FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, INC.

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FEDERAL ELECTION COMMISSION v. WISCONSIN
RIGHT TO LIFE, INC.
appeal from the united states district court for the
district of columbia
No. 06–969. Argued April 25, 2007—Decided June 25, 2007*
Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA)
makes it a federal crime for a corporation to use its general treasury
funds to pay for any “electioneering communication,” 2 U. S. C.
§ 441b(b)(2), which BCRA defines as any broadcast that refers to a can
didate for federal office and is aired within 30 days of a federal primary
election or 60 days of a federal general election in the jurisdiction where
that candidate is running, § 434(f)(3)(A). In McConnell v. Federal Elec
tion Comm’n, 540 U. S. 93, this Court upheld § 203 against a First
Amendment facial challenge even though the section encompassed not
only campaign speech, or “express advocacy” promoting a candidate’s
election or defeat, but also “issue advocacy,” or speech about public is
sues more generally, that also mentions such a candidate. The Court
concluded there was no overbreadth concern to the extent the speech
in question was the “functional equivalent” of express advocacy. Id.,
at 204–205, 206.
On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL),
began broadcasting advertisements declaring that a group of Senators
was filibustering to delay and block federal judicial nominees and telling
voters to contact Wisconsin Senators Feingold and Kohl to urge them
to oppose the filibuster. WRTL planned to run the ads throughout Au
gust 2004 and finance them with its general treasury funds. Recogniz
ing, however, that as of August 15, 30 days before the Wisconsin pri
mary, the ads would be illegal “electioneering communication[s]” under
BCRA § 203, but believing that it nonetheless had a First Amendment
right to broadcast them, WRTL filed suit against the Federal Election
Commission (FEC), seeking declaratory and injunctive relief and alleg
ing that § 203’s prohibition was unconstitutional as applied to the three
ads in question, as well as any materially similar ads WRTL might run
in the future. Just before the BCRA blackout, the three-judge District
Court denied a preliminary injunction, concluding that McConnell’s rea
soning that § 203 was not facially overbroad left no room for such “as
*Together with No. 06–970, McCain, United States Senator, et al. v.
Wisconsin Right to Life, Inc., also on appeal from the same court.

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applied” challenges. WRTL did not run its ads during the blackout
period, and the court subsequently dismissed the complaint. This
Court vacated that judgment, holding that McConnell “did not purport
to resolve future as-applied challenges” to § 203. Wisconsin Right to
Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 412 (WRTL I).
On remand, the District Court granted WRTL summary judgment,
holding § 203 unconstitutional as applied to the three ads. The court
first found that adjudication was not barred by mootness because the
controversy was capable of repetition, yet evading review. On the mer
its, it concluded that the ads were genuine issue ads, not express advo
cacy or its “functional equivalent” under McConnell, and held that no
compelling interest justified BCRA’s regulation of such ads.
Held: The judgment is affirmed.
466 F. Supp. 2d 195, affirmed.
The Chief Justice delivered the opinion of the Court with respect
to Parts I and II, concluding that the Court has jurisdiction to decide
these cases. The FEC argues that the cases are moot because the 2004
election has passed and WRTL neither asserts a continuing interest in
running its ads nor identifies any reason to believe that a significant
dispute over Senate filibusters of judicial nominees will occur in the
foreseeable future. These cases, however, fit comfortably within the
established exception to mootness for disputes capable of repetition, yet
evading review. That exception applies where “(1) the challenged ac
tion is in its duration too short to be fully litigated prior to cessation
or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again,” Spencer v.
Kemna, 523 U. S. 1, 17. Both circumstances are present here. First,
it would be unreasonable to expect that WRTL could have obtained
complete judicial review of its claims in time to air its ads during the
BCRA blackout periods. Indeed, two BCRA blackout periods have
passed during the pendency of this action. Second, there exists a rea
sonable expectation that the same “controversy” involving the same
party will recur: WRTL has credibly claimed that it plans to run materi
ally similar targeted ads during future blackout periods, and there is no
reason to believe that the FEC will refrain from prosecuting future
BCRA violations. Pp. 461–464.
The Chief Justice, joined by Justice Alito, concluded that BCRA
§ 203 is unconstitutional as applied to the ads at issue in these cases.
Pp. 464–482.
1. The speech at issue is not the “functional equivalent” of express
campaign speech. Pp. 464–476.
(a) Appellants are wrong in arguing that WRTL has the burden of
demonstrating that § 203 is unconstitutional. Because § 203 burdens

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political speech, it is subject to strict scrutiny, see, e. g., McConnell,
supra, at 205, under which the Government must prove that applying
BCRA to WRTL’s ads furthers a compelling governmental interest and
is narrowly tailored to achieve that interest, see First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 786. Given that McConnell, supra, at
206, already ruled that BCRA survives strict scrutiny to the extent it
regulates express advocacy or its functional equivalent, the FEC’s bur
den is not onerous insofar as these ads fit this description. Pp. 464–465.
(b) Contrary to the FEC’s contention, McConnell, 540 U. S., at 205–
206, did not establish an intent-and-effect test for determining if a par
ticular ad is the functional equivalent of express advocacy. Indeed, Mc-
Connell did not adopt any test for future as-applied challenges, but
simply grounded its analysis in the evidentiary record, which included
two key studies that separated ads based on whether they were in
tended to, or had the effect of, supporting candidates for federal office.
Id., at 308–309. More importantly, Buckley v. Valeo, 424 U. S. 1, 14,
43–44, rejected an intent-and-effect test for distinguishing between dis
cussions of issues and candidates, and McConnell did not purport to
overrule Buckley on this point—or even address what Buckley had to
say on the subject. Pp. 465–469.
(c) Because WRTL’s ads may reasonably be interpreted as some
thing other than an appeal to vote for or against a specific candidate,
they are not the functional equivalent of express advocacy, and therefore
fall outside McConnell’s scope. To safeguard freedom of speech on pub
lic issues, the proper standard for an as-applied challenge to BCRA § 203
must be objective, focusing on the communication’s substance rather
than on amorphous considerations of intent and effect. See Buckley,
supra, at 43–44. It must entail minimal if any discovery, to allow par
ties to resolve disputes quickly without chilling speech through the
threat of burdensome litigation. See Virginia v. Hicks, 539 U. S. 113,
119. And it must eschew “the open-ended rough-and-tumble of fac
tors,” which “invit[es] complex argument in a trial court and a virtually
inevitable appeal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U. S. 527, 547. In short, it must give the benefit of any
doubt to protecting rather than stifling speech. See New York Times
Co. v. Sullivan, 376 U. S. 254, 269–270. In light of these considerations,
a court should find that an ad is the functional equivalent of express
advocacy only if the ad is susceptible of no reasonable interpretation
other than as an appeal to vote for or against a specific candidate.
WRTL’s three ads are plainly not the functional equivalent of express
advocacy under this test. First, their content is consistent with that of
a genuine issue ad: They focus and take a position on a legislative issue
and exhort the public to adopt that position and to contact public officials
with respect to the matter. Second, their content lacks indicia of ex

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press advocacy: They do not mention an election, candidacy, political
party, or challenger; and they take no position on a candidate’s charac
ter, qualifications, or fitness for office. Pp. 469–476.
2. Because WRTL’s ads are not express advocacy or its functional
equivalent, and because appellants identify no interest sufficiently com
pelling to justify burdening WRTL’s speech, BCRA § 203 is unconstitu
tional as applied to the ads. The section can be constitutionally applied
only if it is narrowly tailored to further a compelling interest. E. g.,
McConnell, supra, at 205. None of the interests that might justify reg
ulating WRTL’s ads are sufficiently compelling. Although the Court
has long recognized “the governmental interest in preventing corrup
tion and the appearance of corruption” in election campaigns, Buckley,
424 U. S., at 45, it has invoked this interest as a reason for upholding
contribution limits, id., at 26–27, and suggested that it might also jus
tify limits on electioneering expenditures posing the same dangers as
large contributions, id., at 45. McConnell arguably applied this inter
est to ads that were the “functional equivalent” of express advocacy.
See 540 U. S., at 204–206. But to justify regulation of WRTL’s ads, this
interest must be stretched yet another step to ads that are not the
functional equivalent of express advocacy. Issue ads like WRTL’s are
not equivalent to contributions, and the corruption interest cannot jus
tify regulating them. A second possible compelling interest lies in ad
dressing “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 corpora
tion’s political ideas.” Austin v. Michigan Chamber of Commerce, 494
U. S. 652, 660. McConnell held that this interest justifies regulating
the “functional equivalent” of campaign speech, 540 U. S., at 205–206.
This interest cannot be extended further to apply to genuine issue ads
like WRTL’s, see, e. g., id., at 206, n. 88, because doing so would call into
question this Court’s holdings that the corporate identity of a speaker
does not strip corporations of all free speech rights. WRTL I rein
forced the validity of this point by holding § 203 susceptible to as-applied
challenges. 546 U. S., at 412. Pp. 476–481.
3. These cases present no occasion to revisit McConnell’s holding that
a corporation’s express advocacy of a candidate or his opponent shortly
before an election may be prohibited, along with the functional equiva
lent of such express advocacy. But when it comes to defining what
speech qualifies as the functional equivalent of express advocacy subject
to such a ban—the question here—the Court should give the benefit of
the doubt to speech, not censorship. Pp. 481–482.
Justice Scalia, joined by Justice Kennedy and Justice Thomas,
agreed that the Court has jurisdiction in these cases and concurred in

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the Court’s judgment because he would overrule that part of McConnell
v. Federal Election Comm’n, 540 U. S. 93, upholding § 203(a) of BCRA.
Pp. 485–504.
1. The pertinent case law begins with Buckley v. Valeo, 424 U. S. 1,
in which the Court held, inter alia, that a federal limitation on campaign
expenditures not made in coordination with a candidate’s campaign (con
tained in the Federal Election Campaign Act of 1971 (FECA)) was un
constitutional, id., at 39–51. In light of vagueness concerns, the Court
narrowly construed the independent-expenditure provision to cover
only express advocacy of the election or defeat of a clearly identified
candidate for federal office by use of such magic words “as ‘vote for,’
‘elect,’ . . . ‘vote against,’ ‘defeat,’ ‘reject.’ ” Id., at 44, and n. 52. This
narrowing construction excluded so-called “issue advocacy” referring to
a clearly identified candidate’s position on an issue, but not expressly
advocating his election or defeat. Even as narrowly construed, how
ever, the Court struck the provision down. Id., at 45–46. Despite
Buckley, some argued that independent expenditures by corporations
should be treated differently. A post-Buckley case, First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 776–777, struck down, on First Amend
ment grounds, a state statute prohibiting corporations from spending
money in connection with a referendum. The Court strayed far from
these principles, however, in Austin v. Michigan Chamber of Com
merce, 494 U. S. 652, upholding state restrictions on corporations’ inde
pendent expenditures in support of, or in opposition to, candidates for
state office, id., at 654–655. Austin was wrongly decided, but at least
it was limited to express advocacy. Nonexpress advocacy was pre
sumed to remain protected under Buckley and Bellotti, even when en
gaged in by corporations, until McConnell. McConnell held, inter alia,
that the compelling governmental interest supporting restrictions on
corporate expenditures for express advocacy—i. e., Austin’s perceived
“corrosive and distorting effects of immense aggregations of [corporate]
wealth,” 540 U. S., at 205—also justified extending those restrictions to
ads run during the BCRA blackout period “to the extent . . . [they] are
the functional equivalent of express advocacy,” id., at 206 (emphasis
added). McConnell upheld BCRA § 203(a) against a facial challenge.
Subsequently, in Wisconsin Right to Life, Inc. v. Federal Election
Comm’n, 546 U. S. 410, 412, the Court held that McConnell did not fore
close as-applied challenges to § 203. Pp. 485–491.
2. McConnell’s holding concerning § 203 was wrong. The answer to
whether WRTL meets the standard for prevailing in an as-applied chal
lenge requires the Court to articulate the standard. The most obvious
standard is McConnell’s, which asks whether an ad is the “functional
equivalent of express advocacy,” 540 U. S., at 206. The fundamental

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and inescapable problem with this test, with the principal opinion’s
susceptible-of-no-other-reasonable-interpretation standard, and with
other similar tests is that each is impermissibly vague and thus ineffec
tive to vindicate the fundamental First Amendment rights at issue.
Buckley itself compelled the conclusion that such tests fall short when
it narrowed the statutory language there at issue to cover only advertis
ing that used the magic words of express advocacy. 424 U. S., at 43–44.
The only plausible explanation for Buckley’s “highly strained” reading
of FECA, McConnell, supra, at 280, is that the Court there eschewed
narrowing constructions that would have been more faithful to FECA’s
text and more effective at capturing campaign speech because those
tests were all too vague. If Buckley foreclosed such vagueness in a
statutory test, it also must foreclose such vagueness in an as-applied
test. Yet any clear rule that would protect all genuine issue ads would
cover such a substantial number of ads prohibited by § 203 that § 203
would be rendered substantially overbroad. Thus, McConnell (which
presupposed the availability of as-applied challenges) was mistaken.
Pp. 491–500.
3. Stare decisis would not prevent the Court from overruling McCon
nell’s § 203 holding. This Court’s “considered practice” is not to apply
that principle “as rigidly in constitutional as in nonconstitutional cases,”
Glidden Co. v. Zdanok, 370 U. S. 530, 543, and it has not hesitated to
overrule a decision offensive to the First Amendment that was decided
just a few years earlier, see West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624, 642. Pp. 500–503.
Roberts, C. J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I and II, in which Scalia,
Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to
Parts III and IV, in which Alito, J., joined. Alito, J., filed a concurring
opinion, post, p. 482. Scalia, J., filed an opinion concurring in part and
concurring in the judgment, in which Kennedy and Thomas, JJ., joined,
post, p. 483. Souter, J., filed a dissenting opinion, in which Stevens,
Ginsburg, and Breyer, JJ., joined, post, p. 504.
Solicitor General Clement argued the cause for appellant
in No. 06–969. With him on the briefs were Deputy Solici
tor General Garre, Malcolm L. Stewart, Richard B. Bader,
David Kolker, Harry J. Summers, and Kevin Deeley. Seth
P. Waxman argued the cause for appellants in No. 06–970.
With him on the briefs were Randolph D. Moss, Danielle
Spinelli, Roger M. Witten, Donald J. Simon, Scott L. Nel
son, Trevor Potter, J. Gerald Hebert, Paul S. Ryan, Charles

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G. Curtis, Jr., Fred Wertheimer, Alan B. Morrison, and
Bradley S. Phillips.
James Bopp, Jr., argued the cause for appellee in both
cases. With him on the brief were Richard E. Coleson, Jef
frey P. Gallant, Raeanna S. Moore, and M. Miller Baker.†
Chief Justice Roberts announced the judgment of the
Court and delivered the opinion of the Court with respect to
Parts I and II, and an opinion with respect to Parts III and
IV, in which Justice Alito joins.
Section 203 of the Bipartisan Campaign Reform Act of
2002 (BCRA), 116 Stat. 91, 2 U. S. C. § 441b(b)(2) (2000 ed.,
Supp. IV), makes it a federal crime for any corporation to
†Briefs of amici curiae urging reversal in both cases were filed for the
Committee for Economic Development et al. by H. Christopher Bartolo
mucci; for the League of Women Voters of the United States et al. by
Daniel R. Ortiz; for Richard Briffault et al. by Richard L. Hasen, Martin
S. Lederman, Mr. Briffault, and David S. Ettinger; and for Norman
Dorsen et al. by Burt Neuborne and Deborah Goldberg.
Briefs of amici curiae urging affirmance in both cases were filed for the
Alliance for Justice by Michael B. Trister and B. Holly Schadler; for the
American Civil Liberties Union by Steven R. Shapiro, Mark J. Lopez,
and Joel M. Gora; for the American Federation of Labor and Congress of
Industrial Organizations by Jonathan P. Hiatt and Laurence E. Gold; for
the Center for Competitive Politics et al. by Erik S. Jaffe; for the Cham
ber of Commerce of the United States of America by Jan Witold Baran,
Thomas W. Kirby, Caleb P. Burns, Steven J. Law, Robin S. Conrad, Amar
D. Sarwal, and Judith K. Richmond; for Citizens United et al. by Herbert
W. Titus, William J. Olson, John S. Miles, and Mark B. Weinberg; for the
Family Research Council et al. by Kathleen M. Sullivan and Stephen W.
Reed; for the National Association of Realtors by David C. Frederick,
Brendan J. Crimmins, Laurene K. Janik, and Ralph W. Holmen; for the
Republican National Committee by Thomas J. Josefiak; and for United
States Senator Mitch McConnell by Theodore B. Olson, Douglas R. Cox,
and Amir C. Tayrani.
Briefs of amici curiae were filed in both cases for the American Center
for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, James M.
Henderson, Sr., and Stephen W. Reed; for a Coalition of Public Charities
by Robert F. Bauer; and for the National Rifle Association by Charles J.
Cooper, Brian S. Koukoutchos, and David H. Thompson.

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broadcast, shortly before an election, any communication
that names a federal candidate for elected office and is tar
geted to the electorate. In McConnell v. Federal Election
Comm’n, 540 U. S. 93 (2003), this Court considered whether
§ 203 was facially overbroad under the First Amendment be
cause it captured within its reach not only campaign speech,
or “express advocacy,” but also speech about public issues
more generally, or “issue advocacy,” that mentions a candi
date for federal office. The Court concluded that there was
no overbreadth concern to the extent the speech in question
was the “functional equivalent” of express campaign speech.
Id., at 204–205, 206. On the other hand, the Court “as
sume[d]” that the interests it had found to “justify the regu
lation of campaign speech might not apply to the regulation
of genuine issue ads.” Id., at 206, n. 88. The Court none
theless determined that § 203 was not facially overbroad.
Even assuming § 203 “inhibit[ed] some constitutionally pro
tected corporate and union speech,” the Court concluded that
those challenging the law on its face had failed to carry their
“heavy burden” of establishing that all enforcement of the
law should therefore be prohibited. Id., at 207.
Last Term, we reversed a lower court ruling, arising in
the same litigation before us now, that our decision in Mc-
Connell left “no room” for as-applied challenges to § 203.
App. to Juris. Statement 52a. We held on the contrary that
“[i]n upholding § 203 against a facial challenge, we did not
purport to resolve future as-applied challenges.” Wiscon
sin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S.
410, 412 (2006) (per curiam) (WRTL I ).
We now confront such an as-applied challenge. Resolving
it requires us first to determine whether the speech at issue
is the “functional equivalent” of speech expressly advocating
the election or defeat of a candidate for federal office, or in
stead a “genuine issue a[d].” McConnell, supra, at 206, and
n. 88. We have long recognized that the distinction between
campaign advocacy and issue advocacy “may often dissolve
in practical application. Candidates, especially incumbents,

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are intimately tied to public issues involving legislative pro
posals and governmental actions.” Buckley v. Valeo, 424
U. S. 1, 42 (1976) (per curiam). Our development of the law
in this area requires us, however, to draw such a line, be
cause we have recognized that the interests held to justify
the regulation of campaign speech and its “functional equiva
lent” “might not apply” to the regulation of issue advocacy.
McConnell, supra, at 206, and n. 88.
In drawing that line, the First Amendment requires us
to err on the side of protecting political speech rather than
suppressing it. We conclude that the speech at issue in this
as-applied challenge is not the “functional equivalent” of ex
press campaign speech. We further conclude that the inter
ests held to justify restricting corporate campaign speech
or its functional equivalent do not justify restricting issue
advocacy, and accordingly we hold that BCRA § 203 is un
constitutional as applied to the advertisements at issue in
these cases.
I
Prior to BCRA, corporations were free under federal law
to use independent expenditures to engage in political speech
so long as that speech did not expressly advocate the election
or defeat of a clearly identified federal candidate. See Fed
eral Election Comm’n v. Massachusetts Citizens for Life,
Inc., 479 U. S. 238, 249 (1986) (MCFL); Buckley, supra, at
44–45; 2 U. S. C. §§ 441b(a), (b)(2) (2000 ed. and Supp. IV).
BCRA significantly cut back on corporations’ ability to en
gage in political speech. BCRA § 203, at issue in these
cases, makes it a crime for any labor union or incorporated
entity—whether the United Steelworkers, the American
Civil Liberties Union, or General Motors—to use its general
treasury funds to pay for any “electioneering communica
tion.” § 441b(b)(2) (2000 ed., Supp. IV). BCRA’s definition
of “electioneering communication” is clear and expansive.
It encompasses any broadcast, cable, or satellite communica
tion that refers to a candidate for federal office and that is

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aired within 30 days of a federal primary election or 60 days
of a federal general election in the jurisdiction in which that
candidate is running for office. § 434(f)(3)(A).1
Appellee Wisconsin Right to Life, Inc. (WRTL), is a non
profit, nonstock, ideological advocacy corporation recognized
by the Internal Revenue Service as tax exempt under
§ 501(c)(4) of the Internal Revenue Code. On July 26, 2004,
as part of what it calls a “grassroots lobbying campaign,”
Brief for Appellee 8, WRTL began broadcasting a radio ad
vertisement entitled “Wedding.” The transcript of “Wed
ding” reads as follows:
“ ‘PASTOR: And who gives this woman to be married
to this man?
“ ‘BRIDE’S FATHER: Well, as father of the bride,
I certainly could. But instead, I’d like to share a few
tips on how to properly install drywall. Now you put
the drywall up . . .
“ ‘VOICE-OVER: Sometimes it’s just not fair to delay
an important decision.
“ ‘But in Washington it’s happening. A group of Sen
ators is using the filibuster delay tactic to block federal
1 Subparagraph (A) provides:
“(i) The term ‘electioneering communication’ means any broadcast,
cable, or satellite communication which—
“(I) refers to a clearly identified candidate for Federal office;
“(II) is made within—
“(aa) 60 days before a general, special, or runoff election for the office
sought by the candidate; or
“(bb) 30 days before a primary or preference election, or a convention
or caucus of a political party that has authority to nominate a candidate,
for the office sought by the candidate; and
“(III) in the case of a communication which refers to a candidate for an
office other than President or Vice President, is targeted to the relevant
electorate.” 2 U. S. C. § 434(f)(3)(A) (2000 ed., Supp. IV).
Subparagraph (B) defines exceptions to “electioneering communication”
not relevant to this litigation. Subparagraph (C) defines the term “tar
geted to the relevant electorate.”

