Federal Election Commission v. Wisconsin Right to Life, Inc.

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FEDERAL ELECTION COMMISSION v. WISCONSIN

RIGHT TO LIFE, INC.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

No. 06–969. Argued April 25, 2007—Decided June 25, 2007*

Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA),

makes it a federal crime for a corporation to use its general treasury

funds to pay for any “electioneering communication,” 2 U. S. C.

§441b(b)(2), which BCRA defines as any broadcast that refers to a

candidate for federal office and is aired within 30 days of a federal

primary election or 60 days of a federal general election in the juris

diction where that candidate is running, §434(f)(3)(A). In McConnell

v. Federal Election Comm’n, 540 U. S. 93, this Court upheld §203

against a First Amendment facial challenge even though the section

encompassed not only campaign speech, or “express advocacy” pro

moting a candidate’s election or defeat, but also “issue advocacy,” or

speech about public issues more generally, that also mentions such a

candidate. The Court concluded there was no overbreadth concern to

the extent the speech in question was the “functional equivalent” of

express advocacy. Id., at 204–205, 206.

On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL),

began broadcasting advertisements declaring that a group of Sena

tors was filibustering to delay and block federal judicial nominees

and telling voters to contact Wisconsin Senators Feingold and Kohl to

urge them to oppose the filibuster. WRTL planned to run the ads

throughout August 2004 and finance them with its general treasury

funds. Recognizing, however, that as of August 15, 30 days before

the Wisconsin primary, the ads would be illegal “electioneering com

munication[s]” under BCRA §203, but believing that it nonetheless

——————

* Together with No. 06–970, McCain, United States Senator, et al. v.

Wisconsin Right to Life, Inc., also on appeal from the same court.

2 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Syllabus

had a First Amendment right to broadcast them, WRTL filed suit

against the Federal Election Commission (FEC), seeking declaratory

and injunctive relief and alleging that §203’s prohibition was uncon

stitutional as applied to the three ads in question, as well as any ma

terially similar ads WRTL might run in the future. Just before the

BCRA blackout, the three-judge District Court denied a preliminary

injunction, concluding that McConnell’s reasoning that §203 was not

facially overbroad left no room for such “as-applied” challenges.

WRTL did not run its ads during the blackout period, and the court

subsequently dismissed the complaint. This Court vacated that

judgment, holding that McConnell “did not purport to resolve future

as-applied challenges” to §203. Wisconsin Right to Life, Inc. v. Fed

eral Election Comm’n (WRTL I), 546 U. S. 410, 412. On remand, the

District Court granted WRTL summary judgment, holding §203 un

constitutional as applied to the three ads. The court first found that

adjudication was not barred by mootness because the controversy

was capable of repetition, yet evading review. On the merits, it con

cluded that the ads were genuine issue ads, not express advocacy or

its “functional equivalent” under McConnell, and held that no com

pelling interest justified BCRA’s regulation of such ads.

Held: The judgment is affirmed.

466 F. Supp. 2d 195, affirmed.

THE CHIEF JUSTICE delivered the opinion of the Court with respect

to Parts I and II, concluding that the Court has jurisdiction to decide

these cases. The FEC argues that the cases are moot because the

2004 election has passed and WRTL neither asserts a continuing in

terest in running its ads nor identifies any reason to believe that a

significant dispute over Senate filibusters of judicial nominees will

occur in the foreseeable future. These cases, however, fit comfortably

within the established exception to mootness for disputes capable of

repetition, yet evading review. That exception applies where “(1) the

challenged action is in its duration too short to be fully litigated prior

to cessation or expiration; and (2) there is a reasonable expectation

that the same complaining party will be subject to the same action

again,” Spencer v. Kemna, 523 U. S. 1, 17. Both circumstances are

present here. First, it would be unreasonable to expect that WRTL

could have obtained complete judicial review of its claims in time to

air its ads during the BCRA blackout periods. Indeed, two BCRA

blackout periods have passed during the pendency of this action.

Second, there exists a reasonable expectation that the same “contro

versy” involving the same party will recur: WRTL has credibly

claimed that it plans to run materially similar targeted ads during

future blackout periods, and there is no reason to believe that the

FEC will refrain from prosecuting future BCRA violations. Pp. 7–10.

Cite as: 551 U. S. ____ (2007) 3

Syllabus

THE CHIEF JUSTICE, joined by JUSTICE ALITO, concluded that BCRA

§203 is unconstitutional as applied to the ads at issue in these cases.

Pp. 10–29.

1. The speech at issue is not the “functional equivalent” of express

campaign speech. Pp. 10–22.

(a) Appellants are wrong in arguing that WRTL has the burden

of demonstrating that §203 is unconstitutional. Because §203 bur

dens political speech, it is subject to strict scrutiny, see, e.g., McCon

nell, supra, at 205, under which the Government must prove that ap

plying BCRA to WRTL’s ads furthers a compelling governmental

interest and is narrowly tailored to achieve that interest, see First

Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786. Given that

McConnell, supra, at 206, already ruled that BCRA survives strict

scrutiny to the extent it regulates express advocacy or its functional

equivalent, the FEC’s burden is not onerous insofar as these ads fit

this description. Pp. 10–11.

(b) Contrary to the FEC’s contention, McConnell, 540 U. S., at

205–206, did not establish an intent-and-effect test for determining if

a particular ad is the functional equivalent of express advocacy. In

deed, McConnell did not adopt any test for future as-applied chal

lenges, but simply grounded its analysis in the evidentiary record,

which included two key studies that separated ads based on whether

they were intended to, or had the effect of, supporting candidates for

federal office. Id., at 308–309. More importantly, Buckley v. Valeo,

424 U. S. 1, 14, 43–44, rejected an intent-and-effect test for distin

guishing between discussions of issues and candidates, and McCon

nell did not purport to overrule Buckley on this point—or even ad

dress what Buckley had to say on the subject. Pp. 11–15.

(c) Because WRTL’s ads may reasonably be interpreted as some

thing other than an appeal to vote for or against a specific candidate,

they are not the functional equivalent of express advocacy, and there

fore fall outside McConnell’s scope. To safeguard freedom of speech

on public issues, the proper standard for an as-applied challenge to

BCRA §203 must be objective, focusing on the communication’s sub

stance rather than on amorphous considerations of intent and effect.

See Buckley, supra, at 43–44. It must entail minimal if any discov

ery, to allow parties to resolve disputes quickly without chilling

speech through the threat of burdensome litigation. See Virginia v.

Hicks, 539 U. S. 113, 119. And it must eschew “the open-ended

rough-and-tumble of factors,” which “invit[es] complex argument in a

trial court and a virtually inevitable appeal.” Jerome B. Grubart, Inc.

v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547. In short, it

must give the benefit of any doubt to protecting rather than stifling

speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 269–270.

4 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Syllabus

In light of these considerations, a court should find that an ad is the

functional equivalent of express advocacy only if the ad is susceptible

of no reasonable interpretation other than as an appeal to vote for or

against a specific candidate. WRTL’s three ads are plainly not the

functional equivalent of express advocacy under this test. First, their

content is consistent with that of a genuine issue ad: They focus and

take a position on a legislative issue and exhort the public to adopt

that position and to contact public officials with respect to the matter.

Second, their content lacks indicia of express advocacy: They do not

mention an election, candidacy, political party, or challenger; and

they take no position on a candidate’s character, qualifications, or

fitness for office. Pp. 15–22.

2. Because WRTL’s ads are not express advocacy or its functional

equivalent, and because appellants identify no interest sufficiently

compelling to justify burdening WRTL’s speech, BCRA §203 is uncon

stitutional as applied to the ads. The section can be constitutionally

applied only if it is narrowly tailored to further a compelling interest.

E.g., McConnell, supra, at 205. None of the interests that might jus

tify regulating WRTL’s ads are sufficiently compelling. Although the

Court has long recognized “the governmental interest in preventing

corruption and the appearance of corruption” in election campaigns,

Buckley, 424 U. S., at 45, it has invoked this interest as a reason for

upholding contribution limits, id., at 26–27, and suggested that it

might also justify limits on electioneering expenditures posing the

same dangers as large contributions, id., at 45. McConnell arguably

applied this interest to ads that were the “functional equivalent” of

express advocacy. See 540 U. S., at 204–206. But to justify regula

tion of WRTL’s ads, this interest must be stretched yet another step

to ads that are not the functional equivalent of express advocacy. Is

sue ads like WRTL’s are not equivalent to contributions, and the cor

ruption interest cannot justify regulating them. A second possible

compelling interest lies in addressing “the corrosive and distorting ef

fects of immense aggregations of wealth that are accumulated with

the help of the corporate form and that have little or no correlation to

the public’s support for the corporation’s political ideas.” Austin v.

Michigan Chamber of Commerce, 494 U. S. 652, 660. McConnell held

that this interest justifies regulating the “functional equivalent” of

campaign speech, 540 U. S., at 205–206. This interest cannot be ex

tended further to apply to genuine issue ads like WRTL’s, see, e.g.,

id., at 206, n. 88, because doing so would call into question this

Court’s holdings that the corporate identity of a speaker does not

strip corporations of all free speech rights. WRTL I reinforced the va

lidity of this point by holding §203 susceptible to as-applied chal

lenges. 546 U. S., at 411–412. Pp. 23–28.

Cite as: 551 U. S. ____ (2007) 5

Syllabus

3. These cases present no occasion to revisit McConnell’s holding

that a corporation’s express advocacy of a candidate or his opponent

shortly before an election may be prohibited, along with the func

tional equivalent of such express advocacy. But when it comes to de

fining what speech qualifies as the functional equivalent of express

advocacy subject to such a ban—the question here—the Court should

give the benefit of the doubt to speech, not censorship. Pp. 28–29.

JUSTICE SCALIA, joined by JUSTICE KENNEDY and JUSTICE THOMAS,

agreed that the Court has jurisdiction in these cases and concurred in

the Court’s judgment because he would overrule that part of McCon

nell v. Federal Election Comm’n, 540 U. S. 93, upholding §203(a) of

the Bipartisan Campaign Reform Act of 2002 (BCRA). Pp. 4–23.

1. The pertinent case law begins with Buckley v. Valeo, 424 U. S. 1,

in which the Court held, inter alia, that a federal limitation on cam

paign expenditures not made in coordination with a candidate’s cam

paign (contained in the Federal Election Campaign Act of 1971

(FECA)) was unconstitutional, id., at 39–51. In light of vagueness

concerns, the Court narrowly construed the independent-expenditure

provision to cover only express advocacy of the election or defeat of a

clearly identified candidate for federal office by use of such magic

words “as ‘vote for,’ ‘elect,’ . . . ‘vote against,’ ‘defeat,’ ‘reject.’ ” Id., at

44, and n. 52. This narrowing construction excluded so-called “issue

advocacy” referring to a clearly identified candidate’s position on an

issue, but not expressly advocating his election or defeat. Even as

narrowly construed, however, the Court struck the provision down.

Id., at 45–46. Despite Buckley, some argued that independent ex

penditures by corporations should be treated differently. A post-

Buckley case, First Nat. Bank of Boston v. Bellotti, 435 U. S. 765,

776–777, struck down, on First Amendment grounds, a state statute

prohibiting corporations from spending money in connection with a

referendum. The Court strayed far from these principles, however, in

Austin v. Michigan Chamber of Commerce, 494 U. S. 652, upholding

state restrictions on corporations’ independent expenditures in sup

port of, or in opposition to, candidates for state office, id., at 654–655.

Austin was wrongly decided, but at least it was limited to express ad

vocacy. Nonexpress advocacy was presumed to remain protected un

der Buckley and Bellotti, even when engaged in by corporations, until

McConnell. McConnell held, inter alia, that the compelling govern

mental interest supporting restrictions on corporate expenditures for

express advocacy—i.e., Austin’s perceived “corrosive and distorting ef

fects of immense aggregations of [corporate] wealth,” 540 U. S., at

205—also justified extending those restrictions to ads run during the

BCRA blackout period “to the extent . . . [they] are the functional

equivalent of express advocacy,” id., at 206 (emphasis added).

6 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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McConnell upheld BCRA §203(a) against a facial challenge. Subse

quently, in Wisconsin Right to Life, Inc. v. Federal Election Comm’n,

546 U. S. 410, 411–412, the Court held that McConnell did not fore

close as-applied challenges to §203. Pp. 4–10.

2. McConnell’s holding concerning §203 was wrong. The answer to

whether WRTL meets the standard for prevailing in an as-applied

challenge requires the Court to articulate the standard. The most

obvious standard is McConnell’s, which asks whether an ad is the

“functional equivalent of express advocacy,” 540 U. S., at 206. The

fundamental and inescapable problem with this test, with the princi

pal opinion’s susceptible-of-no-other-reasonable-interpretation stan

dard, and with other similar tests is that each is impermissibly vague

and thus ineffective to vindicate the fundamental First Amendment

rights at issue. Buckley itself compelled the conclusion that such

tests fall short when it narrowed the statutory language there at is

sue to cover only advertising that used the magic words of express

advocacy. 424 U. S., at 43–44. The only plausible explanation for

Buckley’s “highly strained” reading of FECA, McConnell, supra, at

280, is that the Court there eschewed narrowing constructions that

would have been more faithful to FECA’s text and more effective at

capturing campaign speech because those tests were all too vague. If

Buckley foreclosed such vagueness in a statutory test, it also must

foreclose such vagueness in an as-applied test. Yet any clear rule

that would protect all genuine issue ads would cover such a substan

tial number of ads prohibited by §203 that §203 would be rendered

substantially overbroad. Thus, McConnell (which presupposed the

availability of as-applied challenges) was mistaken. Pp. 10–18.

3. Stare decisis would not prevent the Court from overruling

McConnell’s §203 holding. This Court’s “considered practice” is not to

apply that principle “as rigidly in constitutional as in nonconstitu

tional cases,” Glidden Co. v. Zdanok, 370 U. S. 530, 543, and it has

not hesitated to overrule a decision offensive to the First Amendment

that was decided just a few years earlier, see West Virginia Bd. of Ed.

v. Barnette, 319 U. S. 624, 642. Pp. 19–22.

ROBERTS, C. J., announced the judgment of the Court and delivered

the opinion of the Court with respect to Parts I and II, in which SCALIA,

KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect

to Parts III and IV, in which ALITO, J., joined. ALITO, J., filed a concur

ring opinion. SCALIA, J., filed an opinion concurring in part and concur

ring in the judgment, in which KENNEDY and THOMAS, JJ., joined.

SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and

BREYER, JJ., joined.

Cite as: 551 U. S. ____ (2007) 1

Opinion of ofOBERTS, C. J.

Opinion R the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–969 and 06–970

_________________

FEDERAL ELECTION COMMISSION, APPELLANT

06–969 v.

WISCONSIN RIGHT TO LIFE, INC.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

06–970 v.

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007]

CHIEF JUSTICE ROBERTS announced the judgment of the

Court and delivered the opinion of the Court with respect

to Parts I and II, and an opinion with respect to Parts III

and IV, in which JUSTICE ALITO joins.

Section 203 of the Bipartisan Campaign Reform Act of

2002 (BCRA), 116 Stat. 91, 2 U. S. C. §441b(b)(2) (2000

ed., Supp. IV), makes it a federal crime for any corporation

to broadcast, shortly before an election, any communica

tion that names a federal candidate for elected office and

is targeted to the electorate. In McConnell v. Federal

Election Comm’n, 540 U. S. 93 (2003), this Court consid

ered whether §203 was facially overbroad under the First

Amendment because it captured within its reach not only

campaign speech, or “express advocacy,” but also speech

about public issues more generally, or “issue advocacy,”

that mentions a candidate for federal office. The Court

2 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of ofOBERTS, C. J.

Opinion R the Court

concluded that there was no overbreadth concern to the

extent the speech in question was the “functional equiva

lent” of express campaign speech. Id., at 204–205, 206.

On the other hand, the Court “assume[d]” that the inter

ests it had found to “justify the regulation of campaign

speech might not apply to the regulation of genuine issue

ads.” Id., at 206, n. 88. The Court nonetheless deter

mined that §203 was not facially overbroad. Even assum

ing §203 “inhibit[ed] some constitutionally protected cor

porate and union speech,” the Court concluded that those

challenging the law on its face had failed to carry their

“heavy burden” of establishing that all enforcement of the

law should therefore be prohibited. Id., at 207.

Last Term, we reversed a lower court ruling, arising in

the same litigation before us now, that our decision in

McConnell left “no room” for as-applied challenges to §203.

