does not apply to printed material. See 2 U. S. C. §434(f)(3)(A)(i); see also 11 CFR §100.29(c)
(1) ("[E]lectioneering communication does not include communications appearing in print
media"). And in light of the ordinary understanding of the terms "broadcast, cable, [and]
satellite," §434(f)(3)(A)(i), coupled with Congress' clear aim of targeting "a virtual torrent of
televised election-related ads," McConnell, 540 U. S.,at 207, we highly doubt that §203 could
be interpreted to apply to a Web site or book that happens to be transmitted at some stage
over airwaves or cable lines, or that the FEC would ever try to do so. See 11 CFR §100.26
(exempting most Internet communications from regulation as advertising); §100.155
(exempting uncompensated Internet activity from regulation as an expenditure); Supp. Brief for
Center for Independent Media et al. as Amici Curiae 14 (explaining that "the FEC has
consistently construed [BCRA's] media exemption to apply to a variety of non-traditional
media"). If it should, the Government acknowledges "there would be quite [a] good as-applied
challenge." Tr. of Oral Arg. 65 (Sept. 9, 2009).
102/113
Footnote 32
As the Government points out, with a media corporation there is also a lesser risk that
investors will not understand, learn about, or support the advocacy messages that the
corporation disseminates. Supp. Reply Brief for Appellee 10. Everyone knows and expects that
media outlets may seek to influence elections in this way.

Footnote 33
2 U. S. C. §434(f)(3)(A)(i).

Footnote 34
§434(f)(3)(C).

Footnote 35
§434(f)(3)(A)(i)(II).

Footnote 36
§441b(b); McConnell, 540 U. S., at 211.

Footnote 37
§441b(b)(2)(C).

Footnote 38
WRTL, 551 U. S. 449, 470 (2007) (opinion of Roberts, C. J.).

Footnote 39
It is likewise nonsense to suggest that the FEC's " 'business is to censor.' " Ante, at 18
(quoting Freedman v. Maryland, 380 U. S. 51, 57 (1965)). The FEC's business is to administer
and enforce the campaign finance laws. The regulatory body at issue in Freedman was a state
Board of Censors that had virtually unfettered discretion to bar distribution of motion picture
films it deemed not to be "moral and proper." See id., at 52-53, and n. 2. No movie could be
shown in the State of Maryland that was not first approved and licensed by the Board of
Censors. Id., at 52, n. 1. It is an understatement to say that Freedman is not on point, and the
majority's characterization of the FEC is deeply disconcerting.

Footnote 40
Citizens United has administered this PAC for over a decade. See Defendant FEC's
Memorandum in Opposition to Plaintiff's Second Motion for Preliminary Injunction in No. 07-
103/113
2240 (ARR, RCL, RWR) (DC), p. 20. Citizens United also operates multiple "527"
organizations that engage in partisan political activity. See Defendant FEC's Statement of
Material Facts as to Which There Is No Genuine Dispute in No. 07-2240 (DC), ¶¶ 22-24.

Footnote 41
See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986) ("[T]he
constitutional rights of students in public school are not automatically coextensive with the
rights of adults in other settings").

Footnote 42
See, e.g., Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 129 (1977) ("In
a prison context, an inmate does not retain those First Amendment rights that are inconsistent
with his status as a prisoner or with the legitimate penological objectives of the corrections
system" (internal quotation marks omitted)).

Footnote 43
See, e.g., Parker v. Levy, 417 U. S. 733, 758 (1974) ("While the members of the military are
not excluded from the protection granted by the First Amendment, the different character of the
military community and of the military mission requires a different application of those
protections").

Footnote 44
See, e.g., 2 U. S. C. §441e(a)(1) (foreign nationals may not directly or indirectly make
contributions or independent expenditures in connection with a U. S. election).

Footnote 45
See, e.g., Civil Service Comm'n v. Letter Carriers, 413 U. S. 548 (1973) (upholding statute
prohibiting Executive Branch employees from taking "any active part in political management
or in political campaigns" (internal quotation marks omitted)); Public Workers v. Mitchell, 330
U. S. 75 (1947) (same); United States v. Wurzbach, 280 U. S. 396 (1930) (upholding statute
prohibiting federal employees from making contributions to Members of Congress for "any
political purpose whatever" (internal quotation marks omitted)); Ex parte Curtis, 106 U. S. 371
(1882) (upholding statute prohibiting certain federal employees from giving money to other
employees for political purposes).