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judicial nominees from a simple “yes” or “no” vote. So
qualified candidates don’t get a chance to serve.
“ ‘It’s politics at work, causing gridlock and backing
up some of our courts to a state of emergency.
“ ‘Contact Senators Feingold and Kohl and tell them
to oppose the filibuster.
“ ‘Visit: BeFair.org
“ ‘Paid for by Wisconsin Right to Life (befair.org),
which is responsible for the content of this advertising
and not authorized by any candidate or candidate’s com
mittee.’ ” 466 F. Supp. 2d 195, 198, n. 3 (DC 2006).
On the same day, WRTL aired a similar radio ad entitled
“Loan.” 2 It had also invested treasury funds in producing
a television ad entitled “Waiting,” 3 which is similar in sub
stance and format to “Wedding” and “Loan.”
2 The radio script for “Loan” differs from “Wedding” only in its lead-in.
“Loan” begins:
“ ‘LOAN OFFICER: Welcome Mr. and Mrs. Shulman. We’ve reviewed
your loan application, along with your credit report, the appraisal on the
house, the inspections, and well . . .
“ ‘COUPLE: Yes, yes . . . we’re listening.
“ ‘OFFICER: Well, it all reminds me of a time I went fishing with my
father. We were on the Wolf River Waupaca . . .
“ ‘VOICE-OVER: Sometimes it’s just not fair to delay an important
decision.
“ ‘But in Washington it’s happening. . . . ’ ” 466 F. Supp. 2d, at 198, n. 4.
The remainder of the script is identical to “Wedding.”
3 In “Waiting,” the images on the television ad depict a “ ‘middle-aged
man being as productive as possible while his professional life is in
limbo.’ ” Id., at 198, n. 5. The man reads the morning paper, polishes his
shoes, scans through his Rolodex, and does other similar activities. The
television script for this ad reads:
“ ‘VOICE-OVER: There are a lot of judicial nominees out there who
can’t go to work. Their careers are put on hold because a group of Sena
tors is filibustering—blocking qualified nominees from a simple “yes” or
“no” vote.
“ ‘It’s politics at work and it’s causing gridlock. . . . ’ ” Ibid.
The remainder of the script is virtually identical to “Wedding.”

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WRTL planned on running “Wedding,” “Waiting,” and
“Loan” throughout August 2004 and financing the ads with
funds from its general treasury. It recognized, however,
that as of August 15, 30 days prior to the Wisconsin primary,
the ads would be illegal “electioneering communication[s]”
under BCRA § 203.
Believing that it nonetheless possessed a First Amend
ment right to broadcast these ads, WRTL filed suit against
the Federal Election Commission (FEC) on July 28, 2004,
seeking declaratory and injunctive relief before a three
judge District Court. See note following 2 U. S. C. § 437h
(2000 ed., Supp. IV); 28 U. S. C. § 2284. WRTL alleged that
BCRA’s prohibition on the use of corporate treasury funds
for “electioneering communication[s]” as defined in the Act
is unconstitutional as applied to “Wedding,” “Loan,” and
“Waiting,” as well as any materially similar ads it might seek
to run in the future.
Just before the BCRA blackout period was to begin, the
District Court denied a preliminary injunction, concluding
that “the reasoning of the McConnell Court leaves no room
for the kind of ‘as applied’ challenge WRTL propounds be
fore us.” App. to Juris. Statement 52a. In response to this
ruling, WRTL did not run its ads during the blackout period.
The District Court subsequently dismissed WRTL’s com
plaint. See id., at 47a–48a (“WRTL’s ‘as-applied’ challenge
to BCRA [§ 203] is foreclosed by the Supreme Court’s deci
sion in McConnell”). On appeal, we vacated the District
Court’s judgment, holding that McConnell “did not purport
to resolve future as-applied challenges” to BCRA § 203, and
remanded “for the District Court to consider the merits of
WRTL’s as-applied challenge in the first instance.” WRTL
I, 546 U. S., at 412.
On remand, after allowing four Members of Congress to
intervene as defendants, the three-judge District Court
granted summary judgment for WRTL, holding BCRA § 203
unconstitutional as applied to the three advertisements

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WRTL planned to run during the 2004 blackout period. The
District Court first found adjudication of the dispute not
barred by mootness because the controversy was “ ‘capable
of repetition, yet evading review.’ ” 466 F. Supp. 2d, at 202.
Turning to the merits, the court began by noting that under
McConnell, BCRA could constitutionally proscribe “express
advocacy”—defined as ads that expressly advocate the elec
tion or defeat of a candidate for federal office—and the “func
tional equivalent” of such advocacy. 466 F. Supp. 2d, at 204.
Stating that it was limiting its inquiry to “language within
the four corners” of the ads, id., at 207, the District Court
concluded that the ads were not express advocacy or its func
tional equivalent, but instead “genuine issue ads,” id., at
205–208. Then, reaching a question “left open in McCon
nell,” the court held that no compelling interest justified
BCRA’s regulation of genuine issue ads such as those WRTL
sought to run. Id., at 208–210.
One judge dissented, contending that the majority’s “plain
facial analysis of the text in WRTL’s 2004 advertisements”
ignored “the context in which the text was developed.” Id.,
at 210 (opinion of Roberts, J.). In that judge’s view, a
contextual analysis of the ads revealed “deep factual rifts
between the parties concerning the purpose and intended
effects of the ads” such that neither side was entitled to sum
mary judgment. Id., at 210, 211.
The FEC and intervenors filed separate notices of appeal
and jurisdictional statements. We consolidated the two ap
peals and set the matter for briefing and argument, postpon
ing further consideration of jurisdiction to the hearing on the
merits. 549 U. S. 1177 (2007).
II
Article III’s “case-or-controversy requirement subsists
through all stages of federal judicial proceedings . . . . [I]t
is not enough that a dispute was very much alive when suit
was filed.” Lewis v. Continental Bank Corp., 494 U. S. 472,

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477 (1990). Based on these principles, the FEC argues
(though the intervenors do not) that these cases are moot
because the 2004 election has passed and WRTL “does not
assert any continuing interest in running [its three] adver
tisements, nor does it identify any reason to believe that a
significant dispute over Senate filibusters of judicial nomi
nees will occur in the foreseeable future.” Brief for Appel
lant FEC 21.
As the District Court concluded, however, these cases fit
comfortably within the established exception to mootness for
disputes capable of repetition, yet evading review. See Los
Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern Pacific
Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). The excep
tion applies where “(1) the challenged action is in its duration
too short to be fully litigated prior to cessation or expiration,
and (2) there is a reasonable expectation that the same com
plaining party will be subject to the same action again.”
Spencer v. Kemna, 523 U. S. 1, 17 (1998) (internal quotation
marks and brackets omitted). Both circumstances are pres
ent here.
As the District Court found, it would be “entirely unrea
sonable . . . to expect that [WRTL] could have obtained com
plete judicial review of its claims in time for it to air its ads”
during the BCRA blackout periods. 466 F. Supp. 2d, at 202.
The FEC contends that the 2-year window between elections
provides ample time for parties to litigate their rights before
each BCRA blackout period. But groups like WRTL cannot
predict what issues will be matters of public concern during
a future blackout period. In these cases, WRTL had no way
of knowing well in advance that it would want to run ads on
judicial filibusters during the BCRA blackout period. In
any event, despite BCRA’s command that the cases be expe
dited “to the greatest possible extent,” § 403(a)(4), 116 Stat.
113, note following 2 U. S. C. § 437h (2000 ed., Supp. IV), two
BCRA blackout periods have come and gone during the
pendency of this action. “[A] decision allowing the desired

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expenditures would be an empty gesture unless it afforded
appellants sufficient opportunity prior to the election date to
communicate their views effectively.” First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 774 (1978).
The second prong of the “capable of repetition” exception
requires a “ ‘reasonable expectation’ ” or a “ ‘demonstrated
probability’ ” that “the same controversy will recur involving
the same complaining party.” Murphy v. Hunt, 455 U. S.
478, 482 (1982) (per curiam). Our cases find the same con
troversy sufficiently likely to recur when a party has a rea
sonable expectation that it “will again be subjected to the
alleged illegality,” Lyons, supra, at 109, or “will be subject to
the threat of prosecution” under the challenged law, Bellotti,
supra, at 774–775 (citing Weinstein v. Bradford, 423 U. S.
147, 149 (1975) (per curiam)). The FEC argues that in
order to prove likely recurrence of the same controversy,
WRTL must establish that it will run ads in the future shar
ing all “the characteristics that the district court deemed
legally relevant.” Brief for Appellant FEC 23.
The FEC asks for too much. We have recognized that the
“ ‘capable of repetition, yet evading review’ doctrine, in the
context of election cases, is appropriate when there are ‘as
applied’ challenges as well as in the more typical case involv
ing only facial attacks.” Storer v. Brown, 415 U. S. 724, 737,
n. 8 (1974). Requiring repetition of every “legally relevant”
characteristic of an as-applied challenge—down to the last
detail—would effectively overrule this statement by making
this exception unavailable for virtually all as-applied chal
lenges. History repeats itself, but not at the level of speci
ficity demanded by the FEC. Here, WRTL credibly claimed
that it planned on running “ ‘materially similar’ ” future tar
geted broadcast ads mentioning a candidate within the black
out period, 466 F. Supp. 2d, at 197, and there is no reason to
believe that the FEC will “refrain from prosecuting viola
tions” of BCRA, Bellotti, supra, at 775. Under the circum
stances, particularly where WRTL sought another prelimi

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nary injunction based on an ad it planned to run during the
2006 blackout period, see 466 F. Supp. 2d, at 203, n. 15, we
hold that there exists a reasonable expectation that the same
controversy involving the same party will recur. We have
jurisdiction to decide these cases.
III
WRTL rightly concedes that its ads are prohibited by
BCRA § 203. Each ad clearly identifies Senator Feingold,
who was running (unopposed) in the Wisconsin Democratic
primary on September 14, 2004, and each ad would have
been “targeted to the relevant electorate,” see 2 U. S. C.
§ 434(f)(3)(C) (2000 ed., Supp. IV), during the BCRA blackout
period. WRTL further concedes that its ads do not fit under
any of BCRA’s exceptions to the term “electioneering com
munication.” See § 434(f)(3)(B). The only question, then, is
whether it is consistent with the First Amendment for
BCRA § 203 to prohibit WRTL from running these three ads.
A
Appellants contend that WRTL should be required to
demonstrate that BCRA is unconstitutional as applied to the
ads. Reply Brief for Appellant Sen. John McCain et al. in
No. 06–970, p. 5, n. 4; Brief for Appellant FEC 34. After
all, appellants reason, McConnell already held that BCRA
§ 203 was facially valid. These cases, however, present the
separate question whether § 203 may constitutionally be ap
plied to these specific ads. Because BCRA § 203 burdens
political speech, it is subject to strict scrutiny. See McCon
nell, 540 U. S., at 205; Austin v. Michigan Chamber of Com
merce, 494 U. S. 652, 658 (1990); MCFL, 479 U. S., at 252
(plurality opinion); Bellotti, supra, at 786; Buckley, 424 U. S.,
at 44–45. Under strict scrutiny, the Government must
prove that applying BCRA to WRTL’s ads furthers a com
pelling interest and is narrowly tailored to achieve that in
terest. See Bellotti, supra, at 786 (“Especially where, as

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here, a prohibition is directed at speech itself, and the speech
is intimately related to the process of governing, . . . ‘the
burden is on the government to show the existence of [a com
pelling] interest’ ” (footnote omitted)).
The strict scrutiny analysis is, of course, informed by our
precedents. This Court has already ruled that BCRA sur
vives strict scrutiny to the extent it regulates express advo
cacy or its functional equivalent. McConnell, supra, at 206.
So to the extent the ads in these cases fit this description,
the FEC’s burden is not onerous; all it need do is point to
McConnell and explain why it applies here. If, on the other
hand, WRTL’s ads are not express advocacy or its equiva
lent, the Government’s task is more formidable. It must
then demonstrate that banning such ads during the blackout
periods is narrowly tailored to serve a compelling interest.
No precedent of this Court has yet reached that conclusion.
B
The FEC, intervenors, and the dissent below contend that
McConnell already established the constitutional test for de
termining if an ad is the functional equivalent of express
advocacy: whether the ad is intended to influence elections
and has that effect. See, e. g., 466 F. Supp. 2d, at 214 (opin
ion of Roberts, J.). Here is the relevant portion of our opin
ion in McConnell:
“[P]laintiffs argue that the justifications that adequately
support the regulation of express advocacy do not apply
to significant quantities of speech encompassed by the
definition of electioneering communications.
“This argument fails to the extent that the issue ads
broadcast during the 30- and 60-day periods preceding
federal primary and general elections are the functional
equivalent of express advocacy. The justifications for
the regulation of express advocacy apply equally to ads
aired during those periods if the ads are intended to

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influence the voters’ decisions and have that effect.”
540 U. S., at 205–206.
WRTL and the District Court majority, on the other hand,
claim that McConnell did not adopt any test as the standard
for future as-applied challenges. We agree. McConnell’s
analysis was grounded in the evidentiary record before the
Court. Two key studies in the McConnell record consti
tuted “the central piece of evidence marshaled by defenders
of BCRA’s electioneering communication provisions in sup
port of their constitutional validity.” McConnell v. FEC,
251 F. Supp. 2d 176, 307, 308 (DC 2003) (opinion of Hen
derson, J.) (internal quotation marks and brackets omitted).
Those studies asked “student coders” to separate ads based
on whether the students thought the “purpose” of the ad was
“to provide information about or urge action on a bill or
issue,” or “to generate support or opposition for a particular
candidate.” Id., at 308–309 (internal quotation marks omit
ted; emphasis deleted); see Brief for Appellee 38. The stud
ies concluded “ ‘that BCRA’s definition of Electioneering
Communications accurately captures those ads that have the
purpose or effect of supporting candidates for election to
office.” Ibid. (emphasis in original).
When the McConnell Court considered the possible facial
overbreadth of § 203, it looked to the studies in the record
analyzing ads broadcast during the blackout periods, and
those studies had classified the ads in terms of intent and
effect. The Court’s assessment was accordingly phrased in
the same terms, which the Court regarded as sufficient to
conclude, on the record before it, that the plaintiffs had not
“carried their heavy burden of proving” that § 203 was fa
cially overbroad and could not be enforced in any circum
stances. 540 U. S., at 207. The Court did not explain that
it was adopting a particular test for determining what consti
tuted the “functional equivalent” of express advocacy. The
fact that the student coders who helped develop the eviden
tiary record before the Court in McConnell looked to intent
and effect in doing so, and that the Court dealt with the

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record on that basis in deciding the facial overbreadth claim,
neither compels nor warrants accepting that same standard
as the constitutional test for separating, in an as-applied
challenge, political speech protected under the First Amend
ment from that which may be banned.4
More importantly, this Court in Buckley had already re
jected an intent-and-effect test for distinguishing between
discussions of issues and candidates. See 424 U. S., at 43–
44. After noting the difficulty of distinguishing between
discussion of issues on the one hand and advocacy of election
or defeat of candidates on the other, the Buckley Court ex
plained that analyzing the question in terms “ ‘of intent and
of effect’ ” would afford “ ‘no security for free discussion.’ ”
Id., at 43 (quoting Thomas v. Collins, 323 U. S. 516, 535
(1945)). It therefore rejected such an approach, and Mc-
Connell did not purport to overrule Buckley on this point—
or even address what Buckley had to say on the subject.
For the reasons regarded as sufficient in Buckley, we de
cline to adopt a test for as-applied challenges turning on the
speaker’s intent to affect an election. The test to distin
guish constitutionally protected political speech from speech
that BCRA may proscribe should provide a safe harbor for
those who wish to exercise First Amendment rights. The
test should also “reflec[t] our ‘profound national commitment
to the principle that debate on public issues should be unin
hibited, robust, and wide-open.’ ” Buckley, supra, at 14
4 This is particularly true given that the methodology, data, and conclu
sions of the two studies were the subject of serious dispute among the
District Court judges. Compare McConnell v. FEC, 251 F. Supp. 2d 176,
307–312 (DC 2003) (opinion of Henderson, J.) (stating that the studies were
flawed and of limited evidentiary value), with id., at 585, 583–588 (opinion
of Kollar-Kotelly, J.) (finding the studies generally credible, but stating
that “I am troubled by the fact that coders in both studies were asked
questions regarding their own perceptions of the advertisements’ pur
poses, and that [some of] these perceptions were later recoded” by study
supervisors). Nothing in this Court’s opinion in McConnell suggests it
was resolving the sharp disagreements about the evidentiary record in
this respect.

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(quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270
(1964)). A test turning on the intent of the speaker does not
remotely fit the bill.
Far from serving the values the First Amendment is
meant to protect, an intent-based test would chill core politi
cal speech by opening the door to a trial on every ad within
the terms of § 203, on the theory that the speaker actually
intended to affect an election, no matter how compelling the
indications that the ad concerned a pending legislative or
policy issue. No reasonable speaker would choose to run an
ad covered by BCRA if its only defense to a criminal prose
cution would be that its motives were pure. An intent
based standard “blankets with uncertainty whatever may be
said,” and “offers no security for free discussion.” Buckley,
supra, at 43 (internal quotation marks omitted). The FEC
does not disagree. In its brief filed in the first appeal in
this litigation, it argued that a “constitutional standard that
turned on the subjective sincerity of a speaker’s message
would likely be incapable of workable application; at a mini
mum, it would invite costly, fact-dependent litigation.”
Brief for Appellee in WRTL I, O. T. 2005, No. 04–1581, p. 39.5
A test focused on the speaker’s intent could lead to the
bizarre result that identical ads aired at the same time could
be protected speech for one speaker, while leading to crimi
nal penalties for another. See M. Redish, Money Talks:
Speech, Economic Power, and the Values of Democracy 91
(2001) (“[U]nder well-accepted First Amendment doctrine, a
speaker’s motivation is entirely irrelevant to the question of
constitutional protection”). “First Amendment freedoms
5 Consider what happened in these cases. The District Court permitted
extensive discovery on the assumption that WRTL’s intent was relevant.
As a result, the defendants deposed WRTL’s executive director, its legisla
tive director, its political action committee director, its lead communica
tions consultant, and one of its fundraisers. WRTL also had to turn over
many documents related to its operations, plans, and finances. Such liti
gation constitutes a severe burden on political speech.