App. to Juris. Statement 52a. We held on the contrary

that “[i]n upholding §203 against a facial challenge, we did

not purport to resolve future as-applied challenges.”

Wisconsin Right to Life, Inc. v. Federal Election Comm’n,

546 U. S. 410, 411–412 (2006) (per curiam) (WRTL I).

We now confront such an as-applied challenge. Resolv

ing it requires us first to determine whether the speech at

issue is the “functional equivalent” of speech expressly

advocating the election or defeat of a candidate for federal

office, or instead a “genuine issue a[d].” McConnell, supra,

at 206, and n. 88. We have long recognized that the dis

tinction between campaign advocacy and issue advocacy

“may often dissolve in practical application. Candidates,

especially incumbents, are intimately tied to public issues

involving legislative proposals and governmental actions.”

Buckley v. Valeo, 424 U. S. 1, 42 (1976) (per curiam). Our

development of the law in this area requires us, however,

to draw such a line, because we have recognized that the

interests held to justify the regulation of campaign speech

and its “functional equivalent” “might not apply” to the

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

regulation of issue advocacy. McConnell, supra, at 206,

and n. 88.

In drawing that line, the First Amendment requires us

to err on the side of protecting political speech rather than

suppressing it. We conclude that the speech at issue in

this as-applied challenge is not the “functional equivalent”

of express campaign speech. We further conclude that the

interests held to justify restricting corporate campaign

speech or its functional equivalent do not justify restrict

ing issue advocacy, and accordingly we hold that BCRA

§203 is unconstitutional as applied to the advertisements

at issue in these cases.

I

Prior to BCRA, corporations were free under federal law

to use independent expenditures to engage in political

speech so long as that speech did not expressly advocate

the election or defeat of a clearly identified federal candi

date. See Federal Election Comm’n v. Massachusetts

Citizens for Life, Inc., 479 U. S. 238, 249 (1986) (MCFL);

Buckley, supra, at 44–45; 2 U. S. C. §§441b(a), (b)(2) (2000

ed. and Supp. IV).

BCRA significantly cut back on corporations’ ability to

engage in political speech. BCRA §203, at issue in these

cases, makes it a crime for any labor union or incorporated

entity—whether the United Steelworkers, the American

Civil Liberties Union, or General Motors—to use its gen

eral treasury funds to pay for any “electioneering commu

nication.” §441b(b)(2) (2000 ed., Supp. IV). BCRA’s defi

nition of “electioneering communication” is clear and

expansive. It encompasses any broadcast, cable, or satel

lite communication that refers to a candidate for federal

office and that is aired within 30 days of a federal primary

election or 60 days of a federal general election in the

jurisdiction in which that candidate is running for office.

4 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of the Court

§434(f)(3)(A).1

Appellee Wisconsin Right to Life, Inc. (WRTL), is a

nonprofit, nonstock, ideological advocacy corporation

recognized by the Internal Revenue Service as tax exempt

under §501(c)(4) of the Internal Revenue Code. On July

26, 2004, as part of what it calls a “grassroots lobbying

campaign,” Brief for Appellee 8, WRTL began broadcast

ing a radio advertisement entitled “Wedding.” The tran

script of “Wedding” reads as follows:

“ ‘PASTOR: And who gives this woman to be mar

ried to this man?

“ ‘BRIDE’S FATHER: Well, as father of the bride, I

certainly could. But instead, I’d like to share a few

tips on how to properly install drywall. Now you put

the drywall up . . .

“ ‘VOICE-OVER: Sometimes it’s just not fair to de

lay an important decision.

“ ‘But in Washington it’s happening. A group of

Senators is using the filibuster delay tactic to block

federal judicial nominees from a simple “yes” or “no”

vote. So qualified candidates don’t get a chance to

——————

1 Subparagraph (A) provides:

“(i) The term ‘electioneering communication’ means any broadcast,

cable, or satellite communication which—

“(I) refers to a clearly identified candidate for Federal office;

“(II) is made within—

“(aa) 60 days before a general, special, or runoff election for the office

sought by the candidate; or

“(bb) 30 days before a primary or preference election, or a convention

or caucus of a political party that has authority to nominate a candi

date, for the office sought by the candidate; and

“(III) in the case of a communication which refers to a candidate for

an office other than President or Vice President, is targeted to the

relevant electorate.” 2 U. S. C. §434(f)(3)(A) (2000 ed., Supp. IV).

Subsection (B) defines exceptions to “electioneering communication” not

relevant to this litigation. Subsection (C) defines the term “targeted to

the relevant electorate.”

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

serve.

“ ‘It’s politics at work, causing gridlock and backing

up some of our courts to a state of emergency.

“ ‘Contact Senators Feingold and Kohl and tell them

to oppose the filibuster.

“ ‘Visit: BeFair.org

“ ‘Paid for by Wisconsin Right to Life (befair.org),

which is responsible for the content of this advertising

and not authorized by any candidate or candidate’s

committee.’ ” 466 F. Supp. 2d 195, 198, n. 3 (DC

2006).

On the same day, WRTL aired a similar radio ad entitled

“Loan.”2 It had also invested treasury funds in producing

a television ad entitled “Waiting,”3 which is similar in

——————

2 The radio script for “Loan” differs from “Wedding” only in its lead-in.

“Loan” begins:

“ ‘LOAN OFFICER: Welcome Mr. and Mrs. Shulman. We’ve reviewed

your loan application, along with your credit report, the appraisal on

the house, the inspections, and well . . .

“ ‘COUPLE: Yes, yes . . . we’re listening.

“ ‘OFFICER: Well, it all reminds me of a time I went fishing with my

father. We were on the Wolf River Waupaca . . .

“ ‘VOICE-OVER: Sometimes it’s just not fair to delay an important

decision.

“ ‘But in Washington it’s happening. . . .’ ” 466 F. Supp. 2d, at 198,

n. 4.

The remainder of the script is identical to “Wedding.”

3 In “Waiting,” the images on the television ad depict a “ ‘middle-aged

man being as productive as possible while his professional life is in

limbo.’ ” Id., at 198, n. 5. The man reads the morning paper, polishes

his shoes, scans through his Rolodex, and does other similar activities.

The television script for this ad reads:

“ ‘VOICE-OVER: There are a lot of judicial nominees out there who

can’t go to work. Their careers are put on hold because a group of

Senators is filibustering—blocking qualified nominees from a simple

“yes” or “no” vote.

“ ‘It’s politics at work and it’s causing gridlock. . . .’ ” Ibid.

The remainder of the script is virtually identical to “Wedding.”

6 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of the Court

substance and format to “Wedding” and “Loan.”

WRTL planned on running “Wedding,” “Waiting,” and

“Loan” throughout August 2004 and financing the ads

with funds from its general treasury. It recognized, how

ever, that as of August 15, 30 days prior to the Wisconsin

primary, the ads would be illegal “electioneering commu

nication[s]” under BCRA §203.

Believing that it nonetheless possessed a First Amend

ment right to broadcast these ads, WRTL filed suit against

the Federal Election Commission (FEC) on July 28, 2004,

seeking declaratory and injunctive relief before a three-

judge District Court. See note following 2 U. S. C. §437h

(2000 ed., Supp. IV); 28 U. S. C. §2284. WRTL alleged

that BCRA’s prohibition on the use of corporate treasury

funds for “electioneering communication[s]” as defined in

the Act is unconstitutional as applied to “Wedding,”

“Loan,” and “Waiting,” as well as any materially similar

ads it might seek to run in the future.

Just before the BCRA blackout period was to begin, the

District Court denied a preliminary injunction, concluding

that “the reasoning of the McConnell Court leaves no room

for the kind of ‘as applied’ challenge WRTL propounds

before us.” App. to Juris. Statement 52a. In response to

this ruling, WRTL did not run its ads during the blackout

period. The District Court subsequently dismissed

WRTL’s complaint. See id., at 47a–48a (“WRTL’s ‘as

applied’ challenge to BCRA [§203] is foreclosed by the

Supreme Court’s decision in McConnell”). On appeal, we

vacated the District Court’s judgment, holding that

McConnell “did not purport to resolve future as-applied

challenges” to BCRA §203, and remanded “for the District

Court to consider the merits of WRTL’s as-applied chal

lenge in the first instance.” WRTL I, 546 U. S., at 412.

On remand, after allowing four Members of Congress to

intervene as defendants, the three-judge District Court

granted summary judgment for WRTL, holding BCRA

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

§203 unconstitutional as applied to the three advertise

ments WRTL planned to run during the 2004 blackout

period. The District Court first found adjudication of the

dispute not barred by mootness because the controversy

was “ ‘capable of repetition, yet evading review.’ ” 466

F. Supp. 2d, at 202. Turning to the merits, the court

began by noting that under McConnell, BCRA could con

stitutionally proscribe “express advocacy”—defined as ads

that expressly advocate the election or defeat of a candi

date for federal office—and the “functional equivalent” of

such advocacy. 466 F. Supp. 2d, at 204. Stating that it

was limiting its inquiry to “language within the four cor

ners” of the ads, id., at 207, the District Court concluded

that the ads were not express advocacy or its functional

equivalent, but instead “genuine issue ads.” Id., at 205–

208. Then, reaching a question “left open in McConnell,”

the court held that no compelling interest justified BCRA’s

regulation of genuine issue ads such as those WRTL

sought to run. Id., at 208–210.

One judge dissented, contending that the majority’s

“plain facial analysis of the text in WRTL’s 2004 adver

tisements” ignored “the context in which the text was

developed.” Id., at 210 (opinion of Roberts, J.). In that

judge’s view, a contextual analysis of the ads revealed

“deep factual rifts between the parties concerning the

purpose and intended effects of the ads” such that neither

side was entitled to summary judgment. Id., at 210, 211.

The FEC and intervenors filed separate notices of ap

peal and jurisdictional statements. We consolidated the

two appeals and set the matter for briefing and argument,

postponing further consideration of jurisdiction to the

hearing on the merits. 549 U. S. ___ (2007).

II

Article III’s “case-or-controversy requirement subsists

through all stages of federal judicial proceedings . . . . [I]t

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is not enough that a dispute was very much alive when

suit was filed.” Lewis v. Continental Bank Corp., 494 U. S.

472, 477 (1990). Based on these principles, the FEC ar

gues (though the intervenors do not) that these cases are

moot because the 2004 election has passed and WRTL

“does not assert any continuing interest in running [its

three] advertisements, nor does it identify any reason to

believe that a significant dispute over Senate filibusters of

judicial nominees will occur in the foreseeable future.”

Brief for Appellant FEC 21.

As the District Court concluded, however, these cases fit

comfortably within the established exception to mootness

for disputes capable of repetition, yet evading review. See

Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern

Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911).

The exception applies where “(1) the challenged action is

in its duration too short to be fully litigated prior to cessa

tion or expiration; and (2) there is a reasonable expecta

tion that the same complaining party will be subject to the

same action again.” Spencer v. Kemna, 523 U. S. 1, 17

(1998) (internal quotation marks and brackets omitted).

Both circumstances are present here.

As the District Court found, it would be “entirely unrea

sonable . . . to expect that [WRTL] could have obtained

complete judicial review of its claims in time for it to air

its ads” during the BCRA blackout periods. 466 F. Supp.

2d, at 202. The FEC contends that the 2-year window

between elections provides ample time for parties to liti

gate their rights before each BCRA blackout period. But

groups like WRTL cannot predict what issues will be

matters of public concern during a future blackout period.

In these cases, WRTL had no way of knowing well in

advance that it would want to run ads on judicial filibus

ters during the BCRA blackout period. In any event,

despite BCRA’s command that the cases be expedited “to

the greatest possible extent,” §403(a)(4), 116 Stat. 113,

Cite as: 551 U. S. ____ (2007) 9

Opinion of the Court

note following 2 U. S. C. §437h (2000 ed., Supp. IV), two

BCRA blackout periods have come and gone during the

pendency of this action. “[A] decision allowing the desired

expenditures would be an empty gesture unless it afforded

appellants sufficient opportunity prior to the election date

to communicate their views effectively.” First Nat. Bank

of Boston v. Bellotti, 435 U. S. 765, 774 (1978).

The second prong of the “capable of repetition” exception

requires a “ ‘reasonable expectation’ ” or a “ ‘demonstrated

probability’ ” that “the same controversy will recur involv

ing the same complaining party.” Murphy v. Hunt, 455

U. S. 478, 482 (1982) (per curiam). Our cases find the

same controversy sufficiently likely to recur when a party

has a reasonable expectation that it “will again be sub

jected to the alleged illegality,” Lyons, supra, at 109, or

“will be subject to the threat of prosecution” under the

challenged law, Bellotti, supra, at 774–775 (citing

Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per

curiam)). The FEC argues that in order to prove likely

recurrence of the same controversy, WRTL must establish

that it will run ads in the future sharing all “the charac

teristics that the district court deemed legally relevant.”

Brief for Appellant FEC 23.

The FEC asks for too much. We have recognized that

the “ ‘capable of repetition, yet evading review’ doctrine, in

the context of election cases, is appropriate when there are

‘as applied’ challenges as well as in the more typical case

involving only facial attacks.” Storer v. Brown, 415 U. S.

724, 737, n. 8 (1974). Requiring repetition of every “le

gally relevant” characteristic of an as-applied challenge—

down to the last detail—would effectively overrule this

statement by making this exception unavailable for virtu

ally all as-applied challenges. History repeats itself, but

not at the level of specificity demanded by the FEC. Here,

WRTL credibly claimed that it planned on running “ ‘ma

terially similar’ ” future targeted broadcast ads mentioning

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a candidate within the blackout period, 466 F. Supp. 2d, at

197, and there is no reason to believe that the FEC will

“refrain from prosecuting violations” of BCRA, Bellotti,

supra, at 775. Under the circumstances, particularly

where WRTL sought another preliminary injunction based

on an ad it planned to run during the 2006 blackout pe

riod, see 466 F. Supp. 2d, at 203, n. 15, we hold that there

exists a reasonable expectation that the same controversy

involving the same party will recur. We have jurisdiction

to decide these cases.

III

WRTL rightly concedes that its ads are prohibited by

BCRA §203. Each ad clearly identifies Senator Feingold,

who was running (unopposed) in the Wisconsin Democ

ratic primary on September 14, 2004, and each ad would

have been “targeted to the relevant electorate,” see 2

U. S. C. §434(f)(3)(C) (2000 ed., Supp. IV), during the

BCRA blackout period. WRTL further concedes that its

ads do not fit under any of BCRA’s exceptions to the term

“electioneering communication.” See §434(f)(3)(B). The

only question, then, is whether it is consistent with the

First Amendment for BCRA §203 to prohibit WRTL from

running these three ads.

A

Appellants contend that WRTL should be required to

demonstrate that BCRA is unconstitutional as applied to

the ads. Reply Brief for Appellant Sen. John McCain et al.

in No. 06–970, p. 5, n. 4; Brief for Appellant FEC 34. After

all, appellants reason, McConnell already held that BCRA

§203 was facially valid. These cases, however, present the

separate question whether §203 may constitutionally be

applied to these specific ads. Because BCRA §203 burdens

political speech, it is subject to strict scrutiny. See

McConnell, 540 U. S., at 205; Austin v. Michigan Chamber

Cite as: 551 U. S. ____ (2007) 11

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Opinion R the Court

of Commerce, 494 U. S. 652, 658 (1990); MCFL, 479 U. S.,

at 252 (plurality opinion); Bellotti, supra, at 786; Buckley,

424 U. S., at 44–45. Under strict scrutiny, the Govern

ment must prove that applying BCRA to WRTL’s ads

furthers a compelling interest and is narrowly tailored to

achieve that interest. See Bellotti, supra, at 786 (“Espe

cially where, as here, a prohibition is directed at speech

itself, and the speech is intimately related to the process of

governing, . . . ‘the burden is on the government to show

the existence of [a compelling] interest’ ” (footnote omit

ted)).

The strict scrutiny analysis is, of course, informed by

our precedents. This Court has already ruled that BCRA

survives strict scrutiny to the extent it regulates express

advocacy or its functional equivalent. McConnell, supra,

at 206. So to the extent the ads in these cases fit this

description, the FEC’s burden is not onerous; all it need do

is point to McConnell and explain why it applies here. If,

on the other hand, WRTL’s ads are not express advocacy

or its equivalent, the Government’s task is more formida

ble. It must then demonstrate that banning such ads

during the blackout periods is narrowly tailored to serve a

compelling interest. No precedent of this Court has yet

reached that conclusion.

