(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
Syllabus
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
Opinion of the Court
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
Opinion of the Court
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
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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.
. . . . .
Cite as: 558 U. S. ____ (2010) 31
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
Cite as: 558 U. S. ____ (2010) 35
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
Opinion of the Court
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
Opinion of the Court
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
Opinion of the Court
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
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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
Cite as: 558 U. S. ____ (2010) 47
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
Opinion of the Court
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 Diversity: Austin and Metro Broad
casting, 1990 S. Ct. Rev. 105, 108–111.
Cite as: 558 U. S. ____ (2010) 11
ROBERTS, C. J., concurring
might unduly influence “the market for legislation.” Post,
at 82. The dissent reads Austin to permit restrictions on
corporate speech based on nothing more than the fact that
the corporate form may help individuals coordinate and
present their views more effectively. Post, at 82. A
speaker’s ability to persuade, however, provides no basis
for government regulation of free and open public debate
on what the laws should be.
If taken seriously, Austin’s logic would apply most di
rectly to newspapers and other media corporations. They
have a more profound impact on public discourse than
most other speakers. These corporate entities are, for the
time being, not subject to §441b’s otherwise generally
applicable prohibitions on corporate political speech. But
this is simply a matter of legislative grace. The fact that
the law currently grants a favored position to media cor
porations is no reason to overlook the danger inherent in
accepting a theory that would allow government restric
tions on their political speech. See generally McConnell,
supra, at 283–286 (THOMAS, J., concurring in part, concur
ring in judgment in part, and dissenting in part).
These readings of Austin do no more than carry that
decision’s reasoning to its logical endpoint. In doing so,
they highlight the threat Austin poses to First Amend
ment rights generally, even outside its specific factual
context of corporate express advocacy. Because Austin is
so difficult to confine to its facts—and because its logic
threatens to undermine our First Amendment jurispru
dence and the nature of public discourse more broadly—
the costs of giving it stare decisis effect are unusually high.
Finally and most importantly, the Government’s own
effort to defend Austin—or, more accurately, to defend
something that is not quite Austin—underscores its weak
ness as a precedent of the Court. The Government con
cedes that Austin “is not the most lucid opinion,” yet asks
us to reaffirm its holding. Tr. of Oral Arg. 62 (Sept. 9,
12 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
ROBERTS, C. J., concurring
2009). But while invoking stare decisis to support this
position, the Government never once even mentions the
compelling interest that Austin relied upon in the first
place: the need to diminish “the corrosive and distorting
effects of immense aggregations of wealth that are accu
mulated with the help of the corporate form and that have
little or no correlation to the public’s support for the corpo
ration’s political ideas.” 494 U. S., at 660.
Instead of endorsing Austin on its own terms, the Gov
ernment urges us to reaffirm Austin’s specific holding on
the basis of two new and potentially expansive interests—
the need to prevent actual or apparent quid pro quo cor
ruption, and the need to protect corporate shareholders.
See Supp. Brief for Appellee 8–10, 12–13. Those interests
may or may not support the result in Austin, but they were
plainly not part of the reasoning on which Austin relied.
To its credit, the Government forthrightly concedes that
Austin did not embrace either of the new rationales it now
urges upon us. See, e.g., Supp. Brief for Appellee 11 (“The
Court did not decide in Austin . . . whether the compelling
interest in preventing actual or apparent corruption pro
vides a constitutionally sufficient justification for prohibit
ing the use of corporate treasury funds for independent
electioneering”); Tr. of Oral Arg. 45 (Sept. 9, 2009) (“Aus
tin did not articulate what we believe to be the strongest
compelling interest”); id., at 61 (“[The Court:] I take it we
have never accepted your shareholder protection interest.
This is a new argument. [The Government:] I think that
that’s fair”); id., at 64 (“[The Court:] In other words, you
are asking us to uphold Austin on the basis of two argu
ments, two principles, two compelling interests we have
never accepted in [the context of limits on political expen
ditures]. [The Government:] [I]n this particular context,
fair enough”).
To be clear: The Court in Austin nowhere relied upon
the only arguments the Government now raises to support
Cite as: 558 U. S. ____ (2010) 13
ROBERTS, C. J., concurring
that decision. In fact, the only opinion in Austin endorsing
the Government’s argument based on the threat of quid
pro quo corruption was JUSTICE STEVENS’s concurrence.
494 U. S., at 678. The Court itself did not do so, despite
the fact that the concurrence highlighted the argument.
Moreover, the Court’s only discussion of shareholder pro
tection in Austin appeared in a section of the opinion that
sought merely to distinguish Austin’s facts from those of
Federal Election Comm’n v. Massachusetts Citizens for
Life, Inc., 479 U. S. 238 (1986). Austin, supra, at 663.
Nowhere did Austin suggest that the goal of protecting
shareholders is itself a compelling interest authorizing
restrictions on First Amendment rights.
To the extent that the Government’s case for reaffirming
Austin depends on radically reconceptualizing its reason
ing, that argument is at odds with itself. Stare decisis is a
doctrine of preservation, not transformation. It counsels
deference to past mistakes, but provides no justification
for making new ones. There is therefore no basis for the
Court to give precedential sway to reasoning that it has
never accepted, simply because that reasoning happens to
support a conclusion reached on different grounds that
have since been abandoned or discredited.
Doing so would undermine the rule-of-law values that
justify stare decisis in the first place. It would effectively
license the Court to invent and adopt new principles of
constitutional law solely for the purpose of rationalizing
its past errors, without a proper analysis of whether those
principles have merit on their own. This approach would
allow the Court’s past missteps to spawn future mistakes,
undercutting the very rule-of-law values that stare decisis
is designed to protect.
None of this is to say that the Government is barred
from making new arguments to support the outcome in
Austin. On the contrary, it is free to do so. And of course
the Court is free to accept them. But the Government’s
14 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
ROBERTS, C. J., concurring
new arguments must stand or fall on their own; they are
not entitled to receive the special deference we accord to
precedent. They are, as grounds to support Austin, liter
ally unprecedented. Moreover, to the extent the Govern
ment relies on new arguments—and declines to defend
Austin on its own terms—we may reasonably infer that it
lacks confidence in that decision’s original justification.
Because continued adherence to Austin threatens to
subvert the “principled and intelligible” development of
our First Amendment jurisprudence, Vasquez, 474 U. S.,
at 265, I support the Court’s determination to overrule
that decision.
* * *
We have had two rounds of briefing in this case, two oral
arguments, and 54 amicus briefs to help us carry out our
obligation to decide the necessary constitutional questions
according to law. We have also had the benefit of a com
prehensive dissent that has helped ensure that the Court
has considered all the relevant issues. This careful con
sideration convinces me that Congress violates the First
Amendment when it decrees that some speakers may not
engage in political speech at election time, when it matters
most.
Cite as: 558 U. S. ____ (2010) 1
SCALIA, 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]
JUSTICE SCALIA, with whom JUSTICE ALITO joins, and
with whom JUSTICE THOMAS joins in part, concurring.
I join the opinion of the Court.1
I write separately to address JUSTICE STEVENS’ discus
sion of “Original Understandings,” post, at 34 (opinion
concurring in part and dissenting in part) (hereinafter
referred to as the dissent). This section of the dissent
purports to show that today’s decision is not supported by
the original understanding of the First Amendment. The
dissent attempts this demonstration, however, in splendid
isolation from the text of the First Amendment. It never
shows why “the freedom of speech” that was the right of
Englishmen did not include the freedom to speak in asso
ciation with other individuals, including association in the
corporate form. To be sure, in 1791 (as now) corporations
could pursue only the objectives set forth in their charters;
but the dissent provides no evidence that their speech in
the pursuit of those objectives could be censored.
Instead of taking this straightforward approach to
determining the Amendment’s meaning, the dissent em
barks on a detailed exploration of the Framers’ views
about the “role of corporations in society.” Post, at 35.
The Framers didn’t like corporations, the dissent con
——————
1 JUSTICE THOMAS does not join Part IV of the Court’s opinion.
2 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
SCALIA, J., concurring
cludes, and therefore it follows (as night the day) that
corporations had no rights of free speech. Of course the
Framers’ personal affection or disaffection for corporations
is relevant only insofar as it can be thought to be reflected
in the understood meaning of the text they enacted—not,
as the dissent suggests, as a freestanding substitute for
that text. But the dissent’s distortion of proper analysis is
even worse than that. Though faced with a constitutional
text that makes no distinction between types of speakers,
the dissent feels no necessity to provide even an isolated
statement from the founding era to the effect that corpora
tions are not covered, but places the burden on petitioners
to bring forward statements showing that they are (“there
is not a scintilla of evidence to support the notion that
anyone believed [the First Amendment] would preclude
regulatory distinctions based on the corporate form,” post,
at 34–35).
Despite the corporation-hating quotations the dissent
has dredged up, it is far from clear that by the end of the
18th century corporations were despised. If so, how came
there to be so many of them? The dissent’s statement that
there were few business corporations during the eight
eenth century—“only a few hundred during all of the 18th
century”—is misleading. Post, at 35, n. 53. There were
approximately 335 charters issued to business corpora
tions in the United States by the end of the 18th century.2
See 2 J. Davis, Essays in the Earlier History of American
Corporations 24 (1917) (reprint 2006) (hereinafter Davis).
This was a “considerable extension of corporate enterprise
——————
2 The dissent protests that 1791 rather than 1800 should be the rele
vant date, and that “[m]ore than half of the century’s total business
charters were issued between 1796 and 1800.” Post, at 35, n. 53. I used
1800 only because the dissent did. But in any case, it is surely fanciful
to think that a consensus of hostility towards corporations was trans
formed into general favor at some magical moment between 1791 and
1796.
Cite as: 558 U. S. ____ (2010) 3
SCALIA, J., concurring
in the field of business,” Davis 8, and represented “un
precedented growth,” id., at 309. Moreover, what seems
like a small number by today’s standards surely does not
indicate the relative importance of corporations when the
Nation was considerably smaller. As I have previously
noted, “[b]y the end of the eighteenth century the corpora
tion was a familiar figure in American economic life.”
McConnell v. Federal Election Comm’n, 540 U. S. 93, 256
(2003) (SCALIA, J., concurring in part, concurring in judg
ment in part, and dissenting in part) (quoting C. Cooke,
Corporation Trust and Company 92 (1951) (hereinafter
Cooke)).
Even if we thought it proper to apply the dissent’s ap
proach of excluding from First Amendment coverage what
the Founders disliked, and even if we agreed that the
Founders disliked founding-era corporations; modern
corporations might not qualify for exclusion. Most of the
Founders’ resentment towards corporations was directed
at the state-granted monopoly privileges that individually
chartered corporations enjoyed.3 Modern corporations do
not have such privileges, and would probably have been
favored by most of our enterprising Founders—excluding,
perhaps, Thomas Jefferson and others favoring perpetua
tion of an agrarian society. Moreover, if the Founders’
specific intent with respect to corporations is what mat
ters, why does the dissent ignore the Founders’ views
about other legal entities that have more in common with
modern business corporations than the founding-era cor
——————
3 “[P]eople in 1800 identified corporations with franchised monopo
lies.” L. Friedman, A History of American Law 194 (2d ed. 1985)
(hereinafter Friedman). “The chief cause for the changed popular
attitude towards business corporations that marked the opening of the
nineteenth century was the elimination of their inherent monopolistic
character. This was accomplished primarily by an extension of the
principle of free incorporation under general laws.” 1 W. Fletcher,
Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed. 2006).
4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
SCALIA, J., concurring
porations? At the time of the founding, religious, educa
tional, and literary corporations were incorporated under
general incorporation statutes, much as business corpora
tions are today.4 See Davis 16–17; R. Seavoy, Origins of
the American Business Corporation, 1784–1855, p. 5
(1982); Cooke 94. There were also small unincorporated
business associations, which some have argued were the
“ ‘true progenitors’ ” of today’s business corporations.
Friedman 200 (quoting S. Livermore, Early American
Land Companies: Their Influence on Corporate Develop
ment 216 (1939)); see also Davis 33. Were all of these
silently excluded from the protections of the First
Amendment?
The lack of a textual exception for speech by corpora
tions cannot be explained on the ground that such organi
zations did not exist or did not speak. To the contrary,
colleges, towns and cities, religious institutions, and guilds
had long been organized as corporations at common law
and under the King’s charter, see 1 W. Blackstone, Com
mentaries on the Laws of England 455–473 (1765); 1 S.
Kyd, A Treatise on the Law of Corporations 1–32, 63
(1793) (reprinted 2006), and as I have discussed, the prac
tice of incorporation only expanded in the United States.
Both corporations and voluntary associations actively
petitioned the Government and expressed their views in
newspapers and pamphlets. For example: An antislavery
Quaker corporation petitioned the First Congress, distrib
uted pamphlets, and communicated through the press in
1790. W. diGiacomantonio, “For the Gratification of a
Volunteering Society”: Antislavery and Pressure Group
——————
4 At times (though not always) the dissent seems to exclude such non
“business corporations” from its denial of free speech rights. See post,
at 37. Finding in a seemingly categorical text a distinction between the
rights of business corporations and the rights of non-business corpora
tions is even more imaginative than finding a distinction between the
rights of all corporations and the rights of other associations.
Cite as: 558 U. S. ____ (2010) 5
SCALIA, J., concurring
Politics in the First Federal Congress, 15 J. Early Repub
lic 169 (1995). The New York Sons of Liberty sent a circu
lar to colonies farther south in 1766. P. Maier, From
Resistance to Revolution 79–80 (1972). And the Society
for the Relief and Instruction of Poor Germans circulated a
biweekly paper from 1755 to 1757. Adams, The Colonial
German-language Press and the American Revolution, in
The Press & the American Revolution 151, 161–162 (B.
Bailyn & J. Hench eds. 1980). The dissent offers no evi
dence—none whatever—that the First Amendment’s
unqualified text was originally understood to exclude such
associational speech from its protection.5
——————
5 The best the dissent can come up with is that “[p]ostratification
practice” supports its reading of the First Amendment. Post, at 40,
n. 56. For this proposition, the dissent cites Justice White’s statement
(in dissent) that “[t]he common law was generally interpreted as
prohibiting corporate political participation,” First Nat. Bank of Boston
v. Bellotti, 435 U. S. 765, 819 (1978). The sole authority Justice White
cited for this proposition, id., at 819, n. 14, was a law-review note that
made no such claim. To the contrary, it stated that the cases dealing
with the propriety of corporate political expenditures were “few.” Note,
Corporate Political Affairs Programs, 70 Yale L. J. 821, 852 (1961).
More specifically, the note cites only two holdings to that effect, one by
a Federal District Court, and one by the Supreme Court of Montana.
Id., at 852, n. 197. Of course even if the common law was “generally
interpreted” to prohibit corporate political expenditures as ultra vires,
that would have nothing to do with whether political expenditures that
were authorized by a corporation’s charter could constitutionally be
suppressed.
As additional “[p]ostratification practice,” the dissent notes that the
Court “did not recognize any First Amendment protections for corpora
tions until the middle part of the 20th century.” Post, at 40, n. 56. But
it did that in Grosjean v. American Press Co., 297 U. S. 233 (1936), a
case involving freedom of the press—which the dissent acknowledges
did cover corporations from the outset. The relative recency of that
first case is unsurprising. All of our First Amendment jurisprudence
was slow to develop. We did not consider application of the First
Amendment to speech restrictions other than prior restraints until
1919, see Schenck v. United States, 249 U. S. 47 (1919); we did not
invalidate a state law on First Amendment grounds until 1931, see
6 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
SCALIA, J., concurring
Historical evidence relating to the textually similar
clause “the freedom of . . . the press” also provides no
support for the proposition that the First Amendment
excludes conduct of artificial legal entities from the scope
of its protection. The freedom of “the press” was widely
understood to protect the publishing activities of individ
ual editors and printers. See McIntyre v. Ohio Elections
Comm’n, 514 U. S. 334, 360 (1995) (THOMAS, J., concur
ring in judgment); see also McConnell, 540 U. S., at 252–
253 (opinion of SCALIA, J.). But these individuals often
acted through newspapers, which (much like corporations)
had their own names, outlived the individuals who had
founded them, could be bought and sold, were sometimes
owned by more than one person, and were operated for
profit. See generally F. Mott, American Journalism: A
History of Newspapers in the United States Through 250
Years 3–164 (1941); J. Smith, Freedom’s Fetters (1956).
Their activities were not stripped of First Amendment
protection simply because they were carried out under the
banner of an artificial legal entity. And the notion which
follows from the dissent’s view, that modern newspapers,
since they are incorporated, have free-speech rights only
at the sufferance of Congress, boggles the mind.6
——————
Stromberg v. California, 283 U. S. 359 (1931), and a federal law until
1965, see Lamont v. Postmaster General, 381 U. S. 301 (1965).
6 The dissent seeks to avoid this conclusion (and to turn a liability
into an asset) by interpreting the Freedom of the Press Clause to refer
to the institutional press (thus demonstrating, according to the dissent,
that the Founders “did draw distinctions—explicit distinctions—
between types of ‘speakers,’ or speech outlets or forms ”). Post, at 40
and n. 57. It is passing strange to interpret the phrase “the freedom of
speech, or of the press” to mean, not everyone’s right to speak or pub
lish, but rather everyone’s right to speak or the institutional press’s
right to publish. No one thought that is what it meant. Patriot Noah
Webster’s 1828 dictionary contains, under the word “press,” the follow
ing entry:
“Liberty of the press, in civil policy, is the free right of publishing
Cite as: 558 U. S. ____ (2010) 7
SCALIA, J., concurring
In passing, the dissent also claims that the Court’s
conception of corruption is unhistorical. The Framers
“would have been appalled,” it says, by the evidence of
corruption in the congressional findings supporting the
Bipartisan Campaign Reform Act of 2002. Post, at 61.
For this proposition, the dissent cites a law review article
arguing that “corruption” was originally understood to
include “moral decay” and even actions taken by citizens
in pursuit of private rather than public ends. Teachout,
The Anti-Corruption Principle, 94 Cornell L. Rev. 341,
373, 378 (2009). It is hard to see how this has anything to
do with what sort of corruption can be combated by re
strictions on political speech. Moreover, if speech can be
prohibited because, in the view of the Government, it leads
to “moral decay” or does not serve “public ends,” then
there is no limit to the Government’s censorship power.
The dissent says that when the Framers “constitutional
ized the right to free speech in the First Amendment, it
was the free speech of individual Americans that they had
in mind.” Post, at 37. That is no doubt true. All the
provisions of the Bill of Rights set forth the rights of indi
vidual men and women—not, for example, of trees or polar
bears. But the individual person’s right to speak includes
the right to speak in association with other individual
persons. Surely the dissent does not believe that speech
——————
books, pamphlets, or papers without previous restraint; or the unre
strained right which every citizen enjoys of publishing his thoughts and
opinions, subject only to punishment for publishing what is pernicious
to morals or to the peace of the state.” 2 American Dictionary of the
English Language (1828) (reprinted 1970).
As the Court’s opinion describes, ante, at 36, our jurisprudence
agrees with Noah Webster and contradicts the dissent.
“The liberty of the press is not confined to newspapers and periodi
cals. It necessarily embraces pamphlets and leaflets. . . . The press in
its historical connotation comprehends every sort of publication which
affords a vehicle of information and opinion.” Lovell v. City of Griffin,
303 U. S. 444, 452 (1938).
8 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
SCALIA, J., concurring
by the Republican Party or the Democratic Party can be
censored because it is not the speech of “an individual
American.” It is the speech of many individual Americans,
who have associated in a common cause, giving the leader
ship of the party the right to speak on their behalf. The
association of individuals in a business corporation is no
different—or at least it cannot be denied the right to speak
on the simplistic ground that it is not “an individual
American.”7
But to return to, and summarize, my principal point,
which is the conformity of today’s opinion with the original
meaning of the First Amendment. The Amendment is
written in terms of “speech,” not speakers. Its text offers
no foothold for excluding any category of speaker, from
——————
7 Thedissent says that “ ‘speech’ ” refers to oral communications of
human beings, and since corporations are not human beings they
cannot speak. Post, at 37, n. 55. This is sophistry. The authorized
spokesman of a corporation is a human being, who speaks on behalf of
the human beings who have formed that association—just as the
spokesman of an unincorporated association speaks on behalf of its
members. The power to publish thoughts, no less than the power to
speak thoughts, belongs only to human beings, but the dissent sees no
problem with a corporation’s enjoying the freedom of the press.
The same footnote asserts that “it has been ‘claimed that the notion
of institutional speech . . . did not exist in post-revolutionary America.’ ”
This is quoted from a law-review article by a Bigelow Fellow at the
University of Chicago (Fagundes, State Actors as First Amendment
Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006)), which offers as the
sole support for its statement a treatise dealing with government
speech, M. Yudof, When Government Speaks 42–50 (1983). The cited
pages of that treatise provide no support whatever for the statement—
unless, as seems overwhelmingly likely, the “institutional speech”
referred to was speech by the subject of the law-review article, govern
mental institutions.
The other authority cited in the footnote, a law-review article by a
professor at Washington and Lee Law School, Bezanson, Institutional
Speech, 80 Iowa L. Rev. 735, 775 (1995), in fact contradicts the dissent,
in that it would accord free-speech protection to associations.
Cite as: 558 U. S. ____ (2010) 9
SCALIA, J., concurring
single individuals to partnerships of individuals, to unin
corporated associations of individuals, to incorporated
associations of individuals—and the dissent offers no
evidence about the original meaning of the text to support
any such exclusion. We are therefore simply left with the
question whether the speech at issue in this case is
“speech” covered by the First Amendment. No one says
otherwise. A documentary film critical of a potential
Presidential candidate is core political speech, and its
nature as such does not change simply because it was
funded by a corporation. Nor does the character of that
funding produce any reduction whatever in the “inherent
worth of the speech” and “its capacity for informing the
public,” First Nat. Bank of Boston v. Bellotti, 435 U. S.
765, 777 (1978). Indeed, to exclude or impede corporate
speech is to muzzle the principal agents of the modern free
economy. We should celebrate rather than condemn the
addition of this speech to the public debate.
Cite as: 558 U. S. ____ (2010) 1
Opinion of STEVENS, J.
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 STEVENS, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concur
ring in part and dissenting in part.
The real issue in this case concerns how, not if, the
appellant may finance its electioneering. Citizens United
is a wealthy nonprofit corporation that runs a political
action committee (PAC) with millions of dollars in assets.
Under the Bipartisan Campaign Reform Act of 2002
(BCRA), it could have used those assets to televise and
promote Hillary: The Movie wherever and whenever it
wanted to. It also could have spent unrestricted sums to
broadcast Hillary at any time other than the 30 days
before the last primary election. Neither Citizens United’s
nor any other corporation’s speech has been “banned,”
ante, at 1. All that the parties dispute is whether Citizens
United had a right to use the funds in its general treasury
to pay for broadcasts during the 30-day period. The notion
that the First Amendment dictates an affirmative answer
to that question is, in my judgment, profoundly misguided.
Even more misguided is the notion that the Court must
rewrite the law relating to campaign expenditures by for
profit corporations and unions to decide this case.
The basic premise underlying the Court’s ruling is its
iteration, and constant reiteration, of the proposition that
the First Amendment bars regulatory distinctions based
2 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
on a speaker’s identity, including its “identity” as a corpo
ration. While that glittering generality has rhetorical
appeal, it is not a correct statement of the law. Nor does it
tell us when a corporation may engage in electioneering
that some of its shareholders oppose. It does not even
resolve the specific question whether Citizens United may
be required to finance some of its messages with the
money in its PAC. The conceit that corporations must be
treated identically to natural persons in the political
sphere is not only inaccurate but also inadequate to justify
the Court’s disposition of this case.
In the context of election to public office, the distinction
between corporate and human speakers is significant.
Although they make enormous contributions to our soci
ety, corporations are not actually members of it. They
cannot vote or run for office. Because they may be man
aged and controlled by nonresidents, their interests may
conflict in fundamental respects with the interests of
eligible voters. The financial resources, legal structure,
and instrumental orientation of corporations raise legiti
mate concerns about their role in the electoral process.
Our lawmakers have a compelling constitutional basis, if
not also a democratic duty, to take measures designed to
guard against the potentially deleterious effects of corpo
rate spending in local and national races.
