Citizens United v. Federal Election Commission

(Slip Opinion) OCTOBER TERM, 2009 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

CITIZENS UNITED v. FEDERAL ELECTION

COMMISSION

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––

Decided January 21, 2010

As amended by §203 of the Bipartisan Campaign Reform Act of 2002

(BCRA), federal law prohibits corporations and unions from using

their general treasury funds to make independent expenditures for

speech that is an “electioneering communication” or for speech that

expressly advocates the election or defeat of a candidate. 2 U. S. C.

§441b. An electioneering communication is “any broadcast, cable, or

satellite communication” that “refers to a clearly identified candidate

for Federal office” and is made within 30 days of a primary election,

§434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2),

which in “the case of a candidate for nomination for President . . .

means” that the communication “[c]an be received by 50,000 or more

persons in a State where a primary election . . . is being held within

30 days,” §100.29(b)(3)(ii). Corporations and unions may establish a

political action committee (PAC) for express advocacy or electioneer

ing communications purposes. 2 U. S. C. §441b(b)(2). In McConnell

v. Federal Election Comm’n, 540 U. S. 93, 203–209, this Court upheld

limits on electioneering communications in a facial challenge, relying

on the holding in Austin v. Michigan Chamber of Commerce, 494

U. S. 652, that political speech may be banned based on the speaker’s

corporate identity.

In January 2008, appellant Citizens United, a nonprofit corpora

tion, released a documentary (hereinafter Hillary) critical of then-

Senator Hillary Clinton, a candidate for her party’s Presidential

nomination. Anticipating that it would make Hillary available on

cable television through video-on-demand within 30 days of primary

elections, Citizens United produced television ads to run on broadcast

2 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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and cable television. Concerned about possible civil and criminal

penalties for violating §441b, it sought declaratory and injunctive re

lief, arguing that (1) §441b is unconstitutional as applied to Hillary;

and (2) BCRA’s disclaimer, disclosure, and reporting requirements,

BCRA §§201 and 311, were unconstitutional as applied to Hillary

and the ads. The District Court denied Citizens United a prelimi

nary injunction and granted appellee Federal Election Commission

(FEC) summary judgment.

Held:

1. Because the question whether §441b applies to Hillary cannot be

resolved on other, narrower grounds without chilling political speech,

this Court must consider the continuing effect of the speech suppres

sion upheld in Austin. Pp. 5–20.

(a) Citizen United’s narrower arguments—that Hillary is not an

“electioneering communication” covered by §441b because it is not

“publicly distributed” under 11 CFR §100.29(a)(2); that §441b may

not be applied to Hillary under Federal Election Comm’n v. Wisconsin

Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b uncon

stitutional as applied to speech that was not “express advocacy or its

functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), deter

mining that a communication “is the functional equivalent of express

advocacy only if [it] is susceptible of no reasonable interpretation

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

id., at 469–470; that §441b should be invalidated as applied to movies

shown through video-on-demand because this delivery system has a

lower risk of distorting the political process than do television ads;

and that there should be an exception to §441b’s ban for nonprofit

corporate political speech funded overwhelming by individuals—are

not sustainable under a fair reading of the statute. Pp. 5–12.

(b) Thus, this case cannot be resolved on a narrower ground

without chilling political speech, speech that is central to the First

Amendment’s meaning and purpose. Citizens United did not waive

this challenge to Austin when it stipulated to dismissing the facial

challenge below, since (1) even if such a challenge could be waived,

this Court may reconsider Austin and §441b’s facial validity here be

cause the District Court “passed upon” the issue, Lebron v. National

Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughout

the litigation, Citizens United has asserted a claim that the FEC has

violated its right to free speech; and (3) the parties cannot enter into

a stipulation that prevents the Court from considering remedies nec

essary to resolve a claim that has been preserved. Because Citizen

United’s narrower arguments are not sustainable, this Court must, in

an exercise of its judicial responsibility, consider §441b’s facial valid

ity. Any other course would prolong the substantial, nationwide

Cite as: 558 U. S. ____ (2010) 3

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chilling effect caused by §441b’s corporate expenditure ban. This

conclusion is further supported by the following: (1) the uncertainty

caused by the Government’s litigating position; (2) substantial time

would be required to clarify §441b’s application on the points raised

by the Government’s position in order to avoid any chilling effect

caused by an improper interpretation; and (3) because speech itself is

of primary importance to the integrity of the election process, any

speech arguably within the reach of rules created for regulating po

litical speech is chilled. The regulatory scheme at issue may not be a

prior restraint in the strict sense. However, given its complexity and

the deference courts show to administrative determinations, a

speaker wishing to avoid criminal liability threats and the heavy

costs of defending against FEC enforcement must ask a governmen

tal agency for prior permission to speak. The restrictions thus func

tion as the equivalent of a prior restraint, giving the FEC power

analogous to the type of government practices that the First Amend

ment was drawn to prohibit. The ongoing chill on speech makes it

necessary to invoke the earlier precedents that a statute that chills

speech can and must be invalidated where its facial invalidity has

been demonstrated. Pp. 12–20.

2. Austin is overruled, and thus provides no basis for allowing the

Government to limit corporate independent expenditures. Hence,

§441b’s restrictions on such expenditures are invalid and cannot be

applied to Hillary. Given this conclusion, the part of McConnell that

upheld BCRA §203’s extension of §441b’s restrictions on independent

corporate expenditures is also overruled. Pp. 20–51.

(a) Although the First Amendment provides that “Congress shall

make no law . . . abridging the freedom of speech,” §441b’s prohibition

on corporate independent expenditures is an outright ban on speech,

backed by criminal sanctions. It is a ban notwithstanding the fact

that a PAC created by a corporation can still speak, for a PAC is a

separate association from the corporation. Because speech is an es

sential mechanism of democracy—it is the means to hold officials ac

countable to the people—political speech must prevail against laws

that would suppress it by design or inadvertence. Laws burdening

such speech are subject to strict scrutiny, which requires the Gov

ernment to prove that the restriction “furthers a compelling interest

and is narrowly tailored to achieve that interest.” WRTL, 551 U. S.,

at 464. This language provides a sufficient framework for protecting

the interests in this case. Premised on mistrust of governmental

power, the First Amendment stands against attempts to disfavor cer

tain subjects or viewpoints or to distinguish among different speak

ers, which may be a means to control content. The Government may

also commit a constitutional wrong when by law it identifies certain

4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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preferred speakers. There is no basis for the proposition that, in the

political speech context, the Government may impose restrictions on

certain disfavored speakers. Both history and logic lead to this con

clusion. Pp. 20–25.

(b) The Court has recognized that the First Amendment applies

to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S.

765, 778, n. 14, and extended this protection to the context of political

speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429. Address

ing challenges to the Federal Election Campaign Act of 1971, the

Buckley Court upheld limits on direct contributions to candidates, 18

U. S. C. §608(b), recognizing a governmental interest in preventing

quid pro quo corruption. 424 U. S., at 25–26. However, the Court in

validated §608(e)’s expenditure ban, which applied to individuals,

corporations, and unions, because it “fail[ed] to serve any substantial

governmental interest in stemming the reality or appearance of cor

ruption in the electoral process,” id., at 47–48. While Buckley did not

consider a separate ban on corporate and union independent expendi

tures found in §610, had that provision been challenged in Buckley’s

wake, it could not have been squared with the precedent’s reasoning

and analysis. The Buckley Court did not invoke the overbreadth doc

trine to suggest that §608(e)’s expenditure ban would have been con

stitutional had it applied to corporations and unions but not indi

viduals. Notwithstanding this precedent, Congress soon recodified

§610’s corporate and union expenditure ban at 2 U. S. C. §441b, the

provision at issue. Less than two years after Buckley, Bellotti reaf

firmed the First Amendment principle that the Government lacks the

power to restrict political speech based on the speaker’s corporate

identity. 435 U.S., at 784–785. Thus the law stood until Austin up

held a corporate independent expenditure restriction, bypassing

Buckley and Bellotti by recognizing a new governmental interest in

preventing “the corrosive and distorting effects of immense aggrega

tions of [corporate] wealth . . . that have little or no correlation to the

public’s support for the corporation’s political ideas.” 494 U. S., at

660. Pp. 25–32.

(c) This Court is confronted with conflicting lines of precedent: a

pre-Austin line forbidding speech restrictions based on the speaker’s

corporate identity and a post-Austin line permitting them. Neither

Austin’s antidistortion rationale nor the Government’s other justifica

tions support §441b’s restrictions. Pp. 32–47.

(1) The First Amendment prohibits Congress from fining or

jailing citizens, or associations of citizens, for engaging in political

speech, but Austin’s antidistortion rationale would permit the Gov

ernment to ban political speech because the speaker is an association

with a corporate form. Political speech is “indispensable to decision

Cite as: 558 U. S. ____ (2010) 5

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making in a democracy, and this is no less true because the speech

comes from a corporation.” Bellotti, supra, at 777 (footnote omitted).

This protection is inconsistent with Austin’s rationale, which is

meant to prevent corporations from obtaining “ ‘an unfair advantage

in the political marketplace’ ” by using “ ‘resources amassed in the

economic marketplace.’ ” 494 U. S., at 659. First Amendment protec

tions do not depend on the speaker’s “financial ability to engage in

public discussion.” Buckley, supra, at 49. These conclusions were re

affirmed when the Court invalidated a BCRA provision that in

creased the cap on contributions to one candidate if the opponent

made certain expenditures from personal funds. Davis v. Federal

Election Comm’n, 554 U. S. ___, ___. Distinguishing wealthy indi

viduals from corporations based on the latter’s special advantages of,

e.g., limited liability, does not suffice to allow laws prohibiting

speech. It is irrelevant for First Amendment purposes that corporate

funds may “have little or no correlation to the public’s support for the

corporation’s political ideas.” Austin, supra, at 660. All speakers, in

cluding individuals and the media, use money amassed from the eco

nomic marketplace to fund their speech, and the First Amendment

protects the resulting speech. Under the antidistortion rationale,

Congress could also ban political speech of media corporations. Al

though currently exempt from §441b, they accumulate wealth with

the help of their corporate form, may have aggregations of wealth,

and may express views “hav[ing] little or no correlation to the public’s

support” for those views. Differential treatment of media corpora

tions and other corporations cannot be squared with the First

Amendment, and there is no support for the view that the Amend

ment’s original meaning would permit suppressing media corpora

tions’ political speech. Austin interferes with the “open marketplace”

of ideas protected by the First Amendment. New York State Bd. of

Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast in

its reach, suppressing the speech of both for-profit and nonprofit,

both small and large, corporations. Pp. 32–40.

(2) This reasoning also shows the invalidity of the Govern

ment’s other arguments. It reasons that corporate political speech

can be banned to prevent corruption or its appearance. The Buckley

Court found this rationale “sufficiently important” to allow contribu

tion limits but refused to extend that reasoning to expenditure limits,

424 U.S., at 25, and the Court does not do so here. While a single

Bellotti footnote purported to leave the question open, 435 U. S., at

788, n. 26, this Court now concludes that independent expenditures,

including those made by corporations, do not give rise to corruption

or the appearance of corruption. That speakers may have influence

over or access to elected officials does not mean that those officials

6 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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are corrupt. And the appearance of influence or access will not cause

the electorate to lose faith in this democracy. Caperton v. A. T.

Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40–45.

(3) The Government’s asserted interest in protecting share

holders from being compelled to fund corporate speech, like the anti

distortion rationale, would allow the Government to ban political

speech even of media corporations. The statute is underinclusive; it

only protects a dissenting shareholder’s interests in certain media for

30 or 60 days before an election when such interests would be impli

cated in any media at any time. It is also overinclusive because it

covers all corporations, including those with one shareholder. P. 46.

(4) Because §441b is not limited to corporations or associa

tions created in foreign countries or funded predominately by foreign

shareholders, it would be overbroad even if the Court were to recog

nize a compelling governmental interest in limiting foreign influence

over the Nation’s political process. Pp. 46–47.

(d) The relevant factors in deciding whether to adhere to stare

decisis, beyond workability—the precedent’s antiquity, the reliance

interests at stake, and whether the decision was well reasoned—

counsel in favor of abandoning Austin, which itself contravened the

precedents of Buckley and Bellotti. As already explained, Austin was

not well reasoned. It is also undermined by experience since its an

nouncement. Political speech is so ingrained in this country’s culture

that speakers find ways around campaign finance laws. Rapid

changes in technology—and the creative dynamic inherent in the

concept of free expression—counsel against upholding a law that re

stricts political speech in certain media or by certain speakers. In

addition, no serious reliance issues are at stake. Thus, due consid

eration leads to the conclusion that Austin should be overruled. The

Court returns to the principle established in Buckley and Bellotti that

the Government may not suppress political speech based on the

speaker’s corporate identity. No sufficient governmental interest jus

tifies limits on the political speech of nonprofit or for-profit corpora

tions. Pp. 47–50.

3. BCRA §§201 and 311 are valid as applied to the ads for Hillary

and to the movie itself. Pp. 50–57.

(a) Disclaimer and disclosure requirements may burden the abil

ity to speak, but they “impose no ceiling on campaign-related activi

ties,” Buckley, 424 U. S., at 64, or “ ‘ “prevent anyone from speak

ing,” ’ ” McConnell, supra, at 201. The Buckley Court explained that

disclosure can be justified by a governmental interest in providing

“the electorate with information” about election-related spending

sources. The McConnell Court applied this interest in rejecting facial

challenges to §§201 and 311. 540 U. S., at 196. However, the Court

Cite as: 558 U. S. ____ (2010) 7

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acknowledged that as-applied challenges would be available if a

group could show a “ ‘reasonable probability’ ” that disclosing its con

tributors’ names would “ ‘subject them to threats, harassment, or re

prisals from either Government officials or private parties.’ ” Id., at

198. Pp. 50–52.

(b) The disclaimer and disclosure requirements are valid as ap

plied to Citizens United’s ads. They fall within BCRA’s “electioneer

ing communication” definition: They referred to then-Senator Clinton

by name shortly before a primary and contained pejorative references

to her candidacy. Section 311 disclaimers provide information to the

electorate, McConnell, supra, at 196, and “insure that the voters are

fully informed” about who is speaking, Buckley, supra, at 76. At the

very least, they avoid confusion by making clear that the ads are not

funded by a candidate or political party. Citizens United’s arguments

that §311 is underinclusive because it requires disclaimers for broad

cast advertisements but not for print or Internet advertising and that

§311 decreases the quantity and effectiveness of the group’s speech

were rejected in McConnell. This Court also rejects their contention

that §201’s disclosure requirements must be confined to speech that

is the functional equivalent of express advocacy under WRTL’s test

for restrictions on independent expenditures, 551 U. S., at 469–476

(opinion of ROBERTS, C.J.). Disclosure is the less-restrictive alterna

tive to more comprehensive speech regulations. Such requirements

have been upheld in Buckley and McConnell. Citizens United’s ar

gument that no informational interest justifies applying §201 to its

ads is similar to the argument this Court rejected with regard to dis

claimers. Citizens United finally claims that disclosure requirements

can chill donations by exposing donors to retaliation, but offers no

evidence that its members face the type of threats, harassment, or

reprisals that might make §201 unconstitutional as applied. Pp. 52–

55.

(c) For these same reasons, this Court affirms the application of

the §§201 and 311 disclaimer and disclosure requirements to Hillary.

Pp. 55–56.

Reversed in part, affirmed in part, and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as

to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-

TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring

opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opin

ion, in which ALITO, J., joined, and in which THOMAS, J., joined in part.

STEVENS, J., filed an opinion concurring in part and dissenting in part,

in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J.,

filed an opinion concurring in part and dissenting in part.