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need breathing space to survive.” NAACP v. Button, 371
U. S. 415, 433 (1963). An intent test provides none.
Buckley also explains the flaws of a test based on the ac
tual effect speech will have on an election or on a particular
segment of the target audience. Such a test “ ‘puts the
speaker . . . wholly at the mercy of the varied understanding
of his hearers.’ ” 424 U. S., at 43. It would also typically
lead to a burdensome, expert-driven inquiry, with an indeter
minate result. Litigation on such a standard may or may
not accurately predict electoral effects, but it will unques
tionably chill a substantial amount of political speech.
C
“The freedom of speech . . . guaranteed by the Constitution
embraces at the least the liberty to discuss publicly and
truthfully all matters of public concern without previous re
straint or fear of subsequent punishment.” Bellotti, 435
U. S., at 776 (internal quotation marks omitted). See Con
solidated Edison Co. of N. Y. v. Public Serv. Comm’n of
N. Y., 447 U. S. 530, 534 (1980). To safeguard this liberty,
the proper standard for an as-applied challenge to BCRA
§ 203 must be objective, focusing on the substance of the com
munication rather than amorphous considerations of intent
and effect. See Buckley, supra, at 43–44. It must entail
minimal if any discovery, to allow parties to resolve disputes
quickly without chilling speech through the threat of burden
some litigation. See Virginia v. Hicks, 539 U. S. 113, 119
(2003). And it must eschew “the open-ended rough-and
tumble of factors,” which “invit[es] complex argument in a
trial court and a virtually inevitable appeal.” Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S.
527, 547 (1995). In short, it must give the benefit of any
doubt to protecting rather than stifling speech. See New
York Times Co. v. Sullivan, supra, at 269–270.
In light of these considerations, a court should find that an
ad is the functional equivalent of express advocacy only if

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the ad is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate.
Under this test, WRTL’s three ads are plainly not the func
tional equivalent of express advocacy. First, their content
is consistent with that of a genuine issue ad: The ads focus
on a legislative issue, take a position on the issue, exhort the
public to adopt that position, and urge the public to contact
public officials with respect to the matter. Second, their
content lacks indicia of express advocacy: The ads do not
mention an election, candidacy, political party, or challenger;
and they do not take a position on a candidate’s character,
qualifications, or fitness for office.
Despite these characteristics, appellants assert that the
content of WRTL’s ads alone betrays their electioneering na
ture. Indeed, the FEC suggests that any ad covered by
§ 203 that includes “an appeal to citizens to contact their
elected representative” is the “functional equivalent” of an
ad saying defeat or elect that candidate. Brief for Appellant
FEC 31; see Brief for Appellant Sen. John McCain et al. in
No. 06–970, pp. 21–23 (hereinafter McCain Brief). We do
not agree. To take just one example, during a blackout pe
riod the House considered the proposed Universal National
Service Act. See App. to Brief for American Center for
Law and Justice et al. as Amici Curiae B–3. There would
be no reason to regard an ad supporting or opposing that
Act, and urging citizens to contact their Representative
about it, as the equivalent of an ad saying vote for or against
the Representative. Issue advocacy conveys information
and educates. An issue ad’s impact on an election, if it ex
ists at all, will come only after the voters hear the informa
tion and choose—uninvited by the ad—to factor it into their
voting decisions.6
6 For these reasons, we cannot agree with Justice Souter’s assertion
that “anyone who heard the Feingold ads . . . would know that WRTL’s
message was to vote against Feingold.” Post, at 525. The dissent sup
ports this assertion by likening WRTL’s ads to the “Jane Doe” example

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The FEC and intervenors try to turn this difference to
their advantage, citing McConnell’s statements “that the
most effective campaign ads, like the most effective commer
cials for products . . . , avoid the [Buckley] magic words [ex
pressly advocating the election or defeat of a candidate],” 540
U. S., at 127, and that advertisers “would seldom choose to
use such words even if permitted,” id., at 193. See McCain
Brief 19. An expert for the FEC in these cases relied on
those observations to argue that WRTL’s ads are especially
effective electioneering ads because they are “subtl[e],” fo
cusing on issues rather than simply exhorting the electorate
to vote against Senator Feingold. App. 56–57. Rephrased
a bit, the argument perversely maintains that the less an
issue ad resembles express advocacy, the more likely it is to
be the functional equivalent of express advocacy. This
“heads I win, tails you lose” approach cannot be correct. It
would effectively eliminate First Amendment protection for
genuine issue ads, contrary to our conclusion in WRTL I that
as-applied challenges to § 203 are available, and our assump
tion in McConnell that “the interests that justify the regula
tion of campaign speech might not apply to the regulation of
genuine issue ads,” 540 U. S., at 206, n. 88. Under appel
identified in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003).
But that ad “condemned Jane Doe’s record on a particular issue.” Post,
at 525 (internal quotation marks omitted). WRTL’s ads do not do so; they
instead take a position on the filibuster issue and exhort constituents to
contact Senators Feingold and Kohl to advance that position. Indeed, one
would not even know from the ads whether Senator Feingold supported
or opposed filibusters. Justice Souter is confident Wisconsinites inde
pendently knew Senator Feingold’s position on filibusters, but we think
that confidence misplaced. A prominent study found, for example, that
during the 2000 election cycle, 85 percent of respondents to a survey were
not even able to name at least one candidate for the House of Representa
tives in their own district. See Inter-university Consortium for Political
and Social Research, American National Election Study, 2000: Pre- and
Post-Election Survey 243 (N. Burns et al. eds. 2002), online at http://
www.icpsr.umich.edu/cocoon/ICPSR/STUDY/03131.xml (as visited June
22, 2007, and available in Clerk of Court’s case file).

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lants’ view, there can be no such thing as a genuine issue ad
during the blackout period—it is simply a very effective
electioneering ad.
Looking beyond the content of WRTL’s ads, the FEC and
intervenors argue that several “contextual” factors prove
that the ads are the equivalent of express advocacy. First,
appellants cite evidence that during the same election cycle,
WRTL and its Political Action Committee (PAC) actively op
posed Senator Feingold’s reelection and identified filibusters
as a campaign issue. This evidence goes to WRTL’s subjec
tive intent in running the ads, and we have already explained
that WRTL’s intent is irrelevant in an as-applied challenge.
Evidence of this sort is therefore beside the point, as it
should be—WRTL does not forfeit its right to speak on is
sues simply because in other aspects of its work it also op
poses candidates who are involved with those issues.
Next, the FEC and intervenors seize on the timing of
WRTL’s ads. They observe that the ads were to be aired
near elections but not near actual Senate votes on judicial
nominees, and that WRTL did not run the ads after the elec
tions. To the extent this evidence goes to WRTL’s subjec
tive intent, it is again irrelevant. To the extent it nonethe
less suggests that the ads should be interpreted as express
advocacy, it falls short. That the ads were run close to an
election is unremarkable in a challenge like this. Every ad
covered by BCRA § 203 will by definition air just before a
primary or general election. If this were enough to prove
that an ad is the functional equivalent of express advocacy,
then BCRA would be constitutional in all of its applications.
This Court unanimously rejected this contention in WRTL I.
That the ads were run shortly after the Senate had re
cessed is likewise unpersuasive. Members of Congress
often return to their districts during recess, precisely to de
termine the views of their constituents; an ad run at that
time may succeed in getting more constituents to contact the
Representative while he or she is back home. In any event,

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a group can certainly choose to run an issue ad to coincide
with public interest rather than a floor vote. Finally,
WRTL did not resume running its ads after the BCRA
blackout period because, as it explains, the debate had
changed. Brief for Appellee 16. The focus of the Senate
was on whether a majority would vote to change the Sen
ate rules to eliminate the filibuster—not whether individual
Senators would continue filibustering. Given this change,
WRTL’s decision not to continue running its ads after the
blackout period does not support an inference that the ads
were the functional equivalent of electioneering.
The last piece of contextual evidence the FEC and inter
venors highlight is the ads’ “specific and repeated cross
reference” to a Web site. Reply Brief for Appellant FEC
15. In the middle of the Web site’s homepage, in large type,
were the addresses, phone numbers, fax numbers, and e-mail
addresses of Senators Feingold and Kohl. Wisconsinites
who viewed “Wedding,” “Loan,” or “Waiting” and wished to
contact their Senators—as the ads requested—would be able
to obtain the pertinent contact information immediately
upon visiting the Web site. This is fully consistent with
viewing WRTL’s ads as genuine issue ads. The Web site
also stated both Wisconsin Senators’ positions on judicial fil
ibusters, and allowed visitors to sign up for “e-alerts,” some
of which contained exhortations to vote against Senator
Feingold. These details lend the electioneering interpreta
tion of the ads more credence, but again, WRTL’s participa
tion in express advocacy in other aspects of its work is not
a justification for censoring its issue-related speech. Any
express advocacy on the Web site, already one step removed
from the text of the ads themselves, certainly does not
render an interpretation of the ads as genuine issue ads
unreasonable.
Given the standard we have adopted for determining
whether an ad is the “functional equivalent” of express advo
cacy, contextual factors of the sort invoked by appellants

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should seldom play a significant role in the inquiry. Courts
need not ignore basic background information that may be
necessary to put an ad in context—such as whether an ad
“describes a legislative issue that is either currently the sub
ject of legislative scrutiny or likely to be the subject of such
scrutiny in the near future,” 466 F. Supp. 2d, at 207—but the
need to consider such background should not become an ex
cuse for discovery or a broader inquiry of the sort we have
just noted raises First Amendment concerns.
At best, appellants have shown what we have acknowl
edged at least since Buckley: that “the distinction between
discussion of issues and candidates and advocacy of election
or defeat of candidates may often dissolve in practical appli
cation.” 424 U. S., at 42. Under the test set forth above,
that is not enough to establish that the ads can only reason
ably be viewed as advocating or opposing a candidate in a
federal election. “Freedom of discussion, if it would fulfill
its historic function in this nation, must embrace all issues
about which information is needed or appropriate to enable
the members of society to cope with the exigencies of their
period.” Thornhill v. Alabama, 310 U. S. 88, 102 (1940).
Discussion of issues cannot be suppressed simply because the
issues may also be pertinent in an election. Where the First
Amendment is implicated, the tie goes to the speaker, not
the censor.7
7 Justice Scalia thinks our test impermissibly vague. See post, at
492–494 (opinion concurring in part and concurring in judgment). As
should be evident, we agree with Justice Scalia on the imperative for
clarity in this area; that is why our test affords protection unless an ad is
susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate. It is why we emphasize that
(1) there can be no free-ranging intent-and-effect test; (2) there generally
should be no discovery or inquiry into the sort of “contextual” factors
highlighted by the FEC and intervenors; (3) discussion of issues cannot
be banned merely because the issues might be relevant to an election; and
(4) in a debatable case, the tie is resolved in favor of protecting speech.
And keep in mind this test is only triggered if the speech meets the
bright-line requirements of BCRA § 203 in the first place. Justice

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We confronted a similar issue in Ashcroft v. Free Speech
Coalition, 535 U. S. 234 (2002), in which the Government ar
gued that virtual images of child pornography were difficult
to distinguish from real images. The Government’s solution
was “to prohibit both kinds of images.” Id., at 254–255.
We rejected the argument that “protected speech may be
banned as a means to ban unprotected speech,” concluding
that it “turns the First Amendment upside down.” Id., at
255. As we explained: “The Government may not suppress
lawful speech as the means to suppress unlawful speech.
Protected speech does not become unprotected merely be
cause it resembles the latter. The Constitution requires the
reverse.” Ibid.
Scalia’s criticism of our test is all the more confusing because he accepts
WRTL’s proposed three-prong test as “clear.” Post, at 498. We do not
think our test any vaguer than WRTL’s, and it is more protective of politi
cal speech.
Justice Scalia also asserts that our test conflicts with Buckley v.
Valeo, 424 U. S. 1 (1976) (per curiam). Post, at 495–497. The Buckley
Court confronted a statute restricting “any expenditure . . . relative to a
clearly identified candidate.” 424 U. S., at 42 (internal quotation marks
omitted). To avoid vagueness concerns, this Court first narrowed the
statute to cover only expenditures expressly “advocating the election or
defeat of a candidate”—using the so-called “magic words” of express advo
cacy. Ibid. (internal quotation marks omitted). The Court then pro
ceeded to strike down the newly narrowed statute under strict scrutiny
on the ground that its reach was not broad enough. Id., at 44. From
this, Justice Scalia concludes that “[i]f a permissible test short of the
magic-words test existed, Buckley would surely have adopted it.” Post,
at 495. We are not so sure. The question in Buckley was how a particu
lar statutory provision could be construed to avoid vagueness concerns,
not what the constitutional standard for clarity was in the abstract, di
vorced from specific statutory language. Buckley’s intermediate step of
statutory construction on the way to its constitutional holding does not
dictate a constitutional test. The Buckley Court’s “express advocacy re
striction was an endpoint of statutory interpretation, not a first principle
of constitutional law.” McConnell, 540 U. S., at 190. And despite Jus
tice Scalia’s claim to the contrary, our citation of Buckley along with
other decisions in rejecting an intent-and-effect test does not force us to
adopt (or reject) Buckley’s statutory construction as a constitutional test.

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Because WRTL’s ads may reasonably be interpreted as
something other than as an appeal to vote for or against a
specific candidate, we hold they are not the functional equiv
alent of express advocacy, and therefore fall outside the
scope of McConnell’s holding.8
IV
BCRA § 203 can be constitutionally applied to WRTL’s ads
only if it is narrowly tailored to further a compelling interest.
McConnell, 540 U. S., at 205; Bellotti, 435 U. S., at 786; Buck
ley, supra, at 44–45. This Court has never recognized a
compelling interest in regulating ads, like WRTL’s, that are
neither express advocacy nor its functional equivalent. The
District Court below considered interests that might justify
regulating WRTL’s ads here, and found none sufficiently
8 Nothing in McConnell’s statement that the “vast majority” of issue ads
broadcast in the periods preceding federal elections had an “electioneering
purpose” forecloses this conclusion. 540 U. S., at 206. Courts do not re
solve unspecified as-applied challenges in the course of resolving a facial
attack, so McConnell could not have settled the issue we address today.
See Members of City Council of Los Angeles v. Taxpayers for Vincent,
466 U. S. 789, 803, n. 22 (1984) (“The fact that [a law] is capable of valid
applications does not necessarily mean that it is valid as applied to these
litigants”). Indeed, WRTL I, 546 U. S. 410, 412, confirmed as much. By
the same token, in deciding this as-applied challenge, we have no occasion
to revisit McConnell’s conclusion that the statute is not facially overbroad.
The “vast majority” language, moreover, is beside the point. The
McConnell Court did not find that a “vast majority” of the issue ads con
sidered were the functional equivalent of direct advocacy. Rather, it
found that such ads had an “electioneering purpose.” For the reasons we
have explained, “purpose” is not the appropriate test for distinguishing
between genuine issue ads and the functional equivalent of express cam
paign advocacy. See supra, at 468–469. In addition, the “vast majority”
statement was not necessary to the Court’s facial holding in McConnell.
The standard required for a statute to survive an overbreadth challenge
is not that the “vast majority” of a statute’s applications be legitimate.
“[B]road language . . . unnecessary to the Court’s decision . . . cannot be
considered binding authority.” Kastigar v. United States, 406 U. S. 441,
454–455 (1972).

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compelling. 466 F. Supp. 2d, at 208–210. We reach the
same conclusion.9
At the outset, we reject the contention that issue advocacy
may be regulated because express election advocacy may
be, and “the speech involved in so-called issue advocacy is
[not] any more core political speech than are words of ex
press advocacy.” McConnell, supra, at 205. This greater
includes-the-lesser approach is not how strict scrutiny
works. A corporate ad expressing support for the local foot
ball team could not be regulated on the ground that such
9 The dissent stresses a number of points that, while not central to our
decision, nevertheless merit a response. First, the dissent overstates its
case when it asserts that the “PAC alternative” gives corporations a con
stitutionally sufficient outlet to speak. See post, at 532. PACs impose
well-documented and onerous burdens, particularly on small nonprofits.
See MCFL, 479 U. S. 238, 253–255 (1986) (plurality opinion). McConnell
did conclude that segregated funds “provid[e] corporations and unions with
a constitutionally sufficient opportunity to engage in express advocacy”
and its functional equivalent, 540 U. S., at 203, but that holding did not
extend beyond functional equivalents—and if it did, the PAC option would
justify regulation of all corporate speech, a proposition we have rejected,
see Bellotti, 435 U. S., at 777–778. Second, the response that a speaker
should just take out a newspaper ad, or use a Web site, rather than com
plain that it cannot speak through a broadcast communication, see post, at
521, 534, is too glib. Even assuming for the sake of argument that the
possibility of using a different medium of communication has relevance in
determining the permissibility of a limitation on speech, newspaper ads
and Web sites are not reasonable alternatives to broadcast speech in terms
of impact and effectiveness. See McConnell v. FEC, 251 F. Supp. 2d, at
569–573, 646 (Kollar-Kotelly, J.). Third, we disagree with the dissent’s
view that corporations can still speak by changing what they say to avoid
mentioning candidates, post, at 532–533. That argument is akin to telling
Cohen that he cannot wear his jacket because he is free to wear one that
says “I disagree with the draft,” cf. Cohen v. California, 403 U. S. 15
(1971), or telling 44 Liquormart that it can advertise so long as it avoids
mentioning prices, cf. 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484
(1996). Such notions run afoul of “the fundamental rule of protection
under the First Amendment, that a speaker has the autonomy to choose
the content of his own message.” Hurley v. Irish-American Gay, Les
bian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995).

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speech is less “core” than corporate speech about an election,
which we have held may be restricted. A court applying
strict scrutiny must ensure that a compelling interest sup
ports each application of a statute restricting speech. That
a compelling interest justifies restrictions on express advo
cacy tells us little about whether a compelling interest justi
fies restrictions on issue advocacy; the McConnell Court it
self made just that point. See 540 U. S., at 206, n. 88. Such
a greater-includes-the-lesser argument would dictate that
virtually all corporate speech can be suppressed, since few
kinds of speech can lay claim to being as central to the First
Amendment as campaign speech. That conclusion is clearly
foreclosed by our precedent. See, e. g., Bellotti, supra, at
776–777.
This Court has long recognized “the governmental inter
est in preventing corruption and the appearance of corrup
tion” in election campaigns. Buckley, 424 U. S., at 45. This
interest has been invoked as a reason for upholding contribu
tion limits. As Buckley explained, “[t]o the extent that
large contributions are given to secure a political quid pro
quo from current and potential office holders, the integrity
of our system of representative democracy is undermined.”
Id., at 26–27. We have suggested that this interest might
also justify limits on electioneering expenditures because
it may be that, in some circumstances, “large independent
expenditures pose the same dangers of actual or apparent
quid pro quo arrangements as do large contributions.” Id.,
at 45.
McConnell arguably applied this interest—which this
Court had only assumed could justify regulation of express
advocacy—to ads that were the “functional equivalent” of
express advocacy. See 540 U. S., at 204–206. But to justify
regulation of WRTL’s ads, this interest must be stretched
yet another step to ads that are not the functional equivalent
of express advocacy. Enough is enough. Issue ads like
WRTL’s are by no means equivalent to contributions, and

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the quid-pro-quo corruption interest cannot justify regulat
ing them. To equate WRTL’s ads with contributions is to
ignore their value as political speech.
Appellants argue that an expansive definition of “func
tional equivalent” is needed to ensure that issue advocacy
does not circumvent the rule against express advocacy,
which in turn helps protect against circumvention of the
rule against contributions. Cf. McConnell, supra, at 205
(“[R]ecent cases have recognized that certain restrictions on
corporate electoral involvement permissibly hedge against
circumvention of [valid] contribution limits” (internal quo
tation marks omitted; brackets in original)). But such a
prophylaxis-upon-prophylaxis approach to regulating expres
sion is not consistent with strict scrutiny. “[T]he desire for
a bright-line rule . . . hardly constitutes the compelling state
interest necessary to justify any infringement on First
Amendment freedom.” MCFL, 479 U. S., at 263. See Free
Speech Coalition, 535 U. S., at 255 (“The Government may
not suppress lawful speech as the means to suppress unlaw
ful speech”); Buckley, supra, at 44 (expenditure limitations
“cannot be sustained simply by invoking the interest in maxi
mizing the effectiveness of the less intrusive contribution
limitations”).
A second possible compelling interest recognized by this
Court lies in addressing a “different type of corruption in
the political arena: the corrosive and distorting effects of im
mense aggregations of wealth that are accumulated with the
help of the corporate form and that have little or no correla
tion to the public’s support for the corporation’s political
ideas.” Austin, 494 U. S., at 660. Austin invoked this in
terest to uphold a state statute making it a felony for corpo
rations to use treasury funds for independent expenditures
on express election advocacy. Id., at 654–655. McConnell
also relied on this interest in upholding regulation not just
of express advocacy, but also its “functional equivalent.”
540 U. S., at 205–206.