B

The FEC, intervenors, and the dissent below contend

that McConnell already established the constitutional test

for determining if an ad is the functional equivalent of

express advocacy: whether the ad is intended to influence

elections and has that effect. See, e.g., 466 F. Supp. 2d, at

214 (opinion of Roberts, J.). Here is the relevant portion of

our opinion in McConnell:

“[P]laintiffs argue that the justifications that ade

quately support the regulation of express advocacy do

not apply to significant quantities of speech encom

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passed by the definition of electioneering communica

tions.

“This argument fails to the extent that the issue ads

broadcast during the 30- and 60-day periods preceding

federal primary and general elections are the func

tional equivalent of express advocacy. The justifica

tions for the regulation of express advocacy apply

equally to ads aired during those periods if the ads are

intended to influence the voters’ decisions and have

that effect.” 540 U. S., at 205–206.

WRTL and the District Court majority, on the other

hand, claim that McConnell did not adopt any test as the

standard for future as-applied challenges. We agree.

McConnell’s analysis was grounded in the evidentiary

record before the Court. Two key studies in the McConnell

record constituted “the central piece of evidence mar

shaled by defenders of BCRA’s electioneering communica

tion provisions in support of their constitutional validity.”

McConnell v. FEC, 251 F. Supp. 2d 176, 307, 308 (DC

2003) (opinion of Henderson, J.) (internal quotation marks

and brackets omitted). Those studies asked “student

coders” to separate ads based on whether the students

thought the “purpose” of the ad was “to provide informa

tion about or urge action on a bill or issue,” or “to generate

support or opposition for a particular candidate.” Id., at

308–309 (internal quotation marks omitted; emphasis

deleted); see Brief for Appellee 38. The studies concluded

“ ‘that BCRA’s definition of Electioneering Communica

tions accurately captures those ads that have the purpose

or effect of supporting candidates for election to office.”

Ibid. (emphasis in original).

When the McConnell Court considered the possible

facial overbreadth of §203, it looked to the studies in the

record analyzing ads broadcast during the blackout peri

ods, and those studies had classified the ads in terms of

Cite as: 551 U. S. ____ (2007) 13

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intent and effect. The Court’s assessment was accordingly

phrased in the same terms, which the Court regarded as

sufficient to conclude, on the record before it, that the

plaintiffs had not “carried their heavy burden of proving”

that §203 was facially overbroad and could not be enforced

in any circumstances. 540 U. S., at 207. The Court did

not explain that it was adopting a particular test for de

termining what constituted the “functional equivalent” of

express advocacy. The fact that the student coders who

helped develop the evidentiary record before the Court in

McConnell looked to intent and effect in doing so, and that

the Court dealt with the record on that basis in deciding

the facial overbreadth claim, neither compels nor warrants

accepting that same standard as the constitutional test for

separating, in an as-applied challenge, political speech

protected under the First Amendment from that which

may be banned.4

More importantly, this Court in Buckley had already

rejected an intent-and-effect test for distinguishing be

tween discussions of issues and candidates. See 424 U. S.,

at 43–44. After noting the difficulty of distinguishing

between discussion of issues on the one hand and advocacy

of election or defeat of candidates on the other, the Buck

ley Court explained that analyzing the question in terms

“ ‘of intent and of effect’ ” would afford “ ‘no security for free

——————

4 This is particularly true given that the methodology, data, and con

clusions of the two studies were the subject of serious dispute among

the District Court judges. Compare McConnell v. FEC, 251 F. Supp. 2d

176, 307–312 (DC 2003) (opinion of Henderson, J.) (stating that the

studies were flawed and of limited evidentiary value), with id., at 585,

583–588 (opinion of Kollar-Kotelly, J.) (finding the studies generally

credible, but stating that “I am troubled by the fact that coders in both

studies were asked questions regarding their own perceptions of the

advertisements’ purposes, and that [some of] these perceptions were

later recoded” by study supervisors). Nothing in this Court’s opinion in

McConnell suggests it was resolving the sharp disagreements about the

evidentiary record in this respect.

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discussion.’ ” Id., at 43 (quoting Thomas v. Collins, 323

U. S. 516, 535 (1945)). It therefore rejected such an ap

proach, and McConnell did not purport to overrule Buckley

on this point—or even address what Buckley had to say on

the subject.

For the reasons regarded as sufficient in Buckley, we

decline to adopt a test for as-applied challenges turning on

the speaker’s intent to affect an election. The test to

distinguish constitutionally protected political speech from

speech that BCRA may proscribe should provide a safe

harbor for those who wish to exercise First Amendment

rights. The test should also “reflec[t] our ‘profound na

tional commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open.’ ”

Buckley, supra, at 14 (quoting New York Times Co. v.

Sullivan, 376 U. S. 254, 270 (1964)). A test turning on the

intent of the speaker does not remotely fit the bill.

Far from serving the values the First Amendment is

meant to protect, an intent-based test would chill core

political speech by opening the door to a trial on every ad

within the terms of §203, on the theory that the speaker

actually intended to affect an election, no matter how

compelling the indications that the ad concerned a pend

ing legislative or policy issue. No reasonable speaker

would choose to run an ad covered by BCRA if its only

defense to a criminal prosecution would be that its motives

were pure. An intent-based standard “blankets with

uncertainty whatever may be said,” and “offers no security

for free discussion.” Buckley, supra, at 43 (internal quota

tion marks omitted). The FEC does not disagree. In its

brief filed in the first appeal in this litigation, it argued

that a “constitutional standard that turned on the subjec

tive sincerity of a speaker’s message would likely be inca

pable of workable application; at a minimum, it would

invite costly, fact-dependent litigation.” Brief for Appellee

Cite as: 551 U. S. ____ (2007) 15

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Opinion R the Court

in WRTL I, O. T. 2005, No. 04–1581, p. 39.5

A test focused on the speaker’s intent could lead to the

bizarre result that identical ads aired at the same time

could be protected speech for one speaker, while leading to

criminal penalties for another. See M. Redish, Money

Talks: Speech, Economic Power, and the Values of Democ

racy 91 (2001) (“[U]nder well-accepted First Amendment

doctrine, a speaker’s motivation is entirely irrelevant to

the question of constitutional protection”). “First Amend

ment freedoms need breathing space to survive.” NAACP

v. Button, 371 U. S. 415, 433 (1963). An intent test pro

vides none.

Buckley also explains the flaws of a test based on the

actual effect speech will have on an election or on a par

ticular segment of the target audience. Such a test “ ‘puts

the speaker . . . wholly at the mercy of the varied under

standing of his hearers.’ ” 424 U. S., at 43. It would also

typically lead to a burdensome, expert-driven inquiry,

with an indeterminate result. Litigation on such a stan

dard may or may not accurately predict electoral effects,

but it will unquestionably chill a substantial amount of

political speech.

C

“The freedom of speech . . . guaranteed by the Constitu

tion embraces at the least the liberty to discuss publicly

and truthfully all matters of public concern without previ

ous restraint or fear of subsequent punishment.” Bellotti,

435 U. S., at 776 (internal quotation marks omitted). See

——————

5 Consider what happened in these cases. The District Court permit

ted extensive discovery on the assumption that WRTL’s intent was

relevant. As a result, the defendants deposed WRTL’s executive

director, its legislative director, its political action committee director,

its lead communications consultant, and one of its fundraisers. WRTL

also had to turn over many documents related to its operations, plans,

and finances. Such litigation constitutes a severe burden on political

speech.

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Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of

N. Y., 447 U. S. 530, 534 (1980). To safeguard this liberty,

the proper standard for an as-applied challenge to BCRA

§203 must be objective, focusing on the substance of the

communication rather than amorphous considerations of

intent and effect. See Buckley, supra, at 43–44. It must

entail minimal if any discovery, to allow parties to resolve

disputes quickly without chilling speech through the

threat of burdensome litigation. See Virginia v. Hicks,

539 U. S. 113, 119 (2003). And it must eschew “the open-

ended rough-and-tumble of factors,” which “invit[es] com

plex argument in a trial court and a virtually inevitable

appeal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co., 513 U. S. 527, 547 (1995). In short, it must give

the benefit of any doubt to protecting rather than stifling

speech. See New York Times Co. v. Sullivan, supra, at

269–270.

In light of these considerations, a court should find that

an ad is the functional equivalent of express advocacy only

if the ad is susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific

candidate. Under this test, WRTL’s three ads are plainly

not the functional equivalent of express advocacy. First,

their content is consistent with that of a genuine issue ad:

The ads focus on a legislative issue, take a position on the

issue, exhort the public to adopt that position, and urge

the public to contact public officials with respect to the

matter. Second, their content lacks indicia of express

advocacy: The ads do not mention an election, candidacy,

political party, or challenger; and they do not take a posi

tion on a candidate’s character, qualifications, or fitness

for office.

Despite these characteristics, appellants assert that the

content of WRTL’s ads alone betrays their electioneering

nature. Indeed, the FEC suggests that any ad covered by

§203 that includes “an appeal to citizens to contact their

Cite as: 551 U. S. ____ (2007) 17

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Opinion R the Court

elected representative” is the “functional equivalent” of an

ad saying defeat or elect that candidate. Brief for Appel

lant FEC 31; see Brief for Appellant Sen. John McCain

et al. in No. 06–970, pp. 21–23 (hereinafter McCain Brief).

We do not agree. To take just one example, during a

blackout period the House considered the proposed Uni

versal National Service Act. See App. to Brief for Ameri

can Center for Law and Justice et al. as Amicus Curiae B–

3. There would be no reason to regard an ad supporting or

opposing that Act, and urging citizens to contact their

Representative about it, as the equivalent of an ad saying

vote for or against the Representative. Issue advocacy

conveys information and educates. An issue ad’s impact

on an election, if it exists at all, will come only after the

voters hear the information and choose—uninvited by the

ad—to factor it into their voting decisions.6

The FEC and intervenors try to turn this difference to

their advantage, citing McConnell’s statements “that the

——————

6 For these reasons, we cannot agree with JUSTICE SOUTER’s assertion

that “anyone who heard the Feingold ads . . . would know that WRTL’s

message was to vote against Feingold.” Post, at 23. The dissent sup

ports this assertion by likening WRTL’s ads to the “Jane Doe” example

identified in McConnell v. Federal Election Comm’n, 540 U. S. 93

(2003). But that ad “condemned Jane Doe’s record on a particular

issue.” Post, at 23 (internal quotation marks omitted). WRTL’s ads do

not do so; they instead take a position on the filibuster issue and exhort

constituents to contact Senators Feingold and Kohl to advance that

position. Indeed, one would not even know from the ads whether

Senator Feingold supported or opposed filibusters. JUSTICE SOUTER is

confident Wisconsinites independently knew Senator Feingold’s posi

tion on filibusters, but we think that confidence misplaced. A promi

nent study found, for example, that during the 2000 election cycle, 85

percent of respondents to a survey were not even able to name at least

one candidate for the House of Representatives in their own district.

See Inter-university Consortium for Political and Social Research,

American National Election Study, 2000: Pre- and Post-Election Survey

243 (N. Burns et al. eds. 2002) online at http://www.icpsr.umich.edu/

cocoon/ICPSR/STUDY/03131.xml (as visited June 22, 2007, and avail

able in Clerk of Court’s case file).

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most effective campaign ads, like the most effective com

mercials for products . . . avoid the [Buckley] magic words

[expressly advocating the election or defeat of a candi

date],” 540 U. S., at 127, and that advertisers “would

seldom choose to use such words even if permitted,” id., at

193. See McCain Brief 19. An expert for the FEC in these

cases relied on those observations to argue that WRTL’s

ads are especially effective electioneering ads because they

are “subtl[e],” focusing on issues rather than simply ex

horting the electorate to vote against Senator Feingold.

App. 56–57. Rephrased a bit, the argument perversely

maintains that the less an issue ad resembles express

advocacy, the more likely it is to be the functional equiva

lent of express advocacy. This “heads I win, tails you lose”

approach cannot be correct. It would effectively eliminate

First Amendment protection for genuine issue ads, con

trary to our conclusion in WRTL I that as-applied chal

lenges to §203 are available, and our assumption in

McConnell that “the interests that justify the regulation of

campaign speech might not apply to the regulation of

genuine issue ads,” 540 U. S., at 206, n. 88. Under appel

lants’ view, there can be no such thing as a genuine issue

ad during the blackout period—it is simply a very effective

electioneering ad.

Looking beyond the content of WRTL’s ads, the FEC and

intervenors argue that several “contextual” factors prove

that the ads are the equivalent of express advocacy. First,

appellants cite evidence that during the same election

cycle, WRTL and its Political Action Committee (PAC)

actively opposed Senator Feingold’s reelection and identi

fied filibusters as a campaign issue. This evidence goes to

WRTL’s subjective intent in running the ads, and we have

already explained that WRTL’s intent is irrelevant in an

as-applied challenge. Evidence of this sort is therefore

beside the point, as it should be—WRTL does not forfeit

its right to speak on issues simply because in other aspects

Cite as: 551 U. S. ____ (2007) 19

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Opinion R the Court

of its work it also opposes candidates who are involved

with those issues.

Next, the FEC and intervenors seize on the timing of

WRTL’s ads. They observe that the ads were to be aired

near elections but not near actual Senate votes on judicial

nominees, and that WRTL did not run the ads after the

elections. To the extent this evidence goes to WRTL’s

subjective intent, it is again irrelevant. To the extent it

nonetheless suggests that the ads should be interpreted as

express advocacy, it falls short. That the ads were run

close to an election is unremarkable in a challenge like

this. Every ad covered by BCRA §203 will by definition air

just before a primary or general election. If this were

enough to prove that an ad is the functional equivalent of

express advocacy, then BCRA would be constitutional in

all of its applications. This Court unanimously rejected

this contention in WRTL I.

That the ads were run shortly after the Senate had

recessed is likewise unpersuasive. Members of Congress

often return to their districts during recess, precisely to

determine the views of their constituents; an ad run at

that time may succeed in getting more constituents to

contact the Representative while he or she is back home.

In any event, a group can certainly choose to run an issue

ad to coincide with public interest rather than a floor vote.

Finally, WRTL did not resume running its ads after the

BCRA blackout period because, as it explains, the debate

had changed. Brief for Appellee 16. The focus of the

Senate was on whether a majority would vote to change

the Senate rules to eliminate the filibuster—not whether

individual Senators would continue filibustering. Given

this change, WRTL’s decision not to continue running

its ads after the blackout period does not support an

inference that the ads were the functional equivalent of

electioneering.

The last piece of contextual evidence the FEC and inter

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venors highlight is the ads’ “specific and repeated cross-

reference” to a website. Reply Brief for Appellant FEC 15.

In the middle of the website’s homepage, in large type,

were the addresses, phone numbers, fax numbers, and

email addresses of Senators Feingold and Kohl. Wiscon

sinites who viewed “Wedding,” “Loan,” or “Waiting” and

wished to contact their Senators—as the ads requested—

would be able to obtain the pertinent contact information

immediately upon visiting the website. This is fully con

sistent with viewing WRTL’s ads as genuine issue ads.

The website also stated both Wisconsin Senators’ positions

on judicial filibusters, and allowed visitors to sign up for

“e-alerts,” some of which contained exhortations to vote

against Senator Feingold. These details lend the election

eering interpretation of the ads more credence, but again,

WRTL’s participation in express advocacy in other aspects

of its work is not a justification for censoring its issue-

related speech. Any express advocacy on the website,

already one step removed from the text of the ads them

selves, certainly does not render an interpretation of the

ads as genuine issue ads unreasonable.

Given the standard we have adopted for determining

whether an ad is the “functional equivalent” of express

advocacy, contextual factors of the sort invoked by appel

lants should seldom play a significant role in the inquiry.

Courts need not ignore basic background information that

may be necessary to put an ad in context—such as

whether an ad “describes a legislative issue that is either

currently the subject of legislative scrutiny or likely to be

the subject of such scrutiny in the near future,” 466

F. Supp. 2d, at 207—but the need to consider such back

ground should not become an excuse for discovery or a

broader inquiry of the sort we have just noted raises First

Amendment concerns.