Cite as: 558 U. S. ____ (2010) 1

Opinion of 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

_________________

No. 08–205

_________________

CITIZENS UNITED, APPELLANT v. FEDERAL

ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[January 21, 2010]

JUSTICE KENNEDY delivered the opinion of the Court.

Federal law prohibits corporations and unions from

using their general treasury funds to make independent

expenditures for speech defined as an “electioneering

communication” or for speech expressly advocating the

election or defeat of a candidate. 2 U. S. C. §441b. Limits

on electioneering communications were upheld in McCon

nell v. Federal Election Comm’n, 540 U. S. 93, 203–209

(2003). The holding of McConnell rested to a large extent

on an earlier case, Austin v. Michigan Chamber of Com

merce, 494 U. S. 652 (1990). Austin had held that political

speech may be banned based on the speaker’s corporate

identity.

In this case we are asked to reconsider Austin and, in

effect, McConnell. It has been noted that “Austin was a

significant departure from ancient First Amendment

principles,” Federal Election Comm’n v. Wisconsin Right to

Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (SCALIA, J.,

concurring in part and concurring in judgment). We agree

with that conclusion and hold that stare decisis does not

compel the continued acceptance of Austin. The Govern

2 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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ment may regulate corporate political speech through

disclaimer and disclosure requirements, but it may not

suppress that speech altogether. We turn to the case now

before us.

I

A

Citizens United is a nonprofit corporation. It brought

this action in the United States District Court for the

District of Columbia. A three-judge court later convened

to hear the cause. The resulting judgment gives rise to

this appeal.

Citizens United has an annual budget of about $12

million. Most of its funds are from donations by individu

als; but, in addition, it accepts a small portion of its funds

from for-profit corporations.

In January 2008, Citizens United released a film enti

tled Hillary: The Movie. We refer to the film as Hillary. It

is a 90-minute documentary about then-Senator Hillary

Clinton, who was a candidate in the Democratic Party’s

2008 Presidential primary elections. Hillary mentions

Senator Clinton by name and depicts interviews with

political commentators and other persons, most of them

quite critical of Senator Clinton. Hillary was released in

theaters and on DVD, but Citizens United wanted to

increase distribution by making it available through video

on-demand.

Video-on-demand allows digital cable subscribers to

select programming from various menus, including mov

ies, television shows, sports, news, and music. The viewer

can watch the program at any time and can elect to re

wind or pause the program. In December 2007, a cable

company offered, for a payment of $1.2 million, to make

Hillary available on a video-on-demand channel called

“Elections ’08.” App. 255a–257a. Some video-on-demand

services require viewers to pay a small fee to view a se

Cite as: 558 U. S. ____ (2010) 3

Opinion of the Court

lected program, but here the proposal was to make Hillary

available to viewers free of charge.

To implement the proposal, Citizens United was pre

pared to pay for the video-on-demand; and to promote the

film, it produced two 10-second ads and one 30-second ad

for Hillary. Each ad includes a short (and, in our view,

pejorative) statement about Senator Clinton, followed by

the name of the movie and the movie’s Website address.

Id., at 26a–27a. Citizens United desired to promote the

video-on-demand offering by running advertisements on

broadcast and cable television.

B

Before the Bipartisan Campaign Reform Act of 2002

(BCRA), federal law prohibited—and still does prohibit—

corporations and unions from using general treasury

funds to make direct contributions to candidates or inde

pendent expenditures that expressly advocate the election

or defeat of a candidate, through any form of media, in

connection with certain qualified federal elections. 2

U. S. C. §441b (2000 ed.); see McConnell, supra, at 204,

and n. 87; Federal Election Comm’n v. Massachusetts

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

BCRA §203 amended §441b to prohibit any “electioneering

communication” as well. 2 U. S. C. §441b(b)(2) (2006 ed.).

An electioneering communication is defined as “any broad

cast, cable, or satellite communication” that “refers to a

clearly identified candidate for Federal office” and is made

within 30 days of a primary or 60 days of a general elec

tion. §434(f)(3)(A). The Federal Election Commission’s

(FEC) regulations further define an electioneering com

munication as a communication that is “publicly distrib

uted.” 11 CFR §100.29(a)(2) (2009). “In the case of a

candidate for nomination for President . . . publicly dis

tributed means” that the communication “[c]an be received

by 50,000 or more persons in a State where a primary

4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

election . . . is being held within 30 days.”

§100.29(b)(3)(ii). Corporations and unions are barred from

using their general treasury funds for express advocacy or

electioneering communications. They may establish,

however, a “separate segregated fund” (known as a politi

cal action committee, or PAC) for these purposes. 2

U. S. C. §441b(b)(2). The moneys received by the segre

gated fund are limited to donations from stockholders and

employees of the corporation or, in the case of unions,

members of the union. Ibid.

C

Citizens United wanted to make Hillary available

through video-on-demand within 30 days of the 2008

primary elections. It feared, however, that both the film

and the ads would be covered by §441b’s ban on corporate

funded independent expenditures, thus subjecting the

corporation to civil and criminal penalties under §437g. In

December 2007, Citizens United sought declaratory and

injunctive relief against the FEC. It argued that (1) §441b

is unconstitutional as applied to Hillary; and (2) BCRA’s

disclaimer and disclosure requirements, BCRA §§201 and

311, are unconstitutional as applied to Hillary and to the

three ads for the movie.

The District Court denied Citizens United’s motion for a

preliminary injunction, 530 F. Supp. 2d 274 (DC 2008)

(per curiam), and then granted the FEC’s motion for

summary judgment, App. 261a–262a. See id., at 261a

(“Based on the reasoning of our prior opinion, we find that

the [FEC] is entitled to judgment as a matter of law. See

Citizen[s] United v. FEC, 530 F. Supp. 2d 274 (D.D.C.

2008) (denying Citizens United’s request for a preliminary

injunction)”). The court held that §441b was facially

constitutional under McConnell, and that §441b was

constitutional as applied to Hillary because it was “sus

ceptible of no other interpretation than to inform the

Cite as: 558 U. S. ____ (2010) 5

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electorate that Senator Clinton is unfit for office, that the

United States would be a dangerous place in a President

Hillary Clinton world, and that viewers should vote

against her.” 530 F. Supp. 2d, at 279. The court also

rejected Citizens United’s challenge to BCRA’s disclaimer

and disclosure requirements. It noted that “the Supreme

Court has written approvingly of disclosure provisions

triggered by political speech even though the speech itself

was constitutionally protected under the First Amend

ment.” Id., at 281.

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

The case was reargued in this Court after the Court asked

the parties to file supplemental briefs addressing whether

we should overrule either or both Austin and the part of

McConnell which addresses the facial validity of 2 U. S. C.

§441b. See 557 U. S. ___ (2009).

II

Before considering whether Austin should be overruled,

we first address whether Citizens United’s claim that

§441b cannot be applied to Hillary may be resolved on

other, narrower grounds.

A

Citizens United contends that §441b does not cover

Hillary, as a matter of statutory interpretation, because

the film does not qualify as an “electioneering communica

tion.” §441b(b)(2). Citizens United raises this issue for

the first time before us, but we consider the issue because

“it was addressed by the court below.” Lebron v. National

Railroad Passenger Corporation, 513 U. S. 374, 379 (1995);

see 530 F. Supp. 2d, at 277, n. 6. Under the definition of

electioneering communication, the video-on-demand show

ing of Hillary on cable television would have been a “cable

. . . communication” that “refer[red] to a clearly identified

candidate for Federal office” and that was made within 30

6 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

days of a primary election. 2 U. S. C. §434(f)(3)(A)(i).

Citizens United, however, argues that Hillary was not

“publicly distributed,” because a single video-on-demand

transmission is sent only to a requesting cable converter

box and each separate transmission, in most instances,

will be seen by just one household—not 50,000 or more

persons. 11 CFR §100.29(a)(2); see §100.29(b)(3)(ii).

This argument ignores the regulation’s instruction on

how to determine whether a cable transmission “[c]an be

received by 50,000 or more persons.” §100.29(b)(3)(ii).

The regulation provides that the number of people who

can receive a cable transmission is determined by the

number of cable subscribers in the relevant area.

§§100.29(b)(7)(i)(G), (ii). Here, Citizens United wanted to

use a cable video-on-demand system that had 34.5 million

subscribers nationwide. App. 256a. Thus, Hillary could

have been received by 50,000 persons or more.

One amici brief asks us, alternatively, to construe the

condition that the communication “[c]an be received by

50,000 or more persons,” §100.29(b)(3)(ii)(A), to require “a

plausible likelihood that the communication will be viewed

by 50,000 or more potential voters”—as opposed to requir

ing only that the communication is “technologically capa

ble” of being seen by that many people, Brief for Former

Officials of the American Civil Liberties Union as Amici

Curiae 5. Whether the population and demographic sta

tistics in a proposed viewing area consisted of 50,000

registered voters—but not “infants, pre-teens, or otherwise

electorally ineligible recipients”—would be a required

determination, subject to judicial challenge and review, in

any case where the issue was in doubt. Id., at 6.

In our view the statute cannot be saved by limiting the

reach of 2 U. S. C. §441b through this suggested interpre

tation. In addition to the costs and burdens of litigation,

this result would require a calculation as to the number of

people a particular communication is likely to reach, with

Cite as: 558 U. S. ____ (2010) 7

Opinion of the Court

an inaccurate estimate potentially subjecting the speaker

to criminal sanctions. The First Amendment does not

permit laws that force speakers to retain a campaign

finance attorney, conduct demographic marketing re

search, or seek declaratory rulings before discussing the

most salient political issues of our day. Prolix laws chill

speech for the same reason that vague laws chill speech:

People “of common intelligence must necessarily guess at

[the law’s] meaning and differ as to its application.” Con

nally v. General Constr. Co., 269 U. S. 385, 391 (1926).

The Government may not render a ban on political speech

constitutional by carving out a limited exemption through

an amorphous regulatory interpretation. We must reject

the approach suggested by the amici. Section 441b covers

Hillary.

B

Citizens United next argues that §441b may not be

applied to Hillary under the approach taken in WRTL.

McConnell decided that §441b(b)(2)’s definition of an

“electioneering communication” was facially constitutional

insofar as it restricted speech that was “the functional

equivalent of express advocacy” for or against a specific

candidate. 540 U. S., at 206. WRTL then found an uncon

stitutional application of §441b where the speech was not

“express advocacy or its functional equivalent.” 551 U. S.,

at 481 (opinion of ROBERTS, C. J.). As explained by THE

CHIEF JUSTICE’s controlling opinion in WRTL, the func

tional-equivalent test is objective: “a court should find that

[a communication] is the functional equivalent of express

advocacy only if [it] is susceptible of no reasonable inter

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

specific candidate.” Id., at 469–470.

Under this test, Hillary is equivalent to express advo

cacy. The movie, in essence, is a feature-length negative

advertisement that urges viewers to vote against Senator

8 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

Clinton for President. In light of historical footage, inter

views with persons critical of her, and voiceover narration,

the film would be understood by most viewers as an ex

tended criticism of Senator Clinton’s character and her

fitness for the office of the Presidency. The narrative may

contain more suggestions and arguments than facts, but

there is little doubt that the thesis of the film is that she is

unfit for the Presidency. The movie concentrates on al

leged wrongdoing during the Clinton administration,

Senator Clinton’s qualifications and fitness for office, and

policies the commentators predict she would pursue if

elected President. It calls Senator Clinton “Machiavel

lian,” App. 64a, and asks whether she is “the most quali

fied to hit the ground running if elected President,” id., at

88a. The narrator reminds viewers that “Americans have

never been keen on dynasties” and that “a vote for Hillary

is a vote to continue 20 years of a Bush or a Clinton in the

White House,” id., at 143a–144a.

Citizens United argues that Hillary is just “a documen

tary film that examines certain historical events.” Brief

for Appellant 35. We disagree. The movie’s consistent

emphasis is on the relevance of these events to Senator

Clinton’s candidacy for President. The narrator begins by

asking “could [Senator Clinton] become the first female

President in the history of the United States?” App. 35a.

And the narrator reiterates the movie’s message in his

closing line: “Finally, before America decides on our next

president, voters should need no reminders of . . . what’s

at stake—the well being and prosperity of our nation.”

Id., at 144a–145a.

As the District Court found, there is no reasonable

interpretation of Hillary other than as an appeal to vote

against Senator Clinton. Under the standard stated in

McConnell and further elaborated in WRTL, the film

qualifies as the functional equivalent of express advocacy.

Cite as: 558 U. S. ____ (2010)

9

Opinion of the Court

C

Citizens United further contends that §441b should be

invalidated as applied to movies shown through video-on

demand, arguing that this delivery system has a lower

risk of distorting the political process than do television

ads. Cf. McConnell, supra, at 207. On what we might call

conventional television, advertising spots reach viewers

who have chosen a channel or a program for reasons unre

lated to the advertising. With video-on-demand, by con

trast, the viewer selects a program after taking “a series of

affirmative steps”: subscribing to cable; navigating

through various menus; and selecting the program. See

Reno v. American Civil Liberties Union, 521 U. S. 844, 867

(1997).

While some means of communication may be less effec

tive than others at influencing the public in different

contexts, any effort by the Judiciary to decide which

means of communications are to be preferred for the par

ticular type of message and speaker would raise questions

as to the courts’ own lawful authority. Substantial ques

tions would arise if courts were to begin saying what

means of speech should be preferred or disfavored. And in

all events, those differentiations might soon prove to be

irrelevant or outdated by technologies that are in rapid

flux. See Turner Broadcasting System, Inc. v. FCC, 512

U. S. 622, 639 (1994).

Courts, too, are bound by the First Amendment. We

must decline to draw, and then redraw, constitutional

lines based on the particular media or technology used to

disseminate political speech from a particular speaker. It

must be noted, moreover, that this undertaking would

require substantial litigation over an extended time, all to

interpret a law that beyond doubt discloses serious First

Amendment flaws. The interpretive process itself would

create an inevitable, pervasive, and serious risk of chilling

protected speech pending the drawing of fine distinctions

10 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

that, in the end, would themselves be questionable. First

Amendment standards, however, “must give the benefit of

any doubt to protecting rather than stifling speech.”

WRTL, 551 U. S., at 469 (opinion of ROBERTS, C. J.) (citing

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

(1964)).

D

Citizens United also asks us to carve out an exception to

§441b’s expenditure ban for nonprofit corporate political

speech funded overwhelmingly by individuals. As an

alternative to reconsidering Austin, the Government also

seems to prefer this approach. This line of analysis, how

ever, would be unavailing.

In MCFL, the Court found unconstitutional §441b’s

restrictions on corporate expenditures as applied to non

profit corporations that were formed for the sole purpose

of promoting political ideas, did not engage in business

activities, and did not accept contributions from for-profit

corporations or labor unions. 479 U. S., at 263–264; see

also 11 CFR §114.10. BCRA’s so-called Wellstone Amend

ment applied §441b’s expenditure ban to all nonprofit

corporations. See 2 U. S. C. §441b(c)(6); McConnell, 540

U. S., at 209. McConnell then interpreted the Wellstone

Amendment to retain the MCFL exemption to §441b’s

expenditure prohibition. 540 U. S., at 211. Citizens

United does not qualify for the MCFL exemption, however,

since some funds used to make the movie were donations

from for-profit corporations.