The majority’s approach to corporate electioneering
marks a dramatic break from our past. Congress has
placed special limitations on campaign spending by corpo
rations ever since the passage of the Tillman Act in 1907,
ch. 420, 34 Stat. 864. We have unanimously concluded
that this “reflects a permissible assessment of the dangers
posed by those entities to the electoral process,” FEC v.
National Right to Work Comm., 459 U. S. 197, 209 (1982)
(NRWC), and have accepted the “legislative judgment that
the special characteristics of the corporate structure re
quire particularly careful regulation,” id., at 209–210. The
Cite as: 558 U. S. ____ (2010) 3
Opinion of STEVENS, J.
Court today rejects a century of history when it treats the
distinction between corporate and individual campaign
spending as an invidious novelty born of Austin v. Michi
gan Chamber of Commerce, 494 U. S. 652 (1990). Relying
largely on individual dissenting opinions, the majority
blazes through our precedents, overruling or disavowing a
body of case law including FEC v. Wisconsin Right to Life,
Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540
U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003),
FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238
(1986) (MCFL), NRWC, 459 U. S. 197, and California
Medical Assn. v. FEC, 453 U. S. 182 (1981).
In his landmark concurrence in Ashwander v. TVA, 297
U. S. 288, 346 (1936), Justice Brandeis stressed the impor
tance of adhering to rules the Court has “developed . . . for
its own governance” when deciding constitutional ques
tions. Because departures from those rules always en
hance the risk of error, I shall review the background of
this case in some detail before explaining why the Court’s
analysis rests on a faulty understanding of Austin and
McConnell and of our campaign finance jurisprudence
more generally .1 I regret the length of what follows, but
the importance and novelty of the Court’s opinion require
a full response. Although I concur in the Court’s decision
to sustain BCRA’s disclosure provisions and join Part IV
of its opinion, I emphatically dissent from its principal
holding.
——————
1 Specifically, Part I, infra, at 4–17, addresses the procedural history
of the case and the narrower grounds of decision the majority has
bypassed. Part II, infra, at 17–23, addresses stare decisis. Part III,
infra, at 23–56, addresses the Court’s assumptions that BCRA “bans”
corporate speech, that identity-based distinctions may not be drawn in
the political realm, and that Austin and McConnell were outliers in our
First Amendment tradition. Part IV, infra, at 56–89, addresses the
Court’s treatment of the anticorruption, antidistortion, and shareholder
protection rationales for regulating corporate electioneering.
4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
I
The Court’s ruling threatens to undermine the integrity
of elected institutions across the Nation. The path it has
taken to reach its outcome will, I fear, do damage to this
institution. Before turning to the question whether to
overrule Austin and part of McConnell, it is important
to explain why the Court should not be deciding that
question.
Scope of the Case
The first reason is that the question was not properly
brought before us. In declaring §203 of BCRA facially
unconstitutional on the ground that corporations’ electoral
expenditures may not be regulated any more stringently
than those of individuals, the majority decides this case on
a basis relinquished below, not included in the questions
presented to us by the litigants, and argued here only in
response to the Court’s invitation. This procedure is
unusual and inadvisable for a court.2 Our colleagues’
suggestion that “we are asked to reconsider Austin and, in
effect, McConnell,” ante, at 1, would be more accurate if
rephrased to state that “we have asked ourselves” to re
consider those cases.
In the District Court, Citizens United initially raised a
facial challenge to the constitutionality of §203. App. 23a–
24a. In its motion for summary judgment, however, Citi
——————
2 See
Yee v. Escondido, 503 U. S. 519, 535 (1992) (“[U]nder this
Court’s Rule 14.1(a), only questions set forth in the petition, or fairly
included therein, will be considered by the Court” (internal quotation
marks and alteration omitted)); Wood v. Allen, ante, at __ (slip op., at
13) (“[T]he fact that petitioner discussed [an] issue in the text of his
petition for certiorari does not bring it before us. Rule 14.1(a) requires
that a subsidiary question be fairly included in the question presented
for our review” (internal quotation marks and brackets omitted));
Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168–169
(2004) (“We ordinarily do not decide in the first instance issues not
decided below” (internal quotation marks omitted)).
Cite as: 558 U. S. ____ (2010) 5
Opinion of STEVENS, J.
zens United expressly abandoned its facial challenge,
1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2
(May 16, 2008), and the parties stipulated to the dismissal
of that claim, id., Nos. 53 (May 22, 2008), 54 (May 23,
2008), App. 6a. The District Court therefore resolved the
case on alternative grounds,3 and in its jurisdictional
statement to this Court, Citizens United properly advised
us that it was raising only “an as-applied challenge to the
constitutionality of . . . BCRA §203.” Juris. Statement 5.
The jurisdictional statement never so much as cited Aus
tin, the key case the majority today overrules. And not
one of the questions presented suggested that Citizens
United was surreptitiously raising the facial challenge to
§203 that it previously agreed to dismiss. In fact, not one
of those questions raised an issue based on Citizens
United’s corporate status. Juris. Statement (i). Moreover,
even in its merits briefing, when Citizens United injected
its request to overrule Austin, it never sought a declara
tion that §203 was facially unconstitutional as to all corpo
rations and unions; instead it argued only that the statute
could not be applied to it because it was “funded over
whelmingly by individuals.” Brief for Appellant 29; see
also id., at 10, 12, 16, 28 (affirming “as applied” character
——————
3 The majority states that, in denying Citizens United’s motion for a
preliminary injunction, the District Court “addressed” the facial valid
ity of BCRA §203. Ante, at 13. That is true, in the narrow sense that
the court observed the issue was foreclosed by McConnell v. FEC, 540
U. S. 93 (2003). See 530 F. Supp. 2d 274, 278 (DC 2008) (per curiam).
Yet as explained above, Citizens United subsequently dismissed its
facial challenge, so that by the time the District Court granted the
Federal Election Commission’s (FEC) motion for summary judgment,
App. 261a–262a, any question about statutory validity had dropped out
of the case. That latter ruling by the District Court was the “final
decision” from which Citizens United appealed to this Court under
BCRA §403(a)(3). As regards the lower court decision that has come
before us, the claim that §203 is facially unconstitutional was neither
pressed nor passed upon in any form.
6 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009)
(counsel for Citizens United conceding that §203 could be
applied to General Motors); id., at 55 (counsel for Citizens
United stating that “we accept the Court’s decision in
Wisconsin Right to Life”).
“ ‘It is only in exceptional cases coming here from the
federal courts that questions not pressed or passed upon
below are reviewed,’ ” Youakim v. Miller, 425 U. S. 231,
234 (1976) (per curiam) (quoting Duignan v. United States,
274 U. S. 195, 200 (1927)), and it is “only in the most
exceptional cases” that we will consider issues outside the
questions presented, Stone v. Powell, 428 U. S. 465, 481, n.
15 (1976). The appellant in this case did not so much as
assert an exceptional circumstance, and one searches the
majority opinion in vain for the mention of any. That is
unsurprising, for none exists.
Setting the case for reargument was a constructive step,
but it did not cure this fundamental problem. Essentially,
five Justices were unhappy with the limited nature of the
case before us, so they changed the case to give themselves
an opportunity to change the law.
As-Applied and Facial Challenges
This Court has repeatedly emphasized in recent years
that “[f]acial challenges are disfavored.” Washington State
Grange v. Washington State Republican Party, 552 U. S.
442, 450 (2008); see also Ayotte v. Planned Parenthood of
Northern New Eng., 546 U. S. 320, 329 (2006) (“[T]he
‘normal rule’ is that ‘partial, rather than facial, invalida
tion is the required course,’ such that a ‘statute may . . . be
declared invalid to the extent that it reaches too far, but
otherwise left intact’ ” (quoting Brockett v. Spokane Ar
cades, Inc., 472 U. S. 491, 504 (1985); alteration in origi
nal)). By declaring §203 facially unconstitutional, our
colleagues have turned an as-applied challenge into a
facial challenge, in defiance of this principle.
Cite as: 558 U. S. ____ (2010) 7
Opinion of STEVENS, J.
This is not merely a technical defect in the Court’s
decision. The unnecessary resort to a facial inquiry
“run[s] contrary to the fundamental principle of judicial
restraint that courts should neither anticipate a question
of constitutional law in advance of the necessity of decid
ing it nor formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be
applied.” Washington State Grange, 552 U. S., at 450
(internal quotation marks omitted). Scanting that princi
ple “threaten[s] to short circuit the democratic process by
preventing laws embodying the will of the people from
being implemented in a manner consistent with the Con
stitution.” Id., at 451. These concerns are heightened
when judges overrule settled doctrine upon which the
legislature has relied. The Court operates with a sledge
hammer rather than a scalpel when it strikes down one of
Congress’ most significant efforts to regulate the role that
corporations and unions play in electoral politics. It com
pounds the offense by implicitly striking down a great
many state laws as well.
The problem goes still deeper, for the Court does all of
this on the basis of pure speculation. Had Citizens United
maintained a facial challenge, and thus argued that there
are virtually no circumstances in which BCRA §203 can be
applied constitutionally, the parties could have developed,
through the normal process of litigation, a record about
the actual effects of §203, its actual burdens and its actual
benefits, on all manner of corporations and unions.4
——————
4 Shortly before Citizens United mooted the issue by abandoning its
facial challenge, the Government advised the District Court that it
“require[d] time to develop a factual record regarding [the] facial
challenge.” 1:07–cv–2240–RCL–RWR, Docket Entry No. 47, p. 4 (Mar.
26, 2008). By reinstating a claim that Citizens United abandoned, the
Court gives it a perverse litigating advantage over its adversary, which
was deprived of the opportunity to gather and present information
necessary to its rebuttal.
8 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
“Claims of facial invalidity often rest on speculation,” and
consequently “raise the risk of premature interpretation of
statutes on the basis of factually barebones records.” Id.,
at 450 (internal quotation marks omitted). In this case,
the record is not simply incomplete or unsatisfactory; it is
nonexistent. Congress crafted BCRA in response to a
virtual mountain of research on the corruption that previ
ous legislation had failed to avert. The Court now negates
Congress’ efforts without a shred of evidence on how §203
or its state-law counterparts have been affecting any
entity other than Citizens United.5
Faced with this gaping empirical hole, the majority
throws up its hands. Were we to confine our inquiry to
Citizens United’s as-applied challenge, it protests, we
would commence an “extended” process of “draw[ing], and
then redraw[ing], constitutional lines based on the par
ticular media or technology used to disseminate political
speech from a particular speaker.” Ante, at 9. While
tacitly acknowledging that some applications of §203
might be found constitutional, the majority thus posits a
future in which novel First Amendment standards must
——————
5 In fact, we do not even have a good evidentiary record of how §203
has been affecting Citizens United, which never submitted to the
District Court the details of Hillary’s funding or its own finances. We
likewise have no evidence of how §203 and comparable state laws were
expected to affect corporations and unions in the future.
It is true, as the majority points out, that the McConnell Court
evaluated the facial validity of §203 in light of an extensive record. See
ante, at 15. But that record is not before us in this case. And in any
event, the majority’s argument for striking down §203 depends on its
contention that the statute has proved too “chilling” in practice—and in
particular on the contention that the controlling opinion in WRTL, 551
U. S. 449 (2007), failed to bring sufficient clarity and “breathing space”
to this area of law. See ante, at 12, 16–20. We have no record with
which to assess that claim. The Court complains at length about the
burdens of complying with §203, but we have no meaningful evidence to
show how regulated corporations and unions have experienced its
restrictions.
Cite as: 558 U. S. ____ (2010) 9
Opinion of STEVENS, J.
be devised on an ad hoc basis, and then leaps from this
unfounded prediction to the unfounded conclusion that
such complexity counsels the abandonment of all normal
restraint. Yet it is a pervasive feature of regulatory sys
tems that unanticipated events, such as new technologies,
may raise some unanticipated difficulties at the margins.
The fluid nature of electioneering communications does
not make this case special. The fact that a Court can
hypothesize situations in which a statute might, at some
point down the line, pose some unforeseen as-applied
problems, does not come close to meeting the standard for
a facial challenge.6
The majority proposes several other justifications for the
sweep of its ruling. It suggests that a facial ruling is
necessary because, if the Court were to continue on its
normal course of resolving as-applied challenges as they
present themselves, that process would itself run afoul of
the First Amendment. See, e.g., ante, at 9 (as-applied
review process “would raise questions as to the courts’ own
lawful authority”); ibid. (“Courts, too, are bound by the
First Amendment”). This suggestion is perplexing. Our
colleagues elsewhere trumpet “our duty ‘to say what the
law is,’ ” even when our predecessors on the bench and our
counterparts in Congress have interpreted the law differ
——————
6 Our cases recognize a “type of facial challenge in the First Amend
ment context under which a law may be overturned as impermissibly
overbroad because a substantial number of its applications are uncon
stitutional.” Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449, n. 6 (2008) (internal quotation marks omit
ted). Citizens United has not made an overbreadth argument, and
“[w]e generally do not apply the strong medicine of overbreadth analy
sis where the parties fail to describe the instances of arguable over
breadth of the contested law,” ibid. (internal quotation marks omitted).
If our colleagues nonetheless concluded that §203’s fatal flaw is that it
affects too much protected speech, they should have invalidated it for
overbreadth and given guidance as to which applications are permissi
ble, so that Congress could go about repairing the error.
10 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
ently. Ante, at 49 (quoting Marbury v. Madison, 1 Cranch
137, 177 (1803)). We do not typically say what the law is
not as a hedge against future judicial error. The possibil
ity that later courts will misapply a constitutional provi
sion does not give us a basis for pretermitting litigation
relating to that provision.7
The majority suggests that a facial ruling is necessary
because anything less would chill too much protected
speech. See ante, at 9–10, 12, 16–20. In addition to beg
ging the question what types of corporate spending are
constitutionally protected and to what extent, this claim
rests on the assertion that some significant number of
corporations have been cowed into quiescence by FEC
“ ‘censor[ship].’ ” Ante, at 18–19. That assertion is unsub
stantiated, and it is hard to square with practical experi
ence. It is particularly hard to square with the legal land
scape following WRTL, which held that a corporate
communication could be regulated under §203 only if it
was “susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candi
date.” 551 U. S., at 470 (opinion of ROBERTS, C. J.) (em
phasis added). The whole point of this test was to make
§203 as simple and speech-protective as possible. The
Court does not explain how, in the span of a single election
cycle, it has determined THE CHIEF JUSTICE’s project to be
——————
7 Also perplexing is the majority’s attempt to pass blame to the Gov
ernment for its litigating position. By “hold[ing] out the possibility of
ruling for Citizens United on a narrow ground yet refrain[ing] from
adopting that position,” the majority says, the Government has caused
“added uncertainty [that] demonstrates the necessity to address the
question of statutory validity.” Ante, at 17. Our colleagues have
apparently never heard of an alternative argument. Like every liti
gant, the Government would prefer to win its case outright; failing that,
it would prefer to lose on a narrow ground. The fact that there are
numerous different ways this case could be decided, and that the
Government acknowledges as much, does not demonstrate anything
about the propriety of a facial ruling.
Cite as: 558 U. S. ____ (2010) 11
Opinion of STEVENS, J.
a failure. In this respect, too, the majority’s critique of
line-drawing collapses into a critique of the as-applied
review method generally.8
The majority suggests that, even though it expressly
dismissed its facial challenge, Citizens United neverthe
less preserved it—not as a freestanding “claim,” but as a
potential argument in support of “a claim that the FEC
has violated its First Amendment right to free speech.”
Ante, at 13; see also ante, at 4 (ROBERTS, C. J., concurring)
(describing Citizens United’s claim as: “[T]he Act violates
the First Amendment”). By this novel logic, virtually any
submission could be reconceptualized as “a claim that the
Government has violated my rights,” and it would then be
available to the Court to entertain any conceivable issue
that might be relevant to that claim’s disposition. Not
only the as-applied/facial distinction, but the basic rela
tionship between litigants and courts, would be upended if
the latter had free rein to construe the former’s claims at
such high levels of generality. There would be no need for
plaintiffs to argue their case; they could just cite the con
stitutional provisions they think relevant, and leave the
rest to us.9
——————
8 The majority’s “chilling” argument is particularly inapposite with
respect to 2 U. S. C. §441b’s longstanding restriction on the use of
corporate general treasury funds for express advocacy. If there was
ever any significant uncertainty about what counts as the functional
equivalent of express advocacy, there has been little doubt about what
counts as express advocacy since the “magic words” test of Buckley v.
Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam). Yet even though
Citizens United’s briefs never once mention §441b’s restriction on
express advocacy; even though this restriction does not generate
chilling concerns; and even though no one has suggested that Hillary
counts as express advocacy; the majority nonetheless reaches out to
opine that this statutory provision is “invalid” as well. Ante, at 50.
9 The majority adds that the distinction between facial and as-applied
challenges does not have “some automatic effect” that mechanically
controls the judicial task. Ante, at 14. I agree, but it does not follow
that in any given case we should ignore the distinction, much less
12 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
Finally, the majority suggests that though the scope of
Citizens United’s claim may be narrow, a facial ruling is
necessary as a matter of remedy. Relying on a law review
article, it asserts that Citizens United’s dismissal of the
facial challenge does not prevent us “ ‘from making
broader pronouncements of invalidity in properly “as
applied” cases.’ ” Ante, at 14 (quoting Fallon, As-Applied
and Facial Challenges and Third-Party Standing, 113
Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon));
accord, ante, at 5 (opinion of ROBERTS, C. J.) (“Regardless
whether we label Citizens United’s claim a ‘facial’ or ‘as
applied’ challenge, the consequences of the Court’s deci
sion are the same”). The majority is on firmer conceptual
ground here. Yet even if one accepts this part of Professor
Fallon’s thesis, one must proceed to ask which as-applied
challenges, if successful, will “properly” invite or entail
invalidation of the underlying statute.10 The paradigmatic
case is a judicial determination that the legislature acted
with an impermissible purpose in enacting a provision, as
this carries the necessary implication that all future as
applied challenges to the provision must prevail. See
Fallon 1339–1340.
Citizens United’s as-applied challenge was not of this
sort. Until this Court ordered reargument, its contention
was that BCRA §203 could not lawfully be applied to a
——————
invert it.
10 Professor Fallon proposes an intricate answer to this question that
the majority ignores. Fallon 1327–1359. It bears mention that our
colleagues have previously cited Professor Fallon’s article for the exact
opposite point from the one they wish to make today. In Gonzales v.
Carhart, 550 U. S. 124 (2007), the Court explained that “[i]t is neither
our obligation nor within our traditional institutional role to resolve
questions of constitutionality with respect to each potential situation
that might develop,” and “[f]or this reason, ‘[a]s-applied challenges are
the basic building blocks of constitutional adjudication.’ ” Id., at 168
(opinion for the Court by KENNEDY, J.) (quoting Fallon 1328 (second
alteration in original)).
Cite as: 558 U. S. ____ (2010) 13
Opinion of STEVENS, J.
feature-length video-on-demand film (such as Hillary) or
to a nonprofit corporation exempt from taxation under 26
U. S. C. §501(c)(4)11 and funded overwhelmingly by indi
viduals (such as itself). See Brief for Appellant 16–41.
Success on either of these claims would not necessarily
carry any implications for the validity of §203 as applied to
other types of broadcasts, other types of corporations, or
unions. It certainly would not invalidate the statute as
applied to a large for-profit corporation. See Tr. of Oral
Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens United
emphasizing that appellant is “a small, nonprofit organi
zation, which is very much like [an MCFL corporation],”
and affirming that its argument “definitely would not be
the same” if Hillary were distributed by General Motors).12
There is no legitimate basis for resurrecting a facial chal
——————
11 Internal Revenue Code section 501(c)(4) applies, inter alia, to non
profit organizations “operated exclusively for the promotion of social
welfare, . . . the net earnings of which are devoted exclusively to chari
table, educational, or recreational purposes.”
12 THE CHIEF JUSTICE is therefore much too quick when he suggests
that, “[e]ven if considered in as-applied terms, a holding in this case
that the Act may not be applied to Citizens United—because corpora
tions as well as individuals enjoy the pertinent First Amendment
rights—would mean that any other corporation raising the same
challenge would also win.” Ante, at 4 (concurring opinion). That
conclusion would only follow if the Court were to ignore Citizens
United’s plausible as-applied arguments and instead take the implau
sible position that all corporations and all types of expenditures enjoy
the same First Amendment protections, which always trump the
interests in regulation. At times, the majority appears to endorse this
extreme view. At other times, however, it appears to suggest that
nonprofit corporations have a better claim to First Amendment protec
tion than for-profit corporations, see ante, at 20, 39, “advocacy” organi
zations have a better claim than other nonprofits, ante, at 20, domestic
corporations have a better claim than foreign corporations, ante, at 46–
47, small corporations have a better claim than large corporations,
ante, at 38–40, and printed matter has a better claim than broadcast
communications, ante, at 33. The majority never uses a multinational
business corporation in its hypotheticals.
14 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
lenge that dropped out of this case 20 months ago.
Narrower Grounds
It is all the more distressing that our colleagues have
manufactured a facial challenge, because the parties have
advanced numerous ways to resolve the case that would
facilitate electioneering by nonprofit advocacy corpora
tions such as Citizens United, without toppling statutes
and precedents. Which is to say, the majority has trans
gressed yet another “cardinal” principle of the judicial
process: “[I]f it is not necessary to decide more, it is neces
sary not to decide more,” PDK Labs., Inc. v. Drug En
forcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Rob
erts, J., concurring in part and concurring in judgment).
Consider just three of the narrower grounds of decision
that the majority has bypassed. First, the Court could
have ruled, on statutory grounds, that a feature-length
film distributed through video-on-demand does not qualify
as an “electioneering communication” under §203 of
BCRA, 2 U. S. C. §441b. BCRA defines that term to en
compass certain communications transmitted by “broad
cast, cable, or satellite.” §434(f)(3)(A). When Congress
was developing BCRA, the video-on-demand medium was
still in its infancy, and legislators were focused on a very
different sort of programming: short advertisements run
on television or radio. See McConnell, 540 U. S., at 207.
The sponsors of BCRA acknowledge that the FEC’s im
plementing regulations do not clearly apply to video-on
demand transmissions. See Brief for Senator John
McCain et al. as Amici Curiae 17–19. In light of this
ambiguity, the distinctive characteristics of video-on
demand, and “[t]he elementary rule . . . that every reason
able construction must be resorted to, in order to save a
statute from unconstitutionality,” Hooper v. California,
155 U. S. 648, 657 (1895), the Court could have reasonably
Cite as: 558 U. S. ____ (2010) 15
Opinion of STEVENS, J.
ruled that §203 does not apply to Hillary.13
Second, the Court could have expanded the MCFL ex
emption to cover §501(c)(4) nonprofits that accept only a
de minimis amount of money from for-profit corporations.
Citizens United professes to be such a group: Its brief says
it “is funded predominantly by donations from individuals
who support [its] ideological message.” Brief for Appellant
5. Numerous Courts of Appeal have held that de minimis
business support does not, in itself, remove an otherwise
qualifying organization from the ambit of MCFL.14 This
Court could have simply followed their lead.15
Finally, let us not forget Citizens United’s as-applied
constitutional challenge. Precisely because Citizens
——————
13 The Court entirely ignores this statutory argument. It concludes
that §203 applies to Hillary on the basis of the film’s content, ante, at
7–8, without considering the possibility that §203 does not apply to
video-on-demand transmissions generally.
14 See Colorado Right to Life Comm., Inc. v. Coffman, 498 F. 3d 1137,
1148 (CA10 2007) (adopting this rule and noting that “every other
circuit to have addressed this issue” has done likewise); Brief for
Independent Sector as Amicus Curiae 10–11 (collecting cases). The
Court rejects this solution in part because the Government “merely
suggest[s] it” and “does not say that it agrees with the interpretation.”
Ante, at 11. Our colleagues would thus punish a defendant for showing
insufficient excitement about a ground it has advanced, at the same
time that they decide the case on a ground the plaintiff expressly
abandoned. The Court also protests that a de minimis standard would
“requir[e] intricate case-by-case determinations.” Ante, at 12. But de
minimis tests need not be intricate at all. A test that granted MCFL
status to §501(c)(4) organizations if they received less than a fixed
dollar amount of business donations in the previous year, or if such
donations represent less than a fixed percentage of their total assets,
would be perfectly easy to understand and administer.