Footnote 46
The majority states that the cases just cited are "inapposite" because they "stand only for the
proposition that there are certain governmental functions that cannot operate without some
restrictions on particular kinds of speech." Ante, at 25. The majority's creative suggestion that

104/113
these cases stand only for that one proposition is quite implausible. In any event, the
proposition lies at the heart of this case, as Congress and half the state legislatures have
concluded, over many decades, that their core functions of administering elections and passing
legislation cannot operate effectively without some narrow restrictions on corporate
electioneering paid for by general treasury funds.

Footnote 47
Outside of the law, of course, it is a commonplace that the identity and incentives of the
speaker might be relevant to an assessment of his speech. See Aristotle, Poetics 43-44 (M.
Heath transl. 1996) ("In evaluating any utterance or action, one must take into account not just
the moral qualities of what is actually done or said, but also the identity of the agent or
speaker, the addressee, the occasion, the means, and the motive"). The insight that the
identity of speakers is a proper subject of regulatory concern, it bears noting, motivates the
disclaimer and disclosure provisions that the Court today upholds.

Footnote 48
I dissented in Forbes because the broadcaster's decision to exclude the respondent from its
debate was done "on the basis of entirely subjective, ad hoc judgments," 523 U. S., at 690,
that suggested anticompetitive viewpoint discrimination, id., at 693-694, and lacked a
compelling justification. Needless to say, my concerns do not apply to the instant case.

Footnote 49
The law at issue in Burson was far from unusual. "[A]ll 50 States," the Court observed, "limit
access to the areas in or around polling places." 504 U. S., at 206; see also Note, 91 Ky. L. J.
715, 729, n. 89, 747-769 (2003) (collecting statutes). I dissented in Burson because the
evidence adduced to justify Tennessee's law was "exceptionally thin," 504 U. S., at 219, and
"the reason for [the] restriction [had] disappear[ed]" over time, id., at 223. "In short," I
concluded, "Tennessee ha[d] failed to point to any legitimate interest that would justify its
selective regulation of campaign-related expression." Id., at 225. These criticisms are
inapplicable to the case before us.

Footnote 50
They are likewise entitled to regulate media corporations differently from other corporations
"to ensure that the law 'does not hinder or prevent the institutional press from reporting on, and
publishing editorials about, newsworthy events.' " McConnell, 540 U. S., at 208 (quoting Austin
v. Michigan Chamber of Commerce, 494 U. S. 652, 668 (1990)).

Footnote 51
The Court all but confesses that a categorical approach to speaker identity is untenable when
it acknowledges that Congress might be allowed to take measures aimed at "preventing
105/113
foreign individuals or associations from influencing our Nation's political process." Ante, at 46-
47. Such measures have been a part of U. S. campaign finance law for many years. The
notion that Congress might lack theauthority to distinguish foreigners from citizens in the
regulation of electioneering would certainly have surprised the Framers, whose "obsession
with foreign influence derived from a fear that foreign powers and individuals had no basic
investment in the well-being of the country." Teachout, The Anti-Corruption Principle, 94
Cornell L. Rev. 341, 393, n. 245 (2009) (hereinafter Teachout); see also U. S. Const., Art. I, §9,
cl. 8 ("[N]o Person holding any Office of Profit or Trust ... shall, without the Consent of the
Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any
King, Prince, or foreign State"). Professor Teachout observes that a corporation might be
analogized to a foreign power in this respect, "inasmuch as its legal loyalties necessarily
exclude patriotism." Teachout 393, n. 245.

Footnote 52
See A. Bickel, The Supreme Court and the Idea of Progress 59-60 (1978); A. Meiklejohn,
Political Freedom: The Constitutional Powers of the People 39-40 (1965); Tokaji, First
Amendment Equal Protection: On Discretion, Inequality, and Participation, 101 Mich. L. Rev.
2409, 2508-2509 (2003). Of course, voting is not speech in a pure or formal sense, but then
again neither is a campaign expenditure; both are nevertheless communicative acts aimed at
influencing electoral outcomes. Cf. Strauss, Corruption, Equality, and Campaign Finance
Reform, 94 Colum. L. Rev. 1369, 1383-1384 (1994) (hereinafter Strauss).