The Government suggests we could find BCRA’s

Wellstone Amendment unconstitutional, sever it from the

statute, and hold that Citizens United’s speech is exempt

from §441b’s ban under BCRA’s Snowe-Jeffords Amend

ment, §441b(c)(2). See Tr. of Oral Arg. 37–38 (Sept. 9,

2009). The Snowe-Jeffords Amendment operates as a

backup provision that only takes effect if the Wellstone

Cite as: 558 U. S. ____ (2010) 11

Opinion of the Court

Amendment is invalidated. See McConnell, supra, at 339

(KENNEDY, J., concurring in judgment in part and dissent

ing in part). The Snowe-Jeffords Amendment would ex

empt from §441b’s expenditure ban the political speech of

certain nonprofit corporations if the speech were funded

“exclusively” by individual donors and the funds were

maintained in a segregated account. §441b(c)(2). Citizens

United would not qualify for the Snowe-Jeffords exemp

tion, under its terms as written, because Hillary was

funded in part with donations from for-profit corporations.

Consequently, to hold for Citizens United on this argu

ment, the Court would be required to revise the text of

MCFL, sever BCRA’s Wellstone Amendment, §441b(c)(6),

and ignore the plain text of BCRA’s Snowe-Jeffords

Amendment, §441b(c)(2). If the Court decided to create a

de minimis exception to MCFL or the Snowe-Jeffords

Amendment, the result would be to allow for-profit corpo

rate general treasury funds to be spent for independent

expenditures that support candidates. There is no princi

pled basis for doing this without rewriting Austin’s hold

ing that the Government can restrict corporate independ

ent expenditures for political speech.

Though it is true that the Court should construe stat

utes as necessary to avoid constitutional questions, the

series of steps suggested would be difficult to take in view

of the language of the statute. In addition to those diffi

culties the Government’s suggestion is troubling for still

another reason. The Government does not say that it

agrees with the interpretation it wants us to consider. See

Supp. Brief for Appellee 3, n. 1 (“Some courts” have im

plied a de minimis exception, and “appellant would appear

to be covered by these decisions”). Presumably it would

find textual difficulties in this approach too. The Govern

ment, like any party, can make arguments in the alterna

tive; but it ought to say if there is merit to an alternative

proposal instead of merely suggesting it. This is especially

12 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

true in the context of the First Amendment. As the Gov

ernment stated, this case “would require a remand” to

apply a de minimis standard. Tr. of Oral Arg. 39 (Sept. 9,

2009). Applying this standard would thus require case-by

case determinations. But archetypical political speech

would be chilled in the meantime. “ ‘First Amendment

freedoms need breathing space to survive.’ ” WRTL, supra,

at 468–469 (opinion of ROBERTS, C. J.) (quoting NAACP v.

Button, 371 U. S. 415, 433 (1963)). We decline to adopt an

interpretation that requires intricate case-by-case deter

minations to verify whether political speech is banned,

especially if we are convinced that, in the end, this corpo

ration has a constitutional right to speak on this subject.

E

As the foregoing analysis confirms, the Court cannot

resolve this case on a narrower ground without chilling

political speech, speech that is central to the meaning and

purpose of the First Amendment. See Morse v. Frederick,

551 U. S. 393, 403 (2007). It is not judicial restraint to

accept an unsound, narrow argument just so the Court can

avoid another argument with broader implications. In

deed, a court would be remiss in performing its duties

were it to accept an unsound principle merely to avoid the

necessity of making a broader ruling. Here, the lack of a

valid basis for an alternative ruling requires full consid

eration of the continuing effect of the speech suppression

upheld in Austin.

Citizens United stipulated to dismissing count 5 of its

complaint, which raised a facial challenge to §441b, even

though count 3 raised an as-applied challenge. See App.

23a (count 3: “As applied to Hillary, [§441b] is unconstitu

tional under the First Amendment guarantees of free

expression and association”). The Government argues

that Citizens United waived its challenge to Austin by

dismissing count 5. We disagree.

Cite as: 558 U. S. ____ (2010) 13

Opinion of the Court

First, even if a party could somehow waive a facial

challenge while preserving an as-applied challenge, that

would not prevent the Court from reconsidering Austin or

addressing the facial validity of §441b in this case. “Our

practice ‘permit[s] review of an issue not pressed [below]

so long as it has been passed upon . . . .’ ” Lebron, 513

U. S., at 379 (quoting United States v. Williams, 504 U. S.

36, 41 (1992); first alteration in original). And here, the

District Court addressed Citizens United’s facial chal

lenge. See 530 F. Supp. 2d, at 278 (“Citizens wants us to

enjoin the operation of BCRA §203 as a facially unconsti

tutional burden on the First Amendment right to freedom

of speech”). In rejecting the claim, it noted that it “would

have to overrule McConnell” for Citizens United to prevail

on its facial challenge and that “[o]nly the Supreme Court

may overrule its decisions.” Ibid. (citing Rodriguez de

Quijas v. Shearson/American Express, Inc., 490 U. S. 477,

484 (1989)). The District Court did not provide much

analysis regarding the facial challenge because it could

not ignore the controlling Supreme Court decisions in

Austin or McConnell. Even so, the District Court did

“ ‘pas[s] upon’ ” the issue. Lebron, supra, at 379. Fur

thermore, the District Court’s later opinion, which granted

the FEC summary judgment, was “[b]ased on the reason

ing of [its] prior opinion,” which included the discussion of

the facial challenge. App. 261a (citing 530 F. Supp. 2d

274). After the District Court addressed the facial validity

of the statute, Citizens United raised its challenge to

Austin in this Court. See Brief for Appellant 30 (“Austin

was wrongly decided and should be overruled”); id., at 30–

32. In these circumstances, it is necessary to consider

Citizens United’s challenge to Austin and the facial valid

ity of §441b’s expenditure ban.

Second, throughout the litigation, Citizens United has

asserted a claim that the FEC has violated its First

Amendment right to free speech. All concede that this

14 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

claim is properly before us. And “ ‘[o]nce a federal claim is

properly presented, a party can make any argument in

support of that claim; parties are not limited to the precise

arguments they made below.’ ” Lebron, supra, at 379

(quoting Yee v. Escondido, 503 U. S. 519, 534 (1992);

alteration in original). Citizens United’s argument that

Austin should be overruled is “not a new claim.” Lebron,

513 U. S., at 379. Rather, it is—at most—“a new argu

ment to support what has been [a] consistent claim: that

[the FEC] did not accord [Citizens United] the rights it

was obliged to provide by the First Amendment.” Ibid.

Third, the distinction between facial and as-applied

challenges is not so well defined that it has some auto

matic effect or that it must always control the pleadings

and disposition in every case involving a constitutional

challenge. The distinction is both instructive and neces

sary, for it goes to the breadth of the remedy employed by

the Court, not what must be pleaded in a complaint. See

United States v. Treasury Employees, 513 U. S. 454, 477–

478 (1995) (contrasting “a facial challenge” with “a nar

rower remedy”). The parties cannot enter into a stipula

tion that prevents the Court from considering certain

remedies if those remedies are necessary to resolve a claim

that has been preserved. Citizens United has preserved

its First Amendment challenge to §441b as applied to the

facts of its case; and given all the circumstances, we can

not easily address that issue without assuming a prem

ise—the permissibility of restricting corporate political

speech—that is itself in doubt. See Fallon, As-Applied and

Facial Challenges and Third-Party Standing, 113 Harv.

L. Rev. 1321, 1339 (2000) (“[O]nce a case is brought, no

general categorical line bars a court from making broader

pronouncements of invalidity in properly ‘as-applied’

cases”); id., at 1327–1328. As our request for supplemen

tal briefing implied, Citizens United’s claim implicates the

validity of Austin, which in turn implicates the facial

Cite as: 558 U. S. ____ (2010) 15

Opinion of the Court

validity of §441b.

When the statute now at issue came before the Court in

McConnell, both the majority and the dissenting opinions

considered the question of its facial validity. The holding

and validity of Austin were essential to the reasoning of

the McConnell majority opinion, which upheld BCRA’s

extension of §441b. See 540 U. S., at 205 (quoting Austin,

494 U. S., at 660). McConnell permitted federal felony

punishment for speech by all corporations, including

nonprofit ones, that speak on prohibited subjects shortly

before federal elections. See 540 U. S., at 203–209. Four

Members of the McConnell Court would have overruled

Austin, including Chief Justice Rehnquist, who had joined

the Court’s opinion in Austin but reconsidered that conclu

sion. See 540 U. S., at 256–262 (SCALIA, J., concurring in

part, concurring in judgment in part, and dissenting in

part); id., at 273–275 (THOMAS, J., concurring in part,

concurring in result in part, concurring in judgment in

part, and dissenting in part); id., at 322–338 (opinion of

KENNEDY, J., joined by Rehnquist, C. J., and SCALIA, J.).

That inquiry into the facial validity of the statute was

facilitated by the extensive record, which was “over

100,000 pages” long, made in the three-judge District

Court. McConnell v. Federal Election Comm’n, 251

F. Supp. 2d 176, 209 (DC 2003) (per curiam) (McConnell

I). It is not the case, then, that the Court today is prema

ture in interpreting §441b “ ‘on the basis of [a] factually

barebones recor[d].’ ” Washington State Grange v. Wash

ington State Republican Party, 552 U. S. 442, 450 (2008)

(quoting Sabri v. United States, 541 U. S. 600, 609 (2004)).

The McConnell majority considered whether the statute

was facially invalid. An as-applied challenge was brought

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

Comm’n, 546 U. S. 410, 411–412 (2006) (per curiam), and

the Court confirmed that the challenge could be main

tained. Then, in WRTL, the controlling opinion of the

16 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

Court not only entertained an as-applied challenge but

also sustained it. Three Justices noted that they would

continue to maintain the position that the record in

McConnell demonstrated the invalidity of the Act on its

face. 551 U. S., at 485–504 (opinion of SCALIA, J.). The

controlling opinion in WRTL, which refrained from hold

ing the statute invalid except as applied to the facts then

before the Court, was a careful attempt to accept the

essential elements of the Court’s opinion in McConnell,

while vindicating the First Amendment arguments made

by the WRTL parties. 551 U. S., at 482 (opinion of

ROBERTS, C. J.).

As noted above, Citizens United’s narrower arguments

are not sustainable under a fair reading of the statute. In

the exercise of its judicial responsibility, it is necessary

then for the Court to consider the facial validity of §441b.

Any other course of decision would prolong the substan

tial, nation-wide chilling effect caused by §441b’s prohibi

tions on corporate expenditures. Consideration of the

facial validity of §441b is further supported by the follow

ing reasons.

First is the uncertainty caused by the litigating position

of the Government. As discussed above, see Part II–D,

supra, the Government suggests, as an alternative argu

ment, that an as-applied challenge might have merit.

This argument proceeds on the premise that the nonprofit

corporation involved here may have received only de

minimis donations from for-profit corporations and that

some nonprofit corporations may be exempted from the

operation of the statute. The Government also suggests

that an as-applied challenge to §441b’s ban on books may

be successful, although it would defend §441b’s ban as

applied to almost every other form of media including

pamphlets. See Tr. of Oral Arg. 65–66 (Sept. 9, 2009).

The Government thus, by its own position, contributes to

the uncertainty that §441b causes. When the Government

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Opinion of the Court

holds out the possibility of ruling for Citizens United on a

narrow ground yet refrains from adopting that position,

the added uncertainty demonstrates the necessity to

address the question of statutory validity.

Second, substantial time would be required to bring

clarity to the application of the statutory provision on

these points in order to avoid any chilling effect caused by

some improper interpretation. See Part II–C, supra. It is

well known that the public begins to concentrate on elec

tions only in the weeks immediately before they are held.

There are short timeframes in which speech can have

influence. The need or relevance of the speech will often

first be apparent at this stage in the campaign. The deci

sion to speak is made in the heat of political campaigns,

when speakers react to messages conveyed by others. A

speaker’s ability to engage in political speech that could

have a chance of persuading voters is stifled if the speaker

must first commence a protracted lawsuit. By the time

the lawsuit concludes, the election will be over and the

litigants in most cases will have neither the incentive nor,

perhaps, the resources to carry on, even if they could

establish that the case is not moot because the issue is

“capable of repetition, yet evading review.” WRTL, supra,

at 462 (opinion of ROBERTS, C. J.) (citing Los Angeles v.

Lyons, 461 U. S. 95, 109 (1983); Southern Pacific Terminal

Co. v. ICC, 219 U. S. 498, 515 (1911)). Here, Citizens

United decided to litigate its case to the end. Today,

Citizens United finally learns, two years after the fact,

whether it could have spoken during the 2008 Presidential

primary—long after the opportunity to persuade primary

voters has passed.

Third is the primary importance of speech itself to the

integrity of the election process. As additional rules are

created for regulating political speech, any speech argua

bly within their reach is chilled. See Part II–A, supra.

Campaign finance regulations now impose “unique and

18 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

complex rules” on “71 distinct entities.” Brief for Seven

Former Chairmen of FEC et al. as Amici Curiae 11–12.

These entities are subject to separate rules for 33 different

types of political speech. Id., at 14–15, n. 10. The FEC

has adopted 568 pages of regulations, 1,278 pages of ex

planations and justifications for those regulations, and

1,771 advisory opinions since 1975. See id., at 6, n. 7. In

fact, after this Court in WRTL adopted an objective “ap

peal to vote” test for determining whether a communica

tion was the functional equivalent of express advocacy,

551 U. S., at 470 (opinion of ROBERTS, C. J.), the FEC

adopted a two-part, 11-factor balancing test to implement

WRTL’s ruling. See 11 CFR §114.15; Brief for Wyoming

Liberty Group et al. as Amici Curiae 17–27 (filed Jan. 15,

2009).

This regulatory scheme may not be a prior restraint on

speech in the strict sense of that term, for prospective

speakers are not compelled by law to seek an advisory

opinion from the FEC before the speech takes place. Cf.

Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712–713

(1931). As a practical matter, however, given the complex

ity of the regulations and the deference courts show to

administrative determinations, a speaker who wants to

avoid threats of criminal liability and the heavy costs of

defending against FEC enforcement must ask a govern

mental agency for prior permission to speak. See 2

U. S. C. §437f; 11 CFR §112.1. These onerous restrictions

thus function as the equivalent of prior restraint by giving

the FEC power analogous to licensing laws implemented

in 16th- and 17th-century England, laws and governmen

tal practices of the sort that the First Amendment was

drawn to prohibit. See Thomas v. Chicago Park Dist., 534

U. S. 316, 320 (2002); Lovell v. City of Griffin, 303 U. S.

444, 451–452 (1938); Near, supra, at 713–714. Because

the FEC’s “business is to censor, there inheres the danger

that [it] may well be less responsive than a court—part of

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Opinion of the Court

an independent branch of government—to the constitu

tionally protected interests in free expression.” Freedman

v. Maryland, 380 U. S. 51, 57–58 (1965). When the FEC

issues advisory opinions that prohibit speech, “[m]any

persons, rather than undertake the considerable burden

(and sometimes risk) of vindicating their rights through

case-by-case litigation, will choose simply to abstain from

protected speech—harming not only themselves but soci

ety as a whole, which is deprived of an uninhibited mar

ketplace of ideas.” Virginia v. Hicks, 539 U. S. 113, 119

(2003) (citation omitted). Consequently, “the censor’s

determination may in practice be final.” Freedman, supra,

at 58.

This is precisely what WRTL sought to avoid. WRTL

said that First Amendment standards “must eschew ‘the

open-ended rough-and-tumble of factors,’ which ‘invit[es]

complex argument in a trial court and a virtually inevita

ble appeal.’ ” 551 U. S., at 469 (opinion of ROBERTS, C. J.)

(quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co., 513 U. S. 527, 547 (1995); alteration in original).

Yet, the FEC has created a regime that allows it to select

what political speech is safe for public consumption by

applying ambiguous tests. If parties want to avoid litiga

tion and the possibility of civil and criminal penalties, they

must either refrain from speaking or ask the FEC to issue

an advisory opinion approving of the political speech in

question. Government officials pore over each word of a

text to see if, in their judgment, it accords with the 11

factor test they have promulgated. This is an unprece

dented governmental intervention into the realm of

speech.