At best, appellants have shown what we have acknowl

edged at least since Buckley: that “the distinction between

Cite as: 551 U. S. ____ (2007) 21

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Opinion R the Court

discussion of issues and candidates and advocacy of elec

tion or defeat of candidates may often dissolve in practical

application.” 424 U. S., at 42. Under the test set forth

above, that is not enough to establish that the ads can

only reasonably be viewed as advocating or opposing a

candidate in a federal election. “Freedom of discussion, if

it would fulfill its historic function in this nation, must

embrace all issues about which information is needed or

appropriate to enable the members of society to cope with

the exigencies of their period.” Thornhill v. Alabama, 310

U. S. 88, 102 (1940). Discussion of issues cannot be sup

pressed simply because the issues may also be pertinent in

an election. Where the First Amendment is implicated,

the tie goes to the speaker, not the censor.7

——————

7 JUSTICE SCALIA thinks our test impermissibly vague. See post, at

11–12 (opinion concurring in part and concurring in judgment). As

should be evident, we agree with JUSTICE SCALIA on the imperative for

clarity in this area; that is why our test affords protection unless an ad

is susceptible of no reasonable interpretation other than as an appeal to

vote for or against a specific candidate. It is why we emphasize that (1)

there can be no free-ranging intent-and-effect test; (2) there generally

should be no discovery or inquiry into the sort of “contextual” factors

highlighted by the FEC and intervenors; (3) discussion of issues cannot

be banned merely because the issues might be relevant to an election;

and (4) in a debatable case, the tie is resolved in favor of protecting

speech. And keep in mind this test is only triggered if the speech meets

the brightline requirements of BCRA §203 in the first place. JUSTICE

SCALIA’s criticism of our test is all the more confusing because he

accepts WRTL’s proposed three-prong test as “clear.” Post, at 17. We

do not think our test any vaguer than WRTL’s, and it is more protective

of political speech.

JUSTICE SCALIA also asserts that our test conflicts with Buckley v.

Valeo, 424 U. S. 1 (1976) (per curiam). Post, at 13–16. The Buckley

Court confronted a statute restricting “any expenditure . . . relative to a

clearly identified candidate.” 424 U. S., at 42 (internal quotation marks

omitted). To avoid vagueness concerns, this Court first narrowed the

statute to cover only expenditures expressly “advocating the election or

defeat of a candidate”—using the so-called “magic words” of express

advocacy. Ibid. (internal quotation marks omitted). The Court then

22 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion R the Court

We confronted a similar issue in Ashcroft v. Free Speech

Coalition, 535 U. S. 234 (2002), in which the Government

argued that virtual images of child pornography were

difficult to distinguish from real images. The Govern

ment’s solution was “to prohibit both kinds of images.”

Id., at 254–255. We rejected the argument that “protected

speech may be banned as a means to ban unprotected

speech,” concluding that it “turns the First Amendment

upside down.” Id., at 255. As we explained: “The Gov

ernment may not suppress lawful speech as the means to

suppress unlawful speech. Protected speech does not

become unprotected merely because it resembles the

latter. The Constitution requires the reverse.” Ibid.

Because WRTL’s ads may reasonably be interpreted as

something other than as an appeal to vote for or against a

specific candidate, we hold they are not the functional

equivalent of express advocacy, and therefore fall outside

the scope of McConnell’s holding.8

——————

proceeded to strike down the newly narrowed statute under strict

scrutiny on the ground that its reach was not broad enough. Id., at 44.

From this, JUSTICE SCALIA concludes that “[i]f a permissible test short

of the magic-words test existed, Buckley would surely have adopted it.”

Post, at 14. We are not so sure. The question in Buckley was how a

particular statutory provision could be construed to avoid vagueness

concerns, not what the constitutional standard for clarity was in the

abstract, divorced from specific statutory language. Buckley’s interme

diate step of statutory construction on the way to its constitutional

holding does not dictate a constitutional test. The Buckley Court’s

“express advocacy restriction was an endpoint of statutory interpreta

tion, not a first principle of constitutional law.” McConnell, 540 U. S.,

at 190. And despite JUSTICE SCALIA’s claim to the contrary, our citation

of Buckley along with other decisions in rejecting an intent-and-effect

test does not force us to adopt (or reject) Buckley’s statutory construc

tion as a constitutional test.

8 Nothing in McConnell’s statement that the “vast majority” of issue

ads broadcast in the periods preceding federal elections had an “elec

tioneering purpose” forecloses this conclusion. 540 U. S., at 206.

Courts do not resolve unspecified as-applied challenges in the course of

resolving a facial attack, so McConnell could not have settled the issue

Cite as: 551 U. S. ____ (2007) 23

Opinion of ofOBERTS, C. J.

Opinion R the Court

IV

BCRA §203 can be constitutionally applied to WRTL’s

ads only if it is narrowly tailored to further a compelling

interest. McConnell, 540 U. S., at 205; Bellotti, 435 U. S.,

at 786; Buckley, supra, at 44–45. This Court has never

recognized a compelling interest in regulating ads, like

WRTL’s, that are neither express advocacy nor its func

tional equivalent. The District Court below considered

interests that might justify regulating WRTL’s ads here,

and found none sufficiently compelling. 466 F. Supp. 2d,

at 208–210. We reach the same conclusion.9

——————

we address today. See Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U. S. 789, 803, n. 22 (1984) (“The fact that [a

law] is capable of valid applications does not necessarily mean that it is

valid as applied to these litigants”). Indeed, WRTL I confirmed as

much. 546 U. S., at 411–412. By the same token, in deciding this as-

applied challenge, we have no occasion to revisit McConnell’s conclusion

that the statute is not facially overbroad.

The “vast majority” language, moreover, is beside the point. The

McConnell Court did not find that a “vast majority” of the issue ads

considered were the functional equivalent of direct advocacy. Rather, it

found that such ads had an “electioneering purpose.” For the reasons

we have explained, “purpose” is not the appropriate test for distinguish

ing between genuine issue ads and the functional equivalent of express

campaign advocacy. See supra, at 14–15. In addition, the “vast major

ity” statement was not necessary to the Court’s facial holding in

McConnell. The standard required for a statute to survive an over

breadth challenge is not that the “vast majority” of a statute’s applica

tions be legitimate. “[B]road language . . . unnecessary to the Court’s

decision . . . cannot be considered binding authority.” Kastigar v.

United States, 406 U. S. 441, 454–455 (1972).

9 The dissent stresses a number of points that, while not central to

our decision, nevertheless merit a response. First, the dissent over

states its case when it asserts that the “PAC alternative” gives corpora

tions a constitutionally sufficient outlet to speak. See post, at 30. PACs

impose well-documented and onerous burdens, particularly on small

nonprofits. See MCFL, 479 U. S. 238, 253–255 (1986) (plurality opin

ion). McConnell did conclude that segregated funds “provid[e] corpora

tions and unions with a constitutionally sufficient opportunity to

engage in express advocacy” and its functional equivalent, 540 U. S., at

24 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion R the Court

At the outset, we reject the contention that issue advo

cacy may be regulated because express election advocacy

may be, and “the speech involved in so-called issue advo

cacy is [not] any more core political speech than are words

of express advocacy.” McConnell, supra, at 205. This

greater-includes-the-lesser approach is not how strict

scrutiny works. A corporate ad expressing support for the

local football team could not be regulated on the ground

that such speech is less “core” than corporate speech about

an election, which we have held may be restricted. A court

applying strict scrutiny must ensure that a compelling

interest supports each application of a statute restricting

speech. That a compelling interest justifies restrictions on

express advocacy tells us little about whether a compelling

interest justifies restrictions on issue advocacy; the

McConnell Court itself made just that point. See 540

——————

203, but that holding did not extend beyond functional equivalents—

and if it did, the PAC option would justify regulation of all corporate

speech, a proposition we have rejected, see Bellotti, 435 U. S., at 777–

778. Second, the response that a speaker should just take out a news

paper ad, or use a website, rather than complain that it cannot speak

through a broadcast communication, see post, at 18–19, 33, is too glib.

Even assuming for the sake of argument that the possibility of using a

different medium of communication has relevance in determining the

permissibility of a limitation on speech, newspaper ads and websites

are not reasonable alternatives to broadcast speech in terms of impact

and effectiveness. See McConnell v. FEC, 251 F. Supp. 2d, at 569–573,

646 (Kollar-Kotelly, J.). Third, we disagree with the dissent’s view that

corporations can still speak by changing what they say to avoid men

tioning candidates, post, at 30–31. That argument is akin to telling

Cohen that he cannot wear his jacket because he is free to wear one

that says “I disagree with the draft,” cf. Cohen v. California, 403 U. S.

15 (1971), or telling 44 Liquormart that it can advertise so long as it

avoids mentioning prices, cf. 44 Liquormart, Inc. v. Rhode Island, 517

U. S. 484 (1996). Such notions run afoul of “the fundamental rule of

protection under the First Amendment, that a speaker has the auton

omy to choose the content of his own message.” Hurley v. Irish-

American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S.

557, 573 (1995).

Cite as: 551 U. S. ____ (2007) 25

Opinion of ofOBERTS, C. J.

Opinion R the Court

U. S., at 206, n. 88. Such a greater-includes-the-lesser

argument would dictate that virtually all corporate speech

can be suppressed, since few kinds of speech can lay claim

to being as central to the First Amendment as campaign

speech. That conclusion is clearly foreclosed by our prece

dent. See, e.g., Bellotti, supra, at 776–777.

This Court has long recognized “the governmental inter

est in preventing corruption and the appearance of corrup

tion” in election campaigns. Buckley, 424 U. S., at 45.

This interest has been invoked as a reason for upholding

contribution limits. As Buckley explained, “[t]o the extent

that large contributions are given to secure a political quid

pro quo from current and potential office holders, the

integrity of our system of representative democracy is

undermined.” Id., at 26–27. We have suggested that this

interest might also justify limits on electioneering expendi

tures 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.” Id., at 45.

McConnell arguably applied this interest—which this

Court had only assumed could justify regulation of express

advocacy—to ads that were the “functional equivalent” of

express advocacy. See 540 U. S., at 204–206. But to

justify regulation of WRTL’s ads, this interest must be

stretched yet another step to ads that are not the func

tional equivalent of express advocacy. Enough is enough.

Issue ads like WRTL’s are by no means equivalent to

contributions, and the quid-pro-quo corruption interest

cannot justify regulating them. To equate WRTL’s ads

with contributions is to ignore their value as political

speech.

Appellants argue that an expansive definition of “func

tional equivalent” is needed to ensure that issue advocacy

does not circumvent the rule against express advocacy,

which in turn helps protect against circumvention of the

26 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of ofOBERTS, C. J.

Opinion R the Court

rule against contributions. Cf. McConnell, supra, at 205

(“[R]ecent cases have recognized that certain restrictions

on corporate electoral involvement permissibly hedge

against circumvention of [valid] contribution limits” (in

ternal quotation marks omitted; brackets in original)).

But such a prophylaxis-upon-prophylaxis approach to

regulating expression is not consistent with strict scru

tiny. “[T]he desire for a bright-line rule . . . hardly consti

tutes the compelling state interest necessary to justify any

infringement on First Amendment freedom.” MCFL, 479

U. S., at 263. See Free Speech Coalition, 535 U. S., at 255

(“The Government may not suppress lawful speech as the

means to suppress unlawful speech”); Buckley, supra, at

44 (expenditure limitations “cannot be sustained simply by

invoking the interest in maximizing the effectiveness of

the less intrusive contribution limitations”).

A second possible compelling interest recognized by this

Court lies in addressing a “different type of corruption in

the political arena: the corrosive and distorting effects of

immense aggregations of wealth that are accumulated

with the help of the corporate form and that have little or

no correlation to the public’s support for the corporation’s

political ideas.” Austin, 494 U. S., at 660. Austin invoked

this interest to uphold a state statute making it a felony

for corporations to use treasury funds for independent

expenditures on express election advocacy. Id., at 654–

655. McConnell also relied on this interest in upholding

regulation not just of express advocacy, but also its “func

tional equivalent.” 540 U. S., at 205–206.

These cases did not suggest, however, that the interest

in combating “a different type of corruption” extended

beyond campaign speech. Quite the contrary. Two of the

Justices who joined the 6-to-3 majority in Austin relied, in

upholding the constitutionality of the ban on campaign

speech, on the fact that corporations retained freedom to

speak on issues as distinct from election campaigns. See

Cite as: 551 U. S. ____ (2007) 27

Opinion of ofOBERTS, C. J.

Opinion R the Court

494 U. S., at 675–678 (Brennan, J., concurring) (describing

fact that campaign speech ban “does not regulate corpo

rate expenditures in referenda or other corporate expres

sion” as “reflect[ing] the requirements of our decisions”);

id., at 678 (STEVENS, J., concurring) (“[T]here is a vast

difference between lobbying and debating public issues on

the one hand, and political campaigns for election to public

office on the other”). The McConnell Court similarly was

willing to “assume that the interests that justify the regu

lation of campaign speech might not apply to the regula

tion of genuine issue ads.” 540 U. S., at 206, n. 88. And

our decision in WRTL I reinforced the validity of that

assumption by holding that BCRA §203 is susceptible to

as-applied challenges. 546 U. S., at 411–412.

Accepting the notion that a ban on campaign speech

could also embrace issue advocacy would call into question

our holding in Bellotti that the corporate identity of a

speaker does not strip corporations of all free speech

rights. 435 U. S., at 778. It would be a constitutional

“bait and switch” to conclude that corporate campaign

speech may be banned in part because corporate issue

advocacy is not, and then assert that corporate issue

advocacy may be banned as well, pursuant to the same

asserted compelling interest, through a broad conception

of what constitutes the functional equivalent of campaign

speech, or by relying on the inability to distinguish cam

paign speech from issue advocacy.

The FEC and intervenors do not argue that the Austin

interest justifies regulating genuine issue ads. Instead,

they focus on establishing that WRTL’s ads are the func

tional equivalent of express advocacy—a contention we

have already rejected. We hold that the interest recog

nized in Austin as justifying regulation of corporate cam

paign speech and extended in McConnell to the functional

equivalent of such speech has no application to issue

28 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of ofOBERTS, C. J.

Opinion R the Court

advocacy of the sort engaged in by WRTL.10

Because WRTL’s ads are not express advocacy or its

functional equivalent, and because appellants identify no

interest sufficiently compelling to justify burdening

WRTL’s speech, we hold that BCRA §203 is unconstitu

tional as applied to WRTL’s “Wedding,” “Loan,” and “Wait

ing” ads.

* * *

These cases are about political speech. The importance

of the cases to speech and debate on public policy issues is

reflected in the number of diverse organizations that have

joined in supporting WRTL before this Court: the Ameri

can Civil Liberties Union, the National Rifle Association,

the American Federation of Labor and Congress of Indus

trial Organizations, the Chamber of Commerce of the

United States of America, Focus on the Family, the Coali

tion of Public Charities, the Cato Institute, and many

others.

Yet, as is often the case in this Court’s First Amend

ment opinions, we have gotten this far in the analysis

without quoting the Amendment itself: “Congress shall

make no law . . . abridging the freedom of speech.” The

——————

10 The interest recognized in Austin stems from a concern that “ ‘[t]he

resources in the treasury of a business corporation . . . are not an

indication of popular support for the corporation’s political ideas.’ ”

Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 659 (1990)

(alteration in original). Some of WRTL’s amici contend that this

interest is not implicated here because of WRTL’s status as a nonprofit

advocacy organization. They assert that “[s]peech by nonprofit advo

cacy groups on behalf of their members does not ‘corrupt’ candidates or

‘distort’ the political marketplace,” and that “[n]onprofit advocacy

groups funded by individuals are readily distinguished from for-profit

corporations funded by general treasuries.” Brief for Family Research

Council et al. as Amici Curiae 3, 4. Cf. MCFL, 479 U. S., at 264. We do

not pass on this argument in this as-applied challenge because WRTL’s

funds for its ads were not derived solely from individual contributions.

See Brief for Appellant FEC 11.

Cite as: 551 U. S. ____ (2007) 29

Opinion of ofOBERTS, C. J.

Opinion R the Court

Framers’ actual words put these cases in proper perspec

tive. Our jurisprudence over the past 216 years has re

jected an absolutist interpretation of those words, but

when it comes to drawing difficult lines in the area of pure

political speech—between what is protected and what the

Government may ban—it is worth recalling the language

we are applying. McConnell held that express advocacy of

a candidate or his opponent by a corporation shortly before

an election may be prohibited, along with the functional

equivalent of such express advocacy. We have no occasion

to revisit that determination today. But when it comes to

defining what speech qualifies as the functional equivalent

of express advocacy subject to such a ban—the issue we do

have to decide—we give the benefit of the doubt to speech,

not censorship. The First Amendment’s command that

“Congress shall make no law . . . abridging the freedom of

speech” demands at least that.