Footnote 53
Scholars have found that only a handful of business corporations were issued charters during
the colonial period, and only a few hundred during all of the 18th century. See E. Dodd,
American Business Corporations Until 1860, p. 197 (1954); L. Friedman, A History of
American Law 188-189 (2d ed. 1985); Baldwin, American Business Corporations Before 1789,
8 Am. Hist. Rev. 449, 450-459 (1903). Justice Scalia quibbles with these figures; whereas we say
that "a few hundred" charters were issued to business corporations during the 18th century, he
says that the number is "approximately 335." Ante, at 2 (concurring opinion). Justice Scalia also
raises the more serious point that it is improper to assess these figures by today's standards,
ante, at 3, though I believe he fails to substantiate his claim that "the corporation was a familiar
figure in American economic life" by the century's end, ibid. (internal quotation marks omitted).
His formulation of that claim is also misleading, because the relevant reference point is not
1800 but the date of the First Amendment's ratification, in 1791. And at that time, the number
of business charters must have been significantly smaller than 335, because the pace of
chartering only began to pick up steam in the last decade of the 18th century. More than half of
the century's total business charters were issued between 1796 and 1800. Friedman, History
of American Law, at 189.

Footnote 54

106/113
 See Letter from Thomas Jefferson to Tom Logan (Nov. 12, 1816), in 12 The Works of
Thomas Jefferson 42, 44 (P. Ford ed. 1905) ("I hope we shall ... crush in [its] birth the
aristocracy of our monied corporations which dare already to challenge our government to a
trial of strength and bid defiance to the laws of our country").

Footnote 55
In normal usage then, as now, the term "speech" referred to oral communications by
individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853-1854 (4th ed.
1773) (reprinted 1978) (listing as primary definition of "speech": "The power of articulate
utterance; the power of expressing thoughts by vocal words"); 2 N. Webster, American
Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of
"speech": "The faculty of uttering articulate sounds or words, as in human beings; the faculty of
expressing thoughts by words or articulate sounds. Speech was given to man by his Creator
for the noblest purposes"). Indeed, it has been "claimed that the notion of institutional speech
... did not exist in post-revolutionary America." Fagundes, State Actors as First Amendment
Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80
Iowa L. Rev. 735, 775 (1995) ("In the intellectual heritage of the eighteenth century, the idea
that free speech was individual and personal was deeply rooted and clearly manifest in the
writings of Locke, Milton, and others on whom the framers of the Constitution and the Bill of
Rights drew"). Given that corporations were conceived of as artificial entities and do not have
the technical capacity to "speak," the burden of establishing that the Framers and ratifiers
understood "the freedom of speech" to encompass corporate speech is, I believe, far heavier
than the majority acknowledges.

Footnote 56
Postratification practice bolsters the conclusion that the First Amendment, "as originally
understood," ante, at 37, did not give corporations political speech rights on a par with the
rights of individuals. Well into the modern era of general incorporation statutes, "[t]he common
law was generally interpreted as prohibiting corporate political participation," First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 819 (1978) (White, J., dissenting), and this Court did not
recognize any First Amendment protections for corporations until the middle part of the 20th
century, see ante, at 25-26 (listing cases).

Footnote 57
In fact, the Free Press Clause might be turned against Justice Scalia, for two reasons. First, we
learn from it that the drafters of the First Amendment did draw distinctions--explicit distinctions-
-between types of "speakers," or speech outlets or forms. Second, the Court's strongest
historical evidence all relates to the Framers' views on the press, see ante, at 37-38; ante, at
4-6 (Scalia, J., concurring), yet while the Court tries to sweep this evidence into the Free Speech
Clause, the Free Press Clause provides a more natural textual home. The text and history
highlighted by our colleagues suggests why one type of corporation, those that are part of the
107/113
press, might be able to claim special First Amendment status, and therefore why some kinds
of "identity"-based distinctions might be permissible after all. Once one accepts that much, the
intellectual edifice of the majority opinion crumbles.

Footnote 58
Cf. L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History
4 (1960) ("The meaning of no other clause of the Bill of Rights at the time of its framing and
ratification has been so obscure to us" as the Free Speech and Press Clause).