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These cases did not suggest, however, that the interest in
combating “a different type of corruption” extended beyond
campaign speech. Quite the contrary. Two of the Justices
who joined the 6-to-3 majority in Austin relied, in upholding
the constitutionality of the ban on campaign speech, on the
fact that corporations retained freedom to speak on issues as
distinct from election campaigns. See 494 U. S., at 675–678
(Brennan, J., concurring) (describing fact that campaign
speech ban “does not regulate corporate expenditures in ref
erenda or other corporate expression” as “reflect[ing] the
requirements of our decisions”); id., at 678 (Stevens, J.,
concurring) (“[T]here is a vast difference between lobbying
and debating public issues on the one hand, and political
campaigns for election to public office on the other”). The
McConnell Court similarly was willing to “assume that the
interests that justify the regulation of campaign speech
might not apply to the regulation of genuine issue ads.” 540
U. S., at 206, n. 88. And our decision in WRTL I reinforced
the validity of that assumption by holding that BCRA § 203
is susceptible to as-applied challenges. 546 U. S., at 412.
Accepting the notion that a ban on campaign speech could
also embrace issue advocacy would call into question our
holding in Bellotti that the corporate identity of a speaker
does not strip corporations of all free speech rights. 435
U. S., at 778. It would be a constitutional “bait and switch”
to conclude that corporate campaign speech may be banned
in part because corporate issue advocacy is not, and then
assert that corporate issue advocacy may be banned as well,
pursuant to the same asserted compelling interest, through
a broad conception of what constitutes the functional equiva
lent of campaign speech, or by relying on the inability to
distinguish campaign speech from issue advocacy.
The FEC and intervenors do not argue that the Austin
interest justifies regulating genuine issue ads. Instead,
they focus on establishing that WRTL’s ads are the func
tional equivalent of express advocacy—a contention we have

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already rejected. We hold that the interest recognized in
Austin as justifying regulation of corporate campaign speech
and extended in McConnell to the functional equivalent of
such speech has no application to issue advocacy of the sort
engaged in by WRTL.10
Because WRTL’s ads are not express advocacy or its func
tional equivalent, and because appellants identify no interest
sufficiently compelling to justify burdening WRTL’s speech,
we hold that BCRA § 203 is unconstitutional as applied to
WRTL’s “Wedding,” “Loan,” and “Waiting” ads.
* * *
These cases are about political speech. The importance
of the cases to speech and debate on public policy issues is
reflected in the number of diverse organizations that have
joined in supporting WRTL before this Court: the American
Civil Liberties Union, the National Rifle Association, the
American Federation of Labor and Congress of Industrial
Organizations, the Chamber of Commerce of the United
States of America, Focus on the Family, the Coalition of Pub
lic Charities, the Cato Institute, and many others.
Yet, as is often the case in this Court’s First Amendment
opinions, we have gotten this far in the analysis without
10 The interest recognized in Austin v. Michigan Chamber of Commerce,
494 U. S. 652 (1990), stems from a concern that “ ‘[t]he resources in the
treasury of a business corporation . . . are not an indication of popular
support for the corporation’s political ideas.’ ” Id., at 659 (alteration in
original). Some of WRTL’s amici contend that this interest is not impli
cated here because of WRTL’s status as a nonprofit advocacy organization.
They assert that “[s]peech by nonprofit advocacy groups on behalf of their
members does not ‘corrupt’ candidates or ‘distort’ the political market
place,” and that “[n]onprofit advocacy groups funded by individuals are
readily distinguished from for-profit corporations funded by general treas
uries.” Brief for Family Research Council et al. as Amici Curiae 3, 4.
Cf. MCFL, 479 U. S., at 264. We do not pass on this argument in this
as-applied challenge because WRTL’s funds for its ads were not derived
solely from individual contributions. See Brief for Appellant FEC 11.

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Alito, J., concurring
quoting the Amendment itself: “Congress shall make no law
. . . abridging the freedom of speech.” The Framers’ actual
words put these cases in proper perspective. Our jurispru
dence over the past 216 years has rejected an absolutist in
terpretation of those words, but when it comes to drawing
difficult lines in the area of pure political speech—between
what is protected and what the Government may ban—it is
worth recalling the language we are applying. McConnell
held that express advocacy of a candidate or his opponent by
a corporation shortly before an election may be prohibited,
along with the functional equivalent of such express advo
cacy. We have no occasion to revisit that determination
today. But when it comes to defining what speech qualifies
as the functional equivalent of express advocacy subject to
such a ban—the issue we do have to decide—we give the
benefit of the doubt to speech, not censorship. The First
Amendment’s command that “Congress shall make no law . . .
abridging the freedom of speech” demands at least that.
The judgment of the United States District Court for the
District of Columbia is affirmed.
It is so ordered.
Justice Alito, concurring.
I join the principal opinion because I conclude (1) that § 203
of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C.
§ 441b(b)(2) (2000 ed., Supp. IV), as applied, cannot consti
tutionally ban any advertisement that may reasonably be
interpreted as anything other than an appeal to vote for or
against a candidate, (2) that the ads at issue here may rea
sonably be interpreted as something other than such an ap
peal, and (3) that because § 203 is unconstitutional as applied
to the advertisements before us, it is unnecessary to go fur
ther and decide whether § 203 is unconstitutional on its face.
If it turns out that the implementation of the as-applied
standard set out in the principal opinion impermissibly chills
political speech, see post, at 496–497 (Scalia, J., joined by
Kennedy and Thomas, JJ., concurring in part and concur

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ring in judgment), we will presumably be asked in a future
case to reconsider the holding in McConnell v. Federal Elec
tion Comm’n, 540 U. S. 93 (2003), that § 203 is facially
constitutional.
Justice Scalia, with whom Justice Kennedy and Jus
tice Thomas join, concurring in part and concurring in the
judgment.
A Moroccan cartoonist once defended his criticism of the
Moroccan monarch (le`se majeste´ being a serious crime in Mo
rocco) as follows: “ ‘I’m not a revolutionary, I’m just defend
ing freedom of speech. . . . I never said we had to change the
king—no, no, no, no! But I said that some things the king
is doing, I do not like. Is that a crime?’ ” 1 Well, in the
United States (making due allowance for the fact that we
have elected representatives instead of a king) it is a crime,
at least if the speaker is a union or a corporation (including
not-for-profit public-interest corporations) and if the repre
sentative is identified by name within a certain period before
a primary or congressional election in which he is running.
That is the import of § 203 of the Bipartisan Campaign Re
form Act of 2002 (BCRA), the constitutionality of which we
upheld three Terms ago in McConnell v. Federal Election
Comm’n, 540 U. S. 93 (2003). As an element essential to
that determination of constitutionality, our opinion left open
the possibility that a corporation or union could establish
that, in the particular circumstances of its case, the ban was
unconstitutional because it was (to pursue the analogy) only
the king’s policies and not his tenure in office that was criti
cized. Today’s cases present the question of what sort of
showing is necessary for that purpose. For the reasons I
set forth below, it is my view that no test for such a showing
can both (1) comport with the requirement of clarity that
unchilled freedom of political speech demands, and (2) be
compatible with the facial validity of § 203 (as pronounced in
1 Whitlock, Satirist Continues to Prove Himself a Royal Pain, Washing
ton Post, Apr. 26, 2005, pp. C1, C8.

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McConnell). I would therefore reconsider the decision that
sets us the unsavory task of separating issue-speech from
election-speech with no clear criterion.
I
Today’s cases originated in the efforts of Wisconsin Right
to Life, Inc. (WRTL), a Wisconsin nonprofit, nonstock ideo
logical advocacy corporation, to lobby Wisconsin voters con
cerning the filibustering of the President’s judicial nominees.
The problem for WRTL was that, under § 203 of BCRA, it
would have been unlawful to air its television and radio ads
within 30 days before the September 14, 2004, primary or
within 60 days before the November 2, 2004, general election
because the ads named Senator Feingold, who was then seek
ing reelection. Section 203(a) of BCRA amended § 316(b)(2)
of the Federal Election Campaign Act Amendments of 1974,
which prohibited corporations and unions from “mak[ing] a
contribution or expenditure in connection with any election
to any political office, or in connection with any primary elec
tion . . . for any political office.” 2 U. S. C. § 441b(a). Prior
to BCRA, that section covered only expenditures for commu
nications that expressly advocated the election or defeat of
a candidate (in campaign-finance speak, so-called “express
advocacy”). McConnell, supra, at 204. As amended, how
ever, that section was broadened to cover “electioneering
communication[s],” § 441b(b)(2) (2000 ed., Supp. IV), which
include “any broadcast, cable, or satellite communication”
that “refers to a clearly identified candidate for Federal of
fice” and that is aired within 60 days before a general elec
tion, or 30 days before a primary election, in the jurisdiction
in which the candidate is running. § 434(f)(3) (2000 ed.,
Supp. IV).2 Under the new law, a corporation or union
2 BCRA also includes a backup definition of “electioneering communica
tion” that will take effect in the event the primary definition is “held to
be constitutionally insufficient . . . to support the regulation provided
herein.” 2 U. S. C. § 434(f)(3)(A)(ii) (2000 ed., Supp. IV). This defines

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wishing to air advertisements covered by the definition of
“electioneering communication” is prohibited by § 203 from
doing so unless it first creates a separate segregated fund
run by a “political action committee,” commonly known as a
“PAC.” § 441b(b)(2)(C) (2000 ed., Supp. IV). Three Terms
ago, in McConnell, supra, this Court upheld most of BCRA’s
provisions against constitutional challenge, including § 203.
The Court found that the “vast majority” of ads aired during
the 30-day and 60-day periods before elections were “the
functional equivalent of express advocacy,” id., at 206, but
suggested that “pure issue ads,” id., at 207, or “genuine issue
ads,” id., at 206, would be protected.
The question in these cases is whether § 203 can be applied
to WRTL’s ads consistently with the First Amendment.
Last Term, this Court unanimously held, in Wisconsin Right
to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 412
(2006) (per curiam) (WRTL I), that as-applied challenges to
§ 203 are available. The District Court in these cases subse
quently held that § 203 is unconstitutional as applied to the
three ads at issue. The Court today affirms the judgment
of the District Court. While I agree with that result, I
disagree with the principal opinion’s reasons.
II
A proper explanation of my views in these cases requires
some discussion of the case law leading up to McConnell. I
begin with the seminal case of Buckley v. Valeo, 424 U. S. 1
(1976) (per curiam), wherein this Court considered the con
stitutionality of various political contribution and expendi
ture limitations contained in the Federal Election Campaign
“electioneering communication” as “any broadcast, cable, or satellite com
munication which promotes or supports a candidate for [a federal] office,
or attacks or opposes a candidate for that office (regardless of whether the
communication expressly advocates a vote for or against a candidate) and
which also is suggestive of no plausible meaning other than an exhortation
to vote for or against a specific candidate.” Ibid.

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Act of 1971 (FECA), 86 Stat. 3, as amended, 88 Stat. 1263.
Buckley set forth a now-familiar framework for evaluating
the constitutionality of campaign-finance regulations. The
Court began with the recognition that contributing money
to, and spending money on behalf of, political candidates im
plicates core First Amendment protections, and that restric
tions on such contributions and expenditures “operate in an
area of the most fundamental First Amendment activities.”
424 U. S., at 14. The Court also recognized, however, that
the Government has a compelling interest in “prevention of
corruption and the appearance of corruption.” Id., at 25.
The “corruption” to which the Court repeatedly referred was
of the “quid pro quo” variety, whereby an individual or en
tity makes a contribution or expenditure in exchange for
some action by an official. Id., at 26, 27, 45, 47.
The Court then held that FECA’s contribution limitations
passed constitutional muster because they represented a
“marginal restriction upon the contributor’s ability to en
gage in free communication,” id., at 20–21, and were thus
subject to a lower level of scrutiny, id., at 25. The Court
invalidated, however, FECA’s limitation on independent ex
penditures (i. e., expenditures made to express one’s own
positions and not in coordination with a campaign). Id., at
39–51. In the Court’s view, expenditure limitations restrict
speech that is “ ‘at the core of our electoral process and of
the First Amendment freedoms,’ ” id., at 39, and require the
highest scrutiny, id., at 44–45.
The independent-expenditure restriction at issue in Buck
ley limited the amount of money that could be spent “ ‘rela
tive to a clearly identified candidate.’ ” Id., at 41 (quoting
18 U. S. C. § 608(e)(1) (1970 ed., Supp. IV) (repealed 1976)).
Before striking down the expenditure limitation, the Court
narrowly construed § 608(e)(1), in light of vagueness con
cerns, to cover only express advocacy—that is, advertising
that “in express terms advocate[s] the election or defeat of a
clearly identified candidate for federal office” by use of such

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words of advocacy “as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your
ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘re
ject.’ ” 424 U. S., at 44, and n. 52. This narrowing con
struction excluded so-called “issue advocacy”—for example,
an ad that refers to a clearly identified candidate’s position
on an issue, but does not expressly advocate his election or
defeat. Even as narrowly construed to cover only express
advocacy, however, § 608(e)(1) was held to be unconstitutional
because the narrowed prohibition was too narrow to be ef
fective and (quite apart from that shortcoming) independent
expenditures did not pose a serious enough threat of cor
ruption. Id., at 45–46. Notably, the Court also found the
Government’s interest in “equalizing the relative ability of
individuals and groups to influence the outcome of elections”
insufficient to support limitations on independent expendi
tures. Id., at 48.
Buckley might well have been the last word on limitations
on independent expenditures. Some argued, however, that
independent expenditures by corporations should be treated
differently. That argument should have been foreclosed by
Buckley for several reasons: (1) The particular provision at
issue in Buckley, § 608(e)(1) of FECA, was directed to ex
penditures not just by “individuals,” but by “persons,” with
“ ‘persons’ ” specifically defined to include “ ‘corporation[s],’ ”
id., at 23, 39, n. 45; (2) the plaintiffs in Buckley included cor
porations, id., at 8; and (3) Buckley, id., at 50–51, cited a case
that involved limitations on corporations in support of its
striking down the restriction at issue, Miami Herald Pub
lishing Co. v. Tornillo, 418 U. S. 241 (1974). Moreover, pre-
Buckley cases had accorded corporations full First Amend
ment protection. See, e. g., NAACP v. Button, 371 U. S.
415, 428–429, 431 (1963) (holding that the corporation’s activ
ities were “modes of expression and association protected by
the First and Fourteenth Amendments”); Grosjean v. Amer
ican Press Co., 297 U. S. 233, 244 (1936) (holding that corpo
rations are guaranteed the “freedom of speech and of the

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press . . . safeguarded by the due process of law clause of the
Fourteenth Amendment”). See also Pacific Gas & Elec. Co.
v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality
opinion) (“The identity of the speaker is not decisive in deter
mining whether speech is protected”; “[c]orporations and
other associations, like individuals, contribute to the ‘discus
sion, debate, and the dissemination of information and ideas’
that the First Amendment seeks to foster”).
Indeed, one would have thought the coup de graˆ ce to the
argument that corporations can be treated differently for
these purposes was dealt by First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765 (1978), decided just two years after
Buckley. In that case, the Court struck down a Massachu
setts statute that prohibited corporations from spending
money in connection with a referendum unless the referen
dum materially affected the corporation’s property, business,
or assets. As the Court explained: The principle that such
advocacy is “at the heart of the First Amendment’s protec
tion” and is “indispensable to decisionmaking in a democ
racy” is “no less true because the speech comes from a corpo
ration rather than an individual.” 435 U. S., at 776–777.
And the Court rejected the arguments that corporate partic
ipation “would exert an undue influence on the outcome of a
referendum vote”; that corporations would “drown out other
points of view” and “destroy the confidence of the people in
the democratic process,” id., at 789; and that the prohibi
tion was needed to protect corporate shareholders “by pre
venting the use of corporate resources in furtherance of
views with which some shareholders may disagree,” id., at
792–793.3
3 In Federal Election Comm’n v. Massachusetts Citizens for Life, Inc.,
479 U. S. 238, 248 (1986) (MCFL), we addressed the pre-BCRA version of
2 U. S. C. § 441b, which was interpreted to ban corporate treasury expendi
tures for express advocacy in connection with federal elections. We held
that, “[r]egardless of whether th[e] concern [for unfair advantage to organi
zations that amass great wealth] is adequate to support application of

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The Court strayed far from these principles, however, in
one post-Buckley case: Austin v. Michigan Chamber of
Commerce, 494 U. S. 652 (1990). This was the only pre-
McConnell case in which this Court had ever permitted
the government to restrict political speech based on the
corporate identity of the speaker. Austin upheld state re
strictions on corporate independent expenditures in support
of, or in opposition to, any candidate in elections for state
office. 494 U. S., at 654–655. The statute had been mod
eled after the federal statute that BCRA § 203 amended,
which had been construed to reach only express advocacy,
id., at 655, n. 1. And the ad at issue in Austin used the
magical and forbidden words of express advocacy: “Elect
Richard Bandstra.” Id., at 714 (Appendix to opinion of
Kennedy, J., dissenting). How did the Court manage to
reach this result without overruling Bellotti? It purported
to recognize a different class of corruption: “the corrosive
and distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate form and
that have little or no correlation to the public’s support for
the corporation’s political ideas.” Austin, supra, at 660.
Among the many problems with this “new” theory of cor
ruption was that it actually constituted “the same ‘corrosive
and distorting effects of immense aggregations of wealth,’
found insufficient to sustain a similar prohibition just a dec
ade earlier,” in Bellotti. McConnell, 540 U. S., at 325 (opin
ion of Kennedy, J.) (quoting Austin, supra, at 660; citation
omitted). Indeed, Buckley itself had cautioned that “[t]he
First Amendment’s protection against governmental abridg
ment of free expression cannot properly be made to depend
on a person’s financial ability to engage in public discussion.”
424 U. S., at 49. However, two Members of Austin’s 6-to-3
§ 441b to commercial enterprises, a question not before us, that justifica
tion” did not support application of the statute to the nonprofit organiza
tion that brought the challenge in MCFL. 479 U. S., at 263 (emphasis
added).

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majority appear to have thought it significant that Austin
involved express advocacy whereas Bellotti involved issue
advocacy. 494 U. S., at 675–676 (Brennan, J., concurring);
id., at 678 (Stevens, J., concurring).4
Austin was a significant departure from ancient First
Amendment principles. In my view, it was wrongly de
cided. The flawed rationale upon which it is based is exam
ined at length elsewhere, including in a dissenting opinion in
Austin that a Member of the 5-to-4 McConnell majority had
joined, see Austin, 494 U. S., at 695–713 (opinion of Ken
nedy, J., joined by O’Connor, J.). See also id., at 679–695
(Scalia, J., dissenting); McConnell, 540 U. S., at 257–259
(opinion of Scalia, J.); id., at 325–330 (opinion of Kennedy,
J.); id., at 273–275 (opinion of Thomas, J.). But at least Aus
tin was limited to express advocacy, and nonexpress advo
cacy was presumed to remain protected under Buckley and
Bellotti, even when engaged in by corporations.
Three Terms ago the Court extended Austin’s flawed ra
tionale to cover an even broader class of speech. In McCon
nell, the Court rejected a facial overbreadth challenge to
BCRA § 203’s restrictions on corporate and union advertis
ing, which were not limited to express advocacy but covered
vast amounts of nonexpress advocacy (embraced within the
term “electioneering communications”). 540 U. S., at 203–
209. The Court held that, at least in light of the availability
of the political action committee (PAC) option, the compel
ling governmental interest that supported restrictions on
corporate expenditures for express advocacy also justified
4 The dissent asserts that Austin was faithful to Bellotti’s principles, to
prove which it quotes a footnote in Bellotti leaving open the possibility
that independent expenditures by corporations might someday be demon
strated to beget quid-pro-quo corruption. Post, at 514–515, n. 7 (opinion
of Souter, J.) (quoting Bellotti, 435 U. S., at 788, n. 26). That someday
has never come. No one seriously believes that independent expenditures
could possibly give rise to quid-pro-quo corruption without being subject
to regulation as coordinated expenditures.