The ongoing chill upon speech that is beyond all doubt

protected makes it necessary in this case to invoke the

earlier precedents that a statute which chills speech can

and must be invalidated where its facial invalidity has

been demonstrated. See WRTL, supra, at 482–483 (ALITO,

20 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

J., concurring); Thornhill v. Alabama, 310 U. S. 88, 97–98

(1940). For these reasons we find it necessary to recon

sider Austin.

III

The First Amendment provides that “Congress shall

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

enacted to control or suppress speech may operate at

different points in the speech process. The following are

just a few examples of restrictions that have been at

tempted at different stages of the speech process—all laws

found to be invalid: restrictions requiring a permit at the

outset, Watchtower Bible & Tract Soc. of N. Y., Inc. v.

Village of Stratton, 536 U. S. 150, 153 (2002); imposing a

burden by impounding proceeds on receipts or royalties,

Simon & Schuster, Inc. v. Members of N. Y. State Crime

Victims Bd., 502 U. S. 105, 108, 123 (1991); seeking to

exact a cost after the speech occurs, New York Times Co. v.

Sullivan, 376 U. S., at 267; and subjecting the speaker to

criminal penalties, Brandenburg v. Ohio, 395 U. S. 444,

445 (1969) (per curiam).

The law before us is an outright ban, backed by criminal

sanctions. Section 441b makes it a felony for all corpora

tions—including nonprofit advocacy corporations—either

to expressly advocate the election or defeat of candidates

or to broadcast electioneering communications within 30

days of a primary election and 60 days of a general elec

tion. Thus, the following acts would all be felonies under

§441b: The Sierra Club runs an ad, within the crucial

phase of 60 days before the general election, that exhorts

the public to disapprove of a Congressman who favors

logging in national forests; the National Rifle Association

publishes a book urging the public to vote for the chal

lenger because the incumbent U. S. Senator supports a

handgun ban; and the American Civil Liberties Union

creates a Web site telling the public to vote for a Presiden

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Opinion of the Court

tial candidate in light of that candidate’s defense of

free speech. These prohibitions are classic examples of

censorship.

Section 441b is a ban on corporate speech notwithstand

ing the fact that a PAC created by a corporation can still

speak. See McConnell, 540 U. S., at 330–333 (opinion of

KENNEDY, J.). A PAC is a separate association from the

corporation. So the PAC exemption from §441b’s expendi

ture ban, §441b(b)(2), does not allow corporations to speak.

Even if a PAC could somehow allow a corporation to

speak—and it does not—the option to form PACs does not

alleviate the First Amendment problems with §441b.

PACs are burdensome alternatives; they are expensive to

administer and subject to extensive regulations. For

example, every PAC must appoint a treasurer, forward

donations to the treasurer promptly, keep detailed records

of the identities of the persons making donations, preserve

receipts for three years, and file an organization statement

and report changes to this information within 10 days.

See id., at 330–332 (quoting MCFL, 479 U. S., at 253–

254).

And that is just the beginning. PACs must file detailed

monthly reports with the FEC, which are due at different

times depending on the type of election that is about to

occur:

“ ‘These reports must contain information regarding

the amount of cash on hand; the total amount of re

ceipts, detailed by 10 different categories; the identifi

cation of each political committee and candidate’s au

thorized or affiliated committee making contributions,

and any persons making loans, providing rebates, re

funds, dividends, or interest or any other offset to op

erating expenditures in an aggregate amount over

$200; the total amount of all disbursements, detailed

by 12 different categories; the names of all authorized

22 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

or affiliated committees to whom expenditures aggre

gating over $200 have been made; persons to whom

loan repayments or refunds have been made; the total

sum of all contributions, operating expenses, out

standing debts and obligations, and the settlement

terms of the retirement of any debt or obligation.’ ”

540 U. S., at 331–332 (quoting MCFL, supra, at 253–

254).

PACs have to comply with these regulations just to

speak. This might explain why fewer than 2,000 of the

millions of corporations in this country have PACs.

See Brief for Seven Former Chairmen of FEC et al. as

Amici Curiae 11 (citing FEC, Summary of PAC Activity

1990–2006, online at http://www.fec.gov/press/press2007/

20071009pac/sumhistory.pdf); IRS, Statistics of Income:

2006, Corporation Income Tax Returns 2 (2009) (hereinaf

ter Statistics of Income) (5.8 million for-profit corporations

filed 2006 tax returns). PACs, furthermore, must exist

before they can speak. Given the onerous restrictions, a

corporation may not be able to establish a PAC in time to

make its views known regarding candidates and issues in

a current campaign.

Section 441b’s prohibition on corporate independent

expenditures is thus a ban on speech. As a “restriction on

the amount of money a person or group can spend on

political communication during a campaign,” that statute

“necessarily reduces the quantity of expression by restrict

ing the number of issues discussed, the depth of their

exploration, and the size of the audience reached.” Buck

ley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the

Court to uphold these restrictions, the Government could

repress speech by silencing certain voices at any of the

various points in the speech process. See McConnell,

supra, at 251 (opinion of SCALIA, J.) (Government could

repress speech by “attacking all levels of the production

Cite as: 558 U. S. ____ (2010) 23

Opinion of the Court

and dissemination of ideas,” for “effective public communi

cation requires the speaker to make use of the services of

others”). If §441b applied to individuals, no one would

believe that it is merely a time, place, or manner restric

tion on speech. Its purpose and effect are to silence enti

ties whose voices the Government deems to be suspect.

Speech is an essential mechanism of democracy, for it is

the means to hold officials accountable to the people. See

Buckley, supra, at 14–15 (“In a republic where the people

are sovereign, the ability of the citizenry to make informed

choices among candidates for office is essential”). The

right of citizens to inquire, to hear, to speak, and to use

information to reach consensus is a precondition to

enlightened self-government and a necessary means to

protect it. The First Amendment “ ‘has its fullest and most

urgent application’ to speech uttered during a campaign

for political office.” Eu v. San Francisco County Democ

ratic Central Comm., 489 U. S. 214, 223 (1989) (quoting

Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see

Buckley, supra, at 14 (“Discussion of public issues and

debate on the qualifications of candidates are integral to

the operation of the system of government established by

our Constitution”).

For these reasons, political speech must prevail against

laws that would suppress it, whether by design or inadver

tence. Laws that burden political speech are “subject to

strict scrutiny,” which requires the Government to prove

that the restriction “furthers a compelling interest and is

narrowly tailored to achieve that interest.” WRTL, 551

U. S., at 464 (opinion of ROBERTS, C. J.). While it might

be maintained that political speech simply cannot be

banned or restricted as a categorical matter, see Simon &

Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in

judgment), the quoted language from WRTL provides a

sufficient framework for protecting the relevant First

Amendment interests in this case. We shall employ it

24 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

here.

Premised on mistrust of governmental power, the First

Amendment stands against attempts to disfavor certain

subjects or viewpoints. See, e.g., United States v. Playboy

Entertainment Group, Inc., 529 U. S. 803, 813 (2000)

(striking down content-based restriction). Prohibited, too,

are restrictions distinguishing among different speakers,

allowing speech by some but not others. See First Nat.

Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As

instruments to censor, these categories are interrelated:

Speech restrictions based on the identity of the speaker

are all too often simply a means to control content.

Quite apart from the purpose or effect of regulating

content, moreover, the Government may commit a consti

tutional wrong when by law it identifies certain preferred

speakers. By taking the right to speak from some and

giving it to others, the Government deprives the disadvan

taged person or class of the right to use speech to strive to

establish worth, standing, and respect for the speaker’s

voice. The Government may not by these means deprive

the public of the right and privilege to determine for itself

what speech and speakers are worthy of consideration.

The First Amendment protects speech and speaker, and

the ideas that flow from each.

The Court has upheld a narrow class of speech restric

tions that operate to the disadvantage of certain persons,

but these rulings were based on an interest in allowing

governmental entities to perform their functions. See, e.g.,

Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683

(1986) (protecting the “function of public school educa

tion”); Jones v. North Carolina Prisoners’ Labor Union,

Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate

penological objectives of the corrections system” (internal

quotation marks omitted)); Parker v. Levy, 417 U. S. 733,

759 (1974) (ensuring “the capacity of the Government to

discharge its [military] responsibilities” (internal quota

Cite as: 558 U. S. ____ (2010) 25

Opinion of the Court

tion marks omitted)); Civil Service Comm’n v. Letter Car

riers, 413 U. S. 548, 557 (1973) (“[F]ederal service should

depend upon meritorious performance rather than politi

cal service”). The corporate independent expenditures at

issue in this case, however, would not interfere with gov

ernmental functions, so these cases are inapposite. These

precedents stand only for the proposition that there are

certain governmental functions that cannot operate with

out some restrictions on particular kinds of speech. By

contrast, it is inherent in the nature of the political proc

ess that voters must be free to obtain information from

diverse sources in order to determine how to cast their

votes. At least before Austin, the Court had not allowed

the exclusion of a class of speakers from the general public

dialogue.

We find no basis for the proposition that, in the context

of political speech, the Government may impose restric

tions on certain disfavored speakers. Both history and

logic lead us to this conclusion.

A

1

The Court has recognized that First Amendment protec

tion extends to corporations. Bellotti, supra, at 778, n. 14

(citing Linmark Associates, Inc. v. Willingboro, 431 U. S.

85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976);

Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeast

ern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox

Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami

Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974);

New York Times Co. v. United States, 403 U. S. 713 (1971)

(per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New

York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l

Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684

(1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495

(1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC,

26 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

520 U. S. 180 (1997); Denver Area Ed. Telecommunications

Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512

U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Com

munications of Cal., Inc. v. FCC, 492 U. S. 115 (1989);

Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia

Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Land

mark Communications, Inc. v. Virginia, 435 U. S. 829

(1978); Young v. American Mini Theatres, Inc., 427 U. S.

50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323

(1974); Greenbelt Cooperative Publishing Assn., Inc. v.

Bresler, 398 U. S. 6 (1970).

This protection has been extended by explicit holdings to

the context of political speech. See, e.g., Button, 371 U. S.,

at 428–429; Grosjean v. American Press Co., 297 U. S. 233,

244 (1936). Under the rationale of these precedents,

political speech does not lose First Amendment protection

“simply because its source is a corporation.” Bellotti,

supra, at 784; see Pacific Gas & Elec. Co. v. Public Util.

Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion)

(“The identity of the speaker is not decisive in determining

whether speech is protected. Corporations and other

associations, like individuals, contribute to the ‘discussion,

debate, and the dissemination of information and ideas’

that the First Amendment seeks to foster” (quoting Bel

lotti, 435 U. S., at 783)). The Court has thus rejected the

argument that political speech of corporations or other

associations should be treated differently under the First

Amendment simply because such associations are not

“natural persons.” Id., at 776; see id., at 780, n. 16. Cf.

id., at 828 (Rehnquist, J., dissenting).

At least since the latter part of the 19th century, the

laws of some States and of the United States imposed a

ban on corporate direct contributions to candidates. See

B. Smith, Unfree Speech: The Folly of Campaign Finance

Reform 23 (2001). Yet not until 1947 did Congress first

prohibit independent expenditures by corporations and

Cite as: 558 U. S. ____ (2010) 27

Opinion of the Court

labor unions in §304 of the Labor Management Relations

Act 1947, 61 Stat. 159 (codified at 2 U. S. C. §251 (1946

ed., Supp. I)). In passing this Act Congress overrode the

veto of President Truman, who warned that the expendi

ture ban was a “dangerous intrusion on free speech.”

Message from the President of the United States, H. R.

Doc. No. 334, 89th Cong., 1st Sess., 9 (1947).

For almost three decades thereafter, the Court did not

reach the question whether restrictions on corporate and

union expenditures are constitutional. See WRTL, 551

U. S., at 502 (opinion of SCALIA, J.). The question was in

the background of United States v. CIO, 335 U. S. 106

(1948). There, a labor union endorsed a congressional

candidate in its weekly periodical. The Court stated that

“the gravest doubt would arise in our minds as to [the

federal expenditure prohibition’s] constitutionality” if it

were construed to suppress that writing. Id., at 121. The

Court engaged in statutory interpretation and found the

statute did not cover the publication. Id., at 121–122, and

n. 20. Four Justices, however, said they would reach the

constitutional question and invalidate the Labor Man

agement Relations Act’s expenditure ban. Id., at 155

(Rutledge, J., joined by Black, Douglas, and Murphy, JJ.,

concurring in result). The concurrence explained that any

“ ‘undue influence’ ” generated by a speaker’s “large expen

ditures” was outweighed “by the loss for democratic proc

esses resulting from the restrictions upon free and full

public discussion.” Id., at 143.

In United States v. Automobile Workers, 352 U. S. 567

(1957), the Court again encountered the independent

expenditure ban, which had been recodified at 18 U. S. C.

§610 (1952 ed.). See 62 Stat. 723–724. After holding only

that a union television broadcast that endorsed candidates

was covered by the statute, the Court “[r]efus[ed] to an

ticipate constitutional questions” and remanded for the

trial to proceed. 352 U. S., at 591. Three Justices dis

28 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

sented, arguing that the Court should have reached the

constitutional question and that the ban on independent

expenditures was unconstitutional:

“Under our Constitution it is We The People who

are sovereign. The people have the final say. The leg

islators are their spokesmen. The people determine

through their votes the destiny of the nation. It is

therefore important—vitally important—that all

channels of communications be open to them during

every election, that no point of view be restrained or

barred, and that the people have access to the views of

every group in the community.” Id., at 593 (opinion of

Douglas, J., joined by Warren, C. J., and Black, J.).

The dissent concluded that deeming a particular group

“too powerful” was not a “justificatio[n] for withholding

First Amendment rights from any group—labor or corpo

rate.” Id., at 597. The Court did not get another opportu

nity to consider the constitutional question in that case;

for after a remand, a jury found the defendants not guilty.

See Hayward, Revisiting the Fable of Reform, 45 Harv. J.

Legis. 421, 463 (2008).

Later, in Pipefitters v. United States, 407 U. S. 385, 400–

401 (1972), the Court reversed a conviction for expendi

ture of union funds for political speech—again without

reaching the constitutional question. The Court would not

resolve that question for another four years.

2

In Buckley, 424 U. S. 1, the Court addressed various

challenges to the Federal Election Campaign Act of 1971

(FECA) as amended in 1974. These amendments created

18 U. S. C. §608(e) (1970 ed., Supp. V), see 88 Stat. 1265,

an independent expenditure ban separate from §610 that

applied to individuals as well as corporations and labor

unions, Buckley, 424 U. S., at 23, 39, and n. 45.

Cite as: 558 U. S. ____ (2010) 29

Opinion of the Court

Before addressing the constitutionality of §608(e)’s

independent expenditure ban, Buckley first upheld

§608(b), FECA’s limits on direct contributions to candi

dates. The Buckley Court recognized a “sufficiently impor

tant” governmental interest in “the prevention of corrup

tion and the appearance of corruption.” Id., at 25; see id.,

at 26. This followed from the Court’s concern that large

contributions could be given “to secure a political quid pro

quo.” Ibid.

The Buckley Court explained that the potential for quid

pro quo corruption distinguished direct contributions to

candidates from independent expenditures. The Court

emphasized that “the independent expenditure ceiling . . .

fails to serve any substantial governmental interest in

stemming the reality or appearance of corruption in the

electoral process,” id., at 47–48, because “[t]he absence of

prearrangement and coordination . . . alleviates the dan

ger that expenditures will be given as a quid pro quo for

improper commitments from the candidate,” id., at 47.

Buckley invalidated §608(e)’s restrictions on independent

expenditures, with only one Justice dissenting. See Fed

eral Election Comm’n v. National Conservative Political

Action Comm., 470 U. S. 480, 491, n. 3 (1985) (NCPAC).