15 Another bypassed ground, not briefed by the parties, would have
been to revive the Snowe-Jeffords Amendment in BCRA §203(c),
allowing certain nonprofit corporations to pay for electioneering com
munications with general treasury funds, to the extent they can trace
the payments to individual contributions. See Brief for National Rifle
Association as Amicus Curiae 5–15 (arguing forcefully that Congress
intended this result).
16 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
United looks so much like the MCFL organizations we
have exempted from regulation, while a feature-length
video-on-demand film looks so unlike the types of electoral
advocacy Congress has found deserving of regulation, this
challenge is a substantial one. As the appellant’s own
arguments show, the Court could have easily limited the
breadth of its constitutional holding had it declined to
adopt the novel notion that speakers and speech acts must
always be treated identically—and always spared expendi
tures restrictions—in the political realm. Yet the Court
nonetheless turns its back on the as-applied review proc
ess that has been a staple of campaign finance litigation
since Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and
that was affirmed and expanded just two Terms ago in
WRTL, 551 U. S. 449.
This brief tour of alternative grounds on which the case
could have been decided is not meant to show that any of
these grounds is ideal, though each is perfectly “valid,”
ante, at 12 (majority opinion).16 It is meant to show that
there were principled, narrower paths that a Court that
was serious about judicial restraint could have taken.
There was also the straightforward path: applying Austin
and McConnell, just as the District Court did in holding
——————
16 THE CHIEF JUSTICE finds our discussion of these narrower solutions
“quite perplexing” because we suggest that the Court should “latch on
to one of them in order to avoid reaching the broader constitutional
question,” without doing the same ourselves. Ante, at 3. There is
nothing perplexing about the matter, because we are not similarly
situated to our colleagues in the majority. We do not share their view
of the First Amendment. Our reading of the Constitution would not
lead us to strike down any statutes or overturn any precedents in this
case, and we therefore have no occasion to practice constitutional
avoidance or to vindicate Citizens United’s as-applied challenge. Each
of the arguments made above is surely at least as strong as the statu
tory argument the Court accepted in last year’s Voting Rights Act case,
Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. __
(2009).
Cite as: 558 U. S. ____ (2010) 17
Opinion of STEVENS, J.
that the funding of Citizens United’s film can be regulated
under them. The only thing preventing the majority from
affirming the District Court, or adopting a narrower
ground that would retain Austin, is its disdain for Austin.
II
The final principle of judicial process that the majority
violates is the most transparent: stare decisis. I am not an
absolutist when it comes to stare decisis, in the campaign
finance area or in any other. No one is. But if this princi
ple is to do any meaningful work in supporting the rule of
law, it must at least demand a significant justification,
beyond the preferences of five Justices, for overturning
settled doctrine. “[A] decision to overrule should rest on
some special reason over and above the belief that a prior
case was wrongly decided.” Planned Parenthood of South
eastern Pa. v. Casey, 505 U. S. 833, 864 (1992). No such
justification exists in this case, and to the contrary there
are powerful prudential reasons to keep faith with our
precedents.17
The Court’s central argument for why stare decisis
ought to be trumped is that it does not like Austin. The
opinion “was not well reasoned,” our colleagues assert, and
it conflicts with First Amendment principles. Ante, at 47–
48. This, of course, is the Court’s merits argument, the
many defects in which we will soon consider. I am per
fectly willing to concede that if one of our precedents were
dead wrong in its reasoning or irreconcilable with the rest
of our doctrine, there would be a compelling basis for
revisiting it. But neither is true of Austin, as I explain at
length in Parts III and IV, infra, at 23–89, and restating a
merits argument with additional vigor does not give it
——————
17 I
will have more to say shortly about the merits—about why Austin
and McConnell are not doctrinal outliers, as the Court contends, and
why their logic is not only defensible but also compelling. For present
purposes, I limit the discussion to stare-decisis-specific considerations.
18 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
extra weight in the stare decisis calculus.
Perhaps in recognition of this point, the Court supple
ments its merits case with a smattering of assertions. The
Court proclaims that “Austin is undermined by experience
since its announcement.” Ante, at 48. This is a curious
claim to make in a case that lacks a developed record. The
majority has no empirical evidence with which to substan
tiate the claim; we just have its ipse dixit that the real
world has not been kind to Austin. Nor does the majority
bother to specify in what sense Austin has been “under
mined.” Instead it treats the reader to a string of non
sequiturs: “Our Nation’s speech dynamic is changing,”
ante, at 48; “[s]peakers have become adept at presenting
citizens with sound bites, talking points, and scripted
messages,” ibid.; “[c]orporations . . . do not have monolithic
views,” ibid. How any of these ruminations weakens the
force of stare decisis, escapes my comprehension.18
The majority also contends that the Government’s hesi
tation to rely on Austin’s antidistortion rationale “dimin
ishe[s]” “the principle of adhering to that precedent.”
Ante, at 48; see also ante, at 11 (opinion of ROBERTS, C. J.)
(Government’s litigating position is “most importan[t]”
——————
18 THE CHIEF JUSTICE suggests that Austin has been undermined by
subsequent dissenting opinions. Ante, at 9. Under this view, it appears
that the more times the Court stands by a precedent in the face of
requests to overrule it, the weaker that precedent becomes. THE CHIEF
JUSTICE further suggests that Austin “is uniquely destabilizing because
it threatens to subvert our Court’s decisions even outside” its particular
facts, as when we applied its reasoning in McConnell. Ante, at 9. Once
again, the theory seems to be that the more we utilize a precedent, the
more we call it into question. For those who believe Austin was cor
rectly decided—as the Federal Government and the States have long
believed, as the majority of Justices to have served on the Court since
Austin have believed, and as we continue to believe—there is nothing
“destabilizing” about the prospect of its continued application. It is
gutting campaign finance laws across the country, as the Court does
today, that will be destabilizing.
Cite as: 558 U. S. ____ (2010) 19
Opinion of STEVENS, J.
factor undermining Austin). Why it diminishes the value
of stare decisis is left unexplained. We have never thought
fit to overrule a precedent because a litigant has taken
any particular tack. Nor should we. Our decisions can
often be defended on multiple grounds, and a litigant may
have strategic or case-specific reasons for emphasizing
only a subset of them. Members of the public, moreover,
often rely on our bottom-line holdings far more than our
precise legal arguments; surely this is true for the legisla
tures that have been regulating corporate electioneering
since Austin. The task of evaluating the continued viabil
ity of precedents falls to this Court, not to the parties.19
Although the majority opinion spends several pages
making these surprising arguments, it says almost noth
ing about the standard considerations we have used to
determine stare decisis value, such as the antiquity of the
precedent, the workability of its legal rule, and the reli
ance interests at stake. It is also conspicuously silent
about McConnell, even though the McConnell Court’s
decision to uphold BCRA §203 relied not only on the anti
distortion logic of Austin but also on the statute’s histori
cal pedigree, see, e.g., 540 U. S., at 115–132, 223–224, and
the need to preserve the integrity of federal campaigns,
see id., at 126–129, 205–208, and n. 88.
We have recognized that “[s]tare decisis has special force
when legislators or citizens ‘have acted in reliance on a
previous decision, for in this instance overruling the deci
——————
19 Additionally, the majority cites some recent scholarship challenging
the historical account of campaign finance law given in United States v.
Automobile Workers, 352 U. S. 567 (1957). Ante, at 48. Austin did not
so much as allude to this historical account, much less rely on it. Even
if the scholarship cited by the majority is correct that certain campaign
finance reforms were less deliberate or less benignly motivated than
Automobile Workers suggested, the point remains that this body of law
has played a significant and broadly accepted role in American political
life for decades upon decades.
20 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
sion would dislodge settled rights and expectations or
require an extensive legislative response.’ ” Hubbard v.
United States, 514 U. S. 695, 714 (1995) (quoting Hilton v.
South Carolina Public Railways Comm’n, 502 U. S. 197,
202 (1991)). Stare decisis protects not only personal rights
involving property or contract but also the ability of the
elected branches to shape their laws in an effective and
coherent fashion. Today’s decision takes away a power
that we have long permitted these branches to exercise.
State legislatures have relied on their authority to regu
late corporate electioneering, confirmed in Austin, for
more than a century.20 The Federal Congress has relied
on this authority for a comparable stretch of time, and it
specifically relied on Austin throughout the years it spent
developing and debating BCRA. The total record it com
piled was 100,000 pages long.21 Pulling out the rug be
neath Congress after affirming the constitutionality of
§203 six years ago shows great disrespect for a coequal
branch.
By removing one of its central components, today’s
ruling makes a hash out of BCRA’s “delicate and intercon
nected regulatory scheme.” McConnell, 540 U. S., at 172.
Consider just one example of the distortions that will
follow: Political parties are barred under BCRA from
soliciting or spending “soft money,” funds that are not
subject to the statute’s disclosure requirements or its
source and amount limitations. 2 U. S. C. §441i; McCon
nell, 540 U. S., at 122–126. Going forward, corporations
and unions will be free to spend as much general treasury
money as they wish on ads that support or attack specific
——————
20 See Brief for State of Montana et al. as Amici Curiae 5–13; see also
Supp. Brief for Senator John McCain et al. as Amici Curiae 1a–8a
(listing 24 States that presently limit or prohibit independent election
eering expenditures from corporate general treasuries).
21 Magleby, The Importance of the Record in McConnell v. FEC, 3
Election L. J. 285 (2004).
Cite as: 558 U. S. ____ (2010) 21
Opinion of STEVENS, J.
candidates, whereas national parties will not be able to
spend a dime of soft money on ads of any kind. The
Court’s ruling thus dramatically enhances the role of
corporations and unions—and the narrow interests they
represent—vis-à-vis the role of political parties—and the
broad coalitions they represent—in determining who will
hold public office.22
Beyond the reliance interests at stake, the other stare
decisis factors also cut against the Court. Considerations
of antiquity are significant for similar reasons. McConnell
is only six years old, but Austin has been on the books for
two decades, and many of the statutes called into question
by today’s opinion have been on the books for a half
century or more. The Court points to no intervening
change in circumstances that warrants revisiting Austin.
Certainly nothing relevant has changed since we decided
WRTL two Terms ago. And the Court gives no reason to
think that Austin and McConnell are unworkable.
In fact, no one has argued to us that Austin’s rule has
proved impracticable, and not a single for-profit corpora
tion, union, or State has asked us to overrule it. Quite to
the contrary, leading groups representing the business
community,23 organized labor,24 and the nonprofit sector,25
together with more than half of the States,26 urge that we
——————
22 To be sure, the majority may respond that Congress can correct the
imbalance by removing BCRA’s soft-money limits. Cf. Tr. of Oral Arg.
24 (Sept. 9, 2009) (query of KENNEDY, J.). But this is no response to any
legislature that takes campaign finance regulation seriously. It merely
illustrates the breadth of the majority’s deregulatory vision.
23 See Brief for Committee for Economic Development as Amicus Cu
riae; Brief for American Independent Business Alliance as Amicus
Curiae. But see Supp. Brief for Chamber of Commerce of the United
States of America as Amicus Curiae.
24 See Brief for American Federation of Labor and Congress of Indus
trial Organizations as Amicus Curiae 3, 9.
25 See Brief for Independent Sector as Amicus Curiae 16–20.
26 See Brief for State of Montana et al. as Amici Curiae.
22 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
preserve Austin. As for McConnell, the portions of BCRA
it upheld may be prolix, but all three branches of Govern
ment have worked to make §203 as user-friendly as possi
ble. For instance, Congress established a special mecha
nism for expedited review of constitutional challenges, see
note following 2 U. S. C. §437h; the FEC has established a
standardized process, with clearly defined safe harbors,
for corporations to claim that a particular electioneering
communication is permissible under WRTL, see 11 CFR
§114.15 (2009);27 and, as noted above, THE CHIEF JUSTICE
crafted his controlling opinion in WRTL with the express
goal of maximizing clarity and administrability, 551 U. S.,
at 469–470, 473–474. The case for stare decisis may be
bolstered, we have said, when subsequent rulings “have
reduced the impact” of a precedent “while reaffirming the
decision’s core ruling.” Dickerson v. United States, 530
U. S. 428, 443 (2000).28
In the end, the Court’s rejection of Austin and McCon
——————
27 The FEC established this process following the Court’s June 2007
decision in that case, 551 U. S. 449. In the brief interval between the
establishment of this process and the 2008 election, corporations and
unions used it to make $108.5 million in electioneering communications.
Supp. Brief for Appellee 22–23; FEC, Electioneering Communication
Summary, online at http://fec.gov/finance/disclosure/ECSummary.shtml
(all Internet materials as visited Jan. 18, 2010, and available in Clerk
of Court’s case file).
28 Concedely, Austin and McConnell were constitutional decisions,
and we have often said that “claims of stare decisis are at the weakest
in that field, where our mistakes cannot be corrected by Congress.”
Vieth v. Jubelirer, 541 U. S. 267, 305 (2004) (plurality opinion). As a
general matter, this principle is a sound one. But the principle only
takes on real force when an earlier ruling has obstructed the normal
democratic process; it is the fear of making “mistakes [that] cannot be
corrected by Congress,” ibid., that motivates us to review constitutional
precedents with a more critical eye. Austin and McConnell did not
obstruct state or congressional legislative power in any way. Although
it is unclear how high a bar today’s decision will pose to future at
tempts to regulate corporate electioneering, it will clearly restrain
much legislative action.
Cite as: 558 U. S. ____ (2010) 23
Opinion of STEVENS, J.
nell comes down to nothing more than its disagreement
with their results. Virtually every one of its arguments
was made and rejected in those cases, and the majority
opinion is essentially an amalgamation of resuscitated
dissents. The only relevant thing that has changed since
Austin and McConnell is the composition of this Court.
Today’s ruling thus strikes at the vitals of stare decisis,
“the means by which we ensure that the law will not
merely change erratically, but will develop in a principled
and intelligible fashion” that “permits society to presume
that bedrock principles are founded in the law rather than
in the proclivities of individuals.” Vasquez v. Hillery, 474
U. S. 254, 265 (1986).
III
The novelty of the Court’s procedural dereliction and its
approach to stare decisis is matched by the novelty of its
ruling on the merits. The ruling rests on several premises.
First, the Court claims that Austin and McConnell have
“banned” corporate speech. Second, it claims that the
First Amendment precludes regulatory distinctions based
on speaker identity, including the speaker’s identity as a
corporation. Third, it claims that Austin and McConnell
were radical outliers in our First Amendment tradition
and our campaign finance jurisprudence. Each of these
claims is wrong.
The So-Called “Ban”
Pervading the Court’s analysis is the ominous image of
a “categorical ba[n]” on corporate speech. Ante, at 45.
Indeed, the majority invokes the specter of a “ban” on
nearly every page of its opinion. Ante, at 1, 4, 7, 10, 11,
12, 13, 16, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 33, 35, 38,
40, 42, 45, 46, 47, 49, 54, 56. This characterization is
highly misleading, and needs to be corrected.
In fact it already has been. Our cases have repeatedly
24 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
pointed out that, “[c]ontrary to the [majority’s] critical
assumptions,” the statutes upheld in Austin and McCon
nell do “not impose an absolute ban on all forms of corpo
rate political spending.” Austin, 494 U. S., at 660; see also
McConnell, 540 U. S., at 203–204; Beaumont, 539 U. S., at
162–163. For starters, both statutes provide exemptions
for PACs, separate segregated funds established by a
corporation for political purposes. See 2 U. S. C.
§441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West
2005). “The ability to form and administer separate seg
regated funds,” we observed in McConnell, “has provided
corporations and unions with a constitutionally sufficient
opportunity to engage in express advocacy. That has been
this Court’s unanimous view.” 540 U. S., at 203.
Under BCRA, any corporation’s “stockholders and their
families and its executive or administrative personnel and
their families” can pool their resources to finance election
eering communications. 2 U. S. C. §441b(b)(4)(A)(i). A
significant and growing number of corporations avail
themselves of this option;29 during the most recent election
cycle, corporate and union PACs raised nearly a billion
dollars.30 Administering a PAC entails some administra
tive burden, but so does complying with the disclaimer,
disclosure, and reporting requirements that the Court
today upholds, see ante, at 51, and no one has suggested
that the burden is severe for a sophisticated for-profit
corporation. To the extent the majority is worried about
——————
29 See FEC, Number of Federal PAC’s Increases, http://fec.gov/press/
press2008/20080812paccount.shtml.
30 See Supp. Brief for Appellee 16 (citing FEC statistics placing this
figure at $840 million). The majority finds the PAC option inadequate
in part because “[a] PAC is a separate association from the corpora
tion.” Ante, at 21. The formal “separateness” of PACs from their host
corporations—which administer and control the PACs but which cannot
funnel general treasury funds into them or force members to support
them—is, of course, the whole point of the PAC mechanism.
Cite as: 558 U. S. ____ (2010) 25
Opinion of STEVENS, J.
this issue, it is important to keep in mind that we have no
record to show how substantial the burden really is, just
the majority’s own unsupported factfinding, see ante, at
21–22. Like all other natural persons, every shareholder
of every corporation remains entirely free under Austin
and McConnell to do however much electioneering she
pleases outside of the corporate form. The owners of a
“mom & pop” store can simply place ads in their own
names, rather than the store’s. If ideologically aligned
individuals wish to make unlimited expenditures through
the corporate form, they may utilize an MCFL organiza
tion that has policies in place to avoid becoming a conduit
for business or union interests. See MCFL, 479 U. S., at
263–264.
The laws upheld in Austin and McConnell leave open
many additional avenues for corporations’ political speech.
Consider the statutory provision we are ostensibly evalu
ating in this case, BCRA §203. It has no application to
genuine issue advertising—a category of corporate speech
Congress found to be far more substantial than election
related advertising, see McConnell, 540 U. S., at 207—or
to Internet, telephone, and print advocacy.31 Like numer
——————
31 Roaming far afield from the case at hand, the majority worries that
the Government will use §203 to ban books, pamphlets, and blogs.
Ante, at 20, 33, 49. Yet by its plain terms, §203 does not apply to
printed material. See 2 U. S. C. §434(f)(3)(A)(i); see also 11 CFR
§100.29(c)(1) (“[E]lectioneering communication does not include com
munications appearing in print media”). And in light of the ordinary
understanding of the terms “broadcast, cable, [and] satellite,”
§434(f)(3)(A)(i), coupled with Congress’ clear aim of targeting “a virtual
torrent of televised election-related ads,” McConnell, 540 U. S., at 207,
we highly doubt that §203 could be interpreted to apply to a Web site or
book that happens to be transmitted at some stage over airwaves or
cable lines, or that the FEC would ever try to do so. See 11 CFR
§100.26 (exempting most Internet communications from regulation as
advertising); §100.155 (exempting uncompensated Internet activity
from regulation as an expenditure); Supp. Brief for Center for Inde
pendent Media et al. as Amici Curiae 14 (explaining that “the FEC has
26 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
ous statutes, it exempts media companies’ news stories,
commentaries, and editorials from its electioneering re
strictions, in recognition of the unique role played by the
institutional press in sustaining public debate.32 See 2
U. S. C. §434(f)(3)(B)(i); McConnell, 540 U. S., at 208–209;
see also Austin, 494 U. S., at 666–668. It also allows
corporations to spend unlimited sums on political commu
nications with their executives and shareholders,
§441b(b)(2)(A); 11 CFR §114.3(a)(1), to fund additional
PAC activity through trade associations, 2 U. S. C.
§441b(b)(4)(D), to distribute voting guides and voting
records, 11 CFR §§114.4(c)(4)–(5), to underwrite voter
registration and voter turnout activities, §114.3(c)(4);
§114.4(c)(2), to host fundraising events for candidates
within certain limits, §114.4(c); §114.2(f)(2), and to pub
licly endorse candidates through a press release and press
conference, §114.4(c)(6).
At the time Citizens United brought this lawsuit, the
only types of speech that could be regulated under §203
were: (1) broadcast, cable, or satellite communications;33
(2) capable of reaching at least 50,000 persons in the
relevant electorate;34 (3) made within 30 days of a primary
or 60 days of a general federal election;35 (4) by a labor
union or a non-MCFL, nonmedia corporation;36 (5) paid for
——————
consistently construed [BCRA’s] media exemption to apply to a variety
of non-traditional media”). If it should, the Government acknowledges
“there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65
(Sept. 9, 2009).
32 As the Government points out, with a media corporation there is
also a lesser risk that investors will not understand, learn about, or
support the advocacy messages that the corporation disseminates.
Supp. Reply Brief for Appellee 10. Everyone knows and expects that
media outlets may seek to influence elections in this way.
33 2 U. S. C. §434(f)(3)(A)(i).
34 §434(f)(3)(C).
35 §434(f)(3)(A)(i)(II).
36 §441b(b); McConnell, 540 U. S., at 211.
Cite as: 558 U. S. ____ (2010) 27
Opinion of STEVENS, J.
with general treasury funds;37 and (6) “susceptible of no
reasonable interpretation other than as an appeal to vote
for or against a specific candidate.”38 The category of
communications meeting all of these criteria is not trivial,
but the notion that corporate political speech has been
“suppress[ed] . . . altogether,” ante, at 2, that corporations
have been “exclu[ded] . . . from the general public dia
logue,” ante, at 25, or that a work of fiction such as Mr.
Smith Goes to Washington might be covered, ante, at 56–
57, is nonsense.39 Even the plaintiffs in McConnell, who
had every incentive to depict BCRA as negatively as pos
sible, declined to argue that §203’s prohibition on certain
uses of general treasury funds amounts to a complete ban.
See 540 U. S., at 204.
In many ways, then, §203 functions as a source restric
tion or a time, place, and manner restriction. It applies in
a viewpoint-neutral fashion to a narrow subset of advocacy
messages about clearly identified candidates for federal
office, made during discrete time periods through discrete
channels. In the case at hand, all Citizens United needed
to do to broadcast Hillary right before the primary was to
abjure business contributions or use the funds in its PAC,
which by its own account is “one of the most active conser
vative PACs in America,” Citizens United Political Victory
——————
37 §441b(b)(2)(C).
38 WRTL, 551 U. S. 449, 470 (2007) (opinion of ROBERTS, C. J.).
39 Itis likewise nonsense to suggest that the FEC’s “ ‘business is to
censor.’ ” Ante, at 18 (quoting Freedman v. Maryland, 380 U. S. 51, 57
(1965)). The FEC’s business is to administer and enforce the campaign
finance laws. The regulatory body at issue in Freedman was a state
Board of Censors that had virtually unfettered discretion to bar distri
bution of motion picture films it deemed not to be “moral and proper.”
See id., at 52–53, and n. 2. No movie could be shown in the State of
Maryland that was not first approved and licensed by the Board of
Censors. Id., at 52, n. 1. It is an understatement to say that Freedman
is not on point, and the majority’s characterization of the FEC is deeply
disconcerting.
28 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
Fund, http://www.cupvf.org/.40
So let us be clear: Neither Austin nor McConnell held or
implied that corporations may be silenced; the FEC is not
a “censor”; and in the years since these cases were decided,
corporations have continued to play a major role in the
national dialogue. Laws such as §203 target a class of
communications that is especially likely to corrupt the
political process, that is at least one degree removed from
the views of individual citizens, and that may not even
reflect the views of those who pay for it. Such laws burden
political speech, and that is always a serious matter,
demanding careful scrutiny. But the majority’s incessant
talk of a “ban” aims at a straw man.
Identity-Based Distinctions
The second pillar of the Court’s opinion is its assertion
that “the Government cannot restrict political speech
based on the speaker’s . . . identity.” Ante, at 30; accord,
ante, at 1, 24, 26, 30, 31, 32, 33, 34, 49, 50. The case on
which it relies for this proposition is First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765 (1978). As I shall explain,
infra, at 52–55, the holding in that case was far narrower
than the Court implies. Like its paeans to unfettered
discourse, the Court’s denunciation of identity-based
distinctions may have rhetorical appeal but it obscures
reality.
“Our jurisprudence over the past 216 years has rejected
an absolutist interpretation” of the First Amendment.
WRTL, 551 U. S., at 482 (opinion of ROBERTS, C. J.). The
——————
40 Citizens United has administered this PAC for over a decade. See
Defendant FEC’s Memorandum in Opposition to Plaintiff’s Second
Motion for Preliminary Injunction in No. 07–2240 (ARR, RCL, RWR)
(DC), p. 20. Citizens United also operates multiple “527” organizations
that engage in partisan political activity. See Defendant FEC’s State
ment of Material Facts as to Which There Is No Genuine Dispute in No.