Footnote 59
As the majority notes, there is some academic debate about the precise origins of these
developments. Ante, at 48; see also n. 19, supra. There is always some academic debate
about such developments; the motives of legislatures are never entirely clear or unitary. Yet
the basic shape and trajectory of 20th-century campaign finance reform are clear, and one
need not take a nave or triumphalist view of this history to find it highly relevant. The Court's
skepticism does nothing to mitigate the absurdity of its claim that Austin and McConnell were
outliers. Nor does it alter the fact that five Justices today destroy a longstanding American
practice.

Footnote 60
See Pipefitters v. United States, 407 U. S. 385, 409, 414-415 (1972) (reading the statutory bar
on corporate and union campaign spending not to apply to "the voluntary donations of
employees," when maintained in a separate account, because "[t]he dominant [legislative]
concern in requiring that contributions be voluntary was, after all, to protect the dissenting
stockholder or union member"); Automobile Workers, 352 U. S., at 592 (advising the District
Court to consider on remand whether the broadcast in question was "paid for out of the
general dues of the union membership or [whether] the funds [could] be fairly said to have
obtained on a voluntary basis"); United States v. CIO, 335 U. S. 106, 123 (1948) (observing
that "funds voluntarily contributed [by union members or corporate stockholders] for election
purposes" might not be covered by the expenditure bar). Both the Pipefitters and the
Automobile Workers Court approvingly referenced Congress' goal of reducing "the effect of
aggregated wealth on federal elections," understood as wealth drawn from a corporate or
union general treasury without the stockholders' or members' "free and knowing choice."
Pipefitters, 407 U. S., at 416; see Automobile Workers, 352 U. S., at 582.

The two dissenters in Pipefitters would not have read the statutory provision in question, a
successor to §304 of the Taft-Hartley Act, to allow such robust use of corporate and union
funds to finance otherwise prohibited electioneering. "This opening of the door to extensive
corporate and union influence on the elective and legislative processes," Justice Powell wrote,
"must be viewed with genuine concern. This seems to me to be a regressive step as
contrasted with the numerous legislative and judicial actions in recent years designed to
assure that elections are indeed free and representative." 407 U. S., at 450 (opinion of Powell,
108/113
J., joined by Burger, C. J.).

Footnote 61
Specifically, these corporations had to meet three conditions. First, they had to be formed "for
the express purpose of promoting political ideas," so that their resources reflected political
support rather than commercial success. MCFL, 479 U. S., at 264. Next, they had to have no
shareholders, so that "persons connected with the organization will have no economic
disincentive for disassociating with it if they disagree with its political activity." Ibid. Finally, they
could not be "established by a business corporation or a labor union," nor "accept contributions
from such entities," lest they "serv[e] as conduits for the type of direct spending that creates a
threat to the political marketplace." Ibid.

Footnote 62
According to The Chief Justice, we are "erroneou[s]" in claiming that McConnell and Beaumont
" 'reaffirmed' " Austin. Ante, at 5. In both cases, the Court explicitly relied on Austin and quoted
from it at length. See 540 U. S., at 204-205; 539 U. S., at 153-155, 158, 160, 163; see also
ante, at 15 ("The holding and validity of Austin were essential to the reasoning of the
McConnell majority opinion"); Brief for Appellants National Rifle Association et al., O. T. 2003,
No. 02-1675, p. 21 ("Beaumont reaffirmed ... the Austin rationale for restricting expenditures").
The McConnell Court did so in the teeth of vigorous protests by Justices in today's majority
that Austin should be overruled. See ante, at 15 (citing relevant passages); see also
Beaumont, 539 U. S., at 163-164 (Kennedy, J., concurring in judgment). Both Courts also heard
criticisms of Austin from parties or amici. See Brief for Appellants Chamber of Commerce of
the United States et al., O. T. 2003, No. 02-1756, p. 35, n. 22; Reply Brief for
Appellants/Cross-Appellees Senator Mitch McConnell et al., O. T. 2003, No. 02-1674, pp. 13-
14; Brief for Pacific Legal Foundation as Amicus Curiae in FEC v. Beaumont, O. T. 2002, No.
02-403, passim. If this does not qualify as reaffirmation of a precedent, then I do not know what
would.