Buckley did not consider §610’s separate ban on corpo

rate and union independent expenditures, the prohibition

that had also been in the background in CIO, Automobile

Workers, and Pipefitters. Had §610 been challenged in the

wake of Buckley, however, it could not have been squared

with the reasoning and analysis of that precedent. See

WRTL, supra, at 487 (opinion of SCALIA, J.) (“Buckley

might well have been the last word on limitations on

independent expenditures”); Austin, 494 U. S., at 683

(SCALIA, J., dissenting). The expenditure ban invalidated

in Buckley, §608(e), applied to corporations and unions,

424 U. S., at 23, 39, n. 45; and some of the prevailing

plaintiffs in Buckley were corporations, id., at 8. The

30 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

Buckley Court did not invoke the First Amendment’s

overbreadth doctrine, see Broadrick v. Oklahoma, 413

U. S. 601, 615 (1973), to suggest that §608(e)’s expenditure

ban would have been constitutional if it had applied only

to corporations and not to individuals, 424 U. S., at 50.

Buckley cited with approval the Automobile Workers dis

sent, which argued that §610 was unconstitutional. 424

U. S., at 43 (citing 352 U. S., at 595–596 (opinion of Doug

las, J.)).

Notwithstanding this precedent, Congress recodified

§610’s corporate and union expenditure ban at 2 U. S. C.

§441b four months after Buckley was decided. See 90 Stat.

490. Section 441b is the independent expenditure restric

tion challenged here.

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

765, reaffirmed the First Amendment principle that the

Government cannot restrict political speech based on the

speaker’s corporate identity. Bellotti could not have been

clearer when it struck down a state-law prohibition on

corporate independent expenditures related to referenda

issues:

“We thus find no support in the First . . . Amend

ment, or in the decisions of this Court, for the proposi

tion that speech that otherwise would be within the

protection of the First Amendment loses that protec

tion simply because its source is a corporation that

cannot prove, to the satisfaction of a court, a material

effect on its business or property. . . . [That proposi

tion] amounts to an impermissible legislative prohibi

tion of speech based on the identity of the interests

that spokesmen may represent in public debate over

controversial issues and a requirement that the

speaker have a sufficiently great interest in the sub

ject to justify communication.

. . . . .

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Opinion of the Court

“In the realm of protected speech, the legislature is

constitutionally disqualified from dictating the sub

jects about which persons may speak and the speak

ers who may address a public issue.” Id., at 784–785.

It is important to note that the reasoning and holding of

Bellotti did not rest on the existence of a viewpoint

discriminatory statute. It rested on the principle that the

Government lacks the power to ban corporations from

speaking.

Bellotti did not address the constitutionality of the

State’s ban on corporate independent expenditures to

support candidates. In our view, however, that restriction

would have been unconstitutional under Bellotti’s central

principle: that the First Amendment does not allow politi

cal speech restrictions based on a speaker’s corporate

identity. See ibid.

3

Thus the law stood until Austin. Austin “uph[eld] a

direct restriction on the independent expenditure of funds

for political speech for the first time in [this Court’s] his

tory.” 494 U. S., at 695 (KENNEDY, J., dissenting). There,

the Michigan Chamber of Commerce sought to use general

treasury funds to run a newspaper ad supporting a spe

cific candidate. Michigan law, however, prohibited corpo

rate independent expenditures that supported or opposed

any candidate for state office. A violation of the law was

punishable as a felony. The Court sustained the speech

prohibition.

To bypass Buckley and Bellotti, the Austin Court identi

fied a new governmental interest in limiting political

speech: an antidistortion interest. Austin found a compel

ling governmental interest in preventing “the corrosive

and distorting effects of immense aggregations of wealth

that are accumulated with the help of the corporate form

and that have little or no correlation to the public’s sup

32 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

port for the corporation’s political ideas.” 494 U. S., at

660; see id., at 659 (citing MCFL, 479 U. S., at 257;

NCPAC, 470 U. S., at 500–501).

B

The Court is thus confronted with conflicting lines of

precedent: a pre-Austin line that forbids restrictions on

political speech based on the speaker’s corporate identity

and a post-Austin line that permits them. No case before

Austin had held that Congress could prohibit independent

expenditures for political speech based on the speaker’s

corporate identity. Before Austin Congress had enacted

legislation for this purpose, and the Government urged the

same proposition before this Court. See MCFL, supra, at

257 (FEC posited that Congress intended to “curb the

political influence of ‘those who exercise control over large

aggregations of capital’ ” (quoting Automobile Workers,

supra, at 585)); California Medical Assn. v. Federal Elec

tion Comm’n, 453 U. S. 182, 201 (1981) (Congress believed

that “differing structures and purposes” of corporations

and unions “may require different forms of regulation in

order to protect the integrity of the electoral process”). In

neither of these cases did the Court adopt the proposition.

In its defense of the corporate-speech restrictions in

§441b, the Government notes the antidistortion rationale

on which Austin and its progeny rest in part, yet it all but

abandons reliance upon it. It argues instead that two

other compelling interests support Austin’s holding that

corporate expenditure restrictions are constitutional: an

anticorruption interest, see 494 U. S., at 678 (STEVENS, J.,

concurring), and a shareholder-protection interest, see id.,

at 674–675 (Brennan, J., concurring). We consider the

three points in turn.

1

As for Austin’s antidistortion rationale, the Government

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Opinion of the Court

does little to defend it. See Tr. of Oral Arg. 45–48 (Sept.

9, 2009). And with good reason, for the rationale cannot

support §441b.

If the First Amendment has any force, it prohibits Con

gress from fining or jailing citizens, or associations of

citizens, for simply engaging in political speech. If the

antidistortion rationale were to be accepted, however, it

would permit Government to ban political speech simply

because the speaker is an association that has taken on

the corporate form. The Government contends that Austin

permits it to ban corporate expenditures for almost all

forms of communication stemming from a corporation.

See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009);

see also id., at 26–31 (Mar. 24, 2009). If Austin were

correct, the Government could prohibit a corporation from

expressing political views in media beyond those pre

sented here, such as by printing books. The Government

responds “that the FEC has never applied this statute to a

book,” and if it did, “there would be quite [a] good as

applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009).

This troubling assertion of brooding governmental power

cannot be reconciled with the confidence and stability in

civic discourse that the First Amendment must secure.

Political speech is “indispensable to decisionmaking in a

democracy, and this is no less true because the speech

comes from a corporation rather than an individual.”

Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (the

worth of speech “does not depend upon the identity of its

source, whether corporation, association, union, or indi

vidual”); Buckley, 424 U. S., at 48–49 (“[T]he concept that

government may restrict the speech of some elements of

our society in order to enhance the relative voice of others

is wholly foreign to the First Amendment”); Automobile

Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO,

335 U. S., at 154–155 (Rutledge, J., concurring in result).

This protection for speech is inconsistent with Austin’s

34 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

antidistortion rationale. Austin sought to defend the

antidistortion rationale as a means to prevent corpora

tions from obtaining “ ‘an unfair advantage in the political

marketplace’ ” by using “ ‘resources amassed in the eco

nomic marketplace.’ ” 494 U. S., at 659 (quoting MCFL,

supra, at 257). But Buckley rejected the premise that the

Government has an interest “in equalizing the relative

ability of individuals and groups to influence the outcome

of elections.” 424 U. S., at 48; see Bellotti, supra, at 791,

n. 30. Buckley was specific in stating that “the skyrocket

ing cost of political campaigns” could not sustain the

governmental prohibition. 424 U. S., at 26. The First

Amendment’s protections do not depend on the speaker’s

“financial ability to engage in public discussion.” Id., at

49.

The Court reaffirmed these conclusions when it invali

dated the BCRA provision that increased the cap on con

tributions to one candidate if the opponent made certain

expenditures from personal funds. See Davis v. Federal

Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 16)

(“Leveling electoral opportunities means making and

implementing judgments about which strengths should be

permitted to contribute to the outcome of an election. The

Constitution, however, confers upon voters, not Congress,

the power to choose the Members of the House of Repre

sentatives, Art. I, §2, and it is a dangerous business for

Congress to use the election laws to influence the voters’

choices”). The rule that political speech cannot be limited

based on a speaker’s wealth is a necessary consequence of

the premise that the First Amendment generally prohibits

the suppression of political speech based on the speaker’s

identity.

Either as support for its antidistortion rationale or as a

further argument, the Austin majority undertook to dis

tinguish wealthy individuals from corporations on the

ground that “[s]tate law grants corporations special ad

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Opinion of the Court

vantages—such as limited liability, perpetual life, and

favorable treatment of the accumulation and distribution

of assets.” 494 U. S., at 658–659. This does not suffice,

however, to allow laws prohibiting speech. “It is rudimen

tary that the State cannot exact as the price of those

special advantages the forfeiture of First Amendment

rights.” Id., at 680 (SCALIA, J., dissenting).

It is irrelevant for purposes of the First Amendment

that corporate funds may “have little or no correlation to

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

Id., at 660 (majority opinion). All speakers, including

individuals and the media, use money amassed from the

economic marketplace to fund their speech. The First

Amendment protects the resulting speech, even if it was

enabled by economic transactions with persons or entities

who disagree with the speaker’s ideas. See id., at 707

(KENNEDY, J., dissenting) (“Many persons can trace their

funds to corporations, if not in the form of donations, then

in the form of dividends, interest, or salary”).

Austin’s antidistortion rationale would produce the

dangerous, and unacceptable, consequence that Congress

could ban political speech of media corporations. See

McConnell, 540 U. S., at 283 (opinion of THOMAS, J.) (“The

chilling endpoint of the Court’s reasoning is not difficult to

foresee: outright regulation of the press”). Cf. Tornillo,

418 U. S., at 250 (alleging the existence of “vast accumula

tions of unreviewable power in the modern media em

pires”). Media corporations are now exempt from §441b’s

ban on corporate expenditures. See 2 U. S. C.

§§431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations

accumulate wealth with the help of the corporate form, the

largest media corporations have “immense aggregations of

wealth,” and the views expressed by media corporations

often “have little or no correlation to the public’s support”

for those views. Austin, 494 U. S., at 660. Thus, under

the Government’s reasoning, wealthy media corporations

36 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

could have their voices diminished to put them on par

with other media entities. There is no precedent for per

mitting this under the First Amendment.

The media exemption discloses further difficulties with

the law now under consideration. There is no precedent

supporting laws that attempt to distinguish between

corporations which are deemed to be exempt as media

corporations and those which are not. “We have consis

tently rejected the proposition that the institutional press

has any constitutional privilege beyond that of other

speakers.” Id., at 691 (SCALIA, J., dissenting) (citing Bel

lotti, 435 U. S., at 782); see Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985) (Bren

nan, J., joined by Marshall, Blackmun, and STEVENS, JJ.,

dissenting); id., at 773 (White, J., concurring in judgment).

With the advent of the Internet and the decline of print

and broadcast media, moreover, the line between the

media and others who wish to comment on political and

social issues becomes far more blurred.

The law’s exception for media corporations is, on its own

terms, all but an admission of the invalidity of the antidis

tortion rationale. And the exemption results in a further,

separate reason for finding this law invalid: Again by its

own terms, the law exempts some corporations but covers

others, even though both have the need or the motive to

communicate their views. The exemption applies to media

corporations owned or controlled by corporations that have

diverse and substantial investments and participate in

endeavors other than news. So even assuming the most

doubtful proposition that a news organization has a right

to speak when others do not, the exemption would allow a

conglomerate that owns both a media business and an

unrelated business to influence or control the media in

order to advance its overall business interest. At the same

time, some other corporation, with an identical business

interest but no media outlet in its ownership structure,

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Opinion of the Court

would be forbidden to speak or inform the public about the

same issue. This differential treatment cannot be squared

with the First Amendment.

There is simply no support for the view that the First

Amendment, as originally understood, would permit the

suppression of political speech by media corporations. The

Framers may not have anticipated modern business and

media corporations. See McIntyre v. Ohio Elections

Comm’n, 514 U. S. 334, 360–361 (1995) (THOMAS, J.,

concurring in judgment). Yet television networks and

major newspapers owned by media corporations have

become the most important means of mass communication

in modern times. The First Amendment was certainly not

understood to condone the suppression of political speech

in society’s most salient media. It was understood as a

response to the repression of speech and the press that

had existed in England and the heavy taxes on the press

that were imposed in the colonies. See McConnell, 540

U. S., at 252–253 (opinion of SCALIA, J.); Grosjean, 297

U. S., at 245–248; Near, 283 U. S., at 713–714. The great

debates between the Federalists and the Anti-Federalists

over our founding document were published and expressed

in the most important means of mass communication of

that era—newspapers owned by individuals. See McIn

tyre, 514 U. S., at 341–343; id., at 367 (THOMAS, J., con

curring in judgment). At the founding, speech was open,

comprehensive, and vital to society’s definition of itself;

there were no limits on the sources of speech and knowl

edge. See B. Bailyn, Ideological Origins of the American

Revolution 5 (1967) (“Any number of people could join in

such proliferating polemics, and rebuttals could come from

all sides”); G. Wood, Creation of the American Republic

1776–1787, p. 6 (1969) (“[I]t is not surprising that the

intellectual sources of [the Americans’] Revolutionary

thought were profuse and various”). The Framers may

have been unaware of certain types of speakers or forms of

38 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

communication, but that does not mean that those speak

ers and media are entitled to less First Amendment pro

tection than those types of speakers and media that pro

vided the means of communicating political ideas when

the Bill of Rights was adopted.

Austin interferes with the “open marketplace” of ideas

protected by the First Amendment. New York State Bd. of

Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see

ibid. (ideas “may compete” in this marketplace “without

government interference”); McConnell, supra, at 274

(opinion of THOMAS, J.). It permits the Government to ban

the political speech of millions of associations of citizens.

See Statistics of Income 2 (5.8 million for-profit corpora

tions filed 2006 tax returns). Most of these are small

corporations without large amounts of wealth. See Supp.

Brief for Chamber of Commerce of the United States of

America as Amicus Curiae 1, 3 (96% of the 3 million busi

nesses that belong to the U. S. Chamber of Commerce

have fewer than 100 employees); M. Keightley, Congres

sional Research Service Report for Congress, Business

Organizational Choices: Taxation and Responses to Legis

lative Changes 10 (2009) (more than 75% of corporations

whose income is taxed under federal law, see 26 U. S. C.

§301, have less than $1 million in receipts per year). This

fact belies the Government’s argument that the statute is

justified on the ground that it prevents the “distorting

effects of immense aggregations of wealth.” Austin, 494

U. S., at 660. It is not even aimed at amassed wealth.

The censorship we now confront is vast in its reach. The

Government has “muffle[d] the voices that best represent

the most significant segments of the economy.” McCon

nell, supra, at 257–258 (opinion of SCALIA, J.). And “the

electorate [has been] deprived of information, knowledge

and opinion vital to its function.” CIO, 335 U. S., at 144

(Rutledge, J., concurring in result). By suppressing the

speech of manifold corporations, both for-profit and non

Cite as: 558 U. S. ____ (2010) 39

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profit, the Government prevents their voices and view

points from reaching the public and advising voters on

which persons or entities are hostile to their interests.

Factions will necessarily form in our Republic, but the

remedy of “destroying the liberty” of some factions is

“worse than the disease.” The Federalist No. 10, p. 130 (B.

Wright ed. 1961) (J. Madison). Factions should be checked

by permitting them all to speak, see ibid., and by entrust

ing the people to judge what is true and what is false.