07–2240 (DC), ¶¶ 22–24.
Cite as: 558 U. S. ____ (2010) 29
Opinion of STEVENS, J.
First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech, or of the press.”
Apart perhaps from measures designed to protect the
press, that text might seem to permit no distinctions of
any kind. Yet in a variety of contexts, we have held that
speech can be regulated differentially on account of the
speaker’s identity, when identity is understood in cate
gorical or institutional terms. The Government routinely
places special restrictions on the speech rights of stu
dents,41 prisoners,42 members of the Armed Forces,43 for
eigners,44 and its own employees.45 When such restric
tions are justified by a legitimate governmental interest,
they do not necessarily raise constitutional problems.46 In
——————
41 See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682
(1986) (“[T]he constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other settings”).
42 See, e.g., Jones v. North Carolina Prisoners’ Labor Union, Inc., 433
U. S. 119, 129 (1977) (“In a prison context, an inmate does not retain
those First Amendment rights that are inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections
system” (internal quotation marks omitted)).
43 See, e.g., Parker v. Levy, 417 U. S. 733, 758 (1974) (“While the
members of the military are not excluded from the protection granted
by the First Amendment, the different character of the military com
munity and of the military mission requires a different application of
those protections”).
44 See, e.g., 2 U. S. C. §441e(a)(1) (foreign nationals may not directly
or indirectly make contributions or independent expenditures in con
nection with a U. S. election).
45 See, e.g., Civil Service Comm’n v. Letter Carriers, 413 U. S. 548
(1973) (upholding statute prohibiting Executive Branch employees from
taking “any active part in political management or in political cam
paigns” (internal quotation marks omitted)); Public Workers v. Mitchell,
330 U. S. 75 (1947) (same); United States v. Wurzbach, 280 U. S. 396
(1930) (upholding statute prohibiting federal employees from making
contributions to Members of Congress for “any political purpose what
ever” (internal quotation marks omitted)); Ex parte Curtis, 106 U. S.
371 (1882) (upholding statute prohibiting certain federal employees
from giving money to other employees for political purposes).
46 The majority states that the cases just cited are “inapposite” be
30 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
contrast to the blanket rule that the majority espouses,
our cases recognize that the Government’s interests may
be more or less compelling with respect to different classes
of speakers,47 cf. Minneapolis Star & Tribune Co. v. Min
nesota Comm’r of Revenue, 460 U. S. 575, 585 (1983)
(“[D]ifferential treatment” is constitutionally suspect
“unless justified by some special characteristic” of the
regulated class of speakers (emphasis added)), and that
the constitutional rights of certain categories of speakers,
in certain contexts, “ ‘are not automatically coextensive
with the rights’ ” that are normally accorded to members of
our society, Morse v. Frederick, 551 U. S. 393, 396–397,
404 (2007) (quoting Bethel School Dist. No. 403 v. Fraser,
478 U. S. 675, 682 (1986)).
The free speech guarantee thus does not render every
other public interest an illegitimate basis for qualifying a
speaker’s autonomy; society could scarcely function if it
did. It is fair to say that our First Amendment doctrine
has “frowned on” certain identity-based distinctions, Los
Angeles Police Dept. v. United Reporting Publishing Corp.,
——————
cause they “stand only for the proposition that there are certain gov
ernmental functions that cannot operate without some restrictions on
particular kinds of speech.” Ante, at 25. The majority’s creative sug
gestion that these cases stand only for that one proposition is quite
implausible. In any event, the proposition lies at the heart of this case,
as Congress and half the state legislatures have concluded, over many
decades, that their core functions of administering elections and pass
ing legislation cannot operate effectively without some narrow restric
tions on corporate electioneering paid for by general treasury funds.
47 Outside of the law, of course, it is a commonplace that the identity
and incentives of the speaker might be relevant to an assessment of his
speech. See Aristotle, Poetics 43–44 (M. Heath transl. 1996) (“In
evaluating any utterance or action, one must take into account not just
the moral qualities of what is actually done or said, but also the iden
tity of the agent or speaker, the addressee, the occasion, the means, and
the motive”). The insight that the identity of speakers is a proper
subject of regulatory concern, it bears noting, motivates the disclaimer
and disclosure provisions that the Court today upholds.
Cite as: 558 U. S. ____ (2010) 31
Opinion of STEVENS, J.
528 U. S. 32, 47, n. 4 (1999) (STEVENS, J., dissenting),
particularly those that may reflect invidious discrimina
tion or preferential treatment of a politically powerful
group. But it is simply incorrect to suggest that we have
prohibited all legislative distinctions based on identity or
content. Not even close.
The election context is distinctive in many ways, and the
Court, of course, is right that the First Amendment closely
guards political speech. But in this context, too, the au
thority of legislatures to enact viewpoint-neutral regula
tions based on content and identity is well settled. We
have, for example, allowed state-run broadcasters to ex
clude independent candidates from televised debates.
Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666
(1998).48 We have upheld statutes that prohibit the distri
bution or display of campaign materials near a polling
place. Burson v. Freeman, 504 U. S. 191 (1992).49 Al
though we have not reviewed them directly, we have never
cast doubt on laws that place special restrictions on cam
paign spending by foreign nationals. See, e.g., 2 U. S. C.
§441e(a)(1). And we have consistently approved laws that
bar Government employees, but not others, from contrib
——————
48 I dissented in Forbes because the broadcaster’s decision to exclude
the respondent from its debate was done “on the basis of entirely
subjective, ad hoc judgments,” 523 U. S., at 690, that suggested anti
competitive viewpoint discrimination, id., at 693–694, and lacked a
compelling justification. Needless to say, my concerns do not apply to
the instant case.
49 The law at issue in Burson was far from unusual. “[A]ll 50 States,”
the Court observed, “limit access to the areas in or around polling
places.” 504 U. S., at 206; see also Note, 91 Ky. L. J. 715, 729, n. 89,
747–769 (2003) (collecting statutes). I dissented in Burson because the
evidence adduced to justify Tennessee’s law was “exceptionally thin,”
504 U. S., at 219, and “the reason for [the] restriction [had] disap
pear[ed]” over time, id., at 223. “In short,” I concluded, “Tennessee
ha[d] failed to point to any legitimate interest that would justify its
selective regulation of campaign-related expression.” Id., at 225. These
criticisms are inapplicable to the case before us.
32 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
uting to or participating in political activities. See n. 45,
supra. These statutes burden the political expression of
one class of speakers, namely, civil servants. Yet we have
sustained them on the basis of longstanding practice and
Congress’ reasoned judgment that certain regulations
which leave “untouched full participation . . . in political
decisions at the ballot box,” Civil Service Comm’n v. Letter
Carriers, 413 U. S. 548, 556 (1973) (internal quotation
marks omitted), help ensure that public officials are “suffi
ciently free from improper influences,” id., at 564, and
that “confidence in the system of representative Govern
ment is not . . . eroded to a disastrous extent,” id., at 565.
The same logic applies to this case with additional force
because it is the identity of corporations, rather than
individuals, that the Legislature has taken into account.
As we have unanimously observed, legislatures are enti
tled to decide “that the special characteristics of the corpo
rate structure require particularly careful regulation” in
an electoral context. NRWC, 459 U. S., at 209–210.50 Not
only has the distinctive potential of corporations to corrupt
the electoral process long been recognized, but within the
area of campaign finance, corporate spending is also “fur
thest from the core of political expression, since corpora
tions’ First Amendment speech and association interests
are derived largely from those of their members and of the
public in receiving information,” Beaumont, 539 U. S., at
161, n. 8 (citation omitted). Campaign finance distinctions
based on corporate identity tend to be less worrisome, in
other words, because the “speakers” are not natural per
sons, much less members of our political community, and
——————
50 They are likewise entitled to regulate media corporations differ
ently from other corporations “to ensure that the law ‘does not hinder or
prevent the institutional press from reporting on, and publishing
editorials about, newsworthy events.’ ” McConnell, 540 U. S., at 208
(quoting Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 668
(1990)).
Cite as: 558 U. S. ____ (2010) 33
Opinion of STEVENS, J.
the governmental interests are of the highest order. Fur
thermore, when corporations, as a class, are distinguished
from noncorporations, as a class, there is a lesser risk that
regulatory distinctions will reflect invidious discrimina
tion or political favoritism.
If taken seriously, our colleagues’ assumption that the
identity of a speaker has no relevance to the Government’s
ability to regulate political speech would lead to some
remarkable conclusions. Such an assumption would have
accorded the propaganda broadcasts to our troops by
“Tokyo Rose” during World War II the same protection as
speech by Allied commanders. More pertinently, it would
appear to afford the same protection to multinational
corporations controlled by foreigners as to individual
Americans: To do otherwise, after all, could “ ‘enhance the
relative voice’ ” of some (i.e., humans) over others (i.e.,
nonhumans). Ante, at 33 (quoting Buckley, 424 U. S., at
49).51 Under the majority’s view, I suppose it may be a
First Amendment problem that corporations are not per
mitted to vote, given that voting is, among other things, a
——————
51 The Court all but confesses that a categorical approach to speaker
identity is untenable when it acknowledges that Congress might be
allowed to take measures aimed at “preventing foreign individuals or
associations from influencing our Nation’s political process.” Ante, at
46–47. Such measures have been a part of U. S. campaign finance law
for many years. The notion that Congress might lack the authority to
distinguish foreigners from citizens in the regulation of electioneering
would certainly have surprised the Framers, whose “obsession with
foreign influence derived from a fear that foreign powers and individu
als had no basic investment in the well-being of the country.”
Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 393,
n. 245 (2009) (hereinafter Teachout); see also U. S. Const., Art. I, §9, cl.
8 (“[N]o Person holding any Office of Profit or Trust . . . shall, without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince, or foreign State”).
Professor Teachout observes that a corporation might be analogized to
a foreign power in this respect, “inasmuch as its legal loyalties neces
sarily exclude patriotism.” Teachout 393, n. 245.
34 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
form of speech.52
In short, the Court dramatically overstates its critique
of identity-based distinctions, without ever explaining why
corporate identity demands the same treatment as indi
vidual identity. Only the most wooden approach to the
First Amendment could justify the unprecedented line it
seeks to draw.
Our First Amendment Tradition
A third fulcrum of the Court’s opinion is the idea that
Austin and McConnell are radical outliers, “aberration[s],”
in our First Amendment tradition. Ante, at 39; see also
ante, at 45, 56 (professing fidelity to “our law and our
tradition”). The Court has it exactly backwards. It is
today’s holding that is the radical departure from what
had been settled First Amendment law. To see why, it is
useful to take a long view.
1. Original Understandings
Let us start from the beginning. The Court invokes
“ancient First Amendment principles,” ante, at 1 (internal
quotation marks omitted), and original understandings,
ante, at 37–38, to defend today’s ruling, yet it makes only
a perfunctory attempt to ground its analysis in the princi
ples or understandings of those who drafted and ratified
the Amendment. Perhaps this is because there is not a
scintilla of evidence to support the notion that anyone
——————
52 See A. Bickel, The Supreme Court and the Idea of Progress 59–60
(1978); A. Meiklejohn, Political Freedom: The Constitutional Powers of
the People 39–40 (1965); Tokaji, First Amendment Equal Protection:
On Discretion, Inequality, and Participation, 101 Mich. L. Rev. 2409,
2508–2509 (2003). Of course, voting is not speech in a pure or formal
sense, but then again neither is a campaign expenditure; both are
nevertheless communicative acts aimed at influencing electoral out
comes. Cf. Strauss, Corruption, Equality, and Campaign Finance
Reform, 94 Colum. L. Rev. 1369, 1383–1384 (1994) (hereinafter
Strauss).
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Opinion of STEVENS, J.
believed it would preclude regulatory distinctions based on
the corporate form. To the extent that the Framers’ views
are discernible and relevant to the disposition of this case,
they would appear to cut strongly against the majority’s
position.
This is not only because the Framers and their contem
poraries conceived of speech more narrowly than we now
think of it, see Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L. J. 1, 22 (1971), but also
because they held very different views about the nature of
the First Amendment right and the role of corporations in
society. Those few corporations that existed at the found
ing were authorized by grant of a special legislative char
ter.53 Corporate sponsors would petition the legislature,
and the legislature, if amenable, would issue a charter
that specified the corporation’s powers and purposes and
“authoritatively fixed the scope and content of corporate
organization,” including “the internal structure of the
——————
53 Scholars have found that only a handful of business corporations
were issued charters during the colonial period, and only a few hundred
during all of the 18th century. See E. Dodd, American Business Corpo
rations Until 1860, p. 197 (1954); L. Friedman, A History of American
Law 188–189 (2d ed. 1985); Baldwin, American Business Corporations
Before 1789, 8 Am. Hist. Rev. 449, 450–459 (1903). JUSTICE SCALIA
quibbles with these figures; whereas we say that “a few hundred”
charters were issued to business corporations during the 18th century,
he says that the number is “approximately 335.” Ante, at 2 (concurring
opinion). JUSTICE SCALIA also raises the more serious point that it is
improper to assess these figures by today’s standards, ante, at 3,
though I believe he fails to substantiate his claim that “the corporation
was a familiar figure in American economic life” by the century’s end,
ibid. (internal quotation marks omitted). His formulation of that claim
is also misleading, because the relevant reference point is not 1800 but
the date of the First Amendment’s ratification, in 1791. And at that
time, the number of business charters must have been significantly
smaller than 335, because the pace of chartering only began to pick up
steam in the last decade of the 18th century. More than half of the
century’s total business charters were issued between 1796 and 1800.
Friedman, History of American Law, at 189.
36 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
corporation.” J. Hurst, The Legitimacy of the Business
Corporation in the Law of the United States 1780–1970,
pp. 15–16 (1970) (reprint 2004). Corporations were cre
ated, supervised, and conceptualized as quasi-public enti
ties, “designed to serve a social function for the state.”
Handlin & Handlin, Origin of the American Business
Corporation, 5 J. Econ. Hist. 1, 22 (1945). It was “as
sumed that [they] were legally privileged organizations
that had to be closely scrutinized by the legislature be
cause their purposes had to be made consistent with pub
lic welfare.” R. Seavoy, Origins of the American Business
Corporation, 1784–1855, p. 5 (1982).
The individualized charter mode of incorporation re
flected the “cloud of disfavor under which corporations
labored” in the early years of this Nation. 1 W. Fletcher,
Cyclopedia of the Law of Corporations §2, p. 8 (rev. ed.
2006); see also Louis K. Liggett Co. v. Lee, 288 U. S. 517,
548–549 (1933) (Brandeis, J., dissenting) (discussing fears
of the “evils” of business corporations); L. Friedman, A
History of American Law 194 (2d ed. 1985) (“The word
‘soulless’ constantly recurs in debates over corpora
tions. . . . Corporations, it was feared, could concentrate
the worst urges of whole groups of men”). Thomas Jeffer
son famously fretted that corporations would subvert the
Republic.54 General incorporation statutes, and wide
spread acceptance of business corporations as socially
useful actors, did not emerge until the 1800’s. See Hans
mann & Kraakman, The End of History for Corporate
Law, 89 Geo. L. J. 439, 440 (2001) (hereinafter Hansmann
& Kraakman) (“[A]ll general business corporation statutes
appear to date from well after 1800”).
——————
54 See Letter from Thomas Jefferson to Tom Logan (Nov. 12, 1816), in
12 The Works of Thomas Jefferson 42, 44 (P. Ford ed. 1905) (“I hope we
shall . . . crush in [its] birth the aristocracy of our monied corporations
which dare already to challenge our government to a trial of strength
and bid defiance to the laws of our country”).
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Opinion of STEVENS, J.
The Framers thus took it as a given that corporations
could be comprehensively regulated in the service of the
public welfare. Unlike our colleagues, they had little
trouble distinguishing corporations from human beings,
and when they constitutionalized the right to free speech
in the First Amendment, it was the free speech of individ
ual Americans that they had in mind.55 While individuals
might join together to exercise their speech rights, busi
ness corporations, at least, were plainly not seen as facili
tating such associational or expressive ends. Even “the
notion that business corporations could invoke the First
Amendment would probably have been quite a novelty,”
given that “at the time, the legitimacy of every corporate
activity was thought to rest entirely in a concession of the
sovereign.” Shelledy, Autonomy, Debate, and Corporate
Speech, 18 Hastings Const. L. Q. 541, 578 (1991); cf. Trus
tees of Dartmouth College v. Woodward, 4 Wheat. 518, 636
——————
55 In normal usage then, as now, the term “speech” referred to oral
communications by individuals. See, e.g., 2 S. Johnson, Dictionary of
the English Language 1853–1854 (4th ed. 1773) (reprinted 1978)
(listing as primary definition of “speech”: “The power of articulate
utterance; the power of expressing thoughts by vocal words”); 2 N.
Webster, American Dictionary of the English Language (1828) (re
printed 1970) (listing as primary definition of “speech”: “The faculty of
uttering articulate sounds or words, as in human beings; the faculty of
expressing thoughts by words or articulate sounds. Speech was given
to man by his Creator for the noblest purposes”). Indeed, it has been
“claimed that the notion of institutional speech . . . did not exist in post
revolutionary America.” Fagundes, State Actors as First Amendment
Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson,
Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) (“In the intellec
tual heritage of the eighteenth century, the idea that free speech was
individual and personal was deeply rooted and clearly manifest in the
writings of Locke, Milton, and others on whom the framers of the
Constitution and the Bill of Rights drew”). Given that corporations
were conceived of as artificial entities and do not have the technical
capacity to “speak,” the burden of establishing that the Framers and
ratifiers understood “the freedom of speech” to encompass corporate
speech is, I believe, far heavier than the majority acknowledges.
38 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
(1819) (Marshall, C. J.) (“A corporation is an artificial
being, invisible, intangible, and existing only in contem
plation of law. Being the mere creature of law, it pos
sesses only those properties which the charter of its crea
tion confers upon it”); Eule, Promoting Speaker Diversity:
Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 129
(“The framers of the First Amendment could scarcely have
anticipated its application to the corporation form. That,
of course, ought not to be dispositive. What is compelling,
however, is an understanding of who was supposed to be
the beneficiary of the free speech guaranty—the individ
ual”). In light of these background practices and under
standings, it seems to me implausible that the Framers
believed “the freedom of speech” would extend equally to
all corporate speakers, much less that it would preclude
legislatures from taking limited measures to guard
against corporate capture of elections.
The Court observes that the Framers drew on diverse
intellectual sources, communicated through newspapers,
and aimed to provide greater freedom of speech than had
existed in England. Ante, at 37. From these (accurate)
observations, the Court concludes that “[t]he First
Amendment was certainly not understood to condone the
suppression of political speech in society’s most salient
media.” Ibid. This conclusion is far from certain, given
that many historians believe the Framers were focused on
prior restraints on publication and did not understand the
First Amendment to “prevent the subsequent punishment
of such [publications] as may be deemed contrary to the
public welfare.” Near v. Minnesota ex rel. Olson, 283 U. S.
697, 714 (1931). Yet, even if the majority’s conclusion
were correct, it would tell us only that the First Amend
ment was understood to protect political speech in certain
media. It would tell us little about whether the Amend
ment was understood to protect general treasury election
eering expenditures by corporations, and to what extent.
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Opinion of STEVENS, J.
As a matter of original expectations, then, it seems
absurd to think that the First Amendment prohibits legis
latures from taking into account the corporate identity of a
sponsor of electoral advocacy. As a matter of original
meaning, it likewise seems baseless—unless one evaluates
the First Amendment’s “principles,” ante, at 1, 48, or its
“purpose,” ante, at 5 (opinion of ROBERTS, C. J.), at such a
high level of generality that the historical understandings
of the Amendment cease to be a meaningful constraint on
the judicial task. This case sheds a revelatory light on the
assumption of some that an impartial judge’s application
of an originalist methodology is likely to yield more deter
minate answers, or to play a more decisive role in the
decisional process, than his or her views about sound
policy.
JUSTICE SCALIA criticizes the foregoing discussion for
failing to adduce statements from the founding era show
ing that corporations were understood to be excluded from
the First Amendment’s free speech guarantee. Ante, at 1–
2, 9. Of course, JUSTICE SCALIA adduces no statements to
suggest the contrary proposition, or even to suggest that
the contrary proposition better reflects the kind of right
that the drafters and ratifiers of the Free Speech Clause
thought they were enshrining. Although JUSTICE SCALIA
makes a perfectly sensible argument that an individual’s
right to speak entails a right to speak with others for a
common cause, cf. MCFL, 479 U. S. 238, he does not ex
plain why those two rights must be precisely identical, or
why that principle applies to electioneering by corpora
tions that serve no “common cause.” Ante, at 8. Nothing
in his account dislodges my basic point that members of
the founding generation held a cautious view of corporate
power and a narrow view of corporate rights (not that they
“despised” corporations, ante, at 2), and that they concep
tualized speech in individualistic terms. If no prominent
Framer bothered to articulate that corporate speech would
40 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
have lesser status than individual speech, that may well
be because the contrary proposition—if not also the very
notion of “corporate speech”—was inconceivable.56
JUSTICE SCALIA also emphasizes the unqualified nature
of the First Amendment text. Ante, at 2, 8. Yet he would
seemingly read out the Free Press Clause: How else could
he claim that my purported views on newspapers must
track my views on corporations generally? Ante, at 6.57
Like virtually all modern lawyers, JUSTICE SCALIA pre
sumably believes that the First Amendment restricts the
Executive, even though its language refers to Congress
alone. In any event, the text only leads us back to the
questions who or what is guaranteed “the freedom of
speech,” and, just as critically, what that freedom consists
of and under what circumstances it may be limited.
JUSTICE SCALIA appears to believe that because corpora
tions are created and utilized by individuals, it follows (as
——————
56 Postratification practice bolsters the conclusion that the First
Amendment, “as originally understood,” ante, at 37, did not give corpo
rations political speech rights on a par with the rights of individuals.
Well into the modern era of general incorporation statutes, “[t]he
common law was generally interpreted as prohibiting corporate politi
cal participation,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765,
819 (1978) (White, J., dissenting), and this Court did not recognize any
First Amendment protections for corporations until the middle part of
the 20th century, see ante, at 25–26 (listing cases).
57 In fact, the Free Press Clause might be turned against JUSTICE
SCALIA, for two reasons. First, we learn from it that the drafters of the
First Amendment did draw distinctions—explicit distinctions—between
types of “speakers,” or speech outlets or forms. Second, the Court’s
strongest historical evidence all relates to the Framers’ views on the
press, see ante, at 37–38; ante, at 4–6 (SCALIA, J., concurring), yet while
the Court tries to sweep this evidence into the Free Speech Clause, the
Free Press Clause provides a more natural textual home. The text and
history highlighted by our colleagues suggests why one type of corpora
tion, those that are part of the press, might be able to claim special
First Amendment status, and therefore why some kinds of “identity”
based distinctions might be permissible after all. Once one accepts that
much, the intellectual edifice of the majority opinion crumbles.
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Opinion of STEVENS, J.
night the day) that their electioneering must be equally
protected by the First Amendment and equally immunized
from expenditure limits. See ante, at 7–8. That conclu
sion certainly does not follow as a logical matter, and
JUSTICE SCALIA fails to explain why the original public
meaning leads it to follow as a matter of interpretation.
The truth is we cannot be certain how a law such as
BCRA §203 meshes with the original meaning of the First
Amendment.58 I have given several reasons why I believe
the Constitution would have been understood then, and
ought to be understood now, to permit reasonable restric
tions on corporate electioneering, and I will give many
more reasons in the pages to come. The Court enlists the
Framers in its defense without seriously grappling with
their understandings of corporations or the free speech
right, or with the republican principles that underlay
those understandings.
In fairness, our campaign finance jurisprudence has
never attended very closely to the views of the Framers,
see Randall v. Sorrell, 548 U. S. 230, 280 (2006) (STEVENS,
J., dissenting), whose political universe differed pro
foundly from that of today. We have long since held that
corporations are covered by the First Amendment, and
many legal scholars have long since rejected the conces
sion theory of the corporation. But “historical context is
usually relevant,” ibid. (internal quotation marks omit
ted), and in light of the Court’s effort to cast itself as
guardian of ancient values, it pays to remember that
nothing in our constitutional history dictates today’s
outcome. To the contrary, this history helps illuminate
just how extraordinarily dissonant the decision is.