Footnote 63
Cf. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 389 (2000) (recognizing "the
broader threat from politicians too compliant with the wishes of large contributors"). Though
discrete in scope, these experiments must impose some meaningful limits if they are to have a
chance at functioning effectively and preserving the public's trust. "Even if it occurs only
occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-
votes transactions, such corruption is neither easily detected nor practical to criminalize."
McConnell, 540 U. S., at 153. There should be nothing controversial about the proposition that
the influence being targeted is "undue." In a democracy, officeholders should not make public
decisions with the aim of placating a financial benefactor, except to the extent that the
benefactor is seen as representative of a larger constituency or its arguments are seen as
especially persuasive.
109/113
Footnote 64
The majority declares by fiat that the appearance of undue influence by high-spending
corporations "will not cause the electorate to lose faith in our democracy." Ante, at 44. The
electorate itself has consistently indicated otherwise, both in opinion polls, see McConnell v.
FEC, 251 F. Supp. 2d 176, 557-558, 623-624 (DC 2003) (opinion of Kollar-Kotelly, J.), and in
the laws its representatives have passed, and our colleagues have no basis for elevating their
own optimism into a tenet of constitutional law.

Footnote 65
Quite distinct from the interest in preventing improper influences on the electoral process, I
have long believed that "a number of [other] purposes, both legitimate and substantial, may
justify the imposition of reasonable limitations on the expenditures permitted during the course
of any single campaign." Davis v. FEC, 554 U. S. ___, ___ (2008) (slip op., at 3) (opinion
concurring in part and dissenting in part). In my judgment, such limitations may be justified to
the extent they are tailored to "improving the quality of the exposition of ideas" that voters
receive, ibid., "free[ing] candidates and their staffs from the interminable burden of
fundraising," ibid. (internal quotation marks omitted), and "protect[ing] equal access to the
political arena," Randall v. Sorrell, 548 U. S. 230, 278 (2006) (Stevens, J., dissenting) (internal
quotation marks omitted). I continue to adhere to these beliefs, but they have not been briefed
by the parties or amici in this case, and their soundness is immaterial to its proper disposition.

Footnote 66
In fact, the notion that the "electioneering communications" covered by §203 can breed quid
pro quo corruption or the appearance of such corruption has only become more plausible since
we decided McConnell. Recall that The Chief Justice's controlling opinion in WRTL subsequently
limited BCRA's definition of "electioneering communications" to those that are "susceptible of
no reasonable interpretation other than as an appeal to vote for or against a specific
candidate." 551 U. S., at 470. The upshot was that after WRTL, a corporate or union
expenditure could be regulated under §203 only if everyone would understand it as an
endorsement of or attack on a particular candidate for office. It does not take much imagination
to perceive why this type of advocacy might be especially apt to look like or amount to a deal
or a threat.

Footnote 67
"We must give weight" and "due deference" to Congress' efforts to dispel corruption, the Court
states at one point. Ante, at 45. It is unclear to me what these maxims mean, but as applied by
the Court they clearly do not entail "deference" in any normal sense of that term.

Footnote 68
Justice Breyer has suggested that we strike the balance as follows: "We should defer to [the
110/113
legislature's] political judgment that unlimited spending threatens the integrity of the electoral
process. But we should not defer in respect to whether its solution ... insulates legislators from
effective electoral challenge." Shrink Missouri, 528 U. S., at 403-404 (concurring opinion).

Footnote 69
The Chief Justice deniesthis, ante, at 9-10, citing scholarship that has interpreted Austin to
endorse an equality rationale, along with an article by Justice Thurgood Marshall's former law
clerk that states that Marshall, the author of Austin, accepted "equality of opportunity" and
"equalizing access to the political process" as bases for campaign finance regulation, Garrett,
New Voices in Politics: Justice Marshall's Jurisprudence on Law and Politics, 52 Howard L. J.
655, 667-668 (2009) (internal quotation marks omitted). It is fair to say that Austin can bear an
egalitarian reading, and I have no reason to doubt this characterization of Justice Marshall's
beliefs. But the fact that Austin can be read a certain way hardly proves The Chief Justice's charge
that there is nothing more to it. Many of our precedents can bear multiple readings, and many
of our doctrines have some "equalizing" implications but do not rest on an equalizing theory:
for example, our takings jurisprudence and numerous rules of criminal procedure. More
important, the Austin Court expressly declined to rely on a speech-equalization rationale, see
494 U. S., at 660, and we have never understood Austin to stand for such a rationale.
Whatever his personal views, Justice Marshall simply did not write the opinion that The Chief
Justice suggests he did; indeed, he "would have viewed it as irresponsible to write an opinion
that boldly staked out a rationale based on equality that no one other than perhaps Justice
White would have even considered joining," Garrett, 52 Howard L. J., at 674.