The purpose and effect of this law is to prevent corpora

tions, including small and nonprofit corporations, from

presenting both facts and opinions to the public. This

makes Austin’s antidistortion rationale all the more an

aberration. “[T]he First Amendment protects the right of

corporations to petition legislative and administrative

bodies.” Bellotti, 435 U. S., at 792, n. 31 (citing California

Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508,

510–511 (1972); Eastern Railroad Presidents Conference v.

Noerr Motor Freight, Inc., 365 U. S. 127, 137–138 (1961)).

Corporate executives and employees counsel Members of

Congress and Presidential administrations on many is

sues, as a matter of routine and often in private. An amici

brief filed on behalf of Montana and 25 other States notes

that lobbying and corporate communications with elected

officials occur on a regular basis. Brief for State of Mon

tana et al. as Amici Curiae 19. When that phenomenon is

coupled with §441b, the result is that smaller or nonprofit

corporations cannot raise a voice to object when other

corporations, including those with vast wealth, are coop

erating with the Government. That cooperation may

sometimes be voluntary, or it may be at the demand of a

Government official who uses his or her authority, influ

ence, and power to threaten corporations to support the

Government’s policies. Those kinds of interactions are

often unknown and unseen. The speech that §441b for

bids, though, is public, and all can judge its content and

40 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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purpose. References to massive corporate treasuries

should not mask the real operation of this law. Rhetoric

ought not obscure reality.

Even if §441b’s expenditure ban were constitutional,

wealthy corporations could still lobby elected officials,

although smaller corporations may not have the resources

to do so. And wealthy individuals and unincorporated

associations can spend unlimited amounts on independent

expenditures. See, e.g., WRTL, 551 U. S., at 503–504

(opinion of SCALIA, J.) (“In the 2004 election cycle, a mere

24 individuals contributed an astounding total of $142

million to [26 U. S. C. §527 organizations]”). Yet certain

disfavored associations of citizens—those that have taken

on the corporate form—are penalized for engaging in the

same political speech.

When Government seeks to use its full power, including

the criminal law, to command where a person may get his

or her information or what distrusted source he or she

may not hear, it uses censorship to control thought. This

is unlawful. The First Amendment confirms the freedom

to think for ourselves.

2

What we have said also shows the invalidity of other

arguments made by the Government. For the most part

relinquishing the antidistortion rationale, the Government

falls back on the argument that corporate political speech

can be banned in order to prevent corruption or its ap

pearance. In Buckley, the Court found this interest “suffi

ciently important” to allow limits on contributions but did

not extend that reasoning to expenditure limits. 424 U. S.,

at 25. When Buckley examined an expenditure ban, it

found “that the governmental interest in preventing cor

ruption and the appearance of corruption [was] inade

quate to justify [the ban] on independent expenditures.”

Id., at 45.

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Opinion of the Court

With regard to large direct contributions, Buckley rea

soned that they could be given “to secure a political quid

pro quo,” id., at 26, and that “the scope of such pernicious

practices can never be reliably ascertained,” id., at 27.

The practices Buckley noted would be covered by bribery

laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrange

ment were proved. See Buckley, supra, at 27, and n. 28

(citing Buckley v. Valeo, 519 F. 2d 821, 839–840, and nn.

36–38 (CADC 1975) (en banc) (per curiam)). The Court, in

consequence, has noted that restrictions on direct contri

butions are preventative, because few if any contributions

to candidates will involve quid pro quo arrangements.

MCFL, 479 U. S., at 260; NCPAC, 470 U. S., at 500; Fed

eral Election Comm’n v. National Right to Work Comm.,

459 U. S. 197, 210 (1982) (NRWC). The Buckley Court,

nevertheless, sustained limits on direct contributions in

order to ensure against the reality or appearance of cor

ruption. That case did not extend this rationale to inde

pendent expenditures, and the Court does not do so here.

“The absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only

undermines the value of the expenditure to the candidate,

but also alleviates the danger that expenditures will be

given as a quid pro quo for improper commitments from

the candidate.” Buckley, 424 U. S., at 47; see ibid. (inde

pendent expenditures have a “substantially diminished

potential for abuse”). Limits on independent expendi

tures, such as §441b, have a chilling effect extending well

beyond the Government’s interest in preventing quid pro

quo corruption. The anticorruption interest is not suffi

cient to displace the speech here in question. Indeed, 26

States do not restrict independent expenditures by for

profit corporations. The Government does not claim that

these expenditures have corrupted the political process in

those States. See Supp. Brief for Appellee 18, n. 3; Supp.

Brief for Chamber of Commerce of the United States of

42 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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America as Amicus Curiae 8–9, n. 5.

A single footnote in Bellotti purported to leave open the

possibility that corporate independent expenditures could

be shown to cause corruption. 435 U. S., at 788, n. 26. For

the reasons explained above, we now conclude that inde

pendent expenditures, including those made by corpora

tions, do not give rise to corruption or the appearance of

corruption. Dicta in Bellotti’s footnote suggested that “a

corporation’s right to speak on issues of general public

interest implies no comparable right in the quite different

context of participation in a political campaign for election

to public office.” Ibid. Citing the portion of Buckley that

invalidated the federal independent expenditure ban, 424

U. S., at 46, and a law review student comment, Bellotti

surmised that “Congress might well be able to demon

strate the existence of a danger of real or apparent corrup

tion in independent expenditures by corporations to influ

ence candidate elections.” 435 U. S., at 788, n. 26.

Buckley, however, struck down a ban on independent

expenditures to support candidates that covered corpora

tions, 424 U. S., at 23, 39, n. 45, and explained that “the

distinction between discussion of issues and candidates

and advocacy of election or defeat of candidates may often

dissolve in practical application,” id., at 42. Bellotti’s

dictum is thus supported only by a law review student

comment, which misinterpreted Buckley. See Comment,

The Regulation of Union Political Activity: Majority and

Minority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408

(1977) (suggesting that “corporations and labor unions

should be held to different and more stringent standards

than an individual or other associations under a regula

tory scheme for campaign financing”).

Seizing on this aside in Bellotti’s footnote, the Court in

NRWC did say there is a “sufficient” governmental inter

est in “ensur[ing] that substantial aggregations of wealth

amassed” by corporations would not “be used to incur

Cite as: 558 U. S. ____ (2010) 43

Opinion of the Court

political debts from legislators who are aided by the con

tributions.” 459 U. S., at 207–208 (citing Automobile

Workers, 352 U. S., at 579); see 459 U. S., at 210, and n. 7;

NCPAC, supra, at 500–501 (NRWC suggested a govern

mental interest in restricting “the influence of political

war chests funneled through the corporate form”). NRWC,

however, has little relevance here. NRWC decided no

more than that a restriction on a corporation’s ability to

solicit funds for its segregated PAC, which made direct

contributions to candidates, did not violate the First

Amendment. 459 U. S., at 206. NRWC thus involved

contribution limits, see NCPAC, supra, at 495–496, which,

unlike limits on independent expenditures, have been an

accepted means to prevent quid pro quo corruption, see

McConnell, 540 U. S., at 136–138, and n. 40; MCFL, su

pra, at 259–260. Citizens United has not made direct

contributions to candidates, and it has not suggested that

the Court should reconsider whether contribution limits

should be subjected to rigorous First Amendment scrutiny.

When Buckley identified a sufficiently important gov

ernmental interest in preventing corruption or the ap

pearance of corruption, that interest was limited to quid

pro quo corruption. See McConnell, supra, at 296–298

(opinion of KENNEDY, J.) (citing Buckley, supra, at 26–28,

30, 46–48); NCPAC, 470 U. S., at 497 (“The hallmark of

corruption is the financial quid pro quo: dollars for politi

cal favors”); id., at 498. The fact that speakers may have

influence over or access to elected officials does not mean

that these officials are corrupt:

“Favoritism and influence are not . . . avoidable in

representative politics. It is in the nature of an

elected representative to favor certain policies, and, by

necessary corollary, to favor the voters and contribu

tors who support those policies. It is well understood

that a substantial and legitimate reason, if not the

44 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

only reason, to cast a vote for, or to make a contribu

tion to, one candidate over another is that the candi

date will respond by producing those political out

comes the supporter favors. Democracy is premised

on responsiveness.” McConnell, 540 U. S., at 297

(opinion of KENNEDY, J.).

Reliance on a “generic favoritism or influence theory . . . is

at odds with standard First Amendment analyses because

it is unbounded and susceptible to no limiting principle.”

Id., at 296.

The appearance of influence or access, furthermore, will

not cause the electorate to lose faith in our democracy. By

definition, an independent expenditure is political speech

presented to the electorate that is not coordinated with a

candidate. See Buckley, supra, at 46. The fact that a

corporation, or any other speaker, is willing to spend

money to try to persuade voters presupposes that the

people have the ultimate influence over elected officials.

This is inconsistent with any suggestion that the elector

ate will refuse “ ‘to take part in democratic governance’ ”

because of additional political speech made by a corpora

tion or any other speaker. McConnell, supra, at 144 (quot

ing Nixon v. Shrink Missouri Government PAC, 528 U. S.

377, 390 (2000)).

Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009),

is not to the contrary. Caperton held that a judge was

required to recuse himself “when a person with a personal

stake in a particular case had a significant and dispropor

tionate influence in placing the judge on the case by rais

ing funds or directing the judge’s election campaign when

the case was pending or imminent.” Id., at ___ (slip op., at

14). The remedy of recusal was based on a litigant’s due

process right to a fair trial before an unbiased judge. See

Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s

holding was limited to the rule that the judge must be

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Opinion of the Court

recused, not that the litigant’s political speech could be

banned.

The McConnell record was “over 100,000 pages” long,

McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have

any direct examples of votes being exchanged for . . . ex

penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This

confirms Buckley’s reasoning that independent expendi

tures do not lead to, or create the appearance of, quid pro

quo corruption. In fact, there is only scant evidence that

independent expenditures even ingratiate. See 251

F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.).

Ingratiation and access, in any event, are not corruption.

The BCRA record establishes that certain donations to

political parties, called “soft money,” were made to gain

access to elected officials. McConnell, supra, at 125, 130–

131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471–

481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842–

843, 858–859 (opinion of Leon, J.). This case, however, is

about independent expenditures, not soft money. When

Congress finds that a problem exists, we must give that

finding due deference; but Congress may not choose an

unconstitutional remedy. If elected officials succumb to

improper influences from independent expenditures; if

they surrender their best judgment; and if they put expe

diency before principle, then surely there is cause for

concern. We must give weight to attempts by Congress to

seek to dispel either the appearance or the reality of these

influences. The remedies enacted by law, however, must

comply with the First Amendment; and, it is our law and

our tradition that more speech, not less, is the governing

rule. An outright ban on corporate political speech during

the critical preelection period is not a permissible remedy.

Here Congress has created categorical bans on speech that

are asymmetrical to preventing quid pro quo corruption.

46 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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3

The Government contends further that corporate inde

pendent expenditures can be limited because of its interest

in protecting dissenting shareholders from being com

pelled to fund corporate political speech. This asserted

interest, like Austin’s antidistortion rationale, would allow

the Government to ban the political speech even of media

corporations. See supra, at 35–37. Assume, for example,

that a shareholder of a corporation that owns a newspaper

disagrees with the political views the newspaper ex

presses. See Austin, 494 U. S., at 687 (SCALIA, J., dissent

ing). Under the Government’s view, that potential dis

agreement could give the Government the authority to

restrict the media corporation’s political speech. The First

Amendment does not allow that power. There is, further

more, little evidence of abuse that cannot be corrected by

shareholders “through the procedures of corporate democ

racy.” Bellotti, 435 U. S., at 794; see id., at 794, n. 34.

Those reasons are sufficient to reject this shareholder

protection interest; and, moreover, the statute is both

underinclusive and overinclusive. As to the first, if Con

gress had been seeking to protect dissenting shareholders,

it would not have banned corporate speech in only certain

media within 30 or 60 days before an election. A dissent

ing shareholder’s interests would be implicated by speech

in any media at any time. As to the second, the statute is

overinclusive because it covers all corporations, including

nonprofit corporations and for-profit corporations with

only single shareholders. As to other corporations, the

remedy is not to restrict speech but to consider and ex

plore other regulatory mechanisms. The regulatory

mechanism here, based on speech, contravenes the First

Amendment.

4

We need not reach the question whether the Govern

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Opinion of the Court

ment has a compelling interest in preventing foreign

individuals or associations from influencing our Nation’s

political process. Cf. 2 U. S. C. §441e (contribution and

expenditure ban applied to “foreign national[s]”). Section

441b is not limited to corporations or associations that

were created in foreign countries or funded predominately

by foreign shareholders. Section 441b therefore would be

overbroad even if we assumed, arguendo, that the Gov

ernment has a compelling interest in limiting foreign

influence over our political process. See Broadrick, 413

U. S., at 615.

C

Our precedent is to be respected unless the most con

vincing of reasons demonstrates that adherence to it puts

us on a course that is sure error. “Beyond workability, the

relevant factors in deciding whether to adhere to the

principle of stare decisis include the antiquity of the

precedent, the reliance interests at stake, and of course

whether the decision was well reasoned.” Montejo v.

Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (over

ruling Michigan v. Jackson, 475 U. S. 625 (1986)). We

have also examined whether “experience has pointed up

the precedent’s shortcomings.” Pearson v. Callahan, 555

U. S. ___, ___ (2009) (slip op., at 8) (overruling Saucier v.

Katz, 533 U. S. 194 (2001)).

These considerations counsel in favor of rejecting Aus

tin, which itself contravened this Court’s earlier prece

dents in Buckley and Bellotti. “This Court has not hesi

tated to overrule decisions offensive to the First

Amendment.” WRTL, 551 U. S., at 500 (opinion of SCALIA,

J.). “[S]tare decisis is a principle of policy and not a me

chanical formula of adherence to the latest decision.”

Helvering v. Hallock, 309 U. S. 106, 119 (1940).

For the reasons above, it must be concluded that Austin

was not well reasoned. The Government defends Austin,

48 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

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relying almost entirely on “the quid pro quo interest, the

corruption interest or the shareholder interest,” and not

Austin’s expressed antidistortion rationale. Tr. of Oral

Arg. 48 (Sept. 9, 2009); see id., at 45–46. When neither

party defends the reasoning of a precedent, the principle of

adhering to that precedent through stare decisis is dimin

ished. Austin abandoned First Amendment principles,

furthermore, by relying on language in some of our prece

dents that traces back to the Automobile Workers Court’s

flawed historical account of campaign finance laws, see

Brief for Campaign Finance Scholars as Amici Curiae;

Hayward, 45 Harv. J. Legis. 421; R. Mutch, Campaigns,

Congress, and Courts 33–35, 153–157 (1988). See Austin,

supra, at 659 (quoting MCFL, 479 U. S., at 257–258;

NCPAC, 470 U. S., at 500–501); MCFL, supra, at 257

(quoting Automobile Workers, 352 U. S., at 585); NCPAC,

supra, at 500 (quoting NRWC, 459 U. S., at 210); id., at

208 (“The history of the movement to regulate the political

contributions and expenditures of corporations and labor

unions is set forth in great detail in [Automobile Workers],

supra, at 570–584, and we need only summarize the de

velopment here”).

Austin is undermined by experience since its an

nouncement. Political speech is so ingrained in our cul

ture that speakers find ways to circumvent campaign

finance laws. See, e.g., McConnell, 540 U. S., at 176–177

(“Given BCRA’s tighter restrictions on the raising and

spending of soft money, the incentives . . . to exploit [26

U. S. C. §527] organizations will only increase”). Our

Nation’s speech dynamic is changing, and informative

voices should not have to circumvent onerous restrictions

to exercise their First Amendment rights. Speakers have

become adept at presenting citizens with sound bites,

talking points, and scripted messages that dominate the

24-hour news cycle. Corporations, like individuals, do not

have monolithic views. On certain topics corporations

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Opinion of the Court

may possess valuable expertise, leaving them the best

equipped to point out errors or fallacies in speech of

all sorts, including the speech of candidates and elected

officials.