——————
58 Cf.L. Levy, Legacy of Suppression: Freedom of Speech and Press in
Early American History 4 (1960) (“The meaning of no other clause of
the Bill of Rights at the time of its framing and ratification has been so
obscure to us” as the Free Speech and Press Clause).
42 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
2. Legislative and Judicial Interpretation
A century of more recent history puts to rest any notion
that today’s ruling is faithful to our First Amendment
tradition. At the federal level, the express distinction
between corporate and individual political spending on
elections stretches back to 1907, when Congress passed
the Tillman Act, ch. 420, 34 Stat. 864, banning all corpo
rate contributions to candidates. The Senate Report on
the legislation observed that “[t]he evils of the use of
[corporate] money in connection with political elections are
so generally recognized that the committee deems it un
necessary to make any argument in favor of the general
purpose of this measure. It is in the interest of good gov
ernment and calculated to promote purity in the selection
of public officials.” S. Rep. No. 3056, 59th Cong., 1st Sess.,
2 (1906). President Roosevelt, in his 1905 annual message
to Congress, declared:
“ ‘All contributions by corporations to any political
committee or for any political purpose should be for
bidden by law; directors should not be permitted to
use stockholders’ money for such purposes; and, more
over, a prohibition of this kind would be, as far as it
went, an effective method of stopping the evils aimed
at in corrupt practices acts.’ ” United States v. Auto
mobile Workers, 352 U. S. 567, 572 (1957) (quoting 40
Cong. Rec. 96).
The Court has surveyed the history leading up to the
Tillman Act several times, see WRTL, 551 U. S., at 508–
510 (Souter, J., dissenting); McConnell, 540 U. S., at 115;
Automobile Workers, 352 U. S., at 570–575, and I will
refrain from doing so again. It is enough to say that the
Act was primarily driven by two pressing concerns: first,
the enormous power corporations had come to wield in
federal elections, with the accompanying threat of both
actual corruption and a public perception of corruption;
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Opinion of STEVENS, J.
and second, a respect for the interest of shareholders and
members in preventing the use of their money to support
candidates they opposed. See ibid.; United States v. CIO,
335 U. S. 106, 113 (1948); Winkler, “Other People’s
Money”: Corporations, Agency Costs, and Campaign Fi
nance Law, 92 Geo. L. J. 871 (2004).
Over the years, the limitations on corporate political
spending have been modified in a number of ways, as
Congress responded to changes in the American economy
and political practices that threatened to displace the
commonweal. Justice Souter recently traced these devel
opments at length.59 WRTL, 551 U. S., at 507–519 (dis
senting opinion); see also McConnell, 540 U. S., at 115–
133; McConnell, 251 F. Supp. 2d, at 188–205. The Taft-
Hartley Act of 1947 is of special significance for this case.
In that Act passed more than 60 years ago, Congress
extended the prohibition on corporate support of candi
dates to cover not only direct contributions, but independ
ent expenditures as well. Labor Management Relations
Act, 1947, §304, 61 Stat. 159. The bar on contributions
“was being so narrowly construed” that corporations were
easily able to defeat the purposes of the Act by supporting
candidates through other means. WRTL, 551 U. S., at 511
(Souter, J., dissenting) (citing S. Rep. No. 1, 80th Cong.,
1st Sess., 38–39 (1947)).
Our colleagues emphasize that in two cases from the
middle of the 20th century, several Justices wrote sepa
——————
59 As the majority notes, there is some academic debate about the
precise origins of these developments. Ante, at 48; see also n. 19, supra.
There is always some academic debate about such developments; the
motives of legislatures are never entirely clear or unitary. Yet the basic
shape and trajectory of 20th-century campaign finance reform are clear,
and one need not take a naïve or triumphalist view of this history to
find it highly relevant. The Court’s skepticism does nothing to mitigate
the absurdity of its claim that Austin and McConnell were outliers. Nor
does it alter the fact that five Justices today destroy a longstanding
American practice.
44 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
rately to criticize the expenditure restriction as applied to
unions, even though the Court declined to pass on its
constitutionality. Ante, at 27–28. Two features of these
cases are of far greater relevance. First, those Justices
were writing separately; which is to say, their position
failed to command a majority. Prior to today, this was a
fact we found significant in evaluating precedents. Sec
ond, each case in this line expressed support for the prin
ciple that corporate and union political speech financed
with PAC funds, collected voluntarily from the organiza
tion’s stockholders or members, receives greater protection
than speech financed with general treasury funds.60
——————
60 See Pipefitters v. United States, 407 U. S. 385, 409, 414–415 (1972)
(reading the statutory bar on corporate and union campaign spending
not to apply to “the voluntary donations of employees,” when main
tained in a separate account, because “[t]he dominant [legislative]
concern in requiring that contributions be voluntary was, after all, to
protect the dissenting stockholder or union member”); Automobile
Workers, 352 U. S., at 592 (advising the District Court to consider on
remand whether the broadcast in question was “paid for out of the
general dues of the union membership or [whether] the funds [could] be
fairly said to have obtained on a voluntary basis”); United States v.
CIO, 335 U. S. 106, 123 (1948) (observing that “funds voluntarily
contributed [by union members or corporate stockholders] for election
purposes” might not be covered by the expenditure bar). Both the
Pipefitters and the Automobile Workers Court approvingly referenced
Congress’ goal of reducing “the effect of aggregated wealth on federal
elections,” understood as wealth drawn from a corporate or union
general treasury without the stockholders’ or members’ “free and
knowing choice.” Pipefitters, 407 U. S., at 416; see Automobile Workers,
352 U. S., at 582.
The two dissenters in Pipefitters would not have read the statutory
provision in question, a successor to §304 of the Taft-Hartley Act, to
allow such robust use of corporate and union funds to finance otherwise
prohibited electioneering. “This opening of the door to extensive
corporate and union influence on the elective and legislative processes,”
Justice Powell wrote, “must be viewed with genuine concern. This
seems to me to be a regressive step as contrasted with the numerous
legislative and judicial actions in recent years designed to assure that
elections are indeed free and representative.” 407 U. S., at 450 (opinion
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Opinion of STEVENS, J.
This principle was carried forward when Congress
enacted comprehensive campaign finance reform in the
Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3,
which retained the restriction on using general treasury
funds for contributions and expenditures, 2 U. S. C.
§441b(a). FECA codified the option for corporations and
unions to create PACs to finance contributions and expen
ditures forbidden to the corporation or union itself.
§441b(b).
By the time Congress passed FECA in 1971, the bar on
corporate contributions and expenditures had become such
an accepted part of federal campaign finance regulation
that when a large number of plaintiffs, including several
nonprofit corporations, challenged virtually every aspect of
the Act in Buckley, 424 U. S. 1, no one even bothered to
argue that the bar as such was unconstitutional. Buckley
famously (or infamously) distinguished direct contribu
tions from independent expenditures, id., at 58–59, but its
silence on corporations only reinforced the understanding
that corporate expenditures could be treated differently
from individual expenditures. “Since our decision in Buck
ley, Congress’ power to prohibit corporations and unions
from using funds in their treasuries to finance advertise
ments expressly advocating the election or defeat of candi
dates in federal elections has been firmly embedded in our
law.” McConnell, 540 U. S., at 203.
Thus, it was unremarkable, in a 1982 case holding that
Congress could bar nonprofit corporations from soliciting
nonmembers for PAC funds, that then-Justice Rehnquist
wrote for a unanimous Court that Congress’ “careful legis
lative adjustment of the federal electoral laws, in a cau
tious advance, step by step, to account for the particular
legal and economic attributes of corporations . . . warrants
considerable deference,” and “reflects a permissible as
——————
of Powell, J., joined by Burger, C. J.).
46 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
sessment of the dangers posed by those entities to the
electoral process.” NRWC, 459 U. S., at 209 (internal
quotation marks and citation omitted). “The governmen
tal interest in preventing both actual corruption and the
appearance of corruption of elected representatives has
long been recognized,” the unanimous Court observed,
“and there is no reason why it may not . . . be accom
plished by treating . . . corporations . . . differently from
individuals.” Id., at 210–211.
The corporate/individual distinction was not questioned
by the Court’s disposition, in 1986, of a challenge to the
expenditure restriction as applied to a distinctive type of
nonprofit corporation. In MCFL, 479 U. S. 238, we stated
again “that ‘the special characteristics of the corporate
structure require particularly careful regulation,’ ” id., at
256 (quoting NRWC, 459 U. S., at 209–210), and again we
acknowledged that the Government has a legitimate
interest in “regulat[ing] the substantial aggregations of
wealth amassed by the special advantages which go with
the corporate form,” 479 U. S., at 257 (internal quotation
marks omitted). Those aggregations can distort the “free
trade in ideas” crucial to candidate elections, ibid., at the
expense of members or shareholders who may disagree
with the object of the expenditures, id., at 260 (internal
quotation marks omitted). What the Court held by a 5-to
4 vote was that a limited class of corporations must be
allowed to use their general treasury funds for independ
ent expenditures, because Congress’ interests in protect
ing shareholders and “restrict[ing] ‘the influence of politi
cal war chests funneled through the corporate form,’ ” id.,
at 257 (quoting FEC v. National Conservative Political
Action Comm., 470 U. S. 480, 501 (1985) (NCPAC)), did
not apply to corporations that were structurally insulated
from those concerns.61
——————
61 Specifically, these corporations had to meet three conditions. First,
Cite as: 558 U. S. ____ (2010) 47
Opinion of STEVENS, J.
It is worth remembering for present purposes that the
four MCFL dissenters, led by Chief Justice Rehnquist,
thought the Court was carrying the First Amendment too
far. They would have recognized congressional authority
to bar general treasury electioneering expenditures even
by this class of nonprofits; they acknowledged that “the
threat from corporate political activity will vary depending
on the particular characteristics of a given corporation,”
but believed these “distinctions among corporations” were
“distinctions in degree,” not “in kind,” and thus “more
properly drawn by the Legislature than by the Judiciary.”
479 U. S., at 268 (opinion of Rehnquist, C. J.) (internal
quotation marks omitted). Not a single Justice suggested
that regulation of corporate political speech could be no
more stringent than of speech by an individual.
Four years later, in Austin, 494 U. S. 652, we considered
whether corporations falling outside the MCFL exception
could be barred from using general treasury funds to make
independent expenditures in support of, or in opposition
to, candidates. We held they could be. Once again recog
nizing the importance of “the integrity of the marketplace
of political ideas” in candidate elections, MCFL, 479 U. S.,
at 257, we noted that corporations have “special advan
tages—such as limited liability, perpetual life, and favor
able treatment of the accumulation and distribution of
assets,” 494 U. S., at 658–659—that allow them to spend
prodigious general treasury sums on campaign messages
——————
they had to be formed “for the express purpose of promoting political
ideas,” so that their resources reflected political support rather than
commercial success. MCFL, 479 U. S., at 264. Next, they had to have
no shareholders, so that “persons connected with the organization will
have no economic disincentive for disassociating with it if they disagree
with its political activity.” Ibid. Finally, they could not be “established
by a business corporation or a labor union,” nor “accept contributions
from such entities,” lest they “serv[e] as conduits for the type of direct
spending that creates a threat to the political marketplace.” Ibid.
48 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
that have “little or no correlation” with the beliefs held by
actual persons, id., at 660. In light of the corrupting
effects such spending might have on the political process,
ibid., we permitted the State of Michigan to limit corpo
rate expenditures on candidate elections to corporations’
PACs, which rely on voluntary contributions and thus
“reflect actual public support for the political ideals es
poused by corporations,” ibid. Notwithstanding our col
leagues’ insinuations that Austin deprived the public of
general “ideas,” “facts,” and “knowledge,” ante, at 38–39,
the decision addressed only candidate-focused expendi
tures and gave the State no license to regulate corporate
spending on other matters.
In the 20 years since Austin, we have reaffirmed its
holding and rationale a number of times, see, e.g., Beau
mont, 539 U. S., at 153–156, most importantly in McCon
nell, 540 U. S. 93, where we upheld the provision chal
lenged here, §203 of BCRA.62 Congress crafted §203 in
response to a problem created by Buckley. The Buckley
——————
62 According to THE CHIEF JUSTICE, we are “erroneou[s]” in claiming
that McConnell and Beaumont “ ‘reaffirmed’ ” Austin. Ante, at 5. In
both cases, the Court explicitly relied on Austin and quoted from it at
length. See 540 U. S., at 204–205; 539 U. S., at 153–155, 158, 160, 163;
see also ante, at 15 (“The holding and validity of Austin were essential
to the reasoning of the McConnell majority opinion”); Brief for Appel
lants National Rifle Association et al., O. T. 2003, No. 02–1675, p. 21
(“Beaumont reaffirmed . . . the Austin rationale for restricting expendi
tures”). The McConnell Court did so in the teeth of vigorous protests by
Justices in today’s majority that Austin should be overruled. See ante,
at 15 (citing relevant passages); see also Beaumont, 539 U. S., at 163–
164 (KENNEDY, J., concurring in judgment). Both Courts also heard
criticisms of Austin from parties or amici. See Brief for Appellants
Chamber of Commerce of the United States et al., O. T. 2003, No. 02–
1756, p. 35, n. 22; Reply Brief for Appellants/Cross-Appellees Senator
Mitch McConnell et al., O. T. 2003, No. 02–1674, pp. 13–14; Brief for
Pacific Legal Foundation as Amicus Curiae in FEC v. Beaumont, O. T.
2002, No. 02–403, passim. If this does not qualify as reaffirmation of a
precedent, then I do not know what would.
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Opinion of STEVENS, J.
Court had construed FECA’s definition of prohibited “ex
penditures” narrowly to avoid any problems of constitu
tional vagueness, holding it applicable only to “communi
cations that expressly advocate the election or defeat of a
clearly identified candidate,” 424 U. S., at 80, i.e., state
ments containing so-called “magic words” like “ ‘vote for,’
‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’
‘vote against,’ ‘defeat,’ [or] ‘reject,’ ” id., at 43–44, and n.
52. After Buckley, corporations and unions figured out
how to circumvent the limits on express advocacy by using
sham “issue ads” that “eschewed the use of magic words”
but nonetheless “advocate[d] the election or defeat of
clearly identified federal candidates.” McConnell, 540
U. S., at 126. “Corporations and unions spent hundreds of
millions of dollars of their general funds to pay for these
ads.” Id., at 127. Congress passed §203 to address this
circumvention, prohibiting corporations and unions from
using general treasury funds for electioneering communi
cations that “refe[r] to a clearly identified candidate,”
whether or not those communications use the magic words.
2 U. S. C. §434(f)(3)(A)(i)(I).
When we asked in McConnell “whether a compelling
governmental interest justifie[d]” §203, we found the
question “easily answered”: “We have repeatedly sustained
legislation aimed at ‘the corrosive and distorting effects of
immense aggregations of wealth that are accumulated
with the help of the corporate form and that have little or
no correlation to the public’s support for the corporation’s
political ideas.’ ” 540 U. S., at 205 (quoting Austin, 494
U. S., at 660). These precedents “represent respect for the
legislative judgment that the special characteristics of the
corporate structure require particularly careful regula
tion.” 540 U. S., at 205 (internal quotation marks omit
ted). “Moreover, recent cases have recognized that certain
restrictions on corporate electoral involvement permissibly
hedge against ‘ “circumvention of [valid] contribution
50 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
limits.” ’ ” Ibid. (quoting Beaumont, 539 U. S., at 155, in
turn quoting FEC v. Colorado Republican Federal Cam
paign Comm., 533 U. S. 431, 456, and n. 18 (2001) (Colo
rado II); alteration in original). BCRA, we found, is faith
ful to the compelling governmental interests in
“ ‘preserving the integrity of the electoral process, prevent
ing corruption, . . . sustaining the active, alert responsibil
ity of the individual citizen in a democracy for the wise
conduct of the government,’ ” and maintaining “ ‘the indi
vidual citizen’s confidence in government.’ ” 540 U. S., at
206–207, n. 88 (quoting Bellotti, 435 U. S., at 788–789;
some internal quotation marks and brackets omitted).
What made the answer even easier than it might have
been otherwise was the option to form PACs, which give
corporations, at the least, “a constitutionally sufficient
opportunity to engage in” independent expenditures. 540
U. S., at 203.
3. Buckley and Bellotti
Against this extensive background of congressional
regulation of corporate campaign spending, and our re
peated affirmation of this regulation as constitutionally
sound, the majority dismisses Austin as “a significant
departure from ancient First Amendment principles,”
ante, at 1 (internal quotation marks omitted). How does
the majority attempt to justify this claim? Selected pas
sages from two cases, Buckley, 424 U. S. 1, and Bellotti,
435 U. S. 765, do all of the work. In the Court’s view,
Buckley and Bellotti decisively rejected the possibility of
distinguishing corporations from natural persons in the
1970’s; it just so happens that in every single case in
which the Court has reviewed campaign finance legisla
tion in the decades since, the majority failed to grasp this
truth. The Federal Congress and dozens of state legisla
tures, we now know, have been similarly deluded.
The majority emphasizes Buckley’s statement that
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Opinion of STEVENS, J.
“ ‘[t]he concept that government may restrict the speech of
some elements of our society in order to enhance the rela
tive voice of others is wholly foreign to the First Amend
ment.’ ” Ante, at 33 (quoting 424 U. S., at 48–49); ante, at
8 (opinion of ROBERTS, C. J.). But this elegant phrase
cannot bear the weight that our colleagues have placed on
it. For one thing, the Constitution does, in fact, permit
numerous “restrictions on the speech of some in order to
prevent a few from drowning out the many”: for example,
restrictions on ballot access and on legislators’ floor time.
Nixon v. Shrink Missouri Government PAC, 528 U. S. 377,
402 (2000) (BREYER, J., concurring). For another, the
Buckley Court used this line in evaluating “the ancillary
governmental interest in equalizing the relative ability of
individuals and groups to influence the outcome of elec
tions.” 424 U. S., at 48. It is not apparent why this is
relevant to the case before us. The majority suggests that
Austin rests on the foreign concept of speech equalization,
ante, at 34; ante, at 8–10 (opinion of ROBERTS, C. J.), but
we made it clear in Austin (as in several cases before and
since) that a restriction on the way corporations spend
their money is no mere exercise in disfavoring the voice of
some elements of our society in preference to others.
Indeed, we expressly ruled that the compelling interest
supporting Michigan’s statute was not one of “ ‘equaliz[ing]
the relative influence of speakers on elections,’ ” Austin,
494 U. S., at 660 (quoting id., at 705 (KENNEDY, J., dis
senting)), but rather the need to confront the distinctive
corrupting potential of corporate electoral advocacy fi
nanced by general treasury dollars, id., at 659–660.
For that matter, it should go without saying that when
we made this statement in Buckley, we could not have
been casting doubt on the restriction on corporate expendi
tures in candidate elections, which had not been chal
lenged as “foreign to the First Amendment,” ante, at 33
(quoting Buckley, 424 U. S., at 49), or for any other reason.
52 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
Buckley’s independent expenditure analysis was focused
on a very different statutory provision, 18 U. S. C.
§608(e)(1) (1970 ed., Supp. V). It is implausible to think,
as the majority suggests, ante, at 29–30, that Buckley
covertly invalidated FECA’s separate corporate and union
campaign expenditure restriction, §610 (now codified at 2
U. S. C. §441b), even though that restriction had been on
the books for decades before Buckley and would remain on
the books, undisturbed, for decades after.
The case on which the majority places even greater
weight than Buckley, however, is Bellotti, 435 U. S. 765,
claiming it “could not have been clearer” that Bellotti’s
holding forbade distinctions between corporate and indi
vidual expenditures like the one at issue here, ante, at 30.
The Court’s reliance is odd. The only thing about Bellotti
that could not be clearer is that it declined to adopt the
majority’s position. Bellotti ruled, in an explicit limitation
on the scope of its holding, that “our consideration of a
corporation’s right to speak on issues of general public
interest implies no comparable right in the quite different
context of participation in a political campaign for election
to public office.” 435 U. S., at 788, n. 26; see also id., at
787–788 (acknowledging that the interests in preserving
public confidence in Government and protecting dissenting
shareholders may be “weighty . . . in the context of parti
san candidate elections”). Bellotti, in other words, did not
touch the question presented in Austin and McConnell,
and the opinion squarely disavowed the proposition for
which the majority cites it.
The majority attempts to explain away the distinction
Bellotti drew—between general corporate speech and
campaign speech intended to promote or prevent the
election of specific candidates for office—as inconsistent
with the rest of the opinion and with Buckley. Ante, at 31,
42–44. Yet the basis for this distinction is perfectly coher
ent: The anticorruption interests that animate regulations
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Opinion of STEVENS, J.
of corporate participation in candidate elections, the “im
portance” of which “has never been doubted,” 435 U. S., at
788, n. 26, do not apply equally to regulations of corporate
participation in referenda. A referendum cannot owe a
political debt to a corporation, seek to curry favor with a
corporation, or fear the corporation’s retaliation. Cf. Aus
tin, 494 U. S., at 678 (STEVENS, J., concurring); Citizens
Against Rent Control/Coalition for Fair Housing v. Berke
ley, 454 U. S. 290, 299 (1981). The majority likewise
overlooks the fact that, over the past 30 years, our cases
have repeatedly recognized the candidate/issue distinc
tion. See, e.g., Austin, 494 U. S., at 659; NCPAC, 470
U. S., at 495–496; FCC v. League of Women Voters of Cal.,
468 U. S. 364, 371, n. 9 (1984); NRWC, 459 U. S., at 210,
n. 7. The Court’s critique of Bellotti’s footnote 26 puts it in
the strange position of trying to elevate Bellotti to canoni
cal status, while simultaneously disparaging a critical
piece of its analysis as unsupported and irreconcilable
with Buckley. Bellotti, apparently, is both the font of all
wisdom and internally incoherent.
The Bellotti Court confronted a dramatically different
factual situation from the one that confronts us in this
case: a state statute that barred business corporations’
expenditures on some referenda but not others. Specifi
cally, the statute barred a business corporation “from
making contributions or expenditures ‘for the purpose of
. . . influencing or affecting the vote on any question sub
mitted to the voters, other than one materially affecting
any of the property, business or assets of the corporation,’ ”
435 U. S., at 768 (quoting Mass. Gen. Laws Ann., ch. 55,
§8 (West Supp. 1977); alteration in original), and it went
so far as to provide that referenda related to income taxa
tion would not “ ‘be deemed materially to affect the prop
erty, business or assets of the corporation,’ ” 435 U. S., at
768. As might be guessed, the legislature had enacted this
statute in order to limit corporate speech on a proposed
54 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
state constitutional amendment to authorize a graduated
income tax. The statute was a transparent attempt to
prevent corporations from spending money to defeat this
amendment, which was favored by a majority of legislators
but had been repeatedly rejected by the voters. See id., at
769–770, and n. 3. We said that “where, as here, the
legislature’s suppression of speech suggests an attempt to
give one side of a debatable public question an advantage
in expressing its views to the people, the First Amendment
is plainly offended.” Id., at 785–786 (footnote omitted).
Bellotti thus involved a viewpoint-discriminatory stat
ute, created to effect a particular policy outcome. Even
Justice Rehnquist, in dissent, had to acknowledge that “a
very persuasive argument could be made that the [Massa
chusetts Legislature], desiring to impose a personal in
come tax but more than once defeated in that desire by the
combination of the Commonwealth’s referendum provision
and corporate expenditures in opposition to such a tax,
simply decided to muzzle corporations on this sort of issue
so that it could succeed in its desire.” Id., at 827, n. 6. To
make matters worse, the law at issue did not make any
allowance for corporations to spend money through PACs.
Id., at 768, n. 2 (opinion of the Court). This really was a
complete ban on a specific, preidentified subject. See
MCFL, 479 U. S., at 259, n. 12 (stating that 2 U. S. C.
§441b’s expenditure restriction “is of course distinguish
able from the complete foreclosure of any opportunity for
political speech that we invalidated in the state referen
dum context in . . . Bellotti” (emphasis added)).