The judgment of the United States District Court for the

District of Columbia is affirmed.

It is so ordered.

Cite as: 551 U. S. ____ (2007) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–969 and 06–970

_________________

FEDERAL ELECTION COMMISSION, APPELLANT

06–969 v.

WISCONSIN RIGHT TO LIFE, INC.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

06–970 v.

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007]

JUSTICE ALITO, concurring.

I join the principal opinion because I conclude (a) that

§203 of the Bipartisan Campaign Reform Act of 2002, 2

U. S. C. §441b(b)(2) (2000 ed., Supp. IV), as applied, can

not constitutionally ban any advertisement that may

reasonably be interpreted as anything other than an

appeal to vote for or against a candidate, (b) that the ads

at issue here may reasonably be interpreted as something

other than such an appeal, and (c) that because §203 is

unconstitutional as applied to the advertisements before

us, it is unnecessary to go further and decide whether

§203 is unconstitutional on its face. If it turns out that the

implementation of the as-applied standard set out in the

principal opinion impermissibly chills political speech, see

post, at 15–16 (SCALIA, J., joined by KENNEDY, and

THOMAS, JJ., concurring in part and concurring in judg

ment), we will presumably be asked in a future case

to reconsider the holding in McConnell v. Federal

Election Comm’n, 540 U. S. 93 (2003), that §203 is facially

constitutional.

Cite as: 551 U. S. ____ (2007) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–969 and 06–970

_________________

FEDERAL ELECTION COMMISSION, APPELLANT

06–969 v.

WISCONSIN RIGHT TO LIFE, INC.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

06–970 v.

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007]

JUSTICE SCALIA, with whom JUSTICE KENNEDY and

JUSTICE THOMAS join, concurring in part and concurring

in the judgment.

A Moroccan cartoonist once defended his criticism of the

Moroccan monarch (lèse majesté being a serious crime in

Morocco) as follows: “ ‘I’m not a revolutionary, I’m just

defending freedom of speech. . . . I never said we had to

change the king—no, no, no, no! But I said that some

things the king is doing, I do not like. Is that a crime?’ ”1

Well, in the United States (making due allowance for the

fact that we have elected representatives instead of a

king) it is a crime, at least if the speaker is a union or a

corporation (including not-for-profit public-interest corpo

rations) and if the representative is identified by name

within a certain period before a primary or congressional

election in which he is running. That is the import of §203

of the Bipartisan Campaign Reform Act of 2002 (BCRA),

——————

1 Whitlock, Satirist Continues to Prove Himself a Royal Pain, Wash

ington Post, Apr. 26, 2005, pp. C1, C8.

2 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of SCALIA, J.

the constitutionality of which we upheld three Terms ago

in McConnell v. Federal Election Comm’n, 540 U. S. 93

(2003). As an element essential to that determination of

constitutionality, our opinion left open the possibility that

a corporation or union could establish that, in the particu

lar circumstances of its case, the ban was unconstitutional

because it was (to pursue the analogy) only the king’s

policies and not his tenure in office that was criticized.

Today’s cases present the question of what sort of showing

is necessary for that purpose. For the reasons I set forth

below, it is my view that no test for such a showing can

both (1) comport with the requirement of clarity that

unchilled freedom of political speech demands, and (2) be

compatible with the facial validity of §203 (as pronounced

in McConnell). I would therefore reconsider the decision

that sets us the unsavory task of separating issue-speech

from election-speech with no clear criterion.

I

Today’s cases originated in the efforts of Wisconsin

Right to Life, Inc. (WRTL), a Wisconsin nonprofit, non-

stock ideological advocacy corporation, to lobby Wisconsin

voters concerning the filibustering of the President’s judi

cial nominees. The problem for WRTL was that, under

§203 of BCRA, it would have been unlawful to air its

television and radio ads within 30 days before the Sep

tember 14, 2004, primary or within 60 days before the

November 2, 2004, general election because the ads named

Senator Feingold, who was then seeking reelection. Sec

tion 203(a) of BCRA amended §316(b)(2) of the Federal

Election Campaign Act Amendments of 1974, which pro

hibited corporations and unions from “mak[ing] a contri

bution or expenditure in connection with any election to

any political office, or in connection with any primary

election . . . for any political office.” 2 U. S. C. §441b(a).

Prior to BCRA, that section covered only expenditures for

Cite as: 551 U. S. ____ (2007) 3

Opinion of SCALIA, J.

communications that expressly advocated the election or

defeat of a candidate (in campaign-finance speak, so-called

“express advocacy”). McConnell, supra, at 204. As

amended, however, that section was broadened to cover

“electioneering communication[s],” §441b(b)(2) (2000 ed.,

Supp. IV), which include “any broadcast, cable, or satellite

communication” that “refers to a clearly identified candi

date for Federal office” and that is aired within 60 days

before a general election, or 30 days before a primary

election, in the jurisdiction in which the candidate is

running. §434(f)(3) (2000 ed., Supp. IV).2 Under the new

law, a corporation or union wishing to air advertisements

covered by the definition of “electioneering communica

tion” is prohibited by §203 from doing so unless it first

creates a separate segregated fund run by a “political

action committee,” commonly known as a “PAC.”

§441b(b)(2)(C) (2000 ed., Supp. IV). Three Terms ago, in

McConnell, supra, this Court upheld most of BCRA’s provi

sions against constitutional challenge, including §203. The

Court found that the “vast majority” of ads aired during the

30-day and 60-day periods before elections were “the func

tional equivalent of express advocacy,” id., at 206, but sug

gested that “pure issue ads,” id., at 207, or “genuine issue

ads,” id., at 206, would be protected.

The question in these cases is whether §203 can be

applied to WRTL’s ads consistently with the First Amend

ment. Last Term, this Court unanimously held, in Wis

——————

2 BCRA also includes a backup definition of “electioneering communi

cation” that will take effect in the event the primary definition is “held

to be constitutionally insufficient . . . to support the regulation provided

herein.” 2 U. S. C. §434(f)(3)(A)(ii) (2000 ed., Supp. IV). This defines

“electioneering communication” as “any broadcast, cable, or satellite

communication which promotes or supports a candidate for [a federal]

office, or attacks or opposes a candidate for that office (regardless of

whether the communication expressly advocates a vote for or against a

candidate) and which also is suggestive of no plausible meaning other

than an exhortation to vote for or against a specific candidate.” Ibid.

4 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of SCALIA, J.

consin Right to Life, Inc. v. Federal Election Comm’n, 546

U. S. 410, 411–412 (2006) (per curiam) (WRTL I), that as-

applied challenges to §203 are available. The District

Court in these cases subsequently held that §203 is uncon

stitutional as applied to the three ads at issue. The Court

today affirms the judgment of the District Court. While I

agree with that result, I disagree with the principal opin

ion’s reasons.

II

A proper explanation of my views in these cases requires

some discussion of the case law leading up to McConnell. I

begin with the seminal case of Buckley v. Valeo, 424 U. S.

1 (1976) (per curiam), wherein this Court considered the

constitutionality of various political contribution and

expenditure limitations contained in the Federal Election

Campaign Act of 1971 (FECA), 86 Stat. 3, as amended, 88

Stat. 1263. Buckley set forth a now-familiar framework

for evaluating the constitutionality of campaign-finance

regulations. The Court began with the recognition that

contributing money to, and spending money on behalf of,

political candidates implicates core First Amendment

protections, and that restrictions on such contributions

and expenditures “operate in an area of the most funda

mental First Amendment activities.” 424 U. S., at 14.

The Court also recognized, however, that the Government

has a compelling interest in “prevention of corruption and

the appearance of corruption.” Id., at 25. The “corruption”

to which the Court repeatedly referred was of the “quid

pro quo” variety, whereby an individual or entity makes a

contribution or expenditure in exchange for some action by

an official. Id., at 26, 27, 45, 47.

The Court then held that FECA’s contribution limita

tions passed constitutional muster because they repre

sented a “marginal restriction upon the contributor’s

ability to engage in free communication,” id., at 20–21,

Cite as: 551 U. S. ____ (2007) 5

Opinion of SCALIA, J.

and were thus subject to a lower level of scrutiny, id., at

25. The Court invalidated, however, FECA’s limitation on

independent expenditures (i.e., expenditures made to

express one’s own positions and not in coordination with a

campaign). Id., at 39–51. In the Court’s view, expendi

ture limitations restrict speech that is “ ‘at the core of our

electoral process and of the First Amendment freedoms,’ ”

id., at 39, and require the highest scrutiny, id., at 44–45.

The independent-expenditure restriction at issue in

Buckley limited the amount of money that could be spent

“ ‘relative to a clearly identified candidate.’ ” Id., at 41

(quoting 18 U. S. C. §608(e)(1) (1970 ed., Supp. IV) (re

pealed 1976)). Before striking down the expenditure

limitation, the Court narrowly construed §608(e)(1), in

light of vagueness concerns, to cover only express advo

cacy—that is, advertising that “in express terms advo

cate[s] the election or defeat of a clearly identified candi

date for federal office” by use of such words of advocacy “as

‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for

Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’ ” 424 U. S., at 44,

and n. 52. This narrowing construction excluded so-called

“issue advocacy”—for example, an ad that refers to a clearly

identified candidate’s position on an issue, but does not

expressly advocate his election or defeat. Even as narrowly

construed to cover only express advocacy, however,

§608(e)(1) was held to be unconstitutional because the

narrowed prohibition was too narrow to be effective and

(quite apart from that shortcoming) independent expendi

tures did not pose a serious enough threat of corruption.

Id., at 45–46. Notably, the Court also found the Govern

ment’s interest in “equalizing the relative ability of indi

viduals and groups to influence the outcome of elections”

insufficient to support limitations on independent expendi

tures. Id., at 48.

Buckley might well have been the last word on limita

tions on independent expenditures. Some argued, how

6 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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Opinion of SCALIA, J.

ever, that independent expenditures by corporations

should be treated differently. That argument should have

been foreclosed by Buckley for several reasons: (1) the

particular provision at issue in Buckley, §608(e)(1) of

FECA, was directed to expenditures not just by “individu

als,” but by “persons,” with “ ‘persons’ ” specifically defined

to include “ ‘corporation[s],’ ” id., at 23, 39, n. 45; (2) the

plaintiffs in Buckley included corporations, id., at 8; and

(3) Buckley, id., at 50–51, cited a case that involved limita

tions on corporations in support of its striking down the

restriction at issue, Miami Herald Publishing Co. v. Torn

illo, 418 U. S. 241 (1974). Moreover, pre-Buckley cases

had accorded corporations full First Amendment protec

tion. See, e.g., NAACP v. Button, 371 U. S. 415, 428–429,

431 (1963) (holding that the corporation’s activities were

“modes of expression and association protected by the

First and Fourteenth Amendments”); Grosjean v. Ameri

can Press Co., 297 U. S. 233, 244 (1936) (holding that

corporations are guaranteed the “freedom of speech and of

the press . . . safeguarded by the due process of law clause

of the Fourteenth Amendment”). See also 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”;

“[c]orporations and other associations, like individuals,

contribute to the ‘discussion, debate, and the dissemina

tion of information and ideas’ that the First Amendment

seeks to foster”).

Indeed, one would have thought the coup de grâce to the

argument that corporations can be treated differently for

these purposes was dealt by First Nat. Bank of Boston v.

Bellotti, 435 U. S. 765 (1978), decided just two years after

Buckley. In that case, the Court struck down a Massachu

setts statute that prohibited corporations from spending

money in connection with a referendum unless the refer

endum materially affected the corporation’s property,

Cite as: 551 U. S. ____ (2007) 7

Opinion of SCALIA, J.

business, or assets. As the Court explained: The principle

that such advocacy is “at the heart of the First Amend

ment’s protection” and is “indispensable to decisionmaking

in a democracy” is “no less true because the speech comes

from a corporation rather than an individual.” 435 U. S.,

at 776–777. And the Court rejected the arguments that

corporate participation “would exert an undue influence

on the outcome of a referendum vote”; that corporations

would “drown out other points of view” and “destroy the

confidence of the people in the democratic process,” id., at

789; and that the prohibition was needed to protect corpo

rate shareholders “by preventing the use of corporate

resources in furtherance of views with which some share

holders may disagree,” id., at 792–793.3

The Court strayed far from these principles, however, in

one post-Buckley case: Austin v. Michigan Chamber of

Commerce, 494 U. S. 652 (1990). This was the only pre-

McConnell case in which this Court had ever permitted

the Government to restrict political speech based on the

corporate identity of the speaker. Austin upheld state

restrictions on corporate independent expenditures in

support of, or in opposition to, any candidate in elections

for state office. 494 U. S., at 654–655. The statute had

been modeled after the federal statute that BCRA §203

amended, which had been construed to reach only express

advocacy, id., at 655, n. 1. And the ad at issue in Austin

used the magical and forbidden words of express advocacy:

——————

3 In Federal Election Comm’n v. Massachusetts Citizens for Life, Inc.,

479 U. S. 238, 248 (1986) (MCFL), we addressed the pre-BCRA version

of 2 U. S. C. §441b, which was interpreted to ban corporate treasury

expenditures for express advocacy in connection with federal elections.

We held that, “[r]egardless of whether th[e] concern [for unfair advan

tage to organizations that amass great wealth] is adequate to support

application of §441b to commercial enterprises, a question not before us,

that justification” did not support application of the statute to the

nonprofit organization that brought the challenge in MCFL. 479 U. S.,

at 263 (emphasis added).

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“Elect Richard Bandstra.” Id., at 714 (App. to opinion of

KENNEDY, J., dissenting). How did the Court manage to

reach this result without overruling Bellotti? It purported

to recognize a different class of corruption: “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 sup

port for the corporation’s political ideas.” Austin, supra, at

660.

Among the many problems with this “new” theory of

corruption was that it actually constituted “the same ‘corro

sive and distorting effects of immense aggregations of

wealth,’ found insufficient to sustain a similar prohibition

just a decade earlier,” in Bellotti. McConnell, 540 U. S., at

325 (opinion of KENNEDY, J.) (quoting Austin, supra, at 660;

citation omitted). Indeed, Buckley itself had cautioned that

“[t]he First Amendment’s protection against governmental

abridgment of free expression cannot properly be made to

depend on a person’s financial ability to engage in public

discussion.” 424 U. S., at 49. However, two Members of

Austin’s 6-to-3 majority appear to have thought it signifi

cant that Austin involved express advocacy whereas Bellotti

involved issue advocacy. 494 U. S., at 675–676 (Brennan,

J., concurring); id., at 678 (STEVENS, J., concurring).4

Austin was a significant departure from ancient First

Amendment principles. In my view, it was wrongly de

cided. The flawed rationale upon which it is based is

examined at length elsewhere, including in a dissenting

——————

4 The

dissent asserts that Austin was faithful to Bellotti’s principles,

to prove which it quotes a footnote in Bellotti leaving open the possibil

ity that independent expenditures by corporations might someday be

demonstrated to beget quid-pro-quo corruption. Post, at 12, n. 6 (opin

ion of SOUTER, J.) (quoting Bellotti, 435 U. S., at 788, n. 26). That

someday has never come. No one seriously believes that independent

expenditures could possibly give rise to quid-pro-quo corruption with

out being subject to regulation as coordinated expenditures.

Cite as: 551 U. S. ____ (2007) 9

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opinion in Austin that a Member of the 5-to-4 McConnell

majority had joined, see Austin, 494 U. S., at 695–713

(opinion of KENNEDY, J., joined by O’Connor, J.). See also

id., at 679–695 (SCALIA, J., dissenting); McConnell, 540

U. S., at 257–259 (opinion of SCALIA, J.); id., at 325–330

(opinion of KENNEDY, J.); id., at 273–275 (opinion of

THOMAS, J.). But at least Austin was limited to express

advocacy, and nonexpress advocacy was presumed to

remain protected under Buckley and Bellotti, even when

engaged in by corporations.

Three Terms ago the Court extended Austin’s flawed

rationale to cover an even broader class of speech. In

McConnell, the Court rejected a facial overbreadth chal

lenge to BCRA §203’s restrictions on corporate and union

advertising, which were not limited to express advocacy

but covered vast amounts of nonexpress advocacy (em

braced within the term “electioneering communications”).