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the extension of those restrictions to “electioneering commu
nications,” the “vast majority” of which were intended to
influence elections. Id., at 206. Of course, the compelling
interest to which the Court referred was “ ‘the corrosive and
distorting effects of immense aggregations of [corporate]
wealth,’ ” id., at 205 (quoting Austin, supra, at 660). “The
justifications for the regulation of express advocacy,” the
Court explained, “apply equally” to ads run during the
BCRA blackout period “to the extent . . . [those ads] are the
functional equivalent of express advocacy.” 540 U. S., at
206 (emphasis added). The Court found that the “vast ma
jority” of ads aired during the 30- and 60-day periods before
elections fit that description. Finally, the Court concluded
that, “[e]ven . . . assum[ing] that BCRA will inhibit some
constitutionally protected corporate and union speech” (i. e.,
“pure issue ads,” id., at 207, or “genuine issue ads,” id., at
206, and n. 88), its application to such ads was insubstantial,
and thus the statute was not overbroad, id., at 207. But
McConnell did not foreclose as-applied challenges to § 203,
WRTL I, 546 U. S., at 412, which brings me back to the pres
ent cases.
III
The question is whether WRTL meets the standard for
prevailing in an as-applied challenge to BCRA § 203. An
swering that question obviously requires the Court to artic
ulate the standard. The most obvious one, and the one
suggested by the Federal Election Commission (FEC) and
intervenors, is the standard set forth in McConnell itself:
whether the advertisement is the “functional equivalent of
express advocacy.” 540 U. S., at 206. See also Brief for
Appellant FEC 18 (arguing that WRTL’s “advertisements
are the functional equivalent of the sort of express advocacy
that this Court has long recognized may be constitutionally
regulated”); Reply Brief for Appellant Sen. John McCain
et al. in No. 06–970, p. 14 (“[C]ourts should apply the stand
ard articulated in McConnell: Congress may constitutionally

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restrict corporate funding of ads that are the ‘functional
equivalent of express advocacy’ for or against a can
didate”). Intervenors flesh out the standard somewhat
further: “[C]ourts should ask whether the ad’s audience
would reasonably understand the ad, in the context of the
campaign, to promote or attack the candidate.” Id., at 15.
The District Court instead articulated a five-factor test that
looks to whether the ad under review “(1) describes a legisla
tive issue that is either currently the subject of legislative
scrutiny or likely to be the subject of such scrutiny in the
near future; (2) refers to the prior voting record or current
position of the named candidate on the issue described;
(3) exhorts the listener to do anything other than contact the
candidate about the described issue; (4) promotes, attacks,
supports, or opposes the named candidate; and (5) refers to
the upcoming election, candidacy, and/or political party of the
candidate.” 466 F. Supp. 2d 195, 207 (DC 2006). The
backup definition of “electioneering communications” con
tained in BCRA itself, see n. 2, supra, offers another possibil
ity. It covers any communication that “promotes or sup
ports a candidate for that office . . . (regardless of whether
the communication expressly advocates a vote for or against
a candidate) and which also is suggestive of no plausible
meaning other than an exhortation to vote for or against a
specific candidate.” And the principal opinion in these cases
offers a variation of its own (one bearing a strong likeness to
BCRA’s backup definition): whether “the ad is susceptible of
no reasonable interpretation other than as an appeal to vote
for or against a specific candidate.” Ante, at 470.
There is a fundamental and inescapable problem with all
of these various tests. Each of them (and every other test
that is tied to the public perception, or a court’s perception,
of the import, the intent, or the effect of the ad) is impermis
sibly vague and thus ineffective to vindicate the fundamental
First Amendment rights of the large segment of society to
which § 203 applies. Consider the application of these tests

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to WRTL’s ads: There is not the slightest doubt that these
ads had an issue-advocacy component. They explicitly
urged lobbying on the pending legislative issue of appellate
judge filibusters. The question before us is whether some
thing about them caused them to be the “functional equiva
lent” of express advocacy, and thus constitutionally subject
to BCRA’s criminal penalty. Do any of the tests suggested
above answer this question with the degree of clarity neces
sary to avoid the chilling of fundamental political discourse?
I think not.
The “functional equivalent” test does nothing more than
restate the question (and make clear that the electoral advo
cacy need not be express). The test which asks how the ad’s
audience “would reasonably understand the ad” provides
ample room for debate and uncertainty. The District
Court’s five-factor test does not (and could not possibly) spec
ify how much weight is to be given to each factor—and in
cludes the inherently vague factor of whether the ad “pro
motes, attacks, supports, or opposes the named candidate.”
(Does attacking the king’s position attack the king?) The
tests which look to whether the ad is “susceptible of no
plausible meaning” or “susceptible of no reasonable inter
pretation” other than an exhortation to vote for or against
a specific candidate seem tighter. They ultimately depend,
however, upon a judicial judgment (or is it—worse still—a
jury judgment?) concerning “reasonable” or “plausible” im
port that is far from certain, that rests upon consideration of
innumerable surrounding circumstances which the speaker
may not even be aware of, and that lends itself to distortion
by reason of the decisionmaker’s subjective evaluation of the
importance or unimportance of the challenged speech. In
this critical area of political discourse, the speaker cannot be
compelled to risk felony prosecution with no more assurance
of impunity than his prediction that what he says will be
found susceptible of some “reasonable interpretation other
than as an appeal to vote for or against a specific candidate.”

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Under these circumstances, “[m]any persons, rather than un
dertake the considerable burden (and sometimes risk) of vin
dicating their rights through case-by-case litigation, will
choose simply to abstain from protected speech—harming
not only themselves but society as a whole, which is deprived
of an uninhibited marketplace of ideas.” Virginia v. Hicks,
539 U. S. 113, 119 (2003) (citation omitted).
It will not do to say that this burden must be accepted—
that WRTL’s antifilibustering, constitutionally protected
speech can be constrained—in the necessary pursuit of elec
toral “corruption.” We have re jected the “can’t-make
an-omelet-without-breaking-eggs” approach to the First
Amendment, even for the infinitely less important (and less
protected) speech category of virtual child pornography. In
Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), the
Government argued:
“[T]he possibility of producing images by using com
puter imaging makes it very difficult for it to prosecute
those who produce pornography by using real children.
Experts . . . may have difficulty in saying whether the
pictures were made by using real children or by using
computer imaging. The necessary solution . . . is to pro
hibit both kinds of images.” Id., at 254–255.
The Court rejected the principle that protected speech may
be banned because it is difficult to distinguish from unpro
tected speech. Ibid. “[T]hat protected speech may be
banned as a means to ban unprotected speech,” it said,
“turns the First Amendment upside down.” Id., at 255.
The same principle must be applied here. Indeed, it must
be applied a fortiori, since laws targeting political speech
are the principal object of the First Amendment guarantee.
The fact that the line between electoral advocacy and issue
advocacy dissolves in practice is an indictment of the statute,
not a justification of it.

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Buckley itself compels the conclusion that these tests fall
short of the clarity that the First Amendment demands.
Recall that Buckley narrowed the ambiguous phrase “any
expenditure . . . relative to a clearly identified candidate” to
mean any expenditure “advocating the election or defeat of
a candidate.” 424 U. S., at 42 (internal quotation marks
omitted). But that construction alone did not eliminate the
vagueness problem because “the distinction between discus
sion of issues and candidates and advocacy of election or de
feat of candidates may often dissolve in practical applica
tion.” Ibid. Any effort to distinguish between the two
based on intent of the speaker or effect of the speech on the
listener would “ ‘pu[t] the speaker . . . wholly at the mercy
of the varied understanding of his hearers,’ ” would “ ‘offe[r]
no security for free discussion,’ ” and would “ ‘compe[l] the
speaker to hedge and trim.’ ” Id., at 43 (quoting Thomas v.
Collins, 323 U. S. 516, 535 (1945)). In order to avoid these
“constitutional deficiencies,” the Court was compelled to nar
row the statutory language even further to cover only adver
tising that used the magic words of express advocacy. 424
U. S., at 43–44.
If a permissible test short of the magic-words test existed,
Buckley would surely have adopted it. Especially since a
consequence of the express-advocacy interpretation was the
invalidation of the entire limitation on independent expendi
tures, in part because the statute (as thus narrowed) could
not be an effective limitation on expenditures for electoral
advocacy. (It would be “naiv[e],” Buckley said, to pretend
that persons and groups would have difficulty “devising ex
penditures that skirted the restriction on express advocacy
of election or defeat but nevertheless benefited the candi
date’s campaign.” Id., at 45.) Why did Buckley employ
such a “highly strained” reading of the statute, McConnell,
540 U. S., at 280 (opinion of Thomas, J.), when broader read
ings, more faithful to the text, were available that might not

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have resulted in such underinclusiveness? In particular,
after going to the trouble of narrowing the statute to cover
“advocacy of [the] election or defeat of a candidat[e],” why
not do what the principal opinion in these cases does, which
is essentially to preface that phrase with the phrase “suscep
tible of no reasonable interpretation other than as”? Ante,
at 470. There is only one plausible explanation: The Court
eschewed narrowing constructions that would have been
more faithful to the text and more effective at capturing
campaign speech because those tests were all too vague. We
cannot now adopt a standard held to be facially vague on
the theory that it is somehow clear enough for constitutional
as-applied challenges. If Buckley foreclosed such vague
ness in a statutory test, it also must foreclose such vagueness
in an as-applied test.
Though the principal opinion purports to recognize the
“imperative for clarity” in this area of First Amendment law,
its attempt to distinguish its test from the test found to be
vague in Buckley falls far short. It claims to be “not so
sure” that Buckley rejected its test because Buckley’s hold
ing did not concern “what the constitutional standard for
clarity was in the abstract, divorced from specific statutory
language.” Ante, at 474–475, n. 7. Forget about abstrac
tions: The specific statutory language at issue in Buckley
was interpreted to mean “ ‘advocating the election or defeat
of a candidate,’ ” and that is materially identical to the opera
tive language in the principal opinion’s test. The principal
opinion’s protestation that Buckley’s vagueness holding
“d[id] not dictate a constitutional test,” ante, at 475, n. 7, is
utterly compromised by the fact that the principal opinion
itself relies on the very same vagueness holding to reject an
intent-and-effect test in these cases. See ante, at 467 (citing
Buckley, supra, at 43–44). It is the same vagueness hold
ing, and the principal opinion cannot invoke it on page 467 of
its opinion and disclaim it on page 476. Finally, the princi

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pal opinion quotes McConnell for the proposition that “[t]he
Buckley Court’s ‘express advocacy restriction was an end
point of statutory interpretation, not a first principle of con
stitutional law.’ ” Ante, at 475, n. 7 (quoting McConnell,
supra, at 190). I am not sure why this cryptic statement is
at all relevant, since we are discussing here the principle of
constitutional law that underlay Buckley’s express-advocacy
restriction. In any case, the statement is assuredly not a
repudiation of Buckley’s vagueness holding, since over
breadth and not vagueness was the issue in McConnell.5
What, then, is to be done? We could adopt WRTL’s pro
posed test, under which § 203 may not be applied to any ad
(1) that “focuses on a current legislative branch matter, takes
a position on the matter, and urges the public to ask a legisla
tor to take a particular position or action with respect to the
matter,” and (2) that “does not mention any election, candi
dacy, political party, or challenger, or the official’s character,
qualifications, or fitness for office,” (3) whether or not it
“say[s] that the public official is wrong or right on the issue,”
so long as it does not expressly say he is “wrong for [the]
5 Justice Alito’s concurrence at least hints that the principal opinion’s
test may impermissibly chill speech, and offers to reconsider McConnell’s
holding “[i]f it turns out that the implementation of the as-applied stand
ard set out in the principal opinion impermissibly chills political speech.”
Ante, at 482 (emphasis added). The wait-and-see approach makes no
sense and finds no support in our cases. How will we know that would-be
speakers have been chilled and have not spoken? If a tree does not fall
in the forest, can we hear the sound it would have made had it fallen?
Our normal practice is to assess ex ante the risk that a standard will have
an impermissible chilling effect on First Amendment protected speech.
Justice Alito seemed to recognize that as recently as, well, today. In
another opinion released this morning, he finds that a proposed test for
censoring student speech “can easily be manipulated in dangerous ways,”
wherefore he “would reject it before such abuse occurs.” Morse v. Fred
erick, ante, at 423 (concurring opinion) (emphasis added). I would accord
the core First Amendment speech at issue here at least the same respect
he accords speech in the classroom.

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office.” Brief for Appellee 56–57 (footnote omitted). 6 Or
we could of course adopt the Buckley test of express advo
cacy. The problem is that, although these tests are clear,
they are incompatible with McConnell’s holding that § 203 is
facially constitutional, which was premised on the finding
that a vast majority of ads proscribed by § 203 are “sham
issue ads,” 540 U. S., at 185, that fall outside the First
Amendment’s protection. Indeed, any clear rule that would
protect all genuine issue ads would cover such a substantial
number of ads prohibited by § 203 that § 203 would be
rendered substantially overbroad. The Government claims
that even the amorphous test adopted by the District Court
“call[s] into question a substantial percentage of the statute’s
applications,” Tr. of Oral Arg. 4,7 and that any test providing
6 The principal opinion claims that its test is no more vague than
WRTL’s test. See ante, at 474–475, n. 7. I disagree. WRTL’s test re
quires yes or no answers to a series of precise and focused questions: Does
the ad take a position on a legislative matter? Does it mention the elec
tion? Does it expressly say the candidate is wrong for the office? A
group of children—indeed, even a group of college students—could answer
these questions with great consistency. The principal opinion’s test, by
contrast, hinges on assessment of the reasonableness of a determination
that something does not constitute advocacy of the election or defeat of
a candidate.
7 The same must be said, I think, of the test proposed by the principal
opinion. While its coverage is not entirely clear, it would apparently pro
tect even McConnell’s paradigmatic example of the functional equivalent
of express advocacy—the so-called “Jane Doe ad,” which “condemned Jane
Doe’s record on a particular issue before exhorting viewers to ‘call Jane
Doe and tell her what you think,’ ” 540 U. S., at 126–127. Indeed, it at
least arguably protects the most “striking” example of a so-called sham
issue ad in the McConnell record, the notorious “Yellowtail ad,” which
accused Bill Yellowtail of striking his wife and then urged listeners to call
him and “[t]ell him to support family values.” Id., at 193–194, n. 78 (inter
nal quotation marks omitted). The claim that § 203 on its face does not
reach a substantial amount of speech protected under the principal opin
ion’s test—and that the test is therefore compatible with McConnell—
seems to me indefensible. Indeed, the principal opinion’s attempt at dis

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relief to WRTL is incompatible with McConnell’s facial hold
ing because WRTL’s ads are in the “heartland” of what Con
gress meant to prohibit, Brief for Appellant FEC 18, 28, 36,
n. 9. If that is so, then McConnell cannot be sustained.
Like the Buckley Court and the parties to these cases,
I recognize the practical reality that corporations can evade
the express-advocacy standard. I share the instinct that
“[w]hat separates issue advocacy and political advocacy is a
line in the sand drawn on a windy day.” See McConnell,
supra, at 126, n. 16 (internal quotation marks omitted); Brief
for Appellant FEC 30; Brief for Appellant Sen. John McCain
et al. in No. 06–970, p. 35. But the way to indulge that
instinct consistently with the First Amendment is either
to eliminate restrictions on independent expenditures alto
gether or to confine them to one side of the traditional
line—the express-advocacy line, set in concrete on a calm
day by Buckley, several decades ago. Section 203’s line is
bright, but it bans vast amounts of political advocacy indis
tinguishable from hitherto protected speech.
The foregoing analysis shows that McConnell was mis
taken in its belief that as-applied challenges could eliminate
the unconstitutional applications of § 203. They can do so
only if a test is adopted which contradicts the holding of Mc
Connell—that § 203 is facially valid because the vast major
ity of pre-election issue ads can constitutionally be pro
scribed. In light of the weakness in Austin’s rationale, and
in light of the longstanding acceptance of the clarity of Buck
ley’s express-advocacy line, it was adventurous for McCon
nell to extend Austin beyond corporate speech constituting
tinguishing McConnell is unpersuasive enough, and the change in the law
it works is substantial enough, that seven Justices of this Court, having
widely divergent views concerning the constitutionality of the restrictions
at issue, agree that the opinion effectively overrules McConnell without
saying so. See post, at 526–527 (Souter, J., dissenting). This faux judi
cial restraint is judicial obfuscation.

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express advocacy. Today’s cases make it apparent that the
adventure is a flop, and that McConnell’s holding concerning
§ 203 was wrong.8
IV
Which brings me to the question of stare decisis. “Stare
decisis is not an inexorable command” or “ ‘a mechanical for
mula of adherence to the latest decision.’ ” Payne v. Tennes
see, 501 U. S. 808, 828 (1991) (quoting Helvering v. Hallock,
309 U. S. 106, 119 (1940)). It is instead “ ‘a principle of pol
icy,’ ” Payne, supra, at 828, and this Court has a “considered
practice” not to apply that principle of policy “as rigidly in
constitutional as in nonconstitutional cases.” Glidden Co. v.
Zdanok, 370 U. S. 530, 543 (1962). This Court has not hesi
tated to overrule decisions offensive to the First Amendment
(a “fixed star in our constitutional constellation,” if there is
one, West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642
(1943))—and to do so promptly where fundamental error was
apparent. Just three years after our erroneous decision in
Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), the
8 Justice Kennedy’s opinion in McConnell explained why the possibil
ity of corporations’ funding speech out of a PAC does not save the statute
from constitutional infirmity. See 540 U. S., at 330–333. McConnell’s re
jection of those arguments rested, of course, upon the assumption that for
non-PAC genuine issue ads as-applied challenges would be available. See
id., at 207; WRTL I, 546 U. S. 410, 412 (2006) (per curiam). The discus
sion today shows that to be mistaken.
The dissent asserts, post, at 533, that there is no reason “why substitut
ing the phrase ‘Contact your Senators’ for the phrase ‘Contact Senators
Feingold and Kohl’ would have denied WRTL a constitutionally sufficient
. . . alternative.” Surely that is not so. The purpose of the ad was to put
political pressure upon Senator Feingold to change his position on the
filibuster—not only through the constituents who accepted the invitation
to contact him, but also through the very existence of an ad bringing to
the public’s attention that he, Senator Feingold, stood athwart the allow
ance of a vote on judicial nominees. (Unlike the principal opinion, I think
that the fair import of the ad in context.)

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Court corrected the error in Barnette. Overruling a consti
tutional case decided just a few years earlier is far from
unprecedented.9
Of particular relevance to the stare decisis question in
these cases is the impracticability of the regime created by
McConnell. Stare decisis considerations carry little weight
when an erroneous “governing decisio[n]” has created an
“unworkable” legal regime. Payne, supra, at 827. As de
scribed above, the McConnell regime is unworkable because
of the inability of any acceptable as-applied test to validate
the facial constitutionality of § 203—that is, its inability to
sustain proscription of the vast majority of issue ads. We
could render the regime workable only by effectively over
ruling McConnell without saying so—adopting a clear as
applied rule protective of speech in the “heartland” of what
Congress prohibited. The promise of an administrable as
9 See, e. g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996) (over
ruling Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989)); Adarand Con
structors, Inc. v. Pen˜ a, 515 U. S. 200 (1995) (overruling in part Metro
Broadcasting, Inc. v. FCC, 497 U. S. 547 (1990)); United States v. Dixon,
509 U. S. 688 (1993) (overruling Grady v. Corbin, 495 U. S. 508 (1990));
Payne v. Tennessee, 501 U. S. 808 (1991) (overruling South Carolina v.
Gathers, 490 U. S. 805 (1989), and Booth v. Maryland, 482 U. S. 496 (1987));
Daniels v. Williams, 474 U. S. 327 (1986) (overruling in part Parratt v.
Taylor, 451 U. S. 527 (1981)); Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528 (1985) (overruling National League of Cities v.
Usery, 426 U. S. 833 (1976)); United States v. Scott, 437 U. S. 82 (1978)
(overruling United States v. Jenkins, 420 U. S. 358 (1975)); National
League of Cities, supra (overruling Maryland v. Wirtz, 392 U. S. 183
(1968)); Edelman v. Jordan, 415 U. S. 651 (1974) (overruling in part Sha
piro v. Thompson, 394 U. S. 618 (1969); State Dept. of Health and Rehabil
itative Servs. of Fla. v. Zarate, 407 U. S. 918 (1972); and Sterrett v. Moth
ers’ & Children’s Rights Org., 409 U. S. 809 (1972)); Miller v. California,
413 U. S. 15 (1973) (overruling Book Named “John Cleland’s Memoirs of
a Woman of Pleasure” v. Attorney General of Mass., 383 U. S. 413 (1966));
Perez v. Campbell, 402 U. S. 637 (1971) (overruling Kesler v. Department
of Public Safety of Utah, 369 U. S. 153 (1962)).