Rapid changes in technology—and the creative dynamic

inherent in the concept of free expression—counsel against

upholding a law that restricts political speech in certain

media or by certain speakers. See Part II–C, supra.

Today, 30-second television ads may be the most effective

way to convey a political message. See McConnell, supra,

at 261 (opinion of SCALIA, J.). Soon, however, it may be

that Internet sources, such as blogs and social networking

Web sites, will provide citizens with significant informa

tion about political candidates and issues. Yet, §441b

would seem to ban a blog post expressly advocating the

election or defeat of a candidate if that blog were created

with corporate funds. See 2 U. S. C. §441b(a); MCFL,

supra, at 249. The First Amendment does not permit

Congress to make these categorical distinctions based on

the corporate identity of the speaker and the content of

the political speech.

No serious reliance interests are at stake. As the Court

stated in Payne v. Tennessee, 501 U. S. 808, 828 (1991),

reliance interests are important considerations in property

and contract cases, where parties may have acted in con

formance with existing legal rules in order to conduct

transactions. Here, though, parties have been prevented

from acting—corporations have been banned from making

independent expenditures. Legislatures may have en

acted bans on corporate expenditures believing that those

bans were constitutional. This is not a compelling interest

for stare decisis. If it were, legislative acts could prevent

us from overruling our own precedents, thereby interfer

ing with our duty “to say what the law is.” Marbury v.

Madison, 1 Cranch 137, 177 (1803).

Due consideration leads to this conclusion: Austin, 494

50 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

U. S. 652, should be and now is overruled. We return to

the principle established in Buckley and Bellotti that the

Government may not suppress political speech on the

basis of the speaker’s corporate identity. No sufficient

governmental interest justifies limits on the political

speech of nonprofit or for-profit corporations.

D

Austin is overruled, so it provides no basis for allowing

the Government to limit corporate independent expendi

tures. As the Government appears to concede, overruling

Austin “effectively invalidate[s] not only BCRA Section

203, but also 2 U. S. C. 441b’s prohibition on the use of

corporate treasury funds for express advocacy.” Brief for

Appellee 33, n. 12. Section 441b’s restrictions on corporate

independent expenditures are therefore invalid and can

not be applied to Hillary.

Given our conclusion we are further required to overrule

the part of McConnell that upheld BCRA §203’s extension

of §441b’s restrictions on corporate independent expendi

tures. See 540 U. S., at 203–209. The McConnell Court

relied on the antidistortion interest recognized in Austin

to uphold a greater restriction on speech than the restric

tion upheld in Austin, see 540 U. S., at 205, and we have

found this interest unconvincing and insufficient. This

part of McConnell is now overruled.

IV

A

Citizens United next challenges BCRA’s disclaimer and

disclosure provisions as applied to Hillary and the three

advertisements for the movie. Under BCRA §311, tele

vised electioneering communications funded by anyone

other than a candidate must include a disclaimer that

“ ‘_______ is responsible for the content of this advertis

ing.’ ” 2 U. S. C. §441d(d)(2). The required statement

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must be made in a “clearly spoken manner,” and displayed

on the screen in a “clearly readable manner” for at least

four seconds. Ibid. It must state that the communication

“is not authorized by any candidate or candidate’s commit

tee”; it must also display the name and address (or Web

site address) of the person or group that funded the adver

tisement. §441d(a)(3). Under BCRA §201, any person

who spends more than $10,000 on electioneering commu

nications within a calendar year must file a disclosure

statement with the FEC. 2 U. S. C. §434(f)(1). That

statement must identify the person making the expendi

ture, the amount of the expenditure, the election to which

the communication was directed, and the names of certain

contributors. §434(f)(2).

Disclaimer and disclosure requirements may burden the

ability to speak, but they “impose no ceiling on campaign

related activities,” Buckley, 424 U. S., at 64, and “do not

prevent anyone from speaking,” McConnell, supra, at 201

(internal quotation marks and brackets omitted). The

Court has subjected these requirements to “exacting scru

tiny,” which requires a “substantial relation” between the

disclosure requirement and a “sufficiently important”

governmental interest. Buckley, supra, at 64, 66 (internal

quotation marks omitted); see McConnell, supra, at 231–

232.

In Buckley, the Court explained that disclosure could be

justified based on a governmental interest in “provid[ing]

the electorate with information” about the sources of

election-related spending. 424 U. S., at 66. The McCon

nell Court applied this interest in rejecting facial chal

lenges to BCRA §§201 and 311. 540 U. S., at 196. There

was evidence in the record that independent groups were

running election-related advertisements “ ‘while hiding

behind dubious and misleading names.’ ” Id., at 197 (quot

ing McConnell I, 251 F. Supp. 2d, at 237). The Court

therefore upheld BCRA §§201 and 311 on the ground that

52 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

they would help citizens “ ‘make informed choices in the

political marketplace.’ ” 540 U. S., at 197 (quoting McCon

nell I, supra, at 237); see 540 U. S., at 231.

Although both provisions were facially upheld, the

Court acknowledged that as-applied challenges would be

available if a group could show a “ ‘reasonable probability’ ”

that disclosure of its contributors’ names “ ‘will subject

them to threats, harassment, or reprisals from either

Government officials or private parties.’ ” Id., at 198

(quoting Buckley, supra, at 74).

For the reasons stated below, we find the statute valid

as applied to the ads for the movie and to the movie itself.

B

Citizens United sought to broadcast one 30-second and

two 10-second ads to promote Hillary. Under FEC regula

tions, a communication that “[p]roposes a commercial

transaction” was not subject to 2 U. S. C. §441b’s restric

tions on corporate or union funding of electioneering com

munications. 11 CFR §114.15(b)(3)(ii). The regulations,

however, do not exempt those communications from the

disclaimer and disclosure requirements in BCRA §§201

and 311. See 72 Fed. Reg. 72901 (2007).

Citizens United argues that the disclaimer require

ments in §311 are unconstitutional as applied to its ads.

It contends that the governmental interest in providing

information to the electorate does not justify requiring

disclaimers for any commercial advertisements, including

the ones at issue here. We disagree. The ads fall within

BCRA’s definition of an “electioneering communication”:

They referred to then-Senator Clinton by name shortly

before a primary and contained pejorative references to

her candidacy. See 530 F. Supp. 2d, at 276, nn. 2–4. The

disclaimers required by §311 “provid[e] the electorate with

information,” McConnell, supra, at 196, and “insure that

the voters are fully informed” about the person or group

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Opinion of the Court

who is speaking, Buckley, supra, at 76; see also Bellotti,

435 U. S., at 792, n. 32 (“Identification of the source of

advertising may be required as a means of disclosure, so

that the people will be able to evaluate the arguments to

which they are being subjected”). At the very least, the

disclaimers avoid confusion by making clear that the ads

are not funded by a candidate or political party.

Citizens United argues that §311 is underinclusive

because it requires disclaimers for broadcast advertise

ments but not for print or Internet advertising. It asserts

that §311 decreases both the quantity and effectiveness of

the group’s speech by forcing it to devote four seconds of

each advertisement to the spoken disclaimer. We rejected

these arguments in McConnell, supra, at 230–231. And

we now adhere to that decision as it pertains to the disclo

sure provisions.

As a final point, Citizens United claims that, in any

event, the disclosure requirements in §201 must be con

fined to speech that is the functional equivalent of express

advocacy. The principal opinion in WRTL limited 2

U. S. C. §441b’s restrictions on independent expenditures

to express advocacy and its functional equivalent. 551

U. S., at 469–476 (opinion of ROBERTS, C. J.). Citizens

United seeks to import a similar distinction into BCRA’s

disclosure requirements. We reject this contention.

The Court has explained that disclosure is a less restric

tive alternative to more comprehensive regulations of

speech. See, e.g., MCFL, 479 U. S., at 262. In Buckley, the

Court upheld a disclosure requirement for independent

expenditures even though it invalidated a provision that

imposed a ceiling on those expenditures. 424 U. S., at 75–

76. In McConnell, three Justices who would have found

§441b to be unconstitutional nonetheless voted to uphold

BCRA’s disclosure and disclaimer requirements. 540

U. S., at 321 (opinion of KENNEDY, J., joined by Rehnquist,

C. J., and SCALIA, J.). And the Court has upheld registra

54 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

tion and disclosure requirements on lobbyists, even

though Congress has no power to ban lobbying itself.

United States v. Harriss, 347 U. S. 612, 625 (1954) (Con

gress “has merely provided for a modicum of information

from those who for hire attempt to influence legislation or

who collect or spend funds for that purpose”). For these

reasons, we reject Citizens United’s contention that the

disclosure requirements must be limited to speech that is

the functional equivalent of express advocacy.

Citizens United also disputes that an informational

interest justifies the application of §201 to its ads, which

only attempt to persuade viewers to see the film. Even if

it disclosed the funding sources for the ads, Citizens

United says, the information would not help viewers make

informed choices in the political marketplace. This is

similar to the argument rejected above with respect to

disclaimers. Even if the ads only pertain to a commercial

transaction, the public has an interest in knowing who is

speaking about a candidate shortly before an election.

Because the informational interest alone is sufficient to

justify application of §201 to these ads, it is not necessary

to consider the Government’s other asserted interests.

Last, Citizens United argues that disclosure require

ments can chill donations to an organization by exposing

donors to retaliation. Some amici point to recent events in

which donors to certain causes were blacklisted, threat

ened, or otherwise targeted for retaliation. See Brief for

Institute for Justice as Amicus Curiae 13–16; Brief for

Alliance Defense Fund as Amicus Curiae 16–22. In

McConnell, the Court recognized that §201 would be un

constitutional as applied to an organization if there were a

reasonable probability that the group’s members would

face threats, harassment, or reprisals if their names were

disclosed. 540 U. S., at 198. The examples cited by amici

are cause for concern. Citizens United, however, has

offered no evidence that its members may face similar

Cite as: 558 U. S. ____ (2010) 55

Opinion of the Court

threats or reprisals. To the contrary, Citizens United has

been disclosing its donors for years and has identified no

instance of harassment or retaliation.

Shareholder objections raised through the procedures of

corporate democracy, see Bellotti, supra, at 794, and n. 34,

can be more effective today because modern technology

makes disclosures rapid and informative. A campaign

finance system that pairs corporate independent expendi

tures with effective disclosure has not existed before to

day. It must be noted, furthermore, that many of Con

gress’ findings in passing BCRA were premised on a

system without adequate disclosure. See McConnell, 540

U. S., at 128 (“[T]he public may not have been fully in

formed about the sponsorship of so-called issue ads”); id.,

at 196–197 (quoting McConnell I, 251 F. Supp. 2d, at 237).

With the advent of the Internet, prompt disclosure of

expenditures can provide shareholders and citizens with

the information needed to hold corporations and elected

officials accountable for their positions and supporters.

Shareholders can determine whether their corporation’s

political speech advances the corporation’s interest in

making profits, and citizens can see whether elected offi

cials are “ ‘in the pocket’ of so-called moneyed interests.”

540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra,

at 261. The First Amendment protects political speech;

and disclosure permits citizens and shareholders to react

to the speech of corporate entities in a proper way. This

transparency enables the electorate to make informed

decisions and give proper weight to different speakers and

messages.

C

For the same reasons we uphold the application of

BCRA §§201 and 311 to the ads, we affirm their applica

tion to Hillary. We find no constitutional impediment to

the application of BCRA’s disclaimer and disclosure re

56 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

Opinion of the Court

quirements to a movie broadcast via video-on-demand.

And there has been no showing that, as applied in this

case, these requirements would impose a chill on speech or

expression.

V

When word concerning the plot of the movie Mr. Smith

Goes to Washington reached the circles of Government,

some officials sought, by persuasion, to discourage its

distribution. See Smoodin, “Compulsory” Viewing for

Every Citizen: Mr. Smith and the Rhetoric of Reception,

35 Cinema Journal 3, 19, and n. 52 (Winter 1996) (citing

Mr. Smith Riles Washington, Time, Oct. 30, 1939, p. 49);

Nugent, Capra’s Capitol Offense, N. Y. Times, Oct. 29,

1939, p. X5. Under Austin, though, officials could have

done more than discourage its distribution—they could

have banned the film. After all, it, like Hillary, was

speech funded by a corporation that was critical of Mem

bers of Congress. Mr. Smith Goes to Washington may be

fiction and caricature; but fiction and caricature can be a

powerful force.

Modern day movies, television comedies, or skits on

Youtube.com might portray public officials or public poli

cies in unflattering ways. Yet if a covered transmission

during the blackout period creates the background for

candidate endorsement or opposition, a felony occurs

solely because a corporation, other than an exempt media

corporation, has made the “purchase, payment, distribu

tion, loan, advance, deposit, or gift of money or anything of

value” in order to engage in political speech. 2 U. S. C.

§431(9)(A)(i). Speech would be suppressed in the realm

where its necessity is most evident: in the public dialogue

preceding a real election. Governments are often hostile

to speech, but under our law and our tradition it seems

stranger than fiction for our Government to make this

political speech a crime. Yet this is the statute’s purpose

Cite as: 558 U. S. ____ (2010) 57

Opinion of the Court

and design.

Some members of the public might consider Hillary to

be insightful and instructive; some might find it to be

neither high art nor a fair discussion on how to set the

Nation’s course; still others simply might suspend judg

ment on these points but decide to think more about issues

and candidates. Those choices and assessments, however,

are not for the Government to make. “The First Amend

ment underwrites the freedom to experiment and to create

in the realm of thought and speech. Citizens must be free

to use new forms, and new forums, for the expression of

ideas. The civic discourse belongs to the people, and the

Government may not prescribe the means used to conduct

it.” McConnell, supra, at 341 (opinion of KENNEDY, J.).

The judgment of the District Court is reversed with

respect to the constitutionality of 2 U. S. C. §441b’s re

strictions on corporate independent expenditures. The

judgment is affirmed with respect to BCRA’s disclaimer

and disclosure requirements. The case is remanded for

further proceedings consistent with this opinion.

It is so ordered.

Cite as: 558 U. S. ____ (2010) 1

ROBERTS, C. J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–205

_________________

CITIZENS UNITED, APPELLANT v. FEDERAL

ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[January 21, 2010]

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO

joins, concurring.

The Government urges us in this case to uphold a direct

prohibition on political speech. It asks us to embrace a

theory of the First Amendment that would allow censor

ship not only of television and radio broadcasts, but of

pamphlets, posters, the Internet, and virtually any other

medium that corporations and unions might find useful in

expressing their views on matters of public concern. Its

theory, if accepted, would empower the Government to

prohibit newspapers from running editorials or opinion

pieces supporting or opposing candidates for office, so long

as the newspapers were owned by corporations—as the

major ones are. First Amendment rights could be confined

to individuals, subverting the vibrant public discourse

that is at the foundation of our democracy.

The Court properly rejects that theory, and I join its

opinion in full. The First Amendment protects more than

just the individual on a soapbox and the lonely pamphle

teer. I write separately to address the important princi

ples of judicial restraint and stare decisis implicated in

this case.

I

Judging the constitutionality of an Act of Congress is

2 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

ROBERTS, C. J., concurring

“the gravest and most delicate duty that this Court is

called upon to perform.” Blodgett v. Holden, 275 U. S. 142,

147–148 (1927) (Holmes, J., concurring). Because the

stakes are so high, our standard practice is to refrain from

addressing constitutional questions except when necessary

to rule on particular claims before us. See Ashwander v.