540 U. S., at 203–209. The Court held that, at least in

light of the availability of the PAC option, the compelling

governmental interest that supported restrictions on

corporate expenditures for express advocacy also justified

the extension of those restrictions to “electioneering com

munications,” the “vast majority” of which were intended

to influence elections. Id., at 206. Of course, the compel

ling interest to which the Court referred was “ ‘the corro

sive and distorting effects of immense aggregations of

[corporate] wealth,’ ” id., at 205 (quoting Austin, supra, at

660). “The justifications for the regulation of express

advocacy,” the Court explained, “apply equally” to ads run

during the BCRA blackout period “to the extent . . . [those

ads] are the functional equivalent of express advocacy.”

540 U. S., at 206 (emphasis added). The Court found that

the “vast majority” of ads aired during the 30- and 60-day

periods before elections fit that description. Finally, the

Court concluded that, “[e]ven . . . assum[ing] that BCRA

will inhibit some constitutionally protected corporate and

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union speech” (i.e., “pure issue ads,” id., at 207, or “genu

ine issue ads,” id., at 206, and n. 88), its application to

such ads was insubstantial, and thus the statute was not

overbroad, id., at 207. But McConnell did not foreclose as-

applied challenges to §203, WRTL I, 546 U. S., at 411–412,

which brings me back to the present cases.

III

The question is whether WRTL meets the standard for

prevailing in an as-applied challenge to BCRA §203.

Answering that question obviously requires the Court to

articulate the standard. The most obvious one, and the

one suggested by the Federal Election Commission (FEC)

and intervenors, is the standard set forth in McConnell

itself: whether the advertisement is the “functional

equivalent of express advocacy.” McConnell, supra, at

206. See also Brief for Appellant FEC 18 (arguing that

WRTL’s “advertisements are the functional equivalent of

the sort of express advocacy that this Court has long

recognized may be constitutionally regulated”); Reply

Brief for Appellant Sen. John McCain et al. in No. 06–970,

p. 14 (“[C]ourts should apply the standard articulated in

McConnell; Congress may constitutionally restrict corpo

rate funding of ads that are the ‘functional equivalent of

express advocacy’ for or against a candidate”). Intervenors

flesh out the standard somewhat further: “[C]ourts should

ask whether the ad’s audience would reasonably under

stand the ad, in the context of the campaign, to promote or

attack the candidate.” Id., at 15. The District Court

instead articulated a five-factor test that looks to whether

the ad under review “(1) describes a legislative issue that

is either currently the subject of legislative scrutiny or

likely to be the subject of such scrutiny in the near future;

(2) refers to the prior voting record or current position of

the named candidate on the issue described; (3) exhorts

the listener to do anything other than contact the candi

Cite as: 551 U. S. ____ (2007) 11

Opinion of SCALIA, J.

date about the described issue; (4) promotes, attacks,

supports, or opposes the named candidate; and (5) refers

to the upcoming election, candidacy, and/or political party

of the candidate.” 466 F. Supp. 2d 195, 207 (DC 2006).

The backup definition of “electioneering communications”

contained in BCRA itself, see n. 2, supra, offers another

possibility. It covers any communication that “promotes

or supports a candidate for that office . . . (regardless of

whether the communication expressly advocates a vote for

or against a candidate) and which also is suggestive of no

plausible meaning other than an exhortation to vote for or

against a specific candidate.” And the principal opinion in

this case offers a variation of its own (one bearing a strong

likeness to BCRA’s backup definition): whether “the ad is

susceptible of no reasonable interpretation other than as

an appeal to vote for or against a specific candidate.”

Ante, at 16.

There is a fundamental and inescapable problem with

all of these various tests. Each of them (and every other

test that is tied to the public perception, or a court’s per

ception, of the import, the intent, or the effect of the ad) is

impermissibly vague and thus ineffective to vindicate the

fundamental First Amendment rights of the large segment

of society to which §203 applies. Consider the application

of these tests to WRTL’s ads: There is not the slightest

doubt that these ads had an issue-advocacy component.

They explicitly urged lobbying on the pending legislative

issue of appellate-judge filibusters. The question before us

is whether something about them caused them to be the

“functional equivalent” of express advocacy, and thus

constitutionally subject to BCRA’s criminal penalty. Does

any of the tests suggested above answer this question with

the degree of clarity necessary to avoid the chilling of

fundamental political discourse? I think not.

The “functional equivalent” test does nothing more than

restate the question (and make clear that the electoral

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advocacy need not be express). The test which asks how

the ad’s audience “would reasonably understand the ad”

provides ample room for debate and uncertainty. The

District Court’s five-factor test does not (and could not

possibly) specify how much weight is to be given to each

factor—and includes the inherently vague factor of

whether the ad “promotes, attacks, supports, or opposes

the named candidate.” (Does attacking the king’s position

attack the king?) The tests which look to whether the ad

is “susceptible of no plausible meaning” or “susceptible of

no reasonable interpretation” other than an exhortation to

vote for or against a specific candidate seem tighter. They

ultimately depend, however, upon a judicial judgment (or

is it—worse still—a jury judgment?) concerning “reason

able” or “plausible” import that is far from certain, that

rests upon consideration of innumerable surrounding

circumstances which the speaker may not even be aware

of, and that lends itself to distortion by reason of the

decisionmaker’s subjective evaluation of the importance or

unimportance of the challenged speech. In this critical

area of political discourse, the speaker cannot be com

pelled to risk felony prosecution with no more assurance of

impunity than his prediction that what he says will be

found susceptible of some “reasonable interpretation other

than as an appeal to vote for or against a specific candi

date.” Under these circumstances, “[m]any persons,

rather than undertake the considerable burden (and some

times risk) of vindicating their rights through case-by-case

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) (cita

tion omitted).

It will not do to say that this burden must be accepted—

that WRTL’s antifilibustering, constitutionally protected

speech can be constrained—in the necessary pursuit of

Cite as: 551 U. S. ____ (2007) 13

Opinion of SCALIA, J.

electoral “corruption.” We have rejected the “can’t-make

an-omelet-without-breaking-eggs” approach to the First

Amendment, even for the infinitely less important (and

less protected) speech category of virtual child pornogra

phy. In Ashcroft v. Free Speech Coalition, 535 U. S. 234

(2002), the Government argued:

“the possibility of producing images by using com

puter imaging makes it very difficult for it to prose

cute those who produce pornography by using real

children. Experts . . . may have difficulty in saying

whether the pictures were made by using real chil

dren or by using computer imaging. The necessary so

lution . . . is to prohibit both kinds of images.” Id., at

254–255.

The Court rejected the principle that protected speech

may be banned because it is difficult to distinguish from

unprotected speech. Ibid. “[T]hat protected speech may

be banned as a means to ban unprotected speech,” it said,

“turns the First Amendment upside down.” Id., at 255.

The same principle must be applied here. Indeed, it must

be applied a fortiori, since laws targeting political speech

are the principal object of the First-Amendment guaran

tee. The fact that the line between electoral advocacy and

issue advocacy dissolves in practice is an indictment of the

statute, not a justification of it.

Buckley itself compels the conclusion that these tests

fall short of the clarity that the First Amendment de

mands. Recall that Buckley narrowed the ambiguous

phrase “any expenditure . . . relative to a clearly identified

candidate” to mean any expenditure “advocating the elec

tion or defeat of a candidate.” 424 U. S., at 42 (internal

quotation marks omitted). But that construction alone did

not eliminate the vagueness problem because “the distinc

tion between discussion of issues and candidates and

advocacy of election or defeat of candidates may often

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dissolve in practical application.” Ibid. Any effort to

distinguish between the two based on intent of the

speaker or effect of the speech on the listener would “ ‘pu[t]

the speaker . . . wholly at the mercy of the varied under

standing of his hearers,’ ” would “ ‘offe[r] no security for

free discussion,’ ” and would “ ‘compe[l] the speaker to

hedge and trim.’ ” Id., at 43 (quoting Thomas v. Collins,

323 U. S. 516, 535 (1945)). In order to avoid these “consti

tutional deficiencies,” the Court was compelled to narrow

the statutory language even further to cover only advertis

ing that used the magic words of express advocacy. 424

U. S., at 43–44.

If a permissible test short of the magic-words test ex

isted, Buckley would surely have adopted it. Especially

since a consequence of the express-advocacy interpretation

was the invalidation of the entire limitation on independ

ent expenditures, in part because the statute (as thus

narrowed) could not be an effective limitation on expendi

tures for electoral advocacy. (It would be “naiv[e],” Buck

ley said, to pretend that persons and groups would have

difficulty “devising expenditures that skirted the restric

tion on express advocacy of election or defeat but never

theless benefited the candidate’s campaign.” Id., at 45.)

Why did Buckley employ such a “highly strained” reading

of the statute, McConnell, 540 U. S., at 280 (opinion of

THOMAS, J.), when broader readings, more faithful to the

text, were available that might not have resulted in such

underinclusiveness? In particular, after going to the

trouble of narrowing the statute to cover “advocacy of [the]

election or defeat of a candidat[e],” why not do what the

principal opinion in these cases does, which is essentially

to preface that phrase with the phrase “susceptible of no

reasonable interpretation other than as”? Ante, at 16.

There is only one plausible explanation: The Court es

chewed narrowing constructions that would have been

more faithful to the text and more effective at capturing

Cite as: 551 U. S. ____ (2007) 15

Opinion of SCALIA, J.

campaign speech because those tests were all too vague.

We cannot now adopt a standard held to be facially vague

on the theory that it is somehow clear enough for constitu

tional as-applied challenges. If Buckley foreclosed such

vagueness in a statutory test, it also must foreclose such

vagueness in an as-applied test.

Though the principal opinion purports to recognize the

“imperative for clarity” in this area of First Amendment

law, its attempt to distinguish its test from the test found

to be vague in Buckley falls far short. It claims to be “not

so sure” that Buckley rejected its test because Buckley’s

holding did not concern “what the constitutional standard

was in the abstract, divorced from specific statutory lan

guage.” Ante, at 21, n. 7. Forget about abstractions: The

specific statutory language at issue in Buckley was inter

preted to mean “ ‘advocating the election or defeat of a

candidate,’ ” and that is materially identical to the opera

tive language in the principal opinion’s test. The principal

opinion’s protestation that Buckley’s vagueness holding

“d[id] not dictate a constitutional test,” ante, at 21, n. 7, is

utterly compromised by the fact that the principal opinion

itself relies on the very same vagueness holding to reject

an intent-and-effect test in this case. See ante, at 13–14

(citing Buckley, supra, at 43–44). It is the same vagueness

holding, and the principal opinion cannot invoke it on page

13 of its opinion and disclaim it on page 22. Finally, the

principal opinion quotes McConnell for the proposition

that “[t]he Buckley Court’s ‘express advocacy restriction

was an endpoint of statutory interpretation, not a first

principle of constitutional law.’ ” Ante, at 21, n. 7 (quoting

McConnell, 540 U. S., at 190). I am not sure why this

cryptic statement is at all relevant, since we are discuss

ing here the principle of constitutional law that underlay

Buckley’s express-advocacy restriction. In any case, the

statement is assuredly not a repudiation of Buckley’s

vagueness holding, since overbreadth and not vagueness

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was the issue in McConnell.5

What, then, is to be done? We could adopt WRTL’s

proposed test, under which §203 may not be applied to any

ad (1) that “focuses on a current legislative branch matter,

takes a position on the matter, and urges the public to ask

a legislator to take a particular position or action with

respect to the matter,” and (2) that “does not mention any

election, candidacy, political party, or challenger, or the

official’s character, qualifications, or fitness for office,” (3)

whether or not it “say[s] that the public official is wrong or

right on the issue,” so long as it does not expressly say he

is “wrong for [the] office.” Brief for Appellee 56–57 (foot

note omitted).6 Or we could of course adopt the Buckley

——————

5 JUSTICE ALITO’s concurrence at least hints that the principal opin

ion’s test may impermissibly chill speech, and offers to reconsider

McConnell’s holding “[i]f it turns out that the implementation of the as-

applied standard set out in the [principal opinion] impermissibly chills

political speech.” Post, at 1 (emphasis added). The wait-and-see

approach makes no sense and finds no support in our cases. How will

we know that would-be speakers have been chilled and have not spo

ken? If a tree does not fall in the forest, can we hear the sound it would

have made had it fallen? Our normal practice is to assess ex ante the

risk that a standard will have an impermissible chilling effect on First

Amendment protected speech. JUSTICE ALITO seemed to recognize that

as recently as, well, today. In another opinion released this morning,

he finds that a proposed test for censoring student speech “can easily be

manipulated in dangerous ways,” wherefore he “would reject it before

such abuse occurs.” Morse v. Frederick, ante, at 2 (concurring opinion)

(emphasis added). I would accord the core First Amendment speech at

issue here at least the same respect he accords speech in the classroom.

6 The principal opinion claims that its test is no more vague than

WRTL’s test. See ante, at 21, n. 7. I disagree. WRTL’s test requires

yes or no answers to a series of precise and focused questions: Does the

ad take a position on a legislative matter? Does it mention the elec

tion? Does it expressly say the candidate is wrong for the office? A

group of children—indeed, even a group of college students—could

answer these questions with great consistency. The principal opinion’s

test, by contrast, hinges on assessment of the reasonableness of a

determination that something does not constitute advocacy of the

election or defeat of a candidate.

Cite as: 551 U. S. ____ (2007) 17

Opinion of SCALIA, J.

test of express advocacy. The problem is that, although

these tests are clear, they are incompatible with McCon

nell’s holding that §203 is facially constitutional, which

was premised on the finding that a vast majority of ads

proscribed by §203 are “sham issue ads,” 540 U. S., at 185,

that fall outside the First Amendment’s protection. In

deed, any clear rule that would protect all genuine issue

ads would cover such a substantial number of ads prohib

ited by §203 that §203 would be rendered substantially

overbroad. The Government claims that even the amor

phous test adopted by the District Court “call[s] into ques

tion a substantial percentage of the statute’s applications,”

Tr. of Oral Arg. 4,7 and that any test providing relief to

WRTL is incompatible with McConnell’s facial holding

because WRTL’s ads are in the “heartland” of what Con

gress meant to prohibit, Brief for Appellant FEC 18, 28,

36, n. 9. If that is so, then McConnell cannot be sustained.

Like the Buckley Court and the parties to these cases, I

——————

7 The same must be said, I think, of the test proposed by the principal

opinion. While its coverage is not entirely clear, it would apparently

protect even McConnell’s paradigmatic example of the functional equiva

lent of express advocacy—the so-called “Jane Doe ad,” which “con

demned Jane Doe’s record on a particular issue before exhorting viewers

to ‘call Jane Doe and tell her what you think,’ ” 540 U. S., at 126–127.

Indeed, it at least arguably protects the most “striking” example of a so-

called sham issue ad in the McConnell record, the notorious “Yellowtail

ad,” which accused Bill Yellowtail of striking his wife and then urged

listeners to call him and “[t]ell him to support family values.” Id., at

193–194, n. 78 (internal quotation marks omitted). The claim that §203

on its face does not reach a substantial amount of speech protected

under the principal opinion’s test—and that the test is therefore com

patible with McConnell—seems to me indefensible. Indeed, the princi

pal opinion’s attempt at distinguishing McConnell is unpersuasive

enough, and the change in the law it works is substantial enough, that

seven Justices of this Court, having widely divergent views concerning

the constitutionality of the restrictions at issue, agree that the opinion

effectively overrules McConnell without saying so. See post, at 24–25

(SOUTER, J., dissenting). This faux judicial restraint is judicial obfusca

tion.

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recognize the practical reality that corporations can evade

the express-advocacy standard. I share the instinct that

“[w]hat separates issue advocacy and political advocacy is

a line in the sand drawn on a windy day.” See McConnell,

supra, at 126, n. 16 (internal quotation marks omitted);

Brief for Appellant FEC 30; Brief for Appellant Sen. John

McCain et al. in No. 06–970, p. 35. But the way to indulge

that instinct consistently with the First Amendment is

either to eliminate restrictions on independent expendi

tures altogether or to confine them to one side of the tradi

tional line—the express-advocacy line, set in concrete on a

calm day by Buckley, several decades ago. Section 203’s

line is bright, but it bans vast amounts of political advo

cacy indistinguishable from hitherto protected speech.