Footnote 70
In state elections, even domestic corporations may be "foreign"-controlled in the sense that
they are incorporated in another jurisdiction and primarily owned and operated by out-of-state
residents.

Footnote 71
Regan, Corporate Speech and Civic Virtue, in Debating Democracy's Discontent 289, 302 (A.
Allen & M. Regan eds. 1998) (hereinafter Regan).

Footnote 72
Nothing in this analysis turns on whether the corporation is conceptualized as a grantee of a
state concession, see, e.g., Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636
(1819) (Marshall, C. J.), a nexus of explicit and implicit contracts, see, e.g., F. Easterbrook & D.
Fischel, The Economic Structure of Corporate Law 12 (1991), a mediated hierarchy of
stakeholders, see, e.g., Blair & Stout, A Team Production Theory of Corporate Law, 85 Va.
L. Rev. 247 (1999) (hereinafter Blair & Stout), or any other recognized model. Austin referred to
the structure and the advantages of corporations as "state-conferred" in several places, 494
U. S., at 660, 665, 667, but its antidistortion argument relied only on the basic descriptive
111/113
features of corporations, as sketched above. It is not necessary to agree on a precise theory of
the corporation to agree that corporations differ from natural persons in fundamental ways, and
that a legislature might therefore need to regulate them differently if it is human welfare that is
the object of its concern. Cf. Hansmann & Kraakman 441, n. 5.

Footnote 73
Not all corporations support BCRA §203, of course, and not all corporations are large
business entities or their tax-exempt adjuncts. Some nonprofit corporations are created for an
ideological purpose. Some closely held corporations are strongly identified with a particular
owner or founder. The fact that §203, like the statute at issue in Austin, regulates some of
these corporations' expenditures does not disturb the analysis above. See 494 U. S., at 661-
665. Small-business owners may speak in their own names, rather than the business', if they
wish to evade §203 altogether. Nonprofit corporations that want to make unrestricted
electioneering expenditures may do so if they refuse donations from businesses and unions
and permit members to disassociate without economic penalty. See MCFL, 479 U. S. 238, 264
(1986). Making it plain that their decision is not motivated by a concern about BCRA's
coverage of nonprofits that have ideological missions but lack MCFL status, our colleagues
refuse to apply the Snowe-Jeffords Amendment or the lower courts' de minimis exception to
MCFL. See ante, at 10-12.

Footnote 74
Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family
dinner would take this hyperbole literally.

Footnote 75
Under the majority's view, the legislature is thus damned if it does and damned if it doesn't. If
the legislature gives media corporations an exemption from electioneering regulations that
apply to other corporations, it violates the newly minted First Amendment rule against identity-
based distinctions. If the legislature does not give media corporations an exemption, it violates
the First Amendment rights of the press. The only way out of this invented bind: no regulations
whatsoever.

Footnote 76
I note that, among the many other regulatory possibilities it has left open, ranging from new
versions of §203 supported by additional evidence of quid pro quo corruption or its appearance
to any number of tax incentive or public financing schemes, today's decision does not require
that a legislature rely solely on these mechanisms to protect shareholders. Legislatures remain
free in their incorporation and tax laws to condition the types of activity in which corporations
may engage, including electioneering activity, on specific disclosure requirements or on prior
express approval by shareholders or members.

112/113
FOOTNOTES

Footnote 1
BCRA imposes similar disclosure requirements. See, e.g., 2 U. S. C. §434(f)(2)(F) ("Every
person who makes a disbursement for the direct costs of producing and airing electioneering
communications in an aggregate amount in excess of $10,000 during any calendar year" must
disclose "the names and addresses of all contributors who contributed an aggregate amount of
$1,000 or more to the person making the disbursement").

Footnote 2
But cf. Hill v. Colorado, 530 U. S. 703, 707-710 (2000) (approving a statute restricting speech
"within 100 feet" of abortion clinics because it protected women seeking an abortion from
" 'sidewalk counseling,' " which "consists of efforts 'to educate, counsel, persuade, or inform
passersby about abortion and abortion alternatives by means of verbal or written speech,' "
and which "sometimes" involved "strong and abusive language in face-to-face encounters").

113/113