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applied rule that is both effective in the vindication of First
Amendment rights and consistent with McConnell’s holding
is illusory.
It is not as though McConnell produced a settled body of
law. Indeed, it is far more accurate to say that McConnell
unsettled a body of law. Not until 1947, with the enactment
of the Taft-Hartley amendments to the Federal Corrupt
Practices Act, 1925, did Congress even purport to regulate
campaign-related expenditures of corporations and unions.
See United States v. CIO, 335 U. S. 106, 107, 113–115 (1948).
In the three decades following, this Court expressly declined
to pronounce upon the constitutionality of such restrictions
on independent expenditures. See Pipefitters v. United
States, 407 U. S. 385, 400 (1972); United States v. Automobile
Workers, 352 U. S. 567, 591–592 (1957); CIO, supra, at 110,
124. When the Court finally did turn to that question, it
struck them down. See Buckley, 424 U. S. 1. Our subse
quent pre-McConnell decisions, with the lone exception of
Austin, disapproved limits on independent expenditures.
The modest medicine of restoring First Amendment protec
tion to nonexpress advocacy—speech that was protected
until three Terms ago—does not unsettle an established
body of law.
Neither do any of the other considerations relevant to
stare decisis suggest adherence to McConnell. These cases
do not involve property or contract rights, where reliance
interests are involved. Payne, supra, at 828. And McCon
nell’s § 203 holding has assuredly not become “embedded” in
our “national culture.” Dickerson v. United States, 530
U. S. 428, 443–444 (2000) (declining to overrule Miranda v.
Arizona, 384 U. S. 436 (1966), in part because it had become
embedded in our national culture). If § 203 has had any cul
tural impact, it has been to undermine the traditional and
important role of grassroots advocacy in American politics
by burdening the “budget-strapped nonprofit entities upon
which many of our citizens rely for political commentary and

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advocacy.” McConnell, 540 U. S., at 340 (opinion of Ken
nedy, J.).
Perhaps overruling this one part of McConnell with re
spect to one part of BCRA would not “ai[d] the legislative
effort to combat real or apparent corruption.” Id., at 194.
But the First Amendment was not designed to facilitate leg
islation, even wise legislation. Indeed, the assessment of
former House Minority Leader Richard Gephardt, a propo
nent of campaign-finance reform, may well be correct. He
said that “ ‘[w]hat we have is two important values in direct
conflict: freedom of speech and our desire for healthy cam
paigns in a healthy democracy,’ ” and “ ‘[y]ou can’t have
both.’ ” Gibbs, The Wake-Up Call, Time, Feb. 3, 1997,
pp. 22, 25. (He was referring, presumably, to incumbents’
notions of healthy campaigns.) If he was wrong, however,
and the two values can coexist, it is pretty clear which side
of the equation this institution is primarily responsible for.
It is perhaps our most important constitutional task to en
sure freedom of political speech. And when a statute cre
ates a regime as unworkable and unconstitutional as today’s
effort at as-applied review proves § 203 to be, it is our re
sponsibility to decline enforcement.
* * *
There is wondrous irony to be found in both the genesis
and the consequences of BCRA. In the fact that the institu
tions it was designed to muzzle—unions and nearly all man
ner of corporations—for all the “corrosive and distorting
effects” of their “immense aggregations of wealth,” were
utterly impotent to prevent the passage of this legislation
that forbids them to criticize candidates (including incum
bents). In the fact that the effect of BCRA has been to
concentrate more political power in the hands of the coun
try’s wealthiest individuals and their so-called 527 organiza
tions, unregulated by § 203. (In the 2004 election cycle, a
mere 24 individuals contributed an astounding total of $142

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million to 527s. S. Weissman & R. Hassan, BCRA and the
527 Groups, in The Election After Reform 79, 92–96 (M. Mal
bin ed. 2006).) And in the fact that while these wealthy in
dividuals dominate political discourse, it is this small, grass
roots organization of Wisconsin Right to Life that is muzzled.
I would overrule that part of the Court’s decision in Mc-
Connell upholding § 203(a) of BCRA. Accordingly, I join
Parts I and II of today’s principal opinion and otherwise con
cur only in the judgment.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
The significance and effect of today’s judgment, from
which I respectfully dissent, turn on three things: the de
mand for campaign money in huge amounts from large con
tributors, whose power has produced a cynical electorate; the
congressional recognition of the ensuing threat to democratic
integrity as reflected in a century of legislation restricting
the electoral leverage of concentrations of money in corpo
rate and union treasuries; and McConnell v. Federal Elec
tion Comm’n, 540 U. S. 93 (2003), declaring the facial validity
of the most recent Act of Congress in that tradition, a deci
sion that is effectively, and unjustifiably, overruled today.1
I
The indispensable ingredient of a political candidacy is
money for advertising. In the 2004 campaign, more than
half of the combined expenditures by the two principal Presi
dential candidates (excluding fundraising) went for media
time and space. See The Costliest Campaign, Washington
Post, Dec. 30, 2004, p. A7.2 And in the 2005–2006 election
1 Substantially for the reasons stated by the Court, ante, at 461–464,
I believe these cases are justiciable.
2 Between candidates, political action committees, interest groups, and
national, state, and local parties, spending on the 2004 state and federal
elections exceeded $4 billion. K. Patterson, Spending in the 2004 Elec

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cycle, the expenditure of more than $2 billion on television
shattered the previous record, even without a Presidential
contest. See Inside Media, MediaWeek, Nov. 20, 2006, p. 18.
The portent is for still greater spending. By the end of
March 2007, almost a year before the first primary and more
than 18 months before the general election, Presidential can
tion, in Financing the 2004 Election 68, 71, tbl. 3–1 (D. Magleby,
A. Corrado, & K. Patterson eds. 2006). Congressional campaigns spent
over $1 billion in 2004, id., at 75, tbl. 3–4, state legislative candidates
raised three-quarters of a billion dollars in the 2003–2004 election cycle,
The Institute on Money in State Politics, State Elections Overview 2004,
p. 2 (2005), online at http://www.followthemoney.org/press/Reports/
200601041.pdf (all Internet materials as visited June 20, 2007, and available
in Clerk of Court’s case file), and gubernatorial candidates raised over
$200 million, id., at 6. State judicial campaigns have become flush with
cash as well, with state supreme court candidates raising over $30 million
in the 2005–2006 cycle. J. Sample, L. Jones, & R. Weiss, The New Politics
of Judicial Elections 2006, p. 16 (J. Rutledge ed. 2007), online at http://
www.justiceatstake.org/files/NewPoliticsofJudicialElections2006.pdf. In a
single 2004 judicial election in Illinois, the candidates raised a breathtak
ing $9.3 million, an amount the winner called “ ‘obscene.’ ” The Justice
elect wondered, “ ‘How can people have faith in the system?’ ” Moyer &
Brandenburg, Big Money and Special Interests are Warping Judicial Elec
tions, Legal Times, Oct. 9, 2006, p. 50 (quoting Justice Lloyd Karmeier of
the Illinois Supreme Court). According to polling data, the fear that peo
ple will lose trust in the system is well founded. With respect to judicial
elections, a context in which the influence of campaign contributions is
most troubling, a recent poll of business leaders revealed that about four
in five thought that campaign contributions have at least “some influence”
on judges’ decisions, while 90 percent are at least “somewhat concerned”
that “[c]ampaign contributions and political pressure will make judges ac
countable to politicians and special interest groups instead of the law and
the Constitution.” Zogby International, Attitudes and Views of Ameri
can Business Leaders on State Judicial Elections and Political Contribu
tions to Judges 4–5 (May 2007), online at http://www.ced.org/docs/report/
report_2007judicial_survey.pdf. People have similar feelings about other
elected officials. See M. Mellman & R. Wirthlin, Public Views of Party
Soft Money, in Inside the Campaign Finance Battle 266–269 (A. Corrado,
T. Mann, & T. Potter eds. 2003) (hereinafter Mellman & Wirthlin); see also
infra, at 507.

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didates had already raised over $150 million. See Balz,
Fundraising Totals Challenge Early Campaign Assumptions,
Washington Post, Apr. 17, 2007, p. A1 (citing figures and not
ing that “[t]he campaign is living up to its reputation as the
most expensive in U. S. history”). To reach this total, the
leading fundraisers collected over $250,000 per day in the
first quarter of 2007, Mullins, Clinton Leads the Money Race,
Wall Street Journal, Apr. 16, 2007, p. A8, and the eventual
nominees are expected to raise $500 million apiece (about
$680,000 per day over a 2-year election cycle), Kirkpatrick &
Pilhofer, McCain Lags in Income But Excels in Spending,
Report Shows, N. Y. Times, Apr. 15, 2007, p. 20.
The indispensability of these huge sums has two significant
consequences for American government that are particularly
on point here. The enormous demands, first, assign power
to deep pockets. See Balz, supra, at A6 (“For all the inter
est in Internet fundraising, big donors still ruled in the first
quarter, with roughly 80 percent of donations coming in
amounts of $1,000 or more”). Candidates occasionally boast
about the number of contributors they have, but the head
lines speaking in dollars reflect political reality. See, e. g.,
Mullins, supra, at A8 (headlined “Clinton Leads the Money
Race”).
Some major contributors get satisfaction from pitching in
for their candidates, but political preference fails to account
for the frequency of giving “substantial sums to both major
national parties,” McConnell, supra, at 148, a practice driven
“by stark political pragmatism, not by ideological support for
either party or their candidates,” Brief for Committee for
Economic Development et al. as Amici Curiae in McConnell,
O. T. 2003, No. 02–1674, p. 3 (hereinafter CED Brief). What
the high-dollar pragmatists of either variety get is special
access to the officials they help elect, and with it a dispropor
tionate influence on those in power. See McConnell, supra,
at 130–131. As the erstwhile officer of a large American
corporation put it, “ ‘[b]usiness leaders believe—based on

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experience and with good reason—that . . . access gives them
an opportunity to shape and affect governmental decisions
and that their ability to do so derives from the fact that they
have given large sums of money to the parties.’ ” CED
Brief 9. At a critical level, contributions that underwrite
elections are leverage for enormous political influence.
Voters know this. Hence, the second important conse
quence of the demand for big money to finance publicity: per
vasive public cynicism. A 2002 poll found that 71 percent of
Americans think Members of Congress cast votes based on
the views of their big contributors, even when those views
differ from the Member’s own beliefs about what is best for
the country. Mellman & Wirthlin 267; see also id., at 266
(“In public opinion research it is uncommon to have 70 per
cent or more of the public see an issue the same way. When
they do, it indicates an unusually strong agreement on that
issue”). The same percentage believes that the will of con
tributors tempts Members to vote against the majority view
of their constituents. Id., at 267. Almost half of Americans
believe that Members often decide how to vote based on
what big contributors to their party want, while only a quar
ter think Members often base their votes on perceptions of
what is best for the country or their constituents. Ibid.
Devoting concentrations of money in self-interested hands
to the support of political campaigning therefore threatens
the capacity of this democracy to represent its constituents
and the confidence of its citizens in their capacity to govern
themselves. These are the elements summed up in the no
tion of political integrity, giving it a value second to none in
a free society.
II
If the threat to this value flowing from concentrations of
money in politics has reached an unprecedented enormity, it
has been gathering force for generations. Before the turn
of the last century, as now, it was obvious that the purchase
of influence and the cynicism of voters threaten the integrity

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and stability of democratic government, each derived from
the responsiveness of its law to the interests of citizens and
their confidence in that focus. The danger has traditionally
seemed at its apex when no reasonable limits constrain the
campaign activities of organizations whose “unique legal and
economic characteristics” are tailored to “facilitat[e] the
amassing of large treasuries,” Austin v. Michigan Chamber
of Commerce, 494 U. S. 652, 658, 660 (1990). Corporations
were the earliest subjects of concern; the same characteris
tics that have made them engines of the Nation’s extraordi
nary prosperity have given them the financial muscle to gain
“advantage in the political marketplace” when they turn
from core corporate activity to electioneering, Federal Elec
tion Comm’n v. Massachusetts Citizens for Life, Inc., 479
U. S. 238, 257–258 (1986) (MCFL), and in “Congress’ judg
ment” the same concern extends to labor unions as to corpo
rations, Federal Election Comm’n v. National Right to
Work Comm., 459 U. S. 197, 210 (1982); see also Austin,
supra, at 661.
A
In the wake of the industrial expansion after the Civil War
there developed a momentum for civic reform that led to the
enactment of the Pendleton Civil Service Act of 1883, ch. 27,
22 Stat. 403, which stopped political parties from raising
money through compulsory assessments on federal employ
ees. Not unnaturally, corporations filled the vacuum, see R.
Mutch, Campaigns, Congress, and Courts xvi–xvii (1988)
(hereinafter Mutch), and in due course demonstrated what
concentrated capital could do. The resulting political lever
age disturbed “the confidence of the plain people of small
means in our political institutions,” E. Root, The Political
Use of Money (delivered Sept. 3, 1894), in Addresses on Gov
ernment and Citizenship 141, 143–144 (R. Bacon & J. Scott
eds. 1916) (cited in United States v. Automobile Workers, 352
U. S. 567, 571 (1957)), and the 1904 Presidential campaign

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eventually “crystallized popular sentiment” on the subject
of money and politics, id., at 572. In his next message to
Congress, President Theodore Roosevelt invoked the power
“to protect the integrity of the elections of its own officials
[as] inherent” in government, and called for “vigorous meas
ures to eradicate” perceived political corruption, for he found
“no enemy of free government more dangerous and none so
insidious.” 3 39 Cong. Rec. 17 (1904).
The following year, the President urged that “[a]ll contri
butions by corporations to any political committee or for any
political purpose should be forbidden by law.” 40 Cong. Rec.
96 (1905). His call was seconded by the Senate sponsor of
the eventual legislation, whose “sad thought [was] that the
Senate is discredited by the people of the United States as
being a body more or less corruptible or corrupted.” Id., at
229. The President persisted in his 1906 message to Con
gress with another call for “a law prohibiting all corporations
from contributing to the campaign expenses of any party,”
41 Cong. Rec. 22, and the next year Congress passed the
Tillman Act of 1907:
“it shall be unlawful for any national bank, or any corpo
ration organized by authority of any laws of Congress,
to make a money contribution in connection with any
election to any political office. It shall also be unlawful
for any corporation whatever to make a money contribu
tion in connection with any election at which Presiden
tial and Vice-Presidential electors or a Representative
in Congress is to be voted for or any election by any
3 Perhaps the President’s call was inspired by the accusations from his
own 1904 Democratic opponent, Judge Alton B. Parker, that the Republi
can camp accepted corporate campaign contributions intended to buy in
fluence. See A. Corrado, Money and Politics: A History of Federal Cam
paign Finance Law, in A. Corrado, T. Mann, D. Ortiz, & T. Potter, The
New Campaign Finance Sourcebook 7, 10–11 (2005) (hereinafter Campaign
Finance Sourcebook).

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State legislature of a United States Senator.” Ch. 420,
34 Stat. 864–865.4
The aim was “not merely to prevent the subversion of the
integrity of the electoral process,” but “to sustain the active,
alert responsibility of the individual citizen in a democracy
for the wise conduct of government.” Automobile Workers,
supra, at 575.
B
Thirty years later, new questions about the electoral in
fluence of accumulated wealth surfaced as organized labor
expanded during the New Deal. In the 1936 election, labor
unions contributed “unprecedented” sums, S. Rep. No. 151,
75th Cong., 1st Sess., 127 (1937), the greater part of them by
the United Mine Workers, see Campaign Finance Source
book 17. And in due course reaction began to build: “[w]ar
time strikes gave rise to fears of the new concentration of
power represented by the gains of trade unionism. And
so the belief grew that, just as the great corporations had
made huge political contributions to influence governmental
action . . . , the powerful unions were pursuing a similar
course, and with the same untoward consequences for the
democratic process.” Automobile Workers, supra, at 578.
Congress responded with the War Labor Disputes Act of
1943, which extended the ban on corporate donations to labor
organizations, ch. 144, § 9, 57 Stat. 167–168, an extension that
was made permanent in the Labor Management Relations
Act, 1947, better known as Taft-Hartley, § 304, 61 Stat.
159–160.
4 A bill along similar lines had been unsuccessfully introduced years ear
lier by Senator William Chandler, a New Hampshire Republican whom the
railroad interests helped defeat in 1900. See Mutch 4–6 (discussing the
unlikely alliance between Chandler, a radical Republican, and Senator
Benjamin Tillman, a South Carolina Democrat who ultimately succeeded
in enacting the law that carries his name).

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C
At the same time, Congress had another worry that fore
shadows our cases today. It was concerned that the statu
tory prohibition on corporate “contribution[s]” was being so
narrowly construed as to open a “loophole whereby corpora
tions, national banks, and labor organizations are enabled to
avoid the obviously intended restrictive policy of the statute
by garbing their financial assistance in the form of an ‘ex
penditure’ rather than a contribution.” S. Rep. No. 1, 80th
Cong., 1st Sess., 38–39 (1947); see also H. R. Rep. No. 2739,
79th Cong., 2d Sess., 40 (1947) (“The intent and purpose of
the provision of the act prohibiting any corporation or labor
organization making any contribution in connection with any
election would be wholly defeated if it were assumed that
the term ‘making any contribution’ related only to the donat
ing of money directly to a candidate, and excluded the vast
expenditures of money in the activities herein shown to be
engaged in extensively. Of what avail would a law be to
prohibit the contributing direct to a candidate and yet permit
the expenditure of large sums in his behalf?”). Taft-Hartley
therefore extended the prohibition to any “contribution or
expenditure” by a corporation or a union “in connection
with” a federal election. § 304, 61 Stat. 159.5
D
The new law left open, however, the right of a union to
spend money on electioneering from a segregated fund
raised specifically for that purpose from members, but not
drawn from the general treasury. Segregated funding enti
5 Taft-Hartley also specified that the prohibition extends to primary
elections, 61 Stat. 159, an extension that had been thought likely to exceed
the authority of Congress under Art. I, § 4, of the Constitution until our
decision in United States v. Classic, 313 U. S. 299, 317 (1941). See H. R.
Rep. No. 2093, 78th Cong., 2d Sess., 8–9 (1945) (discussing the significance
of Classic).

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ties, the now-familiar political action committees or PACs,
had been established prior to Taft-Hartley, and we concluded
in Pipefitters v. United States, 407 U. S. 385, 409 (1972), that
Taft-Hartley did not prohibit “union contributions and ex
penditures from political funds financed in some sense by the
voluntary donations of employees.”
This balance of authorized and restricted financing meth
ods for corporate and union electioneering was made explicit
in the Federal Election Campaign Act of 1971 (FECA). See
§205, 86 Stat. 10 (“[T]he phrase ‘contribution or expenditure’
. . . shall not include . . . the establishment, administration,
and solicitation of contributions to a separate segregated
fund to be utilized for political purposes by a corporation or
labor organization”). “[T]he underlying theory [of the stat
ute was] that substantial general purpose treasuries should
not be diverted to political purposes, both because of the
effect on the political process of such aggregated wealth and
out of concern for the dissenting member or stockholder.”
117 Cong. Rec. 43381 (1971) (statement of Rep. Hansen).
But the PAC exception maintained “ ‘the proper balance
in regulating corporate and union political activity required
by sound policy and the Constitution.’ ” Pipefitters, supra,
at 431 (quoting 117 Cong. Rec. 43381 (statement of Rep.
Hansen)).6
6 FECA also validated corporate and union spending on internal commu
nications and nonpartisan activities designed to promote voting. See
§205, 86 Stat. 10 (“[T]he phrase ‘contribution or expenditure’ . . . shall
not include communications by a corporation to its stockholders and their
families or by a labor organization to its members and their families on
any subject [or] nonpartisan registration and get-out-the-vote campaigns
by a corporation aimed at its stockholders and their families, or by a labor
organization aimed at its members and their families”). “ ‘If an organiza
tion . . . believes that certain candidates pose a threat to its well-being or
the well-being of its members or stockholders, it should be able to get its
views to those members or stockholders. . . . Both union members and
stockholders have the right to expect this expert guidance.’ ” Pipefitters,
407 U. S., at 431, n. 42 (quoting 117 Cong. Rec. 43380 (statement of Rep.
Hansen)).