The foregoing analysis shows that McConnell was mis

taken in its belief that as-applied challenges could elimi

nate the unconstitutional applications of §203. They can

do so only if a test is adopted which contradicts the hold

ing of McConnell—that §203 is facially valid because the

vast majority of pre-election issue ads can constitutionally

be proscribed. In light of the weakness in Austin’s ration

ale, and in light of the longstanding acceptance of the

clarity of Buckley’s express-advocacy line, it was adven

turous for McConnell to extend Austin beyond corporate

speech constituting express advocacy. Today’s cases make

it apparent that the adventure is a flop, and that McCon

nell’s holding concerning §203 was wrong.8

——————

8 JUSTICE KENNEDY’s opinion in McConnell explained why the possi

bility of corporations’ funding speech out of a PAC does not save the

statute from constitutional infirmity. See 540 U. S., at 330–333.

McConnell’s rejection of those arguments rested, of course, upon the

assumption that for non-PAC genuine issue ads as-applied challenges

would be available. See id., at 207; WRTL I, 546 U. S. 410, 411–412

(2006) (per curiam). The discussion today shows that to be mistaken.

The dissent asserts, post, at 31, that there is no reason “why substi

tuting the phrase ‘Contact your Senators’ for the phrase ‘Contact

Senators Feingold and Kohl’ would have denied WRTL a constitution

Cite as: 551 U. S. ____ (2007) 19

Opinion of SCALIA, J.

IV

Which brings me to the question of stare decisis. “Stare

decisis is not an inexorable command” or “ ‘a mechanical

formula of adherence to the latest decision.’ ” Payne v.

Tennessee, 501 U. S. 808, 828 (1991) (quoting Helvering v.

Hallock, 309 U. S. 106, 119 (1940)). It is instead “ ‘a prin

ciple of policy,’ ” Payne, supra, at 828, and this Court has a

“considered practice” not to apply that principle of policy

“as rigidly in constitutional as in nonconstitutional cases.”

Glidden Co. v. Zdanok, 370 U. S. 530, 543 (1962). This

Court has not hesitated to overrule decisions offensive to

the First Amendment (a “fixed star in our constitutional

constellation,” if there is one, West Virginia Bd. of Ed. v.

Barnette, 319 U. S. 624, 642 (1943))—and to do so

promptly where fundamental error was apparent. Just

three years after our erroneous decision in Minersville

School Dist. v. Gobitis, 310 U. S. 586 (1940), the Court

corrected the error in Barnette. Overruling a constitu

tional case decided just a few years earlier is far from

unprecedented.9

——————

ally sufficient . . . alternative.” Surely that is not so. The purpose of

the ad was to put political pressure upon Senator Feingold to change

his position on the filibuster—not only through the constituents who

accepted the invitation to contact him, but also through the very

existence of an ad bringing to the public’s attention that he, Senator

Feingold, stood athwart the allowance of a vote on judicial nominees.

(Unlike the principal opinion, I think that the fair import of the ad in

context.)

9 See, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996) (over

ruling Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989)); Adarand

Constructors, Inc. v. Peña, 515 U. S. 200 (1995) (overruling in part

Metro Broadcasting, Inc. v. FCC, 497 U. S. 547 (1990)); United States v.

Dixon, 509 U. S. 688 (1993) (overruling Grady v. Corbin, 495 U. S. 508

(1990)); Payne v. Tennessee, 501 U. S. 808 (1991) (overruling South

Carolina v. Gathers, 490 U. S. 805 (1989), and Booth v. Maryland, 482

U. S. 496 (1987)); Daniels v. Williams, 474 U. S. 327 (1986) (overruling

in part Parratt v. Taylor, 451 U. S. 527 (1981)); Garcia v. San Antonio

Metropolitan Transit Authority, 469 U. S. 528 (1985) (overruling

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Of particular relevance to the stare decisis question in

these cases is the impracticability of the regime created by

McConnell. Stare decisis considerations carry little weight

when an erroneous “governing decisio[n]” has created an

“unworkable” legal regime. Payne, supra, at 827. As

described above, the McConnell regime is unworkable

because of the inability of any acceptable as-applied test to

validate the facial constitutionality of §203—that is, its

inability to sustain proscription of the vast majority of

issue ads. We could render the regime workable only by

effectively overruling McConnell without saying so—

adopting a clear as-applied rule protective of speech in the

“heartland” of what Congress prohibited. The promise of

an administrable as-applied rule that is both effective in

the vindication of First Amendment rights and consistent

with McConnell’s holding is illusory.

It is not as though McConnell produced a settled body of

law. Indeed, it is far more accurate to say that McConnell

unsettled a body of law. Not until 1947, with the enact

ment of the Taft-Hartley amendments to the Federal

Corrupt Practices Act, 1925, did Congress even purport to

regulate campaign-related expenditures of corporations

and unions. See United States v. CIO, 335 U. S. 106, 107,

113–115 (1948). In the three decades following, this Court

expressly declined to pronounce upon the constitutionality

——————

National League of Cities v. Usery, 426 U. S. 833 (1976)); United States

v. Scott, 437 U. S. 82 (1978) (overruling United States v. Jenkins, 420

U. S. 358 (1975)); National League of Cities, supra, (overruling Mary

land v. Wirtz, 392 U. S. 183 (1968)); Edelman v. Jordan, 415 U. S. 651

(1974) (overruling in part Shapiro v. Thompson, 394 U. S. 618 (1969);

State Dept. of Health and Rehabilitative Servs. of Fla. v. Zarate, 407

U. S. 918 (1972); and Sterrett v. Mothers’ & Children’s Rights Organiza

tion, 409 U. S. 809 (1972)); Miller v. California, 413 U. S. 15 (1973)

(overruling Book Named “John Cleland’s Memoirs of a Woman of

Pleasure” v. Attorney General of Mass., 383 U. S. 413 (1966)); Perez v.

Campbell, 402 U. S. 637 (1971) (overruling Kesler v. Department of

Public Safety of Utah, 369 U. S. 153 (1962)).

Cite as: 551 U. S. ____ (2007) 21

Opinion of SCALIA, J.

of such restrictions on independent expenditures. See

Pipefitters v. United States, 407 U. S. 385, 400 (1972);

United States v. Automobile Workers, 352 U. S. 567, 591–

592 (1957); CIO, supra, at 110, 124. When the Court

finally did turn to that question, it struck them down. See

Buckley, 424 U. S. 1. Our subsequent pre-McConnell

decisions, with the lone exception of Austin, disapproved

limits on independent expenditures. The modest medicine

of restoring First Amendment protection to nonexpress

advocacy—speech that was protected until three Terms

ago—does not unsettle an established body of law.

Neither do any of the other considerations relevant to

stare decisis suggest adherence to McConnell. These cases

do not involve property or contract rights, where reliance

interests are involved. Payne, supra, at 828. And

McConnell’s §203 holding has assuredly not become “em

bedded” in our “national culture.” Dickerson v. United

States, 530 U. S. 428, 443–444 (2000) (declining to over

rule Miranda v. Arizona, 384 U. S. 436 (1966), in part

because it had become embedded in our national culture).

If §203 has had any cultural impact, it has been to under

mine the traditional and important role of grassroots

advocacy in American politics by burdening the “budget-

strapped nonprofit entities upon which many of our citi

zens rely for political commentary and advocacy.” McCon

nell, 540 U. S., at 340 (opinion of KENNEDY, J.).

Perhaps overruling this one part of McConnell with

respect to one part of BCRA would not “ai[d] the legisla

tive effort to combat real or apparent corruption.” Id., at

194. But the First Amendment was not designed to facili

tate legislation, even wise legislation. Indeed, the assess

ment of former House Minority Leader Richard Gephardt,

a proponent of campaign-finance reform, may well be

correct. He said that “ ‘[w]hat we have is two important

values in direct conflict: freedom of speech and our desire

for healthy campaigns in a healthy democracy,’ ” and

22 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

LIFE, INC.

Opinion of SCALIA, J.

“ ‘[y]ou can’t have both.’ ” Gibbs, The Wake-Up Call, Time,

Feb. 3, 1997, pp. 22, 25. (He was referring, presumably,

to incumbents’ notions of healthy campaigns.) If he was

wrong, however, and the two values can coexist, it is

pretty clear which side of the equation this institution is

primarily responsible for. It is perhaps our most impor

tant constitutional task to assure freedom of political

speech. And when a statute creates a regime as unwork

able and unconstitutional as today’s effort at as-applied

review proves §203 to be, it is our responsibility to de

cline enforcement.

* * *

There is wondrous irony to be found in both the genesis

and the consequences of BCRA. In the fact that the insti

tutions it was designed to muzzle—unions and nearly all

manner of corporations—for all the “corrosive and distort

ing effects” of their “immense aggregations of wealth,”

were utterly impotent to prevent the passage of this legis

lation that forbids them to criticize candidates (including

incumbents). In the fact that the effect of BCRA has been

to concentrate more political power in the hands of the

country’s wealthiest individuals and their so-called 527

organizations, unregulated by §203. (In the 2004 election

cycle, a mere 24 individuals contributed an astounding

total of $142 million to 527s. S. Weissman & R. Hassan,

BCRA and the 527 Groups, in The Election After Reform

79, 92—96 (M. Malbin ed. 2006).) And in the fact that

while these wealthy individuals dominate political dis

course, it is this small, grass-roots organization of Wiscon

sin Right to Life that is muzzled.

I would overrule that part of the Court’s decision in

McConnell upholding §203(a) of BCRA. Accordingly, I join

Parts I and II of today’s principal opinion and otherwise

concur only in the judgment.

Cite as: 551 U. S. ____ (2007) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–969 and 06–970

_________________

FEDERAL ELECTION COMMISSION, APPELLANT

06–969 v.

WISCONSIN RIGHT TO LIFE, INC.

SENATOR JOHN MCCAIN, ET AL., APPELLANTS

06–970 v.

WISCONSIN RIGHT TO LIFE, INC.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007]

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE

GINSBURG, and JUSTICE BREYER join, dissenting.

The significance and effect of today’s judgment, from

which I respectfully dissent, turn on three things: the

demand for campaign money in huge amounts from large

contributors, whose power has produced a cynical elector

ate; the congressional recognition of the ensuing threat to

democratic integrity as reflected in a century of legislation

restricting the electoral leverage of concentrations of

money in corporate and union treasuries; and McConnell

v. Federal Election Comm’n, 540 U. S. 93 (2003), declaring

the facial validity of the most recent Act of Congress in

that tradition, a decision that is effectively, and unjusti

fiably, overruled today.1

I

The indispensable ingredient of a political candidacy is

——————

1 Substantially for the reasons stated by the Court, ante, at 7–10, I

believe these cases are justiciable.

2 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

LIFE, INC.

SOUTER, J., dissenting

money for advertising. In the 2004 campaign, more than

half of the combined expenditures by the two principal

presidential candidates (excluding fundraising) went for

media time and space. See The Costliest Campaign,

Washington Post, Dec. 30, 2004, p. A7.2 And in the 2005–

——————

2 Between candidates, political action committees, interest groups,

and national, state, and local parties, spending on the 2004 state and

federal elections exceeded $4 billion. K. Patterson, Spending in the

2004 Election, in Financing the 2004 Election 68, 71, tbl. 3–1 (D.

Magleby, A. Corrado, & K. Patterson eds. 2006). Congressional cam

paigns spent over $1 billion in 2004, id., at 75, tbl. 3–4, state legislative

candidates raised three-quarters of a billion dollars in the 2003–2004

election cycle, The Institute on Money in State Politics, State Elec-

tions Overview 2004, p. 2 (2005), available at http://www.followthe

money.org/press/Reports/200601041.pdf (all Internet materials as

visited June 20, 2007, and available in Clerk of Court’s case file), and

gubernatorial candidates raised over $200 million, id., at 6. State

judicial campaigns have become flush with cash as well, with state

supreme court candidates raising over $30 million in the 2005–2006

cycle. Sample et al., The New Politics of Judicial Elections 2006, p. 16

(2007), available at http://www.justiceatstake.org/files/NewPoliticsof

JudicialElections2006.pdf. In a single 2004 judicial election in Illinois,

the candidates raised a breathtaking $9.3 million, an amount the

winner called “ ‘obscene.’ ” The Justice-elect wondered, “ ‘How can

people have faith in the system?’ ” Moyer & Brandenburg, Big Money

and Special Interests are Warping Judicial Elections, Legal Times, Oct.

9, 2006, p. 50 (quoting Justice Lloyd Karmeier of the Illinois Supreme

Court). According to polling data, the fear that people will lose trust in

the system is well founded. With respect to judicial elections, a context

in which the influence of campaign contributions is most troubling, a

recent poll of business leaders revealed that about four in five thought

that campaign contributions have at least “some influence” on judges’

decisions, while 90 percent are at least “somewhat concerned” that

“[c]ampaign contributions and political pressure will make judges

accountable to politicians and special interest groups instead of the law

and the Constitution.” Zogby International, Attitudes and Views of

American Business Leaders on State Judicial Elections and Political

Contributions to Judges 4–5 (May 2007), available at http://www.

ced.org/docs/report/report_2007judicial_survey.pdf. People have similar

feelings about other elected officials. See M. Mellman & R. Wirthlin,

Public Views of Party Soft Money, in Inside the Campaign Finance

Cite as: 551 U. S. ____ (2007) 3

SOUTER, J., dissenting

2006 election cycle, the expenditure of more than $2 bil

lion on television shattered the previous record, even

without a presidential contest. See Inside Media, Me

diaWeek, Nov. 20, 2006, p. 18. The portent is for still

greater spending. By the end of March 2007, almost a

year before the first primary and more than 18 months

before the general election, presidential candidates had

already raised over $150 million. See Balz, Fundraising

Totals Challenge Early Campaign Assumptions, Washing

ton Post, Apr. 17, 2007, p. A1 (citing figures and noting

that “[t]he campaign is living up to its reputation as the

most expensive in U. S. history”). To reach this total, the

leading fundraisers collected over $250,000 per day in the

first quarter of 2007, Mullins, Clinton Leads the Money

Race, Wall Street Journal, Apr. 16, 2007, p. A8, and the

eventual nominees are expected to raise $500 million

apiece (about $680,000 per day over a 2-year election

cycle), Kirkpatrick and Pilhofer, McCain Lags in Income

But Excels in Spending, Report Shows, N. Y. Times, Apr.

15, 2007, p. 20.

The indispensability of these huge sums has two signifi

cant consequences for American Government that are

particularly on point here. The enormous demands, first,

assign power to deep pockets. See Balz, supra, at A6 (“For

all the interest in Internet fundraising, big donors still

ruled in the first quarter, with roughly 80 percent of dona

tions coming in amounts of $1,000 or more”). Candidates

occasionally boast about the number of contributors they

have, but the headlines speaking in dollars reflect political

reality. See, e.g., Mullins, supra, at A8 (headlined “Clin

ton Leads the Money Race”).

Some major contributors get satisfaction from pitching

in for their candidates, but political preference fails to

——————

Battle 266–269 (A. Corrado, T. Mann, & T. Potter eds. 2003) (hereinaf

ter Mellman & Wirthlin); see also infra, at 4–5.

4 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

LIFE, INC.

SOUTER, J., dissenting

account for the frequency of giving “substantial sums to

both major national parties,” McConnell, 540 U. S., at 148,

a practice driven “by stark political pragmatism, not by

ideological support for either party or their candidates,”

Brief for Committee for Economic Development et al. as

Amici Curiae in McConnell, O. T. 2003, No. 02–1674, p. 3

(hereinafter CED Brief). What the high-dollar pragma

tists of either variety get is special access to the officials

they help elect, and with it a disproportionate influence on

those in power. See McConnell, supra, at 130–131. As the

erstwhile officer of a large American corporation put it,

“ ‘[b]usiness leaders believe—based on experience and with

good reason—that . . . access gives them an opportunity to

shape and affect governmental decisions and that their

ability to do so derives from the fact that they have given

large sums of money to the parties.’ ” CED Brief 9. At a

critical level, contributions that underwrite elections are

leverage for enormous political influence.

Voters know this. Hence, the second important conse

quence of the demand for big money to finance publicity:

pervasive public cynicism. A 2002 poll found that 71

percent of Americans think Members of Congress cast

votes based on the views of their big contributors, even

when those views differ from the Member’s own beliefs

about what is best for the country. Mellman & Wirthlin

267; see also id., at 266 (“In public opinion research it is

uncommon to have 70 percent or more of the public see an

issue the same way. When they do, it indicates an unusu

ally strong agreement on that issue”). The same percent

age believes that the will of contributors tempts Members

to vote against the majority view of their constituents. Id.,

at 267. Almost half of Americans believe that Members

often decide how to vote based on what big contributors to

their party want, while only a quarter think Members

often base their votes on perceptions of what is best for the

country or their constituents. Ibid.