TVA, 297 U. S. 288, 346–348 (1936) (Brandeis, J., concur

ring). This policy underlies both our willingness to con

strue ambiguous statutes to avoid constitutional problems

and our practice “ ‘never to formulate a rule of constitu

tional law broader than is required by the precise facts to

which it is to be applied.’ ” United States v. Raines, 362

U. S. 17, 21 (1960) (quoting Liverpool, New York & Phila­

delphia S. S. Co. v. Commissioners of Emigration, 113

U. S. 33, 39 (1885)).

The majority and dissent are united in expressing alle

giance to these principles. Ante, at 12; post, at 14

(STEVENS, J., concurring in part and dissenting in part).

But I cannot agree with my dissenting colleagues on how

these principles apply in this case.

The majority’s step-by-step analysis accords with our

standard practice of avoiding broad constitutional ques

tions except when necessary to decide the case before us.

The majority begins by addressing—and quite properly

rejecting—Citizens United’s statutory claim that 2 U. S. C.

§441b does not actually cover its production and distribu

tion of Hillary: The Movie (hereinafter Hillary). If there

were a valid basis for deciding this statutory claim in

Citizens United’s favor (and thereby avoiding constitu

tional adjudication), it would be proper to do so. Indeed,

that is precisely the approach the Court took just last

Term in Northwest Austin Municipal Util. Dist. No. One v.

Holder, 557 U. S. ___ (2009), when eight Members of the

Court agreed to decide the case on statutory grounds

instead of reaching the appellant’s broader argument that

the Voting Rights Act is unconstitutional.

Cite as: 558 U. S. ____ (2010) 3

ROBERTS, C. J., concurring

It is only because the majority rejects Citizens United’s

statutory claim that it proceeds to consider the group’s

various constitutional arguments, beginning with its

narrowest claim (that Hillary is not the functional equiva

lent of express advocacy) and proceeding to its broadest

claim (that Austin v. Michigan Chamber of Commerce, 494

U. S. 652 (1990) should be overruled). This is the same

order of operations followed by the controlling opinion in

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

551 U. S. 449 (2007) (WRTL). There the appellant was

able to prevail on its narrowest constitutional argument

because its broadcast ads did not qualify as the functional

equivalent of express advocacy; there was thus no need to

go on to address the broader claim that McConnell v.

Federal Election Comm’n, 540 U. S. 93 (2003), should be

overruled. WRTL, 551 U. S., at 482; id., at 482–483

(ALITO, J., concurring). This case is different—not, as the

dissent suggests, because the approach taken in WRTL

has been deemed a “failure,” post, at 11, but because, in

the absence of any valid narrower ground of decision,

there is no way to avoid Citizens United’s broader consti

tutional argument.

The dissent advocates an approach to addressing Citi

zens United’s claims that I find quite perplexing. It pre

sumably agrees with the majority that Citizens United’s

narrower statutory and constitutional arguments lack

merit—otherwise its conclusion that the group should lose

this case would make no sense. Despite agreeing that

these narrower arguments fail, however, the dissent ar

gues that the majority should nonetheless latch on to one

of them in order to avoid reaching the broader constitu

tional question of whether Austin remains good law. It

even suggests that the Court’s failure to adopt one of these

concededly meritless arguments is a sign that the majority

is not “serious about judicial restraint.” Post, at 16.

This approach is based on a false premise: that our

4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

ROBERTS, C. J., concurring

practice of avoiding unnecessary (and unnecessarily

broad) constitutional holdings somehow trumps our obli

gation faithfully to interpret the law. It should go without

saying, however, that we cannot embrace a narrow ground

of decision simply because it is narrow; it must also be

right. Thus while it is true that “[i]f it is not necessary to

decide more, it is necessary not to decide more,” post, at 14

(internal quotation marks omitted), sometimes it is neces

sary to decide more. There is a difference between judicial

restraint and judicial abdication. When constitutional

questions are “indispensably necessary” to resolving the

case at hand, “the court must meet and decide them.” Ex

parte Randolph, 20 F. Cas. 242, 254 (No. 11, 558) (CC Va.

1833) (Marshall, C. J.).

Because it is necessary to reach Citizens United’s

broader argument that Austin should be overruled, the

debate over whether to consider this claim on an as

applied or facial basis strikes me as largely beside the

point. Citizens United has standing—it is being injured

by the Government’s enforcement of the Act. Citizens

United has a constitutional claim—the Act violates the

First Amendment, because it prohibits political speech.

The Government has a defense—the Act may be enforced,

consistent with the First Amendment, against corpora

tions. Whether the claim or the defense prevails is the

question before us.

Given the nature of that claim and defense, it makes no

difference of any substance whether this case is resolved

by invalidating the statute on its face or only as applied to

Citizens United. Even if considered in as-applied terms, a

holding in this case that the Act may not be applied to

Citizens United—because corporations as well as indi

viduals enjoy the pertinent First Amendment rights—

would mean that any other corporation raising the same

challenge would also win. Likewise, a conclusion that the

Act may be applied to Citizens United—because it is

Cite as: 558 U. S. ____ (2010) 5

ROBERTS, C. J., concurring

constitutional to prohibit corporate political speech—

would similarly govern future cases. Regardless whether

we label Citizens United’s claim a “facial” or “as-applied”

challenge, the consequences of the Court’s decision are the

same.1

II

The text and purpose of the First Amendment point in

the same direction: Congress may not prohibit political

speech, even if the speaker is a corporation or union.

What makes this case difficult is the need to confront our

prior decision in Austin.

This is the first case in which we have been asked to

overrule Austin, and thus it is also the first in which we

have had reason to consider how much weight to give stare

decisis in assessing its continued validity. The dissent

erroneously declares that the Court “reaffirmed” Austin’s

holding in subsequent cases—namely, Federal Election

Comm’n v. Beaumont, 539 U. S. 146 (2003); McConnell;

and WRTL. Post, at 48–50. Not so. Not a single party in

any of those cases asked us to overrule Austin, and as the

dissent points out, post, at 4–6, the Court generally does

not consider constitutional arguments that have not prop

erly been raised. Austin’s validity was therefore not di

rectly at issue in the cases the dissent cites. The Court’s

unwillingness to overturn Austin in those cases cannot be

understood as a reaffirmation of that decision.

A

Fidelity to precedent—the policy of stare decisis—is vital

——————

1 The dissent suggests that I am “much too quick” to reach this con

clusion because I “ignore” Citizens United’s narrower arguments. Post,

at 13, n. 12. But in fact I do not ignore those arguments; on the con

trary, I (and my colleagues in the majority) appropriately consider and

reject them on their merits, before addressing Citizens United’s broader

claims. Supra, at 2–3; ante, at 5–12.

6 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

ROBERTS, C. J., concurring

to the proper exercise of the judicial function. “Stare

decisis is the preferred course because it promotes the

evenhanded, predictable, and consistent development of

legal principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the

judicial process.” Payne v. Tennessee, 501 U. S. 808, 827

(1991). For these reasons, we have long recognized that

departures from precedent are inappropriate in the ab

sence of a “special justification.” Arizona v. Rumsey, 467

U. S. 203, 212 (1984).

At the same time, stare decisis is neither an “inexorable

command,” Lawrence v. Texas, 539 U. S. 558, 577 (2003),

nor “a mechanical formula of adherence to the latest deci

sion,” Helvering v. Hallock, 309 U. S. 106, 119 (1940),

especially in constitutional cases, see United States v.

Scott, 437 U. S. 82, 101 (1978). If it were, segregation

would be legal, minimum wage laws would be unconstitu

tional, and the Government could wiretap ordinary crimi

nal suspects without first obtaining warrants. See Plessy

v. Ferguson, 163 U. S. 537 (1896), overruled by Brown v.

Board of Education, 347 U. S. 483 (1954); Adkins v. Chil­

dren’s Hospital of D. C., 261 U. S. 525 (1923), overruled by

West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937);

Olmstead v. United States, 277 U. S. 438 (1928), overruled

by Katz v. United States, 389 U. S. 347 (1967). As the

dissent properly notes, none of us has viewed stare decisis

in such absolute terms. Post, at 17; see also, e.g., Randall

v. Sorrell, 548 U. S. 230, 274–281 (2006) (STEVENS, J.,

dissenting) (urging the Court to overrule its invalidation of

limits on independent expenditures on political speech in

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

Stare decisis is instead a “principle of policy.” Helvering,

supra, at 119. When considering whether to reexamine a

prior erroneous holding, we must balance the importance

of having constitutional questions decided against the

importance of having them decided right. As Justice

Cite as: 558 U. S. ____ (2010) 7

ROBERTS, C. J., concurring

Jackson explained, this requires a “sober appraisal of the

disadvantages of the innovation as well as those of the

questioned case, a weighing of practical effects of one

against the other.” Jackson, Decisional Law and Stare

Decisis, 30 A. B. A. J. 334 (1944).

In conducting this balancing, we must keep in mind that

stare decisis is not an end in itself. It is instead “the

means by which we ensure that the law will not merely

change erratically, but will develop in a principled and

intelligible fashion.” Vasquez v. Hillery, 474 U. S. 254, 265

(1986). Its greatest purpose is to serve a constitutional

ideal—the rule of law. It follows that in the unusual

circumstance when fidelity to any particular precedent

does more to damage this constitutional ideal than to

advance it, we must be more willing to depart from that

precedent.

Thus, for example, if the precedent under consideration

itself departed from the Court’s jurisprudence, returning

to the “ ‘intrinsically sounder’ doctrine established in prior

cases” may “better serv[e] the values of stare decisis than

would following [the] more recently decided case inconsis

tent with the decisions that came before it.” Adarand

Constructors, Inc. v. Peña, 515 U. S. 200, 231 (1995); see

also Helvering, supra, at 119; Randall, supra, at 274

(STEVENS, J., dissenting). Abrogating the errant prece

dent, rather than reaffirming or extending it, might better

preserve the law’s coherence and curtail the precedent’s

disruptive effects.

Likewise, if adherence to a precedent actually impedes

the stable and orderly adjudication of future cases, its

stare decisis effect is also diminished. This can happen in

a number of circumstances, such as when the precedent’s

validity is so hotly contested that it cannot reliably func

tion as a basis for decision in future cases, when its ra

tionale threatens to upend our settled jurisprudence in

related areas of law, and when the precedent’s underlying

8 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

ROBERTS, C. J., concurring

reasoning has become so discredited that the Court cannot

keep the precedent alive without jury-rigging new and

different justifications to shore up the original mistake.

See, e.g., Pearson v. Callahan, 555 U. S. ___, ___ (2009)

(slip op., at 10); Montejo v. Louisiana, 556 U. S. ___, ___

(2009) (slip op., at 13) (stare decisis does not control when

adherence to the prior decision requires “fundamentally

revising its theoretical basis”).

B

These considerations weigh against retaining our deci

sion in Austin. First, as the majority explains, that deci

sion was an “aberration” insofar as it departed from the

robust protections we had granted political speech in our

earlier cases. Ante, at 39; see also Buckley, supra; First

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

Austin undermined the careful line that Buckley drew to

distinguish limits on contributions to candidates from

limits on independent expenditures on speech. Buckley

rejected the asserted government interest in regulating

independent expenditures, concluding that “restrict[ing]

the speech of some elements of our society in order to

enhance the relative voice of others is wholly foreign to the

First Amendment.” 424 U. S., at 48–49; see also Bellotti,

supra, at 790–791; Citizens Against Rent Con­

trol/Coalition for Fair Housing v. Berkeley, 454 U. S. 290,

295 (1981). Austin, however, allowed the Government to

prohibit these same expenditures out of concern for “the

corrosive and distorting effects of immense aggregations of

wealth” in the marketplace of ideas. 494 U. S., at 660.

Austin’s reasoning was—and remains—inconsistent with

Buckley’s explicit repudiation of any government interest

in “equalizing the relative ability of individuals and

groups to influence the outcome of elections.” 424 U. S., at

48–49.

Austin was also inconsistent with Bellotti’s clear rejec

Cite as: 558 U. S. ____ (2010) 9

ROBERTS, C. J., concurring

tion of the idea that “speech that otherwise would be

within the protection of the First Amendment loses that

protection simply because its source is a corporation.” 435

U. S., at 784. The dissent correctly points out that Bellotti

involved a referendum rather than a candidate election,

and that Bellotti itself noted this factual distinction, id., at

788, n. 26; post, at 52. But this distinction does not ex

plain why corporations may be subject to prohibitions on

speech in candidate elections when individuals may not.

Second, the validity of Austin’s rationale—itself adopted

over two “spirited dissents,” Payne, 501 U. S., at 829—has

proved to be the consistent subject of dispute among Mem

bers of this Court ever since. See, e.g., WRTL, 551 U. S.,

at 483 (SCALIA, J., joined by KENNEDY and THOMAS, JJ.,

concurring in part and concurring in judgment); McCon­

nell, 540 U. S., at 247, 264, 286 (opinions of SCALIA,

THOMAS, and KENNEDY, JJ.); Beaumont, 539 U. S., at 163,

164 (opinions of KENNEDY and THOMAS, JJ.). The simple

fact that one of our decisions remains controversial is, of

course, insufficient to justify overruling it. But it does

undermine the precedent’s ability to contribute to the

stable and orderly development of the law. In such cir

cumstances, it is entirely appropriate for the Court—

which in this case is squarely asked to reconsider Austin’s

validity for the first time—to address the matter with a

greater willingness to consider new approaches capable of

restoring our doctrine to sounder footing.

Third, the Austin decision is uniquely destabilizing

because it threatens to subvert our Court’s decisions even

outside the particular context of corporate express advo

cacy. The First Amendment theory underlying Austin’s

holding is extraordinarily broad. Austin’s logic would

authorize government prohibition of political speech by a

category of speakers in the name of equality—a point that

most scholars acknowledge (and many celebrate), but that

the dissent denies. Compare, e.g., Garrett, New Voices in

10 CITIZENS UNITED v. FEDERAL ELECTION COMM’N

ROBERTS, C. J., concurring

Politics: Justice Marshall’s Jurisprudence on Law and

Politics, 52 Howard L. J. 655, 669 (2009) (Austin “has been

understood by most commentators to be an opinion driven

by equality considerations, albeit disguised in the lan

guage of ‘political corruption’ ”) with post, at 74 (Austin’s

rationale “is manifestly not just an ‘equalizing’ ideal in

disguise”).2

It should not be surprising, then, that Members of the

Court have relied on Austin’s expansive logic to justify

greater incursions on the First Amendment, even outside

the original context of corporate advocacy on behalf of

candidates running for office. See, e.g., Davis v. Federal

Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 7–

8) (STEVENS, J., concurring in part and dissenting in part)

(relying on Austin and other cases to justify restrictions on

campaign spending by individual candidates, explaining

that “there is no reason that their logic—specifically, their

concerns about the corrosive and distorting effects of

wealth on our political process—is not equally applicable

in the context of individual wealth”); McConnell, supra, at

203–209 (extending Austin beyond its original context to

cover not only the “functional equivalent” of express advo

cacy by corporations, but also electioneering speech con

ducted by labor unions). The dissent in this case suc

cumbs to the same temptation, suggesting that Austin

justifies prohibiting corporate speech because such speech

——————

2 See also, e.g., R. Hasen, The Supreme Court and Election Law:

Judging Equality from Baker v. Carr to Bush v. Gore 114 (2003) (“Aus­

tin represents the first and only case [before McConnell] in which a

majority of the Court accepted, in deed if not in word, the equality

rationale as a permissible state interest”); Strauss, Corruption, Equal

ity, and Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1369, and

n. 1 (1994) (noting that Austin’s rationale was based on equalizing

political speech); Ashdown, Controlling Campaign Spending and the

“New Corruption”: Waiting for the Court, 44 Vand. L. Rev. 767, 781

(1991); Eule, Promoting Speaker Diversi

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