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E
In 1986, in MCFL, we reexamined the longstanding ban
on spending corporate and union treasury funds “in connec
tion with” federal elections, 2 U. S. C. § 441b, and drew two
conclusions implicated in the present cases. First, we con
strued the “in connection with” phrase in much the same
way we had interpreted comparable FECA language chal
lenged in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam).
We held that to avoid vagueness, the product of prohibited
corporate and union expenditures “must constitute ‘express
advocacy’ in order to be subject to the prohibition.” MCFL,
479 U. S., at 249.
We thus held that the prohibition applied “only to expendi
tures for communications that in express terms advocate the
election or defeat of a clearly identified candidate for federal
office.” Buckley, 424 U. S., at 44. “[E]xpress terms,” in
turn, meant what had already become known as “magic
words,” such as “ ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot
for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’ ”
Id., at 44, n. 52. The consequence of this construction was
obvious: it pulled the teeth out of the statute, as we had
understood when we announced it in its earlier application
in Buckley:
“The exacting interpretation of the statutory language
necessary to avoid unconstitutional vagueness . . . under
mines the limitation’s effectiveness as a loophole-closing
provision by facilitating circumvention by those seeking
to exert improper influence upon a candidate or office
holder. It would naively underestimate the ingenuity
and resourcefulness of persons and groups desiring to
buy influence to believe that they would have much dif
ficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat but neverthe
less benefited the candidate’s campaign.” Id., at 45.
Nor was the statute, even as thus narrowed, enforceable
against the particular advocacy corporation challenging the

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limit in MCFL. This was the second holding of MCFL rele
vant here; we explained that the congressional effort to limit
the political influence of corporate money “has reflected con
cern not about use of the corporate form per se, but about
the potential for unfair deployment of wealth for political
purposes,” 479 U. S., at 259. We held that this “legitima[te]”
concern could not reasonably extend to electioneering ex
penditures by the corporation at issue in MCFL, which nei
ther “engage[d] in business activities” nor accepted dona
tions from business corporations and unions (and thus could
not serve as a “condui[t]” for political spending by those enti
ties). Id., at 263–264.7
7 Cf. Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 664
(1990) (First Amendment does not protect a nonprofit corporation from
expenditure limits if the corporation accepts corporate and union contribu
tions, lest corporations and unions readily “circumvent” restrictions on
their own election spending “by funneling money through” nonprofits).
Justice Scalia asserts that Austin “strayed far from” the principles we
announced in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978).
Ante, at 489 (opinion concurring in part and concurring in judgment).
Bellotti, however, concerned corporate spending in connection with a ref
erendum, and we went out of our way in that case to avoid casting any
doubt upon the constitutionality of limiting corporate expenditures during
candidate elections. We said:
“The overriding concern behind the enactment of [the federal restrictions
on corporate contributions and expenditures] was the problem of corrup
tion of elected representatives through the creation of political debts.
The importance of the governmental interest in preventing this occur
rence has never been doubted. The case before us presents no compara
ble problem, and our consideration of a corporation’s right to speak on
issues of general public interest implies no comparable right in the quite
different context of participation in a political campaign for election to
public office. Congress might well be able to demonstrate the existence
of a danger of real or apparent corruption in independent expenditures
by corporations to influence candidate elections.” 435 U. S., at 788, n. 26
(citations omitted).
Eight years before Austin, we unanimously reaffirmed that Bellotti
“specifically pointed out that in elections of candidates to public office,

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F
As was expectable, narrowing the corporate-union elec
tioneering limitation to magic words soon reduced it to futil
ity. “[P]olitical money . . . is a moving target,” Issacharoff &
Karlan, The Hydraulics of Campaign Finance Reform, 77
Texas L. Rev. 1705, 1707 (1999), and the “ingenuity and
resourcefulness” of political financiers revealed the massive
regulatory gap left by the “magic words” test, Buckley,
supra, at 45. It proved to be the door through which so
called “issue ads” of current practice entered American
politics.
An issue ad is an advertisement on a political subject urg
ing the reader or listener to let a politician know what he
thinks, but containing no magic words telling the recipient
to vote for or against anyone. By the 1996 election cycle,
between $135 and $150 million was being devoted to these
ads, see McConnell, 540 U. S., at 127, n. 20, and because they
had no magic words, they failed to trigger the limitation on
union or corporate expenditures for electioneering. Experi
ence showed, however, just what we foresaw in Buckley, that
the line between “issue” broadcasts and outright electioneer
ing was a patent fiction, as in the example of a television
“issue ad” that ran during a Montana congressional race be
tween Republican Rick Hill and Democrat Bill Yellowtail in
1996:
unlike in referenda on issues of general public interest, there may well be
a threat of real or apparent corruption.” Federal Election Comm’n v.
National Right to Work Comm., 459 U. S. 197, 210, n. 7 (1982). Then,
four years later, in MCFL, we also noted that an expenditure limit offering
corporations a PAC alternative is “distinguishable from the complete fore
closure of any opportunity for political speech” that we addressed in Bel
lotti. 479 U. S., at 259, n. 12. So Austin did not “stra[y]” from Bellotti,
ante, at 489 (opinion of Scalia, J.); the reasons Bellotti was not controlling
in Austin had been clearly foreshadowed in Bellotti itself and confirmed
repeatedly in our decisions leading up to Austin.

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“ ‘ “Who is Bill Yellowtail? He preaches family values
but took a swing at his wife. And Yellowtail’s re
sponse? He only slapped her. But ‘her nose was not
broken.’ He talks law and order . . . but is himself a
convicted felon. And though he talks about protecting
children, Yellowtail failed to make his own child support
payments—then voted against child support enforce
ment. Call Bill Yellowtail. Tell him to support family
values.” ’ ” McConnell, supra, at 193–194, n. 78.8
There are no “magic words” of “express advocacy” in that
statement, but no one could deny with a straight face that
the message called for defeating Yellowtail.
There was nothing unusual about the Yellowtail issue ad in
1996, and an enquiry into campaign practices by the Senate
Committee on Governmental Affairs found as a general mat
ter that “the distinction between issue and express advocacy
. . . appeared to be meaningless in the 1996 elections.”
S. Rep. No. 105–167, p. 3994 (1998). “ ‘ “What separates
issue advocacy and political advocacy is a line in the sand
drawn on a windy day.” ’ ” McConnell, supra, at 126, n. 16 9
(quoting the former director of an advocacy organization’s
PAC). Indeed, the president of the AFL–CIO stated that
8 Or this example from a Texas district where Democrat Nick Lampson
challenged incumbent Republican Steve Stockman, and where the AFL–
CIO ran the following advertisement in September and October of 1996:
“ ‘[Narrator] What’s important to America’s families? [Middle-aged
man] “My pension is very important because it will provide a significant
amount of my income when I retire.” [Narrator] And where do the candi
dates stand? Congressman Steve Stockman voted to make it easier for
corporations to raid employee pension funds. Nick Lampson opposes that
plan. He supports new safeguards to protect employee pension funds.
When it comes to your pension, there is a difference. Call and find out.’ ”
McConnell v. Federal Election Comm’n, 251 F. Supp. 2d 176, 201 (DC
2003) (per curiam) (emphasis deleted; brackets in original).
9 Quoting id., at 536, 537 (Kollar-Kotelly, J.) (in turn quoting T. Metaksa,
Opening Remarks at the American Assn. of Political Consultants Fifth
General Session on “Issue Advocacy,” Jan. 17, 1997, p. 2).

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“ ‘the bulk of ’ ” its ads were targeted for broadcast in dis
tricts represented by “ ‘first-term, freshmen Republicans
who . . . may be defeatable,’ ” S. Rep. No. 105–167, at 3997,
3998, and n. 23, and the Senate Committee found that the
union used a “$.15 per member, per month assessment” to
finance “issue ads that were clearly designed to influence the
outcome of the election,” id., at 3999, 4000. Not surpris
ingly, “ostensibly independent” ads “were often actually co
ordinated with, and controlled by, the campaigns.” McCon
nell, supra, at 131.
Nor was it surprising that the Senate Committee heard
testimony that “ ‘[w]ithout taming’ ” the vast sums flowing
into issue ads, “ ‘campaign finance reform—no matter how
thoroughly it addresses . . . perceived problems—will come
to naught.’ ” S. Rep. No. 105–167, at 4480 (quoting testi
mony of Professor Daniel R. Ortiz). The Committee pre
dicted that “if the course of non-action is followed, . . .
Congress would be encouraging further growth of union,
corporate nonprofit and individual independent expendi
tures.” Id., at 4481.10 The next two elections validated the
10 The Senate Committee was not alone in its concerns. In Wisconsin,
for example, the Governor’s Blue-Ribbon Commission on Campaign Fi
nance Reform reported:
“Especially beginning in 1996, issue advocacy during the campaign season
dramatically expanded in Wisconsin.
. . . . .
“The Commission concludes that, in each of these cases, the expendi
tures were clearly campaign-oriented activities. They were quite clearly
designed to influence the electoral process. They were focused either on
electing or defeating a candidate. The Commission bases this conclusion
on the following points:
“Although those paying for the activities claimed they were aimed solely
at educating voters on the issues, they each mentioned the names of candi
dates for office.
“They occurred only when election races were in progress that involved
a contest between an incumbent and a challenger. When the election was
over, the activities ended.
[Footnote 10 is continued on p. 518]

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prediction: during the 1998 cycle, spending on issue ads dou
bled to between $270 and $340 million, and the figure climbed
to $500 million in the 2000 cycle. McConnell, 540 U. S., at
127, n. 20. A report from the Annenberg Public Policy Cen
ter concluded that “[t]he type of issue ad that dominated
depended greatly on how close we were to the general
election. . . . Though candidate-centered issue ads always
made up a majority of issue ads, as the election approached
the percent [of] candidate-centered spots increased . . . such
that by the last two months before the election almost all
televised issue spots made a case for or against a candidate.”
Issue Advertising in the 1999–2000 Election Cycle 14 (2001).
They were worth the money of those who ultimately paid
for them. According to one former Senator, “ ‘Members will
. . . be favorably disposed to those who finance’ ” interest
groups that run “ ‘issue ads’ ” when those financiers “ ‘later
seek access to discuss pending legislation.’ ” McConnell v.
Federal Election Comm’n, 251 F. Supp. 2d 176, 556 (DC
2003) (Kollar-Kotelly, J.) (quoting the declaration of Dale
Bumpers).
“The activity has occurred after legislative sessions when the issues
about which advocacy was occurring were not being deliberated by the
legislature.
“The activity occurred in campaign season, between the candidate’s fil
ing for candidacy and election time. Advertisements of this sort have
tended to occur at virtually no other time.
“The activity involved the electronic media, mass mailings, or centrally
located telephone banks.
. . . . .
“The explosive growth of campaign-based advocacy, without even disclo
sure of its activities and funding sources, poses a grave risk to the integ
rity of elections. It has created a two-tiered campaign process: one, based
in candidates and political parties, which is tightly regulated and con
trolled; the other, based in interest group activity under the guise of ‘issue
advocacy’ but actually quite clearly election-focused, which lies beyond
accountability.” 1 Governor’s Blue-Ribbon Commission on Campaign Fi
nance Reform, State of Wisconsin: Report of the Commission, online at
http://www.lafollette.wisc.edu/campaign_reform/final.htm.

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The congressional response was § 203 of the Bipartisan
Campaign Reform Act of 2002 (BCRA), 116 Stat. 91, which
redefined prohibited “expenditure” so as to restrict corpo
rations and unions from funding “electioneering commu
nication[s]” out of their general treasuries. 2 U. S. C.
§ 441b(b)(2) (2000 ed., Supp. IV). The new phrase “election
eering communication” was narrowly defined in BCRA’s
§ 201 as “any broadcast, cable, or satellite communication”
that
“(I) refers to a clearly identified candidate for Fed
eral office;
“(II) is made within—
“(aa) 60 days before a general, special, or runoff elec
tion for the office sought by the candidate; or
“(bb) 30 days before a primary or preference election,
or a convention or caucus of a political party that has
authority to nominate a candidate, for the office sought
by the candidate; and
“(III) in the case of a communication which refers
to a candidate for an office other than President or
Vice President, is targeted to the relevant electorate.”
§ 434(f)(3)(A)(i).
III
In McConnell, we found this definition to be “easily under
stood and objectiv[e],” raising “none of the vagueness con
cerns that drove our analysis” of the statutory language at
issue in Buckley and MCFL, 540 U. S., at 194, and we held
that the resulting line separating regulated election speech
from general political discourse does not, on its face, violate
the First Amendment. We rejected any suggestion “that
Buckley drew a constitutionally mandated line between ex
press advocacy [with magic words] and so-called issue advo
cacy [without them], and that speakers possess an inviolable
First Amendment right to engage in the latter category of
speech.” Id., at 190. To the contrary, we held that “our

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decisions in Buckley and MCFL were specific to the statu
tory language before us; they in no way drew a constitutional
boundary that forever fixed the permissible scope of provi
sions regulating campaign-related speech.” Id., at 192–193.
“[T]he presence or absence of magic words cannot meaning
fully distinguish electioneering speech,” which is prohibita
ble, “from a true issue ad,” we said, since ads that “esche[w]
the use of magic words . . . are no less clearly intended to
influence the election.” Id., at 193. We thus found “[l]ittle
difference . . . between an ad that urged viewers to ‘vote
against Jane Doe’ and one that condemned Jane Doe’s record
on a particular issue before exhorting viewers to ‘call Jane
Doe and tell her what you think.’ ” Id., at 126–127.
We understood that Congress had a compelling interest in
limiting this sort of electioneering by corporations and
unions, for § 203 exemplified a tradition of “repeatedly sus
tained legislation aimed at ‘the corrosive and distorting ef
fects of immense aggregations of wealth that are accumu
lated 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.’ ” Id., at 205 (quoting Austin, 494 U. S., at
660). Nor did we see any plausible claim of substantial over
breadth from incidentally prohibiting ads genuinely focused
on issues rather than elections, given the limitation of “elec
tioneering communication” by time, geographical coverage,
and clear reference to candidate. “Far from establishing
that BCRA’s application to pure issue ads is substantial,
either in an absolute sense or relative to its application to
election-related advertising, the record strongly supports
the contrary conclusion.” 540 U. S., at 207. Finally, we un
derscored the reasonableness of the § 203 line by emphasiz
ing that it defined a category of limited, but not prohibited,
corporate and union speech: “Because corporations can still
fund electioneering communications with PAC money, it is
‘simply wrong’ to view [§ 203] as a ‘complete ban’ on expres
sion rather than a regulation.” Id., at 204 (quoting Federal
Election Comm’n v. Beaumont, 539 U. S. 146, 162 (2003)).

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Thus “corporations and unions may finance genuine issue ads
[in the runup period] by simply avoiding any specific refer
ence to federal candidates, or in doubtful cases by paying for
the ad from a segregated [PAC] fund.” 540 U. S., at 206.
We may add that a nonprofit corporation, no matter what
its source of funding, is free to pelt a federal candidate like
Jane Doe with criticism or shower her with praise, by name
and within days of an election, if it speaks through a newspa
per ad or on a Web site, rather than a “broadcast, cable, or
satellite communication,” 2 U. S. C. § 434(f)(3)(A)(i) (2000 ed.,
Supp. IV). And a nonprofit may use its general treasury to
pay for clearly “electioneering communication[s]” so long as
it declines to serve as a conduit for money from business
corporations and unions (and thus qualifies for the MCFL
exception).11
* * *
In sum, Congress in 1907 prohibited corporate contribu
tions to candidates and in 1943 applied the same ban to
unions. In 1947, Congress extended the complete ban from
contributions to expenditures “in connection with” an elec
tion, a phrase so vague that in 1986 we held it must be con
fined to instances of express advocacy using magic words.
Congress determined, in 2002, that corporate and union ex
penditures for fake issue ads devoid of magic words should
be regulated using a narrow definition of “electioneering
communication” to reach only broadcast ads that were the
practical equivalents of express advocacy. In 2003, this
Court found the provision free from vagueness and justified
by the concern that drove its enactment.
This century-long tradition of legislation and judicial prec
edent rests on facing undeniable facts and testifies to an
11 Campaign finance laws also continue to provide several specific ex
emptions from the general prohibition on corporate election-related spend
ing, including communications “on any subject” with stockholders and cer
tain personnel, as well as “nonpartisan registration and get-out-the-vote
campaigns” similarly aimed at shareholders and personnel. § 441b(b)(2);
see also n. 6, supra.

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equally undeniable value. Campaign finance reform has
been a series of reactions to documented threats to electoral
integrity obvious to any voter, posed by large sums of money
from corporate or union treasuries, with no redolence of
“grassroots” about them. Neither Congress’s decisions nor
our own have understood the corrupting influence of money
in politics as being limited to outright bribery or discrete
quid pro quo; campaign finance reform has instead consist
ently focused on the more pervasive distortion of electoral
institutions by concentrated wealth, on the special access and
guaranteed favor that sap the representative integrity of
American government and defy public confidence in its insti
tutions. From early in the 20th century through the deci
sion in McConnell, we have acknowledged that the value of
democratic integrity justifies a realistic response when cor
porations and labor organizations commit the concentrated
moneys in their treasuries to electioneering.
IV
The corporate appellee in these cases, Wisconsin Right to
Life (WRTL), is a nonprofit corporation funded to a signifi
cant extent by contributions from other corporations.12 In
2004, WRTL accepted over $315,000 in corporate donations,
App. 40, and of its six general fund contributions of $50,000
or more between 2002 and 2005, three, including the largest
(for $140,000), came from corporate donors, id., at 118–121.
WRTL also runs a PAC, funded by individual donations,
which has been active over the years in making independent
campaign expenditures, as in the previous two elections in
volving Senator Feingold. Id., at 15. During the 1998 cam
paign, for example, WRTL’s PAC spent $60,000 to oppose
12 To the extent these facts are disputed, we must view them in the light
most favorable to the Federal Election Commission and the intervenor
defendants, since the District Court granted WRTL’s motion for summary
judgment. See Pennsylvania State Police v. Suders, 542 U. S. 129, 134
(2004).

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him. Ibid. In 2004, however, despite a sharp nationwide
increase in PAC receipts, WRTL focused its fundraising
on its corporate treasury, not the PAC, id., at 41–43, and
took in only $17,000 in PAC contributions, as against over
$150,000 during 2000, id., at 41–42.
Throughout the 2004 senatorial campaign, WRTL made no
secret of its views about who should win the election and
explicitly tied its position to the filibuster issue. Its PAC
issued at least two press releases saying that its “Top Elec
tion Priorities” were to “Re-elect George W. Bush” and
“Send Feingold Packing!” Id., at 78–80, 82–84. In one of
these, the Chair of WRTL’s PAC was quoted as saying, “ ‘We
do not want Russ Feingold to continue to have the ability to
thwart President Bush’s judicial nominees.’ ” Id., at 82–83.
The Spring 2004 issue of the WRTL PAC’s quarterly maga
zine ran an article headlined “Radically Pro-Abortion Fein
gold Must Go!,” which reported that “Feingold has been ac
tive in his opposition to Bush’s judicial nominees” and said
that “the defeat of Feingold must be uppermost in the minds
of Wisconsin’s pro-life community in the 2004 elections.”
Id., at 101–103.
It was under these circumstances that WRTL ran the
three television and radio ads in question. The bills for
them were not paid by WRTL’s PAC, but out of the general
treasury with its substantial proportion of corporate contri
butions; in fact, corporations earmarked more than $50,000
specifically to pay for the ads, id., at 41. Each one criticized
an unnamed “group of Senators” for “using the filibuster
delay tactic to block federal judicial nominees from a simple
‘yes’ or ‘no’ vote,” and described the Senators’ actions as
“politics at work, causing gridlock and backing up some of
our courts to a state of emergency.” 13 They exhorted view
ers and listeners to “[c]ontact Senators Feingold and Kohl
13 These quotations are taken from the “Wedding” ad, although the rele
vant language in all of the ads is virtually identical. See ante, at 458–459,
and nn. 2–3 (principal opinion) (internal quotation marks omitted).