Cite as: 551 U. S. ____ (2007) 5

SOUTER, J., dissenting

Devoting concentrations of money in self-interested

hands to the support of political campaigning therefore

threatens the capacity of this democracy to represent its

constituents and the confidence of its citizens in their

capacity to govern themselves. These are the elements

summed up in the notion of political integrity, giving it a

value second to none in a free society.

II

If the threat to this value flowing from concentrations of

money in politics has reached an unprecedented enormity,

it has been gathering force for generations. Before the

turn of the last century, as now, it was obvious that the

purchase of influence and the cynicism of voters threaten

the integrity and stability of democratic government, each

derived from the responsiveness of its law to the interests

of citizens and their confidence in that focus. The danger

has traditionally seemed at its apex when no reasonable

limits constrain the campaign activities of organizations

whose “unique legal and economic characteristics” are

tailored to “facilitat[e] the amassing of large treasuries,”

Austin v. Michigan Chamber of Commerce, 494 U. S. 652,

658, 660 (1990). Corporations were the earliest subjects of

concern; the same characteristics that have made them

engines of the Nation’s extraordinary prosperity have

given them the financial muscle to gain “advantage in the

political marketplace” when they turn from core corporate

activity to electioneering, Federal Election Comm’n v.

Massachusetts Citizens for Life, Inc., 479 U. S. 238, 258

(1986) (MCFL), and in “Congress’ judgment” the same

concern extends to labor unions as to corporations, Federal

Election Comm’n v. National Right to Work Comm., 459

U. S. 197, 210 (1982); see also Austin, supra, at 661.

A

In the wake of the industrial expansion after the Civil

War there developed a momentum for civic reform that led

6 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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SOUTER, J., dissenting

to the enactment of the Pendleton Civil Service Act of

1883, ch. 27, 22 Stat. 403, which stopped political parties

from raising money through compulsory assessments on

federal employees. Not unnaturally, corporations filled

the vacuum, see R. Mutch, Campaigns, Congress, and

Courts xvi–xvii (1988) (hereinafter Mutch), and in due

course demonstrated what concentrated capital could do.

The resulting political leverage disturbed “the confidence

of the plain people of small means in our political institu

tions,” E. Root, The Political Use of Money (delivered Sept.

3, 1894), in Addresses on Government and Citizenship

141, 143–144 (R. Bacon & J. Scott eds. 1916) (cited in

United States v. Automobile Workers, 352 U. S. 567, 571

(1957)), and the 1904 Presidential campaign eventually

“crystallized popular sentiment” on the subject of money

and politics, id., at 572. In his next message to Congress,

President Theodore Roosevelt invoked the power “to pro

tect the integrity of the elections of its own officials [as]

inherent” in government, and called for “vigorous meas

ures to eradicate” perceived political corruption, for he

found “no enemy of free government more dangerous and

none so insidious.”3 39 Cong. Rec. 17 (1904).

The following year, the President urged that “[a]ll con

tributions by corporations to any political committee or for

any political purpose should be forbidden by law.” 40

Cong. Rec. 96 (1905). His call was seconded by the Senate

sponsor of the eventual legislation, whose “sad thought

[was] that the Senate is discredited by the people of the

United States as being a body more or less corruptible or

——————

3 Perhaps the President’s call was inspired by the accusations from

his own 1904 Democratic opponent, Judge Alton B. Parker, that the

Republican camp accepted corporate campaign contributions intended

to buy influence. See A. Corrado, Money and Politics: A History of

Federal Campaign Finance Law, in A. Corrado, T. Mann, D. Ortiz, & T.

Potter, The New Campaign Finance Sourcebook 7, 10–11 (2005) (here

inafter Campaign Finance Sourcebook).

Cite as: 551 U. S. ____ (2007) 7

SOUTER, J., dissenting

corrupted.” Id., at 229. The President persisted in his

1906 message to Congress with another call for “a law

prohibiting all corporations from contributing to the cam

paign expenses of any party,” 41 Cong. Rec. 22, and the

next year Congress passed the Tillman Act of 1907:

“it shall be unlawful for any national bank, or any

corporation organized by authority of any laws of

Congress, to make a money contribution in connection

with any election to any political office. It shall also

be unlawful for any corporation whatever to make a

money contribution in connection with any election at

which Presidential and Vice-Presidential electors or a

Representative in Congress is to be voted for or any

election by any State legislature of a United States

Senator.” 34 Stat. 864–865.4

The aim was “not merely to prevent the subversion of the

integrity of the electoral process,” but “to sustain the

active, alert responsibility of the individual citizen in a

democracy for the wise conduct of government.” Automo

bile Workers, supra, at 575.

B

Thirty years later, new questions about the electoral

influence of accumulated wealth surfaced as organized

labor expanded during the New Deal. In the 1936 elec

tion, labor unions contributed “unprecedented” sums,

S. Rep. No. 151, 75th Cong., 1st Sess., 127 (1937), the

greater part of them by the United Mine Workers, see

Campaign Finance Sourcebook 17. And in due course

——————

4 A bill along similar lines had been unsuccessfully introduced years

earlier by Senator William Chandler, a New Hampshire Republican

whom the railroad interests helped defeat in 1900. See Mutch 4–6

(discussing the unlikely alliance between Chandler, a radical Republi

can, and Senator Benjamin Tillman, a South Carolina Democrat who

ultimately succeeded in enacting the law that carries his name).

8 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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SOUTER, J., dissenting

reaction began to build: “[w]artime strikes gave rise to

fears of the new concentration of power represented by the

gains of trade unionism. And so the belief grew that, just

as the great corporations had made huge political contri

butions to influence governmental action . . . , the powerful

unions were pursuing a similar course, and with the same

untoward consequences for the democratic process.”

Automobile Workers, supra, at 578. Congress responded

with the War Labor Disputes Act of 1943, which extended

the ban on corporate donations to labor organizations, ch.

144, §9, 57 Stat. 167–168, an extension that was made

permanent in the Labor Management Relations Act, 1947,

better known as Taft-Hartley, §304, 61 Stat. 159–160.

C

At the same time, Congress had another worry that

foreshadows our case today. It was concerned that the

statutory prohibition on corporate “contribution[s]” was

being so narrowly construed as to open a “loophole

whereby corporations, national banks, and labor organiza

tions are enabled to avoid the obviously intended restric

tive policy of the statute by garbing their financial assis

tance in the form of an ‘expenditure’ rather than a

contribution.” S. Rep. No. 1, 80th Cong., 1st Sess., 38–39

(1947); see also H. Rep. No. 2739, 79th Cong., 2d Sess., 40

(1947) (“The intent and purpose of the provision of the act

prohibiting any corporation or labor organization making

any contribution in connection with any election would be

wholly defeated if it were assumed that the term ‘making

any contribution’ related only to the donating of money

directly to a candidate, and excluded the vast expendi

tures of money in the activities herein shown to be en

gaged in extensively. Of what avail would a law be to

prohibit the contributing direct to a candidate and yet

permit the expenditure of large sums in his behalf?”).

Taft-Hartley therefore extended the prohibition to any

Cite as: 551 U. S. ____ (2007) 9

SOUTER, J., dissenting

“contribution or expenditure” by a corporation or a union

“in connection with” a federal election. §304, 61 Stat.

159.5

D

The new law left open, however, the right of a union to

spend money on electioneering from a segregated fund

raised specifically for that purpose from members, but not

drawn from the general treasury. Segregated funding

entities, the now-familiar political action committees or

PACs, had been established prior to Taft-Hartley, and we

concluded in Pipefitters v. United States, 407 U. S. 385,

409 (1972), that Taft-Hartley did not prohibit “union

contributions and expenditures from political funds

financed in some sense by the voluntary donations of

employees.”

This balance of authorized and restricted financing

methods for corporate and union electioneering was made

explicit in the Federal Election Campaign Act of 1971

(FECA). See 86 Stat. 10 (“[T]he phrase ‘contribution or

expenditure’ . . . shall not include . . . the establishment,

administration, and solicitation of contributions to a sepa

rate segregated fund to be utilized for political purposes by

a corporation or labor organization”). “[T]he underlying

theory [of the statute was] that substantial general pur

pose treasuries should not be diverted to political pur

poses, both because of the effect on the political process of

such aggregated wealth and out of concern for the dissent

ing member or stockholder.” 117 Cong. Rec. 43381 (1971)

(statement of Rep. Hansen). But the PAC exception main

——————

5 Taft-Hartley also specified that the prohibition extends to primary

elections, 61 Stat. 159, an extension that had been thought likely to

exceed the authority of Congress under Art. I, §4 of the Constitution

until our decision in United States v. Classic, 313 U. S. 299, 317 (1941).

See H. Rep. No. 2093, 78th Cong., 2d Sess., 8–9 (1945) (discussing the

significance of Classic).

10 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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SOUTER, J., dissenting

tained “ ‘the proper balance in regulating corporate and

union political activity required by sound policy and the

Constitution.’ ” Pipefitters, supra, at 431 (quoting 117

Cong. Rec. 43381 (statement of Rep. Hansen)).6

E

In 1986, in MCFL, we reexamined the longstanding ban

on spending corporate and union treasury funds “in con

nection with” federal elections, 2 U. S. C. §441b, and drew

two conclusions implicated in the present case. First, we

construed the “in connection with” phrase in much the

same way we had interpreted comparable FECA language

challenged in Buckley v. Valeo, 424 U. S. 1 (1976) (per

curiam). We held that to avoid vagueness, the product of

prohibited corporate and union expenditures “must consti

tute ‘express advocacy’ in order to be subject to the prohi

bition.” MCFL, 479 U. S., at 249.

We thus held that the prohibition applied “only to ex

penditures for communications that in express terms

advocate the election or defeat of a clearly identified can

didate for federal office.” Buckley, 424 U. S., at 44. “[E]x

press terms,” in turn, meant what had already become

known as “magic words,” such as “ ‘vote for,’ ‘elect,’ ‘sup

port,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote

——————

6 FECA also validated corporate and union spending on internal

communications and nonpartisan activities designed to promote voting.

See 86 Stat. 10 (“[T]he phrase ‘contribution or expenditure’ . . . shall not

include communications by a corporation to its stockholders and their

families, or by a labor organization to its members and their families on

any subject [or] nonpartisan registration and get-out-the-vote cam

paigns by a corporation aimed at its stockholders and their families or

by a labor organization aimed at its members and their families”). “ ‘If

an organization . . . believes that certain candidates pose a threat to its

well-being or the well-being of its members or stockholders, it should be

able to get its views to those members or stockholders. . . . Both union

members and stockholders have the right to expect this expert guid

ance.’ ” Pipefitters, 407 U. S., at 431, n. 42 (quoting 117 Cong. Rec.

43380 (statement of Rep. Hansen)).

Cite as: 551 U. S. ____ (2007) 11

SOUTER, J., dissenting

against,’ ‘defeat,’ ‘reject.’ ” Ibid., n. 52. The consequence of

this construction was obvious: it pulled the teeth out of the

statute, as we had understood when we announced it in its

earlier application in Buckley:

“The exacting interpretation of the statutory language

necessary to avoid unconstitutional vagueness . . . un

dermines the limitation’s effectiveness as a loophole-

closing provision by facilitating circumvention by

those seeking to exert improper influence upon a can

didate or officeholder. It would naively underestimate

the ingenuity and resourcefulness of persons and

groups desiring to buy influence to believe that they

would have much difficulty devising expenditures that

skirted the restriction on express advocacy of election

or defeat but nevertheless benefited the candidate’s

campaign.” Id., at 45.

Nor was the statute, even as thus narrowed, enforceable

against the particular advocacy corporation challenging

the limit in MCFL. This was the second holding of MCFL

relevant here; we explained that the congressional effort

to limit the political influence of corporate money “has

reflected concern not about use of the corporate form per

se, but about the potential for unfair deployment of wealth

for political purposes,” 479 U. S., at 259. We held that this

“legitima[te]” concern could not reasonably extend to

electioneering expenditures by the corporation at issue in

MCFL, which neither “engage[d] in business activities”

nor accepted donations from business corporations and

unions (and thus could not serve as a “condui[t]” for politi

cal spending by those entities). Id., at 263–264.7

——————

7 Compare Austin v. Michigan Chamber of Commerce, 494 U. S. 652,

664 (1990) (First Amendment does not protect a nonprofit corporation

from expenditure limits if the corporation accepts corporate and union

contributions, lest corporations and unions readily “circumvent” restric

tions on their own election spending “by funneling money through”

12 FEDERAL ELECTION COMM’N v. WISCONSIN RIGHT TO

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SOUTER, J., dissenting

F

As was expectable, narrowing the corporate-union elec

tioneering limitation to magic words soon reduced it to

futility. “[P]olitical money . . . is a moving target,” Issa

charoff & Karlan, The Hydraulics of Campaign Finance

Reform, 77 Tex. L. Rev. 1705, 1707 (1999), and the “inge

nuity and resourcefulness” of political financiers revealed

the massive regulatory gap left by the “magic words” test,

——————

nonprofits). JUSTICE SCALIA asserts that Austin “strayed far from” the

principles we announced in First Nat. Bank of Boston v. Bellotti, 435

U. S. 765 (1978). Ante, at 7 (opinion concurring in part and concurring

in judgment). Bellotti, however, concerned corporate spending in

connection with a referendum, and we went out of our way in that case

to avoid casting any doubt upon the constitutionality of limiting corpo

rate expenditures during candidate elections. We said:

“The overriding concern behind the enactment of [the federal restric

tions on corporate contributions and expenditures] was the problem of

corruption of elected representatives through the creation of political

debts. The importance of the governmental interest in preventing this

occurrence has never been doubted. The case before us presents no

comparable problem, and our consideration of a corporation’s right to

speak on issues of general public interest implies no comparable right

in the quite different context of participation in a political campaign for

election to public office. Congress might well be able to demonstrate

the existence of a danger of real or apparent corruption in independent

expenditures by corporations to influence candidate elections.” 435

U. S., at 788, n. 26 (citations omitted).

Eight years before Austin, we unanimously reaffirmed that Bellotti

“specifically pointed out that in elections of candidates to public office,

unlike in referenda on issues of general public interest, there may well

be a threat of real or apparent corruption.” Federal Election Comm’n v.

National Right to Work Comm., 459 U. S. 197, 210, n. 7 (1982). Then,

four years later, in MCFL, we also noted that an expenditure limit

offering corporations a PAC alternative is “distinguishable from the

complete foreclosure of any opportunity for political speech” that we

addressed in Bellotti. 479 U. S., at 259, n. 12. So Austin did not

“stra[y]” from Bellotti, ante, at 7 (opinion of SCALIA, J.); the reasons

Bellotti was not controlling in Austin had been clearly foreshadowed in

Bellotti itself and confirmed repeatedly in our decisions leading up to

Austin.

Cite as: 551 U. S. ____ (2007) 13

SOUTER, J., dissenting

Buckley, 424 U. S., at 45. It proved to be the door through

which so-called “issue ads” of current practice entered

American politics.

An issue ad is an advertisement on a political subject

urging the reader or listener to let a politician know what

he thinks, but containing no magic words telling the re

cipient to vote for or against anyone. By the 1996 election

cycle, between $135 and $150 million was being devoted to

these ads, see McConnell, 540 U. S., at 127, n. 20, and

because they had no magic words, they failed to trigger

the limitation on union or corporate expenditures for

electioneering. Experience showed, however, just what we

foresaw in Buckley, that the line between “issue” broad

casts and outright electioneering was a patent fiction, as

in the example of a television “issue ad” that ran during a

Montana congressional race between Republican Rick Hill

and Democrat Bill Yellowtail in 1996:

“ ‘ “Who is Bill Yellowtail? He preaches family values

but took a swing at his wife. And Yellowtail’s re

sponse? He only slapped her. But ‘her nose was not

broken.’ He talks law and order . . . but is himself a

convicted felon. And though he talks about protecting

children, Yellowtail failed to make his own child sup

port payments—then voted against child support en

forcement. Call Bill Yellowtail. Tell him to support

family values.” ’ ” McConnell, supra, at 193–194,

n. 78.8

——————

8 Or this example from a Texas district where Democrat Nick

Lampson challenged incumbent Republican Steve Stockman, and

where the AFL–CIO ran the following advertisement in September and

October of 1996:

“ ‘[Narrator] What’s important to America’s families? [Middle-aged

man] “My pension is very important because it will provide a signifi

cant amount of my income when I re

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