The majority grasps a quotational straw from Bellotti,
that speech does not fall entirely outside the protection of
the First Amendment merely because it comes from a
corporation. Ante, at 30–31. Of course not, but no one
suggests the contrary and neither Austin nor McConnell
held otherwise. They held that even though the expendi
tures at issue were subject to First Amendment scrutiny,
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Opinion of STEVENS, J.
the restrictions on those expenditures were justified by a
compelling state interest. See McConnell, 540 U. S., at
205; Austin, 494 U. S., at 658, 660. We acknowledged in
Bellotti that numerous “interests of the highest impor
tance” can justify campaign finance regulation. 435 U. S.,
at 788–789. But we found no evidence that these interests
were served by the Massachusetts law. Id., at 789. We
left open the possibility that our decision might have been
different if there had been “record or legislative findings
that corporate advocacy threatened imminently to under
mine democratic processes, thereby denigrating rather
than serving First Amendment interests.” Ibid.
Austin and McConnell, then, sit perfectly well with
Bellotti. Indeed, all six Members of the Austin majority
had been on the Court at the time of Bellotti, and none so
much as hinted in Austin that they saw any tension be
tween the decisions. The difference between the cases is
not that Austin and McConnell rejected First Amendment
protection for corporations whereas Bellotti accepted it.
The difference is that the statute at issue in Bellotti
smacked of viewpoint discrimination, targeted one class of
corporations, and provided no PAC option; and the State
has a greater interest in regulating independent corporate
expenditures on candidate elections than on referenda,
because in a functioning democracy the public must have
faith that its representatives owe their positions to the
people, not to the corporations with the deepest pockets.
* * *
In sum, over the course of the past century Congress has
demonstrated a recurrent need to regulate corporate
participation in candidate elections to “ ‘[p]reserv[e] the
integrity of the electoral process, preven[t] corruption, . . .
sustai[n] the active, alert responsibility of the individual
citizen,’ ” protect the expressive interests of shareholders,
and “ ‘[p]reserv[e] . . . the individual citizen’s confidence in
56 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
government.’ ” McConnell, 540 U. S., at 206–207, n. 88
(quoting Bellotti, 435 U. S., at 788–789; first alteration in
original). These understandings provided the combined
impetus behind the Tillman Act in 1907, see Automobile
Workers, 352 U. S., at 570–575, the Taft-Hartley Act in
1947, see WRTL, 551 U. S., at 511 (Souter, J., dissenting),
FECA in 1971, see NRWC, 459 U. S., at 209–210, and
BCRA in 2002, see McConnell, 540 U. S., at 126–132.
Continuously for over 100 years, this line of “[c]ampaign
finance reform has been a series of reactions to docu
mented threats to electoral integrity obvious to any voter,
posed by large sums of money from corporate or union
treasuries.” WRTL, 551 U. S., at 522 (Souter, J., dissent
ing). Time and again, we have recognized these realities
in approving measures that Congress and the States have
taken. None of the cases the majority cites is to the con
trary. The only thing new about Austin was the dissent,
with its stunning failure to appreciate the legitimacy of
interests recognized in the name of democratic integrity
since the days of the Progressives.
IV
Having explained why this is not an appropriate case in
which to revisit Austin and McConnell and why these
decisions sit perfectly well with “First Amendment princi
ples,” ante, at 1, 48, I come at last to the interests that are
at stake. The majority recognizes that Austin and
McConnell may be defended on anticorruption, antidistor
tion, and shareholder protection rationales. Ante, at 32–
46. It badly errs both in explaining the nature of these
rationales, which overlap and complement each other, and
in applying them to the case at hand.
The Anticorruption Interest
Undergirding the majority’s approach to the merits is
the claim that the only “sufficiently important governmen
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Opinion of STEVENS, J.
tal interest in preventing corruption or the appearance of
corruption” is one that is “limited to quid pro quo corrup
tion.” Ante, at 43. This is the same “crabbed view of
corruption” that was espoused by JUSTICE KENNEDY in
McConnell and squarely rejected by the Court in that case.
540 U. S., at 152. While it is true that we have not always
spoken about corruption in a clear or consistent voice, the
approach taken by the majority cannot be right, in my
judgment. It disregards our constitutional history and the
fundamental demands of a democratic society.
On numerous occasions we have recognized Congress’
legitimate interest in preventing the money that is spent
on elections from exerting an “ ‘undue influence on an
officeholder’s judgment’ ” and from creating “ ‘the appear
ance of such influence,’ ” beyond the sphere of quid pro quo
relationships. Id., at 150; see also, e.g., id., at 143–144,
152–154; Colorado II, 533 U. S., at 441; Shrink Missouri,
528 U. S., at 389. Corruption can take many forms. Brib
ery may be the paradigm case. But the difference between
selling a vote and selling access is a matter of degree, not
kind. And selling access is not qualitatively different from
giving special preference to those who spent money on
one’s behalf. Corruption operates along a spectrum, and
the majority’s apparent belief that quid pro quo arrange
ments can be neatly demarcated from other improper
influences does not accord with the theory or reality of
politics. It certainly does not accord with the record Con
gress developed in passing BCRA, a record that stands as
a remarkable testament to the energy and ingenuity with
which corporations, unions, lobbyists, and politicians may
go about scratching each other’s backs—and which amply
supported Congress’ determination to target a limited set
of especially destructive practices.
The District Court that adjudicated the initial challenge
to BCRA pored over this record. In a careful analysis,
Judge Kollar-Kotelly made numerous findings about the
58 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
corrupting consequences of corporate and union independ
ent expenditures in the years preceding BCRA’s passage.
See McConnell, 251 F. Supp. 2d, at 555–560, 622–625; see
also id., at 804–805, 813, n. 143 (Leon, J.) (indicating
agreement). As summarized in her own words:
“The factual findings of the Court illustrate that
corporations and labor unions routinely notify Mem
bers of Congress as soon as they air electioneering
communications relevant to the Members’ elections.
The record also indicates that Members express ap
preciation to organizations for the airing of these elec
tion-related advertisements. Indeed, Members of
Congress are particularly grateful when negative is
sue advertisements are run by these organizations,
leaving the candidates free to run positive advertise
ments and be seen as ‘above the fray.’ Political con
sultants testify that campaigns are quite aware of
who is running advertisements on the candidate’s be
half, when they are being run, and where they are be
ing run. Likewise, a prominent lobbyist testifies that
these organizations use issue advocacy as a means to
influence various Members of Congress.
“The Findings also demonstrate that Members of
Congress seek to have corporations and unions run
these advertisements on their behalf. The Findings
show that Members suggest that corporations or indi
viduals make donations to interest groups with the
understanding that the money contributed to these
groups will assist the Member in a campaign. After
the election, these organizations often seek credit for
their support. . . . Finally, a large majority of Ameri
cans (80%) are of the view that corporations and other
organizations that engage in electioneering communi
cations, which benefit specific elected officials, receive
special consideration from those officials when matters
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Opinion of STEVENS, J.
arise that affect these corporations and organizations.”
Id., at 623–624 (citations and footnote omitted).
Many of the relationships of dependency found by Judge
Kollar-Kotelly seemed to have a quid pro quo basis, but
other arrangements were more subtle. Her analysis
shows the great difficulty in delimiting the precise scope of
the quid pro quo category, as well as the adverse conse
quences that all such arrangements may have. There are
threats of corruption that are far more destructive to a
democratic society than the odd bribe. Yet the majority’s
understanding of corruption would leave lawmakers impo
tent to address all but the most discrete abuses.
Our “undue influence” cases have allowed the American
people to cast a wider net through legislative experiments
designed to ensure, to some minimal extent, “that office
holders will decide issues . . . on the merits or the desires
of their constituencies,” and not “according to the wishes of
those who have made large financial contributions”—or
expenditures—“valued by the officeholder.” McConnell,
540 U. S., at 153.63 When private interests are seen to
exert outsized control over officeholders solely on account
of the money spent on (or withheld from) their campaigns,
the result can depart so thoroughly “from what is pure or
——————
63 Cf.Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 389
(2000) (recognizing “the broader threat from politicians too compliant
with the wishes of large contributors”). Though discrete in scope, these
experiments must impose some meaningful limits if they are to have a
chance at functioning effectively and preserving the public’s trust.
“Even if it occurs only occasionally, the potential for such undue influ
ence is manifest. And unlike straight cash-for-votes transactions, such
corruption is neither easily detected nor practical to criminalize.”
McConnell, 540 U. S., at 153. There should be nothing controversial
about the proposition that the influence being targeted is “undue.” In a
democracy, officeholders should not make public decisions with the aim
of placating a financial benefactor, except to the extent that the bene
factor is seen as representative of a larger constituency or its argu
ments are seen as especially persuasive.
60 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
correct” in the conduct of Government, Webster’s Third
New International Dictionary 512 (1966) (defining “cor
ruption”), that it amounts to a “subversion . . . of the elec
toral process,” Automobile Workers, 352 U. S., at 575. At
stake in the legislative efforts to address this threat is
therefore not only the legitimacy and quality of Govern
ment but also the public’s faith therein, not only “the
capacity of this democracy to represent its constituents
[but also] the confidence of its citizens in their capacity to
govern themselves,” WRTL, 551 U. S., at 507 (Souter, J.,
dissenting). “Take away Congress’ authority to regulate
the appearance of undue influence and ‘the cynical as
sumption that large donors call the tune could jeopardize
the willingness of voters to take part in democratic gov
ernance.’ ” McConnell, 540 U. S., at 144 (quoting Shrink
Missouri, 528 U. S., at 390).64
The cluster of interrelated interests threatened by such
undue influence and its appearance has been well cap
tured under the rubric of “democratic integrity.” WRTL,
551 U. S., at 522 (Souter, J., dissenting). This value has
underlined a century of state and federal efforts to regu
late the role of corporations in the electoral process.65
——————
64 The majority declares by fiat that the appearance of undue influ
ence by high-spending corporations “will not cause the electorate to lose
faith in our democracy.” Ante, at 44. The electorate itself has consis
tently indicated otherwise, both in opinion polls, see McConnell v. FEC,
251 F. Supp. 2d 176, 557–558, 623–624 (DC 2003) (opinion of Kollar-
Kotelly, J.), and in the laws its representatives have passed, and our
colleagues have no basis for elevating their own optimism into a tenet
of constitutional law.
65 Quite distinct from the interest in preventing improper influences
on the electoral process, I have long believed that “a number of [other]
purposes, both legitimate and substantial, may justify the imposition of
reasonable limitations on the expenditures permitted during the course
of any single campaign.” Davis v. FEC, 554 U. S. ___, ___ (2008) (slip
op., at 3) (opinion concurring in part and dissenting in part). In my
judgment, such limitations may be justified to the extent they are
tailored to “improving the quality of the exposition of ideas” that voters
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Opinion of STEVENS, J.
Unlike the majority’s myopic focus on quid pro quo
scenarios and the free-floating “First Amendment princi
ples” on which it rests so much weight, ante, at 1, 48, this
broader understanding of corruption has deep roots in the
Nation’s history. “During debates on the earliest [cam
paign finance] reform acts, the terms ‘corruption’ and
‘undue influence’ were used nearly interchangeably.”
Pasquale, Reclaiming Egalitarianism in the Political
Theory of Campaign Finance Reform, 2008 U. Ill. L. Rev.
599, 601. Long before Buckley, we appreciated that “[t]o
say that Congress is without power to pass appropriate
legislation to safeguard . . . an election from the improper
use of money to influence the result is to deny to the na
tion in a vital particular the power of self protection.”
Burroughs v. United States, 290 U. S. 534, 545 (1934).
And whereas we have no evidence to support the notion
that the Framers would have wanted corporations to have
the same rights as natural persons in the electoral con
text, we have ample evidence to suggest that they would
have been appalled by the evidence of corruption that
Congress unearthed in developing BCRA and that the
Court today discounts to irrelevance. It is fair to say that
“[t]he Framers were obsessed with corruption,” Teachout
348, which they understood to encompass the dependency
of public officeholders on private interests, see id., at 373–
374; see also Randall, 548 U. S., at 280 (STEVENS, J.,
dissenting). They discussed corruption “more often in the
Constitutional Convention than factions, violence, or
instability.” Teachout 352. When they brought our consti
——————
receive, ibid., “free[ing] candidates and their staffs from the intermina
ble burden of fundraising,” ibid. (internal quotation marks omitted),
and “protect[ing] equal access to the political arena,” Randall v. Sorrell,
548 U. S. 230, 278 (2006) (STEVENS, J., dissenting) (internal quotation
marks omitted). I continue to adhere to these beliefs, but they have not
been briefed by the parties or amici in this case, and their soundness is
immaterial to its proper disposition.
62 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
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tutional order into being, the Framers had their minds
trained on a threat to republican self-government that this
Court has lost sight of.
Quid Pro Quo Corruption
There is no need to take my side in the debate over the
scope of the anticorruption interest to see that the Court’s
merits holding is wrong. Even under the majority’s
“crabbed view of corruption,” McConnell, 540 U. S., at 152,
the Government should not lose this case.
“The importance of the governmental interest in pre
venting [corruption through the creation of political debts]
has never been doubted.” Bellotti, 435 U. S., at 788, n. 26.
Even in the cases that have construed the anticorruption
interest most narrowly, we have never suggested that
such quid pro quo debts must take the form of outright
vote buying or bribes, which have long been distinct
crimes. Rather, they encompass the myriad ways in which
outside parties may induce an officeholder to confer a
legislative benefit in direct response to, or anticipation of,
some outlay of money the parties have made or will make
on behalf of the officeholder. See McConnell, 540 U. S., at
143 (“We have not limited [the anticorruption] interest to
the elimination of cash-for-votes exchanges. In Buckley,
we expressly rejected the argument that antibribery laws
provided a less restrictive alternative to FECA’s contribu
tion limits, noting that such laws ‘deal[t] with only the
most blatant and specific attempts of those with money to
influence governmental action’ ” (quoting 424 U. S., at 28;
alteration in original)). It has likewise never been doubted
that “[o]f almost equal concern as the danger of actual
quid pro quo arrangements is the impact of the appear
ance of corruption.” Id., at 27. Congress may “legiti
mately conclude that the avoidance of the appearance of
improper influence is also critical . . . if confidence in the
system of representative Government is not to be eroded
Cite as: 558 U. S. ____ (2010) 63
Opinion of STEVENS, J.
to a disastrous extent.” Ibid. (internal quotation marks
omitted; alteration in original). A democracy cannot func
tion effectively when its constituent members believe laws
are being bought and sold.
In theory, our colleagues accept this much. As applied
to BCRA §203, however, they conclude “[t]he anticorrup
tion interest is not sufficient to displace the speech here in
question.” Ante, at 41.
Although the Court suggests that Buckley compels its
conclusion, ante, at 40–44, Buckley cannot sustain this
reading. It is true that, in evaluating FECA’s ceiling on
independent expenditures by all persons, the Buckley
Court found the governmental interest in preventing
corruption “inadequate.” 424 U. S., at 45. But Buckley did
not evaluate corporate expenditures specifically, nor did it
rule out the possibility that a future Court might find
otherwise. The opinion reasoned that an expenditure
limitation covering only express advocacy (i.e., magic
words) would likely be ineffectual, ibid., a problem that
Congress tackled in BCRA, and it concluded that “the
independent advocacy restricted by [FECA §608(e)(1)] does
not presently appear to pose dangers of real or apparent
corruption comparable to those identified with large cam
paign contributions,” id., at 46 (emphasis added). Buckley
expressly contemplated that an anticorruption rationale
might justify restrictions on independent expenditures at
a later date, “because it may be that, in some circum
stances, ‘large independent expenditures pose the same
dangers of actual or apparent quid pro quo arrangements
as do large contributions.’ ” WRTL, 551 U. S., at 478
(opinion of ROBERTS, C. J.) (quoting Buckley, 424 U. S., at
45). Certainly Buckley did not foreclose this possibility
with respect to electioneering communications made with
corporate general treasury funds, an issue the Court had
no occasion to consider.
The Austin Court did not rest its holding on quid pro
64 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
quo corruption, as it found the broader corruption impli
cated by the antidistortion and shareholder protection
rationales a sufficient basis for Michigan’s restriction on
corporate electioneering. 494 U. S., at 658–660. Concur
ring in that opinion, I took the position that “the danger of
either the fact, or the appearance, of quid pro quo rela
tionships [also] provides an adequate justification for state
regulation” of these independent expenditures. Id., at 678.
I did not see this position as inconsistent with Buckley’s
analysis of individual expenditures. Corporations, as a
class, tend to be more attuned to the complexities of the
legislative process and more directly affected by tax and
appropriations measures that receive little public scrutiny;
they also have vastly more money with which to try to buy
access and votes. See Supp. Brief for Appellee 17 (stating
that the Fortune 100 companies earned revenues of $13.1
trillion during the last election cycle). Business corpora
tions must engage the political process in instrumental
terms if they are to maximize shareholder value. The
unparalleled resources, professional lobbyists, and single
minded focus they bring to this effort, I believed, make
quid pro quo corruption and its appearance inherently
more likely when they (or their conduits or trade groups)
spend unrestricted sums on elections.
It is with regret rather than satisfaction that I can now
say that time has borne out my concerns. The legislative
and judicial proceedings relating to BCRA generated a
substantial body of evidence suggesting that, as corpora
tions grew more and more adept at crafting “issue ads” to
help or harm a particular candidate, these nominally
independent expenditures began to corrupt the political
process in a very direct sense. The sponsors of these ads
were routinely granted special access after the campaign
was over; “candidates and officials knew who their friends
were,” McConnell, 540 U. S., at 129. Many corporate
independent expenditures, it seemed, had become essen
Cite as: 558 U. S. ____ (2010) 65
Opinion of STEVENS, J.
tially interchangeable with direct contributions in their
capacity to generate quid pro quo arrangements. In an
age in which money and television ads are the coin of the
campaign realm, it is hardly surprising that corporations
deployed these ads to curry favor with, and to gain influ
ence over, public officials.
The majority appears to think it decisive that the BCRA
record does not contain “direct examples of votes being
exchanged for . . . expenditures.” Ante, at 45 (internal
quotation marks omitted). It would have been quite re
markable if Congress had created a record detailing such
behavior by its own Members. Proving that a specific vote
was exchanged for a specific expenditure has always been
next to impossible: Elected officials have diverse motiva
tions, and no one will acknowledge that he sold a vote.
Yet, even if “[i]ngratiation and access . . . are not corrup
tion” themselves, ibid., they are necessary prerequisites to
it; they can create both the opportunity for, and the ap
pearance of, quid pro quo arrangements. The influx of
unlimited corporate money into the electoral realm also
creates new opportunities for the mirror image of quid pro
quo deals: threats, both explicit and implicit. Starting
today, corporations with large war chests to deploy on
electioneering may find democratically elected bodies
becoming much more attuned to their interests. The
majority both misreads the facts and draws the wrong
conclusions when it suggests that the BCRA record pro
vides “only scant evidence that independent expenditures
. . . ingratiate,” and that, “in any event,” none of it mat
ters. Ibid.
In her analysis of the record, Judge Kollar-Kotelly
documented the pervasiveness of this ingratiation and
explained its significance under the majority’s own touch
stone for defining the scope of the anticorruption ration
ale, Buckley. See McConnell, 251 F. Supp. 2d, at 555–560,
622–625. Witnesses explained how political parties and
66 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
candidates used corporate independent expenditures to
circumvent FECA’s “hard-money” limitations. See, e.g.,
id., at 478–479. One former Senator candidly admitted to
the District Court that “ ‘[c]andidates whose campaigns
benefit from [phony “issue ads”] greatly appreciate the
help of these groups. In fact, Members will also be favora
bly disposed to those who finance these groups when they
later seek access to discuss pending legislation.’ ” Id., at
556 (quoting declaration of Sen. Dale Bumpers). One
prominent lobbyist went so far as to state, in uncontro
verted testimony, that “ ‘unregulated expenditures—
whether soft money donations to the parties or issue ad
campaigns—can sometimes generate far more influence
than direct campaign contributions.’ ” Ibid. (quoting decla
ration of Wright Andrews; emphasis added). In sum,
Judge Kollar-Kotelly found, “[t]he record powerfully dem
onstrates that electioneering communications paid for with
the general treasury funds of labor unions and corpora
tions endears those entities to elected officials in a way
that could be perceived by the public as corrupting.” Id., at
622–623. She concluded that the Government’s interest in
preventing the appearance of corruption, as that concept
was defined in Buckley, was itself sufficient to uphold
BCRA §203. 251 F. Supp. 2d, at 622–625. Judge Leon
agreed. See id., at 804–805 (dissenting only with re-
spect to the Wellstone Amendment’s coverage of MCFL
corporations).
When the McConnell Court affirmed the judgment of the
District Court regarding §203, we did not rest our holding
on a narrow notion of quid pro quo corruption. Instead we
relied on the governmental interest in combating the
unique forms of corruption threatened by corporations, as
recognized in Austin’s antidistortion and shareholder
protection rationales, 540 U. S., at 205 (citing Austin, 494
U. S., at 660), as well as the interest in preventing cir
cumvention of contribution limits, 540 U. S., at 128–129,
Cite as: 558 U. S. ____ (2010) 67
Opinion of STEVENS, J.
205, 206, n. 88. Had we felt constrained by the view of
today’s Court that quid pro quo corruption and its appear
ance are the only interests that count in this field, ante, at
32–46, we of course would have looked closely at that
issue. And as the analysis by Judge Kollar-Kotelly re
flects, it is a very real possibility that we would have found
one or both of those interests satisfied and §203 appropri
ately tailored to them.
The majority’s rejection of the Buckley anticorruption
rationale on the ground that independent corporate ex
penditures “do not give rise to [quid pro quo] corruption or
the appearance of corruption,” ante, at 42, is thus unfair
as well as unreasonable. Congress and outside experts
have generated significant evidence corroborating this
rationale, and the only reason we do not have any of the
relevant materials before us is that the Government had
no reason to develop a record at trial for a facial challenge
the plaintiff had abandoned. The Court cannot both
sua sponte choose to relitigate McConnell on appeal and
then complain that the Government has failed to substan
tiate its case. If our colleagues were really serious about
the interest in preventing quid pro quo corruption, they
would remand to the District Court with instructions to
commence evidentiary proceedings.66
The insight that even technically independent expendi
——————
66 In fact, the notion that the “electioneering communications” covered
by §203 can breed quid pro quo corruption or the appearance of such
corruption has only become more plausible since we decided McConnell.
Recall that THE CHIEF JUSTICE’s controlling opinion in WRTL subse
quently limited BCRA’s definition of “electioneering communications”
to those that are “susceptible of no reasonable interpretation other than
as an appeal to vote for or against a specific candidate.” 551 U. S., at
470. The upshot was that after WRTL, a corporate or union expendi
ture could be regulated under §203 only if everyone would understand
it as an endorsement of or attack on a particular candidate for office. It
does not take much imagination to perceive why this type of advocacy
might be especially apt to look like or amount to a deal or a threat.
68 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
tures can be corrupting in much the same way as direct
contributions is bolstered by our decision last year in
Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In
that case, Don Blankenship, the chief executive officer of a
corporation with a lawsuit pending before the West Vir
ginia high court, spent large sums on behalf of a particular
candidate, Brent Benjamin, running for a seat on that
court. “In addition to contributing the $1,000 statutory
maximum to Benjamin’s campaign committee,
Blankenship donated almost $2.5 million to ‘And For The
Sake Of The Kids,’ ” a §527 corporation that ran ads tar
geting Benjamin’s opponent. Id., at ___ (slip op., at 2).
“This was not all. Blankenship spent, in addition, just
over $500,000 on independent expenditures . . . ‘ “to sup
port . . . Brent Benjamin.” ’ ” Id., at ___ (slip op., at 2–3)
(second alteration in original). Applying its common
sense, this Court accepted petitioners’ argument that
Blankenship’s “pivotal role in getting Justice Benjamin
elected created a constitutionally intolerable probability of
actual bias” when Benjamin later declined to recuse him
self from the appeal by Blankenship’s corporation. Id., at
___ (slip op., at 11). “Though n[o] . . . bribe or criminal
influence” was involved, we recognized that “Justice Ben
jamin would nevertheless feel a debt of gratitude to
Blankenship for his extraordinary efforts to get him
elected.” Ibid. “The difficulties of inquiring into actual
bias,” we further noted, “simply underscore the need for
objective rules,” id., at ___ (slip op., at 13)—rules which
will perforce turn on the appearance of bias rather than its
actual existence.
In Caperton, then, we accepted the premise that, at
least in some circumstances, independent expenditures on
candidate elections will raise an intolerable specter of quid
pro quo corruption. Indeed, this premise struck the Court
as so intuitive that it repeatedly referred to Blankenship’s
spending on behalf of Benjamin—spending that consisted
Cite as: 558 U. S. ____ (2010) 69
Opinion of STEVENS, J.
of 99.97% independent expenditures ($3 million) and
0.03% direct contributions ($1,000)—as a “contribution.”
See, e.g., id., at ___ (slip op., at 1) (“The basis for the
[recusal] motion was that the justice had received cam
paign contributions in an extraordinary amount from”
Blankenship); id., at ___ (slip op., at 3) (referencing
“Blankenship’s $3 million in contributions”); id., at ___
(slip op., at 14) (“Blankenship contributed some $3 million
to unseat the incumbent and replace him with Benjamin”);
id., at ___ (slip op., at 15) (“Blankenship’s campaign con
tributions . . . had a significant and disproportionate
influence on the electoral outcome”). The reason the Court
so thoroughly conflated expenditures and contributions,
one assumes, is that it realized that some expenditures
may be functionally equivalent to contributions in the way
they influence the outcome of a race, the way they are
interpreted by the candidates and the public, and the way
they taint the decisions that the officeholder thereafter
takes.
Caperton is illuminating in several additional respects.
It underscores the old insight that, on account of the ex
treme difficulty of proving corruption, “prophylactic meas
ures, reaching some [campaign spending] not corrupt in
purpose or effect, [may be] nonetheless required to guard
against corruption.” Buckley, 424 U. S., at 30; see also
Shrink Missouri, 528 U. S., at 392, n. 5. It underscores
that “certain restrictions on corporate electoral involve
ment” may likewise be needed to “hedge against circum
vention of valid contribution limits.” McConnell, 540
U. S., at 205 (internal quotation marks and brackets
omitted); see also Colorado II, 533 U. S., at 456 (“[A]ll
Members of the Court agree that circumvention is a valid
theory of corruption”). It underscores that for-profit cor
porations associated with electioneering communications
will often prefer to use nonprofit conduits with “mislead
ing names,” such as And For The Sake Of The Kids, “to
70 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
conceal their identity” as the sponsor of those communica
tions, thereby frustrating the utility of disclosure laws.
McConnell, 540 U. S., at 128; see also id., at 196–197.
And it underscores that the consequences of today’s
holding will not be limited to the legislative or executive
context. The majority of the States select their judges
through popular elections. At a time when concerns about
the conduct of judicial elections have reached a fever pitch,
see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov.
15, 2007, p. A25; Brief for Justice at Stake et al. as Amici
Curiae 2, the Court today unleashes the floodgates of
corporate and union general treasury spending in these
races. Perhaps “Caperton motions” will catch some of the
worst abuses. This will be small comfort to those States
that, after today, may no longer have the ability to place
modest limits on corporate electioneering even if they
believe such limits to be critical to maintaining the integ
rity of their judicial systems.
Deference and Incumbent Self-Protection
Rather than show any deference to a coordinate branch
of Government, the majority thus rejects the anticorrup
tion rationale without serious analysis.67 Today’s opinion
provides no clear rationale for being so dismissive of Con
gress, but the prior individual opinions on which it relies
have offered one: the incentives of the legislators who
passed BCRA. Section 203, our colleagues have suggested,
may be little more than “an incumbency protection plan,”
McConnell, 540 U. S., at 306 (KENNEDY, J., concurring in
judgment in part and dissenting in part); see also id., at
249–250, 260–263 (SCALIA, J., concurring in part, concur
ring in judgment in part, and dissenting in part), a dis
——————
67 “We must give weight” and “due deference” to Congress’ efforts to
dispel corruption, the Court states at one point. Ante, at 45. It is
unclear to me what these maxims mean, but as applied by the Court
they clearly do not entail “deference” in any normal sense of that term.
Cite as: 558 U. S. ____ (2010) 71
Opinion of STEVENS, J.
reputable attempt at legislative self-dealing rather than
an earnest effort to facilitate First Amendment values and
safeguard the legitimacy of our political system. This
possibility, the Court apparently believes, licenses it to
run roughshod over Congress’ handiwork.
In my view, we should instead start by acknowledging
that “Congress surely has both wisdom and experience in
these matters that is far superior to ours.” Colorado
Republican Federal Campaign Comm. v. FEC, 518 U. S.
604, 650 (1996) (STEVENS, J., dissenting). Many of our
campaign finance precedents explicitly and forcefully
affirm the propriety of such presumptive deference. See,
e.g., McConnell, 540 U. S., at 158; Beaumont, 539 U. S., at
155–156; NRWC, 459 U. S., at 209–210. Moreover,
“[j]udicial deference is particularly warranted where, as
here, we deal with a congressional judgment that has
remained essentially unchanged throughout a century of
careful legislative adjustment.” Beaumont, 539 U. S., at
162, n. 9 (internal quotation marks omitted); cf. Shrink
Missouri, 528 U. S., at 391 (“The quantum of empirical
evidence needed to satisfy heightened judicial scrutiny of
legislative judgments will vary up or down with the nov
elty and plausibility of the justification raised”). In Amer
ica, incumbent legislators pass the laws that govern cam
paign finance, just like all other laws. To apply a level of
scrutiny that effectively bars them from regulating elec
tioneering whenever there is the faintest whiff of self
interest, is to deprive them of the ability to regulate
electioneering.
This is not to say that deference would be appropriate if
there were a solid basis for believing that a legislative
action was motivated by the desire to protect incumbents
or that it will degrade the competitiveness of the electoral
process.68 See League of United Latin American Citizens
——————
68 JUSTICE BREYER has suggested that we strike the balance as fol
72 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
v. Perry, 548 U. S. 399, 447 (2006) (STEVENS, J., concur
ring in part and dissenting in part); Vieth v. Jubelirer, 541
U. S. 267, 317 (2004) (STEVENS, J., dissenting). Along
with our duty to balance competing constitutional con
cerns, we have a vital role to play in ensuring that elec
tions remain at least minimally open, fair, and competi
tive. But it is the height of recklessness to dismiss
Congress’ years of bipartisan deliberation and its reasoned
judgment on this basis, without first confirming that the
statute in question was intended to be, or will function as,
a restraint on electoral competition. “Absent record evi
dence of invidious discrimination against challengers as a
class, a court should generally be hesitant to invalidate
legislation which on its face imposes evenhanded restric
tions.” Buckley, 424 U. S., at 31.
We have no record evidence from which to conclude that
BCRA §203, or any of the dozens of state laws that the
Court today calls into question, reflects or fosters such
invidious discrimination. Our colleagues have opined that
“ ‘any restriction upon a type of campaign speech that is
equally available to challengers and incumbents tends to
favor incumbents.’ ” McConnell, 540 U. S., at 249 (opinion
of SCALIA, J.). This kind of airy speculation could easily be
turned on its head. The electioneering prohibited by §203
might well tend to favor incumbents, because incumbents
have pre-existing relationships with corporations and
unions, and groups that wish to procure legislative bene
fits may tend to support the candidate who, as a sitting
officeholder, is already in a position to dispense benefits
and is statistically likely to retain office. If a corporation’s
goal is to induce officeholders to do its bidding, the corpo
——————
lows: “We should defer to [the legislature’s] political judgment that
unlimited spending threatens the integrity of the electoral process. But
we should not defer in respect to whether its solution . . . insulates
legislators from effective electoral challenge.” Shrink Missouri, 528
U. S., at 403–404 (concurring opinion).
Cite as: 558 U. S. ____ (2010) 73
Opinion of STEVENS, J.
ration would do well to cultivate stable, long-term rela
tionships of dependency.
So we do not have a solid theoretical basis for condemn
ing §203 as a front for incumbent self-protection, and it
seems equally if not more plausible that restrictions on
corporate electioneering will be self-denying. Nor do we
have a good empirical case for skepticism, as the Court’s
failure to cite any empirical research attests. Nor does the
legislative history give reason for concern. Congress
devoted years of careful study to the issues underlying
BCRA; “[f]ew legislative proposals in recent years have
received as much sustained public commentary or news
coverage”; “[p]olitical scientists and academic experts . . .
with no self-interest in incumbent protectio[n] were cen
tral figures in pressing the case for BCRA”; and the legis
lation commanded bipartisan support from the outset.
Pildes, The Supreme Court 2003 Term Foreword: The
Constitutionalization of Democratic Politics, 118 Harv.
L. Rev. 28, 137 (2004). Finally, it is important to remem
ber just how incumbent-friendly congressional races were
prior to BCRA’s passage. As the Solicitor General aptly
remarked at the time, “the evidence supports overwhelm
ingly that incumbents were able to get re-elected under
the old system just fine.” Tr. of Oral Arg. in McConnell v.
FEC, O. T. 2003, No. 02–1674, p. 61. “It would be hard to
develop a scheme that could be better for incumbents.”
Id., at 63.
In this case, then, “there is no convincing evidence that
th[e] important interests favoring expenditure limits are
fronts for incumbency protection.” Randall, 548 U. S., at
279 (STEVENS, J., dissenting). “In the meantime, a legisla
tive judgment that ‘enough is enough’ should command
the greatest possible deference from judges interpreting a
constitutional provision that, at best, has an indirect
relationship to activity that affects the quantity . . . of
repetitive speech in the marketplace of ideas.” Id., at 279–
74 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
280. The majority cavalierly ignores Congress’ factual
findings and its constitutional judgment: It acknowledges
the validity of the interest in preventing corruption, but it
effectively discounts the value of that interest to zero.
This is quite different from conscientious policing for
impermissibly anticompetitive motive or effect in a sensi
tive First Amendment context. It is the denial of Con
gress’ authority to regulate corporate spending on
elections.
Austin and Corporate Expenditures
Just as the majority gives short shrift to the general
societal interests at stake in campaign finance regulation,
it also overlooks the distinctive considerations raised by
the regulation of corporate expenditures. The majority
fails to appreciate that Austin’s antidistortion rationale is
itself an anticorruption rationale, see 494 U. S., at 660
(describing “a different type of corruption”), tied to the
special concerns raised by corporations. Understood prop
erly, “antidistortion” is simply a variant on the classic
governmental interest in protecting against improper
influences on officeholders that debilitate the democratic
process. It is manifestly not just an “ ‘equalizing’ ” ideal in
disguise. Ante, at 34 (quoting Buckley, 424 U. S., at 48).69
——————
69 THE CHIEF JUSTICE denies this, ante, at 9–10, citing scholarship
that has interpreted Austin to endorse an equality rationale, along with
an article by Justice Thurgood Marshall’s former law clerk that states
that Marshall, the author of Austin, accepted “equality of opportunity”
and “equalizing access to the political process” as bases for campaign
finance regulation, Garrett, New Voices in Politics: Justice Marshall’s
Jurisprudence on Law and Politics, 52 Howard L. J. 655, 667–668
(2009) (internal quotation marks omitted). It is fair to say that Austin
can bear an egalitarian reading, and I have no reason to doubt this
characterization of Justice Marshall’s beliefs. But the fact that Austin
can be read a certain way hardly proves THE CHIEF JUSTICE’s charge
that there is nothing more to it. Many of our precedents can bear
multiple readings, and many of our doctrines have some “equalizing”
implications but do not rest on an equalizing theory: for example, our
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Opinion of STEVENS, J.
1. Antidistortion
The fact that corporations are different from human
beings might seem to need no elaboration, except that the
majority opinion almost completely elides it. Austin set
forth some of the basic differences. Unlike natural per
sons, corporations have “limited liability” for their owners
and managers, “perpetual life,” separation of ownership
and control, “and favorable treatment of the accumulation
and distribution of assets . . . that enhance their ability to
attract capital and to deploy their resources in ways that
maximize the return on their shareholders’ investments.”
494 U. S., at 658–659. Unlike voters in U. S. elections,
corporations may be foreign controlled.70 Unlike other
interest groups, business corporations have been “effec
tively delegated responsibility for ensuring society’s eco
nomic welfare”;71 they inescapably structure the life of
every citizen. “ ‘[T]he resources in the treasury of a busi
ness corporation,’ ” furthermore, “ ‘are not an indication of
popular support for the corporation’s political ideas.’ ” Id.,
at 659 (quoting MCFL, 479 U. S., at 258). “ ‘They reflect
instead the economically motivated decisions of investors
and customers. The availability of these resources may
——————
takings jurisprudence and numerous rules of criminal procedure. More
important, the Austin Court expressly declined to rely on a speech
equalization rationale, see 494 U. S., at 660, and we have never under
stood Austin to stand for such a rationale. Whatever his personal
views, Justice Marshall simply did not write the opinion that THE
CHIEF JUSTICE suggests he did; indeed, he “would have viewed it as
irresponsible to write an opinion that boldly staked out a rationale
based on equality that no one other than perhaps Justice White would
have even considered joining,” Garrett, 52 Howard L. J., at 674.
70 In state elections, even domestic corporations may be “foreign”
controlled in the sense that they are incorporated in another jurisdic
tion and primarily owned and operated by out-of-state residents.
71 Regan, Corporate Speech and Civic Virtue, in Debating Democ
racy’s Discontent 289, 302 (A. Allen & M. Regan eds. 1998) (hereinafter
Regan).
76 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
make a corporation a formidable political presence, even
though the power of the corporation may be no reflection
of the power of its ideas.’ ” 494 U. S., at 659 (quoting
MCFL, 479 U. S., at 258).72
It might also be added that corporations have no con
sciences, no beliefs, no feelings, no thoughts, no desires.
Corporations help structure and facilitate the activities of
human beings, to be sure, and their “personhood” often
serves as a useful legal fiction. But they are not them
selves members of “We the People” by whom and for whom
our Constitution was established.
These basic points help explain why corporate election
eering is not only more likely to impair compelling gov
ernmental interests, but also why restrictions on that
electioneering are less likely to encroach upon First
Amendment freedoms. One fundamental concern of the
First Amendment is to “protec[t] the individual’s interest
in self-expression.” Consolidated Edison Co. of N. Y. v.
Public Serv. Comm’n of N. Y., 447 U. S. 530, 534, n. 2
(1980); see also Bellotti, 435 U. S., at 777, n. 12. Freedom
of speech helps “make men free to develop their faculties,”
Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis,
——————
72 Nothing in this analysis turns on whether the corporation is con
ceptualized as a grantee of a state concession, see, e.g., Trustees of
Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819) (Marshall,
C. J.), a nexus of explicit and implicit contracts, see, e.g., F. Easterbrook
& D. Fischel, The Economic Structure of Corporate Law 12 (1991), a
mediated hierarchy of stakeholders, see, e.g., Blair & Stout, A Team
Production Theory of Corporate Law, 85 Va. L. Rev. 247 (1999) (herein
after Blair & Stout), or any other recognized model. Austin referred to
the structure and the advantages of corporations as “state-conferred” in
several places, 494 U. S., at 660, 665, 667, but its antidistortion argu
ment relied only on the basic descriptive features of corporations, as
sketched above. It is not necessary to agree on a precise theory of the
corporation to agree that corporations differ from natural persons in
fundamental ways, and that a legislature might therefore need to
regulate them differently if it is human welfare that is the object of its
concern. Cf. Hansmann & Kraakman 441, n. 5.
Cite as: 558 U. S. ____ (2010) 77
Opinion of STEVENS, J.
J., concurring), it respects their “dignity and choice,”
Cohen v. California, 403 U. S. 15, 24 (1971), and it facili
tates the value of “individual self-realization,” Redish, The
Value of Free Speech, 130 U. Pa. L. Rev. 591, 594 (1982).
Corporate speech, however, is derivative speech, speech by
proxy. A regulation such as BCRA §203 may affect the
way in which individuals disseminate certain messages
through the corporate form, but it does not prevent anyone
from speaking in his or her own voice. “Within the realm
of [campaign spending] generally,” corporate spending is
“furthest from the core of political expression.” Beaumont,
539 U. S., at 161, n. 8.
It is an interesting question “who” is even speaking
when a business corporation places an advertisement that
endorses or attacks a particular candidate. Presumably it
is not the customers or employees, who typically have no
say in such matters. It cannot realistically be said to be
the shareholders, who tend to be far removed from the
day-to-day decisions of the firm and whose political prefer
ences may be opaque to management. Perhaps the officers
or directors of the corporation have the best claim to be
the ones speaking, except their fiduciary duties generally
prohibit them from using corporate funds for personal
ends. Some individuals associated with the corporation
must make the decision to place the ad, but the idea that
these individuals are thereby fostering their self
expression or cultivating their critical faculties is fanciful.
It is entirely possible that the corporation’s electoral mes
sage will conflict with their personal convictions. Take
away the ability to use general treasury funds for some of
those ads, and no one’s autonomy, dignity, or political
equality has been impinged upon in the least.
Corporate expenditures are distinguishable from indi
vidual expenditures in this respect. I have taken the view
that a legislature may place reasonable restrictions on
individuals’ electioneering expenditures in the service of
78 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
the governmental interests explained above, and in recog
nition of the fact that such restrictions are not direct
restraints on speech but rather on its financing. See, e.g.,
Randall, 548 U. S., at 273 (dissenting opinion). But those
restrictions concededly present a tougher case, because the
primary conduct of actual, flesh-and-blood persons is
involved. Some of those individuals might feel that they
need to spend large sums of money on behalf of a particu
lar candidate to vindicate the intensity of their electoral
preferences. This is obviously not the situation with busi
ness corporations, as their routine practice of giving “sub
stantial sums to both major national parties” makes pellu
cidly clear. McConnell, 540 U. S., at 148. “[C]orporate
participation” in elections, any business executive will tell
you, “is more transactional than ideological.” Supp. Brief
for Committee for Economic Development as Amicus
Curiae 10.
In this transactional spirit, some corporations have
affirmatively urged Congress to place limits on their elec
tioneering communications. These corporations fear that
officeholders will shake them down for supportive ads,
that they will have to spend increasing sums on elections
in an ever-escalating arms race with their competitors,
and that public trust in business will be eroded. See id.,
at 10–19. A system that effectively forces corporations to
use their shareholders’ money both to maintain access to,
and to avoid retribution from, elected officials may ulti
mately prove more harmful than beneficial to many corpo
rations. It can impose a kind of implicit tax.73
——————
73 Not all corporations support BCRA §203, of course, and not all cor
porations are large business entities or their tax-exempt adjuncts.
Some nonprofit corporations are created for an ideological purpose.
Some closely held corporations are strongly identified with a particular
owner or founder. The fact that §203, like the statute at issue in
Austin, regulates some of these corporations’ expenditures does not
disturb the analysis above. See 494 U. S., at 661–665. Small-business
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Opinion of STEVENS, J.
In short, regulations such as §203 and the statute up
held in Austin impose only a limited burden on First
Amendment freedoms not only because they target a
narrow subset of expenditures and leave untouched the
broader “public dialogue,” ante, at 25, but also because
they leave untouched the speech of natural persons.
Recognizing the weakness of a speaker-based critique of
Austin, the Court places primary emphasis not on the
corporation’s right to electioneer, but rather on the lis
tener’s interest in hearing what every possible speaker
may have to say. The Court’s central argument is that
laws such as §203 have “ ‘deprived [the electorate] of in
formation, knowledge and opinion vital to its function,’ ”
ante, at 38 (quoting CIO, 335 U. S., at 144 (Rutledge, J.,
concurring in judgment)), and this, in turn, “interferes
with the ‘open marketplace’ of ideas protected by the First
Amendment,” ante, at 38 (quoting New York State Bd. of
Elections v. Lopez Torres, 552 U. S. 196, 208 (2008)).
There are many flaws in this argument. If the overrid
ing concern depends on the interests of the audience,
surely the public’s perception of the value of corporate
speech should be given important weight. That perception
today is the same as it was a century ago when Theodore
Roosevelt delivered the speeches to Congress that, in time,
led to the limited prohibition on corporate campaign ex
penditures that is overruled today. See WRTL, 551 U. S.,
at 509–510 (Souter, J., dissenting) (summarizing President
——————
owners may speak in their own names, rather than the business’, if
they wish to evade §203 altogether. Nonprofit corporations that want
to make unrestricted electioneering expenditures may do so if they
refuse donations from businesses and unions and permit members to
disassociate without economic penalty. See MCFL, 479 U. S. 238, 264
(1986). Making it plain that their decision is not motivated by a con
cern about BCRA’s coverage of nonprofits that have ideological mis
sions but lack MCFL status, our colleagues refuse to apply the Snowe-
Jeffords Amendment or the lower courts’ de minimis exception to
MCFL. See ante, at 10–12.
80 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
Roosevelt’s remarks). The distinctive threat to democratic
integrity posed by corporate domination of politics was
recognized at “the inception of the republic” and “has been
a persistent theme in American political life” ever since.
Regan 302. It is only certain Members of this Court, not
the listeners themselves, who have agitated for more cor
porate electioneering.
Austin recognized that there are substantial reasons
why a legislature might conclude that unregulated general
treasury expenditures will give corporations “unfai[r]
influence” in the electoral process, 494 U. S., at 660, and
distort public debate in ways that undermine rather than
advance the interests of listeners. The legal structure of
corporations allows them to amass and deploy financial
resources on a scale few natural persons can match. The
structure of a business corporation, furthermore, draws a
line between the corporation’s economic interests and the
political preferences of the individuals associated with the
corporation; the corporation must engage the electoral
process with the aim “to enhance the profitability of the
company, no matter how persuasive the arguments for a
broader or conflicting set of priorities,” Brief for American
Independent Business Alliance as Amicus Curiae 11; see
also ALI, Principles of Corporate Governance: Analysis
and Recommendations §2.01(a), p. 55 (1992) (“[A] corpora
tion . . . should have as its objective the conduct of busi
ness activities with a view to enhancing corporate profit
and shareholder gain”). In a state election such as the one
at issue in Austin, the interests of nonresident corpora
tions may be fundamentally adverse to the interests of
local voters. Consequently, when corporations grab up the
prime broadcasting slots on the eve of an election, they can
flood the market with advocacy that bears “little or no
correlation” to the ideas of natural persons or to any
broader notion of the public good, 494 U. S., at 660. The
opinions of real people may be marginalized. “The expen
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Opinion of STEVENS, J.
diture restrictions of [2 U. S. C.] §441b are thus meant to
ensure that competition among actors in the political
arena is truly competition among ideas.” MCFL, 479
U. S., at 259.
In addition to this immediate drowning out of noncorpo
rate voices, there may be deleterious effects that follow
soon thereafter. Corporate “domination” of electioneering,
Austin, 494 U. S., at 659, can generate the impression that
corporations dominate our democracy. When citizens turn
on their televisions and radios before an election and hear
only corporate electioneering, they may lose faith in their
capacity, as citizens, to influence public policy. A Gov
ernment captured by corporate interests, they may come
to believe, will be neither responsive to their needs nor
willing to give their views a fair hearing. The predictable
result is cynicism and disenchantment: an increased
perception that large spenders “ ‘call the tune’ ” and a
reduced “ ‘willingness of voters to take part in democratic
governance.’ ” McConnell, 540 U. S., at 144 (quoting
Shrink Missouri, 528 U. S., at 390). To the extent that
corporations are allowed to exert undue influence in elec
toral races, the speech of the eventual winners of those
races may also be chilled. Politicians who fear that a
certain corporation can make or break their reelection
chances may be cowed into silence about that corporation.
On a variety of levels, unregulated corporate electioneer
ing might diminish the ability of citizens to “hold officials
accountable to the people,” ante, at 23, and disserve the
goal of a public debate that is “uninhibited, robust, and
wide-open,” New York Times Co. v. Sullivan, 376 U. S.
254, 270 (1964). At the least, I stress again, a legislature
is entitled to credit these concerns and to take tailored
measures in response.
The majority’s unwillingness to distinguish between
corporations and humans similarly blinds it to the possi
bility that corporations’ “war chests” and their special
82 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
“advantages” in the legal realm, Austin, 494 U. S., at 659,
may translate into special advantages in the market for
legislation. When large numbers of citizens have a com
mon stake in a measure that is under consideration, it
may be very difficult for them to coordinate resources on
behalf of their position. The corporate form, by contrast,
“provides a simple way to channel rents to only those who
have paid their dues, as it were. If you do not own stock,
you do not benefit from the larger dividends or apprecia
tion in the stock price caused by the passage of private
interest legislation.” Sitkoff, Corporate Political Speech,
Political Extortion, and the Competition for Corporate
Charters, 69 U. Chi. L. Rev. 1103, 1113 (2002). Corpora
tions, that is, are uniquely equipped to seek laws that
favor their owners, not simply because they have a lot of
money but because of their legal and organizational struc
ture. Remove all restrictions on their electioneering, and
the door may be opened to a type of rent seeking that is
“far more destructive” than what noncorporations are
capable of. Ibid. It is for reasons such as these that our
campaign finance jurisprudence has long appreciated that
“the ‘differing structures and purposes’ of different entities
‘may require different forms of regulation in order to
protect the integrity of the electoral process.’ ” NRWC, 459
U. S., at 210 (quoting California Medical Assn., 453 U. S.,
at 201).
The Court’s facile depiction of corporate electioneering
assumes away all of these complexities. Our colleagues
ridicule the idea of regulating expenditures based on
“nothing more” than a fear that corporations have a spe
cial “ability to persuade,” ante, at 11 (opinion of ROBERTS,
C. J.), as if corporations were our society’s ablest debaters
and viewpoint-neutral laws such as §203 were created to
suppress their best arguments. In their haste to knock
down yet another straw man, our colleagues simply ignore
the fundamental concerns of the Austin Court and the
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Opinion of STEVENS, J.
legislatures that have passed laws like §203: to safeguard
the integrity, competitiveness, and democratic responsive
ness of the electoral process. All of the majority’s theoreti
cal arguments turn on a proposition with undeniable
surface appeal but little grounding in evidence or experi
ence, “that there is no such thing as too much speech,”
Austin, 494 U. S., at 695 (SCALIA, J., dissenting)).74 If
individuals in our society had infinite free time to listen to
and contemplate every last bit of speech uttered by any
one, anywhere; and if broadcast advertisements had no
special ability to influence elections apart from the merits
of their arguments (to the extent they make any); and if
legislators always operated with nothing less than perfect
virtue; then I suppose the majority’s premise would be
sound. In the real world, we have seen, corporate domina
tion of the airwaves prior to an election may decrease the
average listener’s exposure to relevant viewpoints, and it
may diminish citizens’ willingness and capacity to partici
pate in the democratic process.
None of this is to suggest that corporations can or
should be denied an opportunity to participate in election
campaigns or in any other public forum (much less that a
work of art such as Mr. Smith Goes to Washington may be
banned), or to deny that some corporate speech may con
tribute significantly to public debate. What it shows,
however, is that Austin’s “concern about corporate domi
nation of the political process,” 494 U. S., at 659, reflects
more than a concern to protect governmental interests
outside of the First Amendment. It also reflects a concern
to facilitate First Amendment values by preserving some
breathing room around the electoral “marketplace” of
ideas, ante, at 19, 34, 38, 52, 54, the marketplace in which
the actual people of this Nation determine how they will
——————
74 Of course, no presiding person in a courtroom, legislature, class
room, polling place, or family dinner would take this hyperbole literally.
84 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
govern themselves. The majority seems oblivious to the
simple truth that laws such as §203 do not merely pit the
anticorruption interest against the First Amendment, but
also pit competing First Amendment values against each
other. There are, to be sure, serious concerns with any
effort to balance the First Amendment rights of speakers
against the First Amendment rights of listeners. But
when the speakers in question are not real people and
when the appeal to “First Amendment principles” depends
almost entirely on the listeners’ perspective, ante, at 1, 48,
it becomes necessary to consider how listeners will actu
ally be affected.
In critiquing Austin’s antidistortion rationale and cam
paign finance regulation more generally, our colleagues
place tremendous weight on the example of media corpora
tions. See ante, at 35–38, 46; ante, at 1, 11 (opinion of
ROBERTS, C. J.); ante, at 6 (opinion of SCALIA, J.). Yet it is
not at all clear that Austin would permit §203 to be ap
plied to them. The press plays a unique role not only in
the text, history, and structure of the First Amendment
but also in facilitating public discourse; as the Austin
Court explained, “media corporations differ significantly
from other corporations in that their resources are devoted
to the collection of information and its dissemination to
the public,” 494 U. S., at 667. Our colleagues have raised
some interesting and difficult questions about Congress’
authority to regulate electioneering by the press, and
about how to define what constitutes the press. But that
is not the case before us. Section 203 does not apply to
media corporations, and even if it did, Citizens United is
not a media corporation. There would be absolutely no
reason to consider the issue of media corporations if the
majority did not, first, transform Citizens United’s as
applied challenge into a facial challenge and, second,
invent the theory that legislatures must eschew all “iden
tity”-based distinctions and treat a local nonprofit news
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Opinion of STEVENS, J.
outlet exactly the same as General Motors.75 This calls to
mind George Berkeley’s description of philosophers: “[W]e
have first raised a dust and then complain we cannot see.”
Principles of Human Knowledge/Three Dialogues 38, ¶3
(R. Woolhouse ed. 1988).
It would be perfectly understandable if our colleagues
feared that a campaign finance regulation such as §203
may be counterproductive or self-interested, and therefore
attended carefully to the choices the Legislature has
made. But the majority does not bother to consider such
practical matters, or even to consult a record; it simply
stipulates that “enlightened self-government” can arise
only in the absence of regulation. Ante, at 23. In light of
the distinctive features of corporations identified in Aus
tin, there is no valid basis for this assumption. The mar
ketplace of ideas is not actually a place where items—or
laws—are meant to be bought and sold, and when we
move from the realm of economics to the realm of corpo
rate electioneering, there may be no “reason to think the
market ordering is intrinsically good at all,” Strauss 1386.
The Court’s blinkered and aphoristic approach to the
First Amendment may well promote corporate power at
the cost of the individual and collective self-expression the
Amendment was meant to serve. It will undoubtedly
cripple the ability of ordinary citizens, Congress, and the
States to adopt even limited measures to protect against
corporate domination of the electoral process. Americans
may be forgiven if they do not feel the Court has advanced
——————
75 Under the majority’s view, the legislature is thus damned if it does
and damned if it doesn’t. If the legislature gives media corporations an
exemption from electioneering regulations that apply to other corpora
tions, it violates the newly minted First Amendment rule against
identity-based distinctions. If the legislature does not give media
corporations an exemption, it violates the First Amendment rights of
the press. The only way out of this invented bind: no regulations
whatsoever.
86 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
the cause of self-government today.
2. Shareholder Protection
There is yet another way in which laws such as §203 can
serve First Amendment values. Interwoven with Austin’s
concern to protect the integrity of the electoral process is a
concern to protect the rights of shareholders from a kind of
coerced speech: electioneering expenditures that do not
“reflec[t] [their] support.” 494 U. S., at 660–661. When
corporations use general treasury funds to praise or attack a
particular candidate for office, it is the shareholders, as the
residual claimants, who are effectively footing the bill.
Those shareholders who disagree with the corporation’s
electoral message may find their financial investments
being used to undermine their political convictions.
The PAC mechanism, by contrast, helps assure that
those who pay for an electioneering communication actu
ally support its content and that managers do not use
general treasuries to advance personal agendas. Ibid. It
“ ‘allows corporate political participation without the temp
tation to use corporate funds for political influence, quite
possibly at odds with the sentiments of some shareholders
or members.’ ” McConnell, 540 U. S., at 204 (quoting
Beaumont, 539 U. S., at 163). A rule that privileges the
use of PACs thus does more than facilitate the political
speech of like-minded shareholders; it also curbs the rent
seeking behavior of executives and respects the views of
dissenters. Austin’s acceptance of restrictions on general
treasury spending “simply allows people who have in
vested in the business corporation for purely economic
reasons”—the vast majority of investors, one assumes—“to
avoid being taken advantage of, without sacrificing their
economic objectives.” Winkler, Beyond Bellotti, 32 Loyola
(LA) L. Rev. 133, 201 (1998).
The concern to protect dissenting shareholders and
union members has a long history in campaign finance
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Opinion of STEVENS, J.
reform. It provided a central motivation for the Tillman
Act in 1907 and subsequent legislation, see Pipefitters v.
United States, 407 U. S. 385, 414–415 (1972); Winkler, 92
Geo. L. J., at 887–900, and it has been endorsed in a long
line of our cases, see, e.g., McConnell, 540 U. S., at 204–
205; Beaumont, 539 U. S., at 152–154; MCFL, 479 U. S., at
258; NRWC, 459 U. S., at 207–208; Pipefitters, 407 U. S.,
at 414–416; see also n. 60, supra. Indeed, we have unani
mously recognized the governmental interest in “pro
tect[ing] the individuals who have paid money into a
corporation or union for purposes other than the support
of candidates from having that money used to support
political candidates to whom they may be opposed.”
NRWC, 459 U. S., at 207–208.
The Court dismisses this interest on the ground that
abuses of shareholder money can be corrected “through
the procedures of corporate democracy,” ante, at 46 (inter
nal quotation marks omitted), and, it seems, through
Internet-based disclosures, ante, at 55.76 I fail to under
stand how this addresses the concerns of dissenting union
members, who will also be affected by today’s ruling, and I
fail to understand why the Court is so confident in these
mechanisms. By “corporate democracy,” presumably the
Court means the rights of shareholders to vote and to
bring derivative suits for breach of fiduciary duty. In
practice, however, many corporate lawyers will tell you
that “these rights are so limited as to be almost nonexis
——————
76 I note that, among the many other regulatory possibilities it has
left open, ranging from new versions of §203 supported by additional
evidence of quid pro quo corruption or its appearance to any number of
tax incentive or public financing schemes, today’s decision does not
require that a legislature rely solely on these mechanisms to protect
shareholders. Legislatures remain free in their incorporation and tax
laws to condition the types of activity in which corporations may
engage, including electioneering activity, on specific disclosure re
quirements or on prior express approval by shareholders or members.
88 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
tent,” given the internal authority wielded by boards and
managers and the expansive protections afforded by the
business judgment rule. Blair & Stout 320; see also id., at
298–315; Winkler, 32 Loyola (LA) L. Rev., at 165–166,
199–200. Modern technology may help make it easier to
track corporate activity, including electoral advocacy, but
it is utopian to believe that it solves the problem. Most
American households that own stock do so through inter
mediaries such as mutual funds and pension plans, see
Evans, A Requiem for the Retail Investor? 95 Va. L. Rev.
1105 (2009), which makes it more difficult both to monitor
and to alter particular holdings. Studies show that a
majority of individual investors make no trades at all
during a given year. Id., at 1117. Moreover, if the corpo
ration in question operates a PAC, an investor who sees
the company’s ads may not know whether they are being
funded through the PAC or through the general treasury.
If and when shareholders learn that a corporation has
been spending general treasury money on objectionable
electioneering, they can divest. Even assuming that they
reliably learn as much, however, this solution is only
partial. The injury to the shareholders’ expressive rights
has already occurred; they might have preferred to keep
that corporation’s stock in their portfolio for any number
of economic reasons; and they may incur a capital gains
tax or other penalty from selling their shares, changing
their pension plan, or the like. The shareholder protection
rationale has been criticized as underinclusive, in that
corporations also spend money on lobbying and charitable
contributions in ways that any particular shareholder
might disapprove. But those expenditures do not impli
cate the selection of public officials, an area in which “the
interests of unwilling . . . corporate shareholders [in not
being] forced to subsidize that speech” “are at their ze
nith.” Austin, 494 U. S., at 677 (Brennan, J., concurring).
And in any event, the question is whether shareholder
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Opinion of STEVENS, J.
protection provides a basis for regulating expenditures in
the weeks before an election, not whether additional types
of corporate communications might similarly be condi
tioned on voluntariness.
Recognizing the limits of the shareholder protection
rationale, the Austin Court did not hold it out as an ade
quate and independent ground for sustaining the statute
in question. Rather, the Court applied it to reinforce the
antidistortion rationale, in two main ways. First, the
problem of dissenting shareholders shows that even if
electioneering expenditures can advance the political
views of some members of a corporation, they will often
compromise the views of others. See, e.g., id., at 663 (dis
cussing risk that corporation’s “members may be . . . reluc
tant to withdraw as members even if they disagree with
[its] political expression”). Second, it provides an addi
tional reason, beyond the distinctive legal attributes of the
corporate form, for doubting that these “expenditures
reflect actual public support for the political ideas es
poused,” id., at 660. The shareholder protection rationale,
in other words, bolsters the conclusion that restrictions on
corporate electioneering can serve both speakers’ and
listeners’ interests, as well as the anticorruption interest.
And it supplies yet another reason why corporate expendi
tures merit less protection than individual expenditures.
V
Today’s decision is backwards in many senses. It ele
vates the majority’s agenda over the litigants’ submis
sions, facial attacks over as-applied claims, broad constitu
tional theories over narrow statutory grounds, individual
dissenting opinions over precedential holdings, assertion
over tradition, absolutism over empiricism, rhetoric over
reality. Our colleagues have arrived at the conclusion that
Austin must be overruled and that §203 is facially uncon
stitutional only after mischaracterizing both the reach and
90 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
rationale of those authorities, and after bypassing or
ignoring rules of judicial restraint used to cabin the
Court’s lawmaking power. Their conclusion that the
societal interest in avoiding corruption and the appear
ance of corruption does not provide an adequate justifica
tion for regulating corporate expenditures on candidate
elections relies on an incorrect description of that interest,
along with a failure to acknowledge the relevance of estab
lished facts and the considered judgments of state and
federal legislatures over many decades.
In a democratic society, the longstanding consensus on
the need to limit corporate campaign spending should
outweigh the wooden application of judge-made rules. The
majority’s rejection of this principle “elevate[s] corpora
tions to a level of deference which has not been seen at
least since the days when substantive due process was
regularly used to invalidate regulatory legislation thought
to unfairly impinge upon established economic interests.”
Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At
bottom, the Court’s opinion is thus a rejection of the com
mon sense of the American people, who have recognized a
need to prevent corporations from undermining self
government since the founding, and who have fought
against the distinctive corrupting potential of corporate
electioneering since the days of Theodore Roosevelt. It is a
strange time to repudiate that common sense. While
American democracy is imperfect, few outside the majority
of this Court would have thought its flaws included a
dearth of corporate money in politics.
I would affirm the judgment of the District Court.
Cite as: 558 U. S. ____ (2010) 1
Opinion of THOMAS, J.
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 THOMAS, concurring in part and dissenting in
part.
I join all but Part IV of the Court’s opinion.
Political speech is entitled to robust protection under
the First Amendment. Section 203 of the Bipartisan
Campaign Reform Act of 2002 (BCRA) has never been
reconcilable with that protection. By striking down §203,
the Court takes an important first step toward restoring
full constitutional protection to speech that is “indispensa
ble to the effective and intelligent use of the processes of
popular government.” McConnell v. Federal Election
Comm’n, 540 U. S. 93, 265 (2003) (THOMAS, J., concurring
in part, concurring in judgment in part, and dissenting in
part) (internal quotation marks omitted). I dissent from
Part IV of the Court’s opinion, however, because the
Court’s constitutional analysis does not go far enough.
The disclosure, disclaimer, and reporting requirements in
BCRA §§201 and 311 are also unconstitutional. See id., at
275–277, and n. 10.
Congress may not abridge the “right to anonymous
speech” based on the “ ‘simple interest in providing voters
with additional relevant information,’ ” id., at 276 (quoting
McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 348
(1995)). In continuing to hold otherwise, the Court misap
prehends the import of “recent events” that some amici
2 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of THOMAS, J.
describe “in which donors to certain causes were black
listed, threatened, or otherwise targeted for retaliation.”
Ante, at 54. The Court properly recognizes these events as
“cause for concern,” ibid., but fails to acknowledge their
constitutional significance. In my view, amici’s submis
sions show why the Court’s insistence on upholding §§201
and 311 will ultimately prove as misguided (and ill fated)
as was its prior approval of §203.
Amici’s examples relate principally to Proposition 8, a
state ballot proposition that California voters narrowly
passed in the 2008 general election. Proposition 8
amended California’s constitution to provide that “[o]nly
marriage between a man and a woman is valid or recog
nized in California.” Cal. Const., Art. I, §7.5. Any donor
who gave more than $100 to any committee supporting or
opposing Proposition 8 was required to disclose his full
name, street address, occupation, employer’s name (or
business name, if self-employed), and the total amount of
his contributions.1 See Cal. Govt. Code Ann. §84211(f)
(West 2005). The California Secretary of State was then
required to post this information on the Internet. See
§§84600–84601; §§84602–84602.1 (West Supp. 2010);
§§84602.5–84604 (West 2005); §85605 (West Supp. 2010);
§§84606–84609 (West 2005).
Some opponents of Proposition 8 compiled this informa
tion and created Web sites with maps showing the loca
tions of homes or businesses of Proposition 8 supporters.
Many supporters (or their customers) suffered property
damage, or threats of physical violence or death, as a
——————
1 BCRA imposes similar disclosure requirements. See, e.g., 2 U. S. C.
§434(f)(2)(F) (“Every person who makes a disbursement for the direct
costs of producing and airing electioneering communications in an
aggregate amount in excess of $10,000 during any calendar year” must
disclose “the names and addresses of all contributors who contributed
an aggregate amount of $1,000 or more to the person making the
disbursement”).
Cite as: 558 U. S. ____ (2010) 3
Opinion of THOMAS, J.
result. They cited these incidents in a complaint they filed
after the 2008 election, seeking to invalidate California’s
mandatory disclosure laws. Supporters recounted being
told: “Consider yourself lucky. If I had a gun I would have
gunned you down along with each and every other sup
porter,” or, “we have plans for you and your friends.”
Complaint in ProtectMarriage.com—Yes on 8 v. Bowen,
Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31.
Proposition 8 opponents also allegedly harassed the meas
ure’s supporters by defacing or damaging their property.
Id., ¶32. Two religious organizations supporting Proposi
tion 8 reportedly received through the mail envelopes
containing a white powdery substance. Id., ¶33.
Those accounts are consistent with media reports de
scribing Proposition 8-related retaliation. The director of
the nonprofit California Musical Theater gave $1,000 to
support the initiative; he was forced to resign after artists
complained to his employer. Lott & Smith, Donor Disclo
sure Has Its Downsides, Wall Street Journal, Dec. 26,
2008, p. A13. The director of the Los Angeles Film Festi
val was forced to resign after giving $1,500 because oppo
nents threatened to boycott and picket the next festival.
Ibid. And a woman who had managed her popular, fam
ily-owned restaurant for 26 years was forced to resign
after she gave $100, because “throngs of [angry] protest
ers” repeatedly arrived at the restaurant and “shout[ed]
‘shame on you’ at customers.” Lopez, Prop. 8 Stance Up
ends Her Life, Los Angeles Times, Dec. 14, 2008, p. B1.
The police even had to “arriv[e] in riot gear one night to
quell the angry mob” at the restaurant. Ibid. Some sup
porters of Proposition 8 engaged in similar tactics; one real
estate businessman in San Diego who had donated to a
group opposing Proposition 8 “received a letter from the
Prop. 8 Executive Committee threatening to publish his
company’s name if he didn’t also donate to the ‘Yes on 8’
campaign.” Donor Disclosure, supra, at A13.
4 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of THOMAS, J.
The success of such intimidation tactics has apparently
spawned a cottage industry that uses forcibly disclosed
donor information to pre-empt citizens’ exercise of their
First Amendment rights. Before the 2008 Presidential
election, a “newly formed nonprofit group . . . plann[ed] to
confront donors to conservative groups, hoping to create a
chilling effect that will dry up contributions.” Luo, Group
Plans Campaign Against G.O.P. Donors, N. Y. Times, Aug.
8, 2008, p. A15. Its leader, “who described his effort as
‘going for the jugular,’ ” detailed the group’s plan to send a
“warning letter . . . alerting donors who might be consider
ing giving to right-wing groups to a variety of potential
dangers, including legal trouble, public exposure and
watchdog groups digging through their lives.” Ibid.
These instances of retaliation sufficiently demonstrate
why this Court should invalidate mandatory disclosure
and reporting requirements. But amici present evidence
of yet another reason to do so—the threat of retaliation
from elected officials. As amici’s submissions make clear,
this threat extends far beyond a single ballot proposition
in California. For example, a candidate challenging an
incumbent state attorney general reported that some
members of the State’s business community feared donat
ing to his campaign because they did not want to cross the
incumbent; in his words, “ ‘I go to so many people and hear
the same thing: “I sure hope you beat [the incumbent], but
I can’t afford to have my name on your records. He might
come after me next.” ’ ” Strassel, Challenging Spitzerism
at the Polls, Wall Street Journal, Aug. 1, 2008, p. A11.
The incumbent won reelection in 2008.
My point is not to express any view on the merits of the
political controversies I describe. Rather, it is to demon
strate—using real-world, recent examples—the fallacy in
the Court’s conclusion that “[d]isclaimer and disclosure
requirements . . . impose no ceiling on campaign-related
activities, and do not prevent anyone from speaking.”
Cite as: 558 U. S. ____ (2010) 5
Opinion of THOMAS, J.
Ante, at 51 (internal quotation marks and citations omit
ted). Of course they do. Disclaimer and disclosure re
quirements enable private citizens and elected officials to
implement political strategies specifically calculated to
curtail campaign-related activity and prevent the lawful,
peaceful exercise of First Amendment rights.
The Court nevertheless insists that as-applied chal
lenges to disclosure requirements will suffice to vindicate
those speech rights, as long as potential plaintiffs can
“show a reasonable probability that disclosure . . . will
subject them to threats, harassment, or reprisals from
either Government officials or private parties.” Ante, at 52
(internal quotation marks omitted). But the Court’s opin
ion itself proves the irony in this compromise. In correctly
explaining why it must address the facial constitutionality
of §203, see ante, at 5–20, the Court recognizes that “[t]he
First Amendment does not permit laws that force speakers
to . . . seek declaratory rulings before discussing the most
salient political issues of our day,” ante, at 7; that as
applied challenges to §203 “would require substantial
litigation over an extended time” and result in an “inter
pretive process [that] itself would create an inevitable,
pervasive, and serious risk of chilling protected speech
pending the drawing of fine distinctions that, in the end,
would themselves be questionable,” ante, at 9–10; that “a
court would be remiss in performing its duties were it to
accept an unsound principle merely to avoid the necessity
of making a broader ruling,” ante, at 12; and that avoiding
a facial challenge to §203 “would prolong the substantial,
nation-wide chilling effect” that §203 causes, ante, at 16.
This logic, of course, applies equally to as-applied chal
lenges to §§201 and 311.
Irony aside, the Court’s promise that as-applied chal
lenges will adequately protect speech is a hollow assur
ance. Now more than ever, §§201 and 311 will chill pro
tected speech because—as California voters can attest—
6 CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of THOMAS, J.
“the advent of the Internet” enables “prompt disclosure of
expenditures,” which “provide[s]” political opponents “with
the information needed” to intimidate and retaliate
against their foes. Ante, at 55. Thus, “disclosure permits
citizens . . . to react to the speech of [their political oppo
nents] in a proper”—or undeniably improper—“way” long
before a plaintiff could prevail on an as-applied challenge.2
Ibid.
I cannot endorse a view of the First Amendment that
subjects citizens of this Nation to death threats, ruined
careers, damaged or defaced property, or pre-emptive and
threatening warning letters as the price for engaging in
“core political speech, the ‘primary object of First Amend
ment protection.’ ” McConnell, 540 U. S., at 264 (THOMAS,
J., concurring in part, concurring in judgment in part, and
dissenting in part) (quoting Nixon v. Shrink Missouri
Government PAC, 528 U. S. 377, 410–411 (2000) (THOMAS,
J., dissenting)). Accordingly, I respectfully dissent from
the Court’s judgment upholding BCRA §§201 and 311.
——————
2 But cf. Hill v. Colorado, 530 U. S. 703, 707–710 (2000) (approving a
statute restricting speech “within 100 feet” of abortion clinics because it
protected women seeking an abortion from “ ‘sidewalk counseling,’ ”
which “consists of efforts ‘to educate, counsel, persuade, or inform
passersby about abortion and abortion alternatives by means of verbal
or written speech,’ ” and which “sometimes” involved “strong and
abusive language in face-to-face encounters”).