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and tell them to oppose the filibuster,” but instead of provid
ing a phone number or e-mail address, they told the audience
to go to BeFair.org, a Web site set up by WRTL. A visit to
this Web site would erase any doubt a listener or viewer
might have as to whether Senators Feingold and Kohl were
part of the “group” condemned in the ads: it displayed a doc
ument that criticized the two Senators for voting to filibuster
“16 out of 16 times” and accused them of “putting politics into
the court system, creating gridlock, and costing taxpayers
money.” Id., at 86.
WRTL’s planned airing of the ads had no apparent relation
to any Senate filibuster vote but was keyed to the timing of
the senatorial election. WRTL began broadcasting the ads
on July 26, 2004, four days after the Senate recessed for the
summer, and although the filibuster controversy raged on
through 2005, WRTL did not resume running the ads after
the election. Id., at 29, 32. During the campaign period
that the ads did cover, Senator Feingold’s support of the
filibusters was a prominent issue. His position was well
known,14 and his Republican opponents, who vocally opposed
the filibusters, made the issue a major talking point in their
campaigns against him.15
In sum, any Wisconsin voter who paid attention would
have known that Democratic Senator Feingold supported fil
ibusters against Republican presidential judicial nominees,
that the propriety of the filibusters was a major issue in the
senatorial campaign, and that WRTL along with the Sena
tor’s Republican challengers opposed his reelection because
14 See, e. g., Hearing before the Subcommittee on the Constitution, Civil
Rights and Property Rights of the Senate Committee on the Judiciary,
108th Cong., 1st Sess., 5–7 (2003) (statement of Sen. Feingold).
15 See Gilbert, 3 Seeking Feingold Seat Attack Him on Judges Issue,
Milwaukee Journal Sentinel, Nov. 18, 2003, App. 70–76 (“In Wisconsin, the
three Republicans vying to take on Senate Democrat Russ Feingold
are attacking him on judges and assert the controversy resonates with
voters”).

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of his position on filibusters. Any alert voters who heard or
saw WRTL’s ads would have understood that WRTL was
telling them that the Senator’s position on the filibusters
should be grounds to vote against him.
Given these facts, it is beyond all reasonable debate that
the ads are constitutionally subject to regulation under Mc-
Connell. There, we noted that BCRA was meant to remedy
the problem of “[s]o-called issue ads” being used “to advocate
the election or defeat of clearly identified federal candi
dates.” 540 U. S., at 126. We then gave a paradigmatic
example of these electioneering ads subject to regulation,
saying that “[l]ittle difference existed . . . between an ad
that urged viewers to ‘vote against Jane Doe’ and one that
condemned Jane Doe’s record on a particular issue before
exhorting viewers to ‘call Jane Doe and tell her what you
think.’ ” Id., at 126–127.
The WRTL ads were indistinguishable from the Jane Doe
ad; they “condemned [Senator Feingold’s] record on a partic
ular issue” and exhorted the public to contact him and “tell
[him] what you think.” 16 And just as anyone who heard the
Jane Doe ad would understand that the point was to defeat
Doe, anyone who heard the Feingold ads (let alone anyone
who went to the Web site they named) would know that
WRTL’s message was to vote against Feingold. If it is now
unconstitutional to restrict WRTL’s Feingold ads, then it fol
lows that § 203 can no longer be applied constitutionally to
McConnell’s Jane Doe paradigm.
McConnell’s holding that § 203 is facially constitutional
is overruled. By what steps does the principal opinion
reach this unacknowledged result less than four years after
McConnell was decided?
16 That the ads purported to target Senator Kohl as well as Senator
Feingold is of little import; since the ads would have run during the peak
of the 2004 campaign, the audience’s focus would naturally fall more heav
ily on Senator Feingold (who was up for reelection) rather than Senator
Kohl (who was not).

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A
First, it lays down a new test to identify a severely limited
class of ads that may constitutionally be regulated as elec
tioneering communications, a test that is flatly contrary to
McConnell. An ad is the equivalent of express advocacy
and subject to regulation, the opinion says, only if it is “sus
ceptible of no reasonable interpretation other than as an ap
peal to vote for or against a specific candidate.” Ante, at 470.
Since the Feingold ads could, in isolation, be read as at least
including calls to communicate views on filibusters to the two
Senators, those ads cannot be treated as the functional
equivalent of express advocacy to elect or defeat anyone, and
therefore may not constitutionally be regulated at all.
But the same could have been said of the hypothetical Jane
Doe ad. Its spoken message ended with the instruction to
tell Doe what the voter thinks. The same could also have
been said of the actual Yellowtail ad. Yet in McConnell, we
gave the Jane Doe ad as the paradigm of a broadcast mes
sage that could be constitutionally regulated as election con
duct, and we explicitly described the Yellowtail ad as a
“striking example” of one that was “clearly intended to in
fluence the election,” 540 U. S., at 193, and n. 78.
The principal opinion, in other words, simply inverts what
we said in McConnell. While we left open the possibility of
a “genuine” or “pure” issue ad that might not be open to
regulation under § 203, id., at 206–207, and n. 88, we meant
that an issue ad without campaign advocacy could escape the
restriction. The implication of the adjectives “genuine” and
“pure” is unmistakable: if an ad is reasonably understood as
going beyond a discussion of issues (that is, if it can be under
stood as electoral advocacy), then by definition it is not “gen
uine” or “pure.” But the principal opinion inexplicably
wrings the opposite conclusion from those words: if an ad is
susceptible to any “reasonable interpretation other than as
an appeal to vote for or against a specific candidate,” then it
must be a “pure” or “genuine” issue ad. Ante, at 470. This

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stands McConnell on its head, and on this reasoning it is
possible that even some ads with magic words could not be
regulated.
B
Second, the principal opinion seems to defend this inver
sion of McConnell as a necessary alternative to an unadmin
istrable subjective test for the equivalence of express (and
regulable) electioneering advocacy. The principal opinion
acknowledges, of course, that in McConnell we said that
“[t]he justifications for the regulation of express advocacy
apply equally to ads aired during [the period shortly before
an election] if the ads are intended to influence the voters’
decisions and have that effect.” 540 U. S., at 206. But The
Chief Justice says that statement in McConnell cannot be
accepted at face value because we could not, consistent with
precedent, have focused our First Amendment enquiry on
whether “the speaker actually intended to affect an elec
tion.” Ante, at 468.17 The Chief Justice suggests it is
17 The Chief Justice says that Buckley v. Valeo, 424 U. S. 1 (1976) (per
curiam), “already rejected” any test that calls for an assessment of the
intent and effect of corporate electioneering. Ante, at 467. The “rejec
t[ion]” to which The Chief Justice presumably refers is Buckley’s quota
tion of Thomas v. Collins, 323 U. S. 516 (1945), where we found impermis
sibly vague a statute that permitted a union leader to “ ‘laud unionism’ ”
but forbade him to “imply an invitation” to join a union. Id., at 534. The
problem with this predicament, we reasoned, was the lack of a clearly
permissible opportunity for expression: Whether words “designed to fall
short of invitation would miss that mark is a question both of intent and
of effect,” and no speaker “safely could assume that anything he might
say . . . would not be understood by some as an invitation.” Id., at 535.
We then specified that the speaker in Thomas was left with an impermissi
bly limited universe of “three choices: (1) to stand on his right and speak
freely; (2) to quit, refusing entirely to speak; (3) to trim, and even thus to
risk the penalty.” Id., at 536.
The Chief Justice implies that considering the intent and effect of
corporate advertising during as-applied challenges to § 203 would put cor
porations in precisely the same bind; thus, he wonders how McConnell
could use the language of intent and effect without “even address[ing]

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more likely that the McConnell opinion inadvertently bor
rowed the language of “intended . . . effect[s],” 540 U. S., at
206, from academic studies in the record of viewers’ percep
tions of the ads’ purposes, ante, at 466–467.18
what Buckley” (and by extension, Thomas) “had to say on the subject.”
Ante, at 467. But one need not look far in our McConnell opinion to
understand why we thought that corporations have more than the con
strained set of options available to the union leader in Thomas. Just a
few sentences after holding that ads with electioneering intent and effect
are regulable, we gave this explanation: “in the future corporations and
unions may finance genuine issue ads [shortly before an election] by simply
avoiding any specific reference to federal candidates, or in doubtful cases
by paying for the ad from a segregated fund.” 540 U. S., at 206. In other
words, corporations can find refuge in constitutionally sufficient and
clearly delineated safe harbors by modifying the content of their ads (by
omitting a candidate’s name) or by altering the sources of their ads’ finan
cing (from general treasuries to PACs). The Chief Justice thus
wrongly jettisons our conclusions about the constitutionality of regulating
ads with electioneering purpose; we meant what we said in McConnell,
and we did not overlook First Amendment jurisprudence when we said it.
Whereas The Chief Justice says that BCRA “should provide a safe
harbor for those who wish to exercise First Amendment rights,” ante, at
467, we already held in McConnell that the campaign finance law accom
plishes precisely that.
18 The Chief Justice speculates that McConnell derived its test for
functional equivalence from “[t]wo key studies,” ante, at 466, but not a
shred of language in McConnell supports that theory. In stating the legal
standard, McConnell made no mention of any study. What is the author
ity, then, for asserting that the studies were pivotal to the standard we
announced in McConnell? See ante, at 466. Other than WRTL’s brief,
The Chief Justice cites only Judge Henderson’s separate District Court
opinion in McConnell. Ante, at 466. But The Chief Justice quotes
one part of Judge Henderson’s analysis and neglects to mention that she
in turn was quoting the lead author of one of the studies in question:
“According to the Brennan Center, the Buying Time reports were ‘the
central piece of evidence marshaled by defenders of ’ BCRA’s electioneer
ing communication provisions ‘in support of their constitutional validity.’ ”
McConnell, 251 F. Supp. 2d, at 307–308 (quoting deposition of Craig B.
Holman, principal co-author of Buying Time 2000: Television Advertising
in the 2000 Federal Elections (Brennan Center 2001); italics in original;
brackets omitted).

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If The Chief Justice were correct that McConnell made
the constitutional application of § 203 contingent on whether
a corporation’s “motives were pure,” or its issue advocacy
“subjective[ly] sincer[e],” ante, at 468 (internal quotation
marks omitted), then I, too, might be inclined to reconsider
McConnell’s language. But McConnell did not do that. It
did not purport to draw constitutional lines based on the
subjective motivations of corporations (or their principals)
sponsoring political ads, but merely described our test for
equivalence to express advocacy as resting on the ads’ “elec
tioneering purpose,” which will be objectively apparent from
those ads’ content and context (as these cases and the exam
ples cited in McConnell readily show). We therefore held
that § 203 was not substantially overbroad because “the vast
majority of ads clearly had such a purpose,” and conse
quently could be regulated consistent with the First Amend
ment. 540 U. S., at 206.
For that matter, if the studies to which The Chief Jus
tice refers were now to inform our reading of McConnell,
they would merely underscore the objective character of the
proper way to determine whether § 203 is constitutional as
applied to a given ad. The authors of those studies did not
conduct discovery of the “actua[l] inten[tions],” ante, at 468,
behind any ads; nor, to my knowledge, were the sponsors of
campaign ads summoned before researchers to explain their
motivations. The studies merely confirmed that “reasonable
people are . . . able to discern between ads whose primary
purpose is to support a candidate and those intended to pro
vide information about a policy issue.” J. Krasno & D. Seltz,
Buying Time: Television Advertising in the 1998 Congres
sional Elections 9 (2000). To be clear, I am not endorsing
the precise methodology of those studies (and The Chief
Justice is correct that we did not do so in McConnell, ante,
at 467, n. 4); the point is only that the studies relied on a
“reasonable” person’s understanding of the ads’ apparent

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purpose, and thus were no less objective than The Chief
Justice’s own approach.
A similarly mistaken fear of an unadministrable and
speech-chilling subjective regime seems to underlie The
Chief Justice’s unwillingness to acknowledge the part that
consideration of an ad’s context necessarily plays in any real
istic assessment of its meaning. A reasonable Wisconsinite
watching or listening to WRTL’s ads would likely ask and
answer some obvious questions about their circumstances.
Is the group that sponsors these ads the same one publicly
campaigning against Senator Feingold’s reelection? The
Chief Justice says that this information is “beside the
point,” because WRTL’s history of overt electioneering only
“goes to [its] subjective intent.” Ante, at 472. Did these
“issue” ads begin appearing on the air during the election
season, rather than at the time the filibuster “issue” was
in fact being debated in the Senate? This, too, is said
to be irrelevant. Ibid. And does the Web site to which
WRTL’s ads direct viewers contain material expressly ad
vocating Senator Feingold’s defeat? This enquiry is dis
missed as being “one step removed from the text of the ads
themselves.” Ante, at 473. But these questions are cen
tral to the meaning of the ads, and any reasonable person
would take account of circumstances in coming to under
stand the object of WRTL’s ad. And why not? Each of the
contextual facts here can be established by an objective look
at a public record; none requires a voter (or a litigant) to
engage in discovery of evidence about WRTL’s operations or
internal communications, and none goes to a hidden state
of mind.
This refusal to see and hear what any listener to WRTL’s
ads would actually consider produces a rule no different in
practice from the one adopted by the District Court, which
declined to look beyond the “four corners” of the ads them
selves. 466 F. Supp. 2d 195, 207 (DC 2006). Although The
Chief Justice ostensibly stops short of categorically fore

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closing consideration of context, see ante, at 473–474, the
application of his test here makes it difficult to see how rele
vant contextual evidence could ever be taken into account
the way it was in McConnell,19 and it is hard to imagine The
Chief Justice would ever find an ad to be “susceptible of
no reasonable interpretation other than as an appeal to vote
for or against a specific candidate,” ante, at 470, unless it
contained words of express advocacy. The Chief Justice
thus effectively reinstates the same toothless “magic words”
criterion of regulable electioneering that led Congress to
enact BCRA in the first place.
C
Third, it may be that the principal opinion rejects McCon
nell on the erroneous assumption that § 203 flatly bans inde
pendent electioneering communications by a corporation.
The Chief Justice argues that corporations must receive
“the benefit of any doubt,” ante, at 469, whenever we under
take the task of “separating . . . political speech protected
under the First Amendment from that which may be
banned,” ante, at 467. But this is a fundamental misconcep
tion of the task at hand: we have already held that it is “ ‘sim
ply wrong’ to view [§ 203] as a ‘complete ban’ on expression,”
because PAC financing provides corporations “with a consti
19 Like the District Court, the only bit of context The Chief Justice
would allow the reasonable listener is the congressional agenda: whether
the “ ‘issue’ ” addressed in an ad currently is, or soon will be, “ ‘the subject
of legislative scrutiny.’ ” Ante, at 474 (quoting 466 F. Supp. 2d, at 207).
For example, The Chief Justice says, there would have been “no reason”
to think that WRTL’s ad constituted anything but a pure issue ad if it
addressed a bill pending during Senator Feingold’s reelection campaign,
such as the Universal National Service Act. Ante, at 470. It is reveal
ing, of course, that The Chief Justice does not invoke the filibuster
issue, the subject of WRTL’s ads, as the legislative matter with particular
salience during the 2004 election. But why the reasonable listener can
look to Congress but not the calendar on the wall or a WRTL Web site is
difficult to fathom.

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tutionally sufficient opportunity to engage in express advo
cacy.” 20 McConnell, 540 U. S., at 203–204 (quoting Beau
mont, 539 U. S., at 162). Thus, a successful as-applied
challenger to § 203 should necessarily show, at the least, that
it could not constitutionally be subjected to the administra
tive rules that govern a PAC’s formation and operation.
See id., at 163. This would be an uphill fight, after our re
peated affirmations that the PAC structure does not impose
excessive burdens, ibid. (citing National Right to Work
Comm., 459 U. S., at 201–202), and WRTL has a particularly
weak position on this point: it set up its own PAC long before
the 2004 election, used it to campaign openly against Senator
Feingold in the past, and could have raised noncorporate do
nations to it in the 2004 election cycle. Any argument that
establishing and maintaining a PAC is unconstitutionally
burdensome for WRTL would thus likely be futile, and cer
tainly should not prevail on WRTL’s summary judgment
motion.
For that matter, even without the PAC alternative, it
would be untrue that § 203 “banned” WRTL from saying
anything a genuine issue ad would say, for WRTL could have
availed itself of either or both of the following additional op
tions. It is undisputed that WRTL’s ads could have been
broadcast lawfully in the runup to the election (and bank
rolled from WRTL’s general treasury) if Senator Feingold’s
name had been omitted and the Senator not otherwise sin
gled out. Since members of today’s majority apparently
view WRTL’s broadcasts either as “genuine issue ad[s],”
ante, at 470 (opinion of The Chief Justice), or as “lobby
[ing] Wisconsin voters concerning the filibustering of the
President’s judicial nominees,” ante, at 484 (Scalia, J., con
curring in part and concurring in judgment), a claim that
20 Justice Scalia also adopts the same misconception that § 203 is a
“ban” on speech. See ante, at 499 (“Section 203’s line is bright, but it
bans vast amounts of political advocacy indistinguishable from hitherto
protected speech”).

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omitting Senator Feingold’s name would “ban” WRTL’s mes
sage is specious. Yet one searches my Brothers’ opinions in
vain for any persuasive reason why substituting the phrase
“Contact your Senators” for the phrase “Contact Senators
Feingold and Kohl” would have denied WRTL a constitution
ally sufficient (and clearly lawful) alternative way to send its
message. If WRTL is to be believed when it claims that the
issue was the point of the ads, it would have lost nothing by
referring simply to the “Senators.”
Finally, the suggestion that § 203 is a ban on political
speech is belied by MCFL’s safe harbor for nonprofit advo
cacy corporations: under that rule, WRTL would have been
free to attack Senator Feingold by name at any time with
ads funded from its corporate treasury, if it had not also cho
sen to serve as a funnel for hundreds of thousands of dollars
from other corporations. Thus, what is called a “ban” on
speech is a limit on the financing of electioneering broadcasts
by entities that refuse to take advantage of the PAC struc
ture but insist on acting as conduits from the campaign war
chests of business corporations.
D
In sum, McConnell does not graft a subjective standard
onto campaign regulation, the context of campaign advertis
ing cannot sensibly be ignored, and § 203 is not a ban on
speech. What cannot be gainsaid, in any event, is that in
treating these subjects as it does, the operative opinion pro
duces the result of overruling McConnell’s holding on § 203,
less than four years in the Reports. Anyone who doubts
that need merely ask what the law would have been if, back
in 2003, this Court had held § 203 facially unconstitutional.
BCRA’s definition of “electioneering communication,”
which identifies the communications regulable under § 203,
includes a backup to be used if the primary definition “is
held to be constitutionally insufficient by final judicial deci
sion to support the regulation provided herein.” 2 U. S. C.

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§ 434(f)(3)(A)(ii) (2000 ed., Supp. IV). If this should occur,
“electioneering communication” is to be defined as
“any broadcast, cable, or satellite communication which
promotes or supports a candidate for that office, or at
tacks or opposes a candidate for that office (regardless
of whether the communication expressly advocates a
vote for or against a candidate) and which also is sugges
tive of no plausible meaning other than an exhortation
to vote for or against a specific candidate.” Ibid.
This backup sounds familiar because it is essentially identi
cal to The Chief Justice’s test for evaluating an as-applied
challenge to the original definition of “electioneering commu
nication”: regulation is permissible only if the communication
is “susceptible of no reasonable interpretation other than as
an appeal to vote for or against a specific candidate,” ante,
at 470. Thus does the principal opinion institute the very
standard that would have prevailed if the Court formally
overruled McConnell. There is neither a theoretical nor a
practical basis to claim that McConnell’s treatment of § 203
survives.
E
The price of McConnell’s demise as authority on § 203
seems to me to be a high one. The Court (and, I think, the
country) loses when important precedent is overruled with
out good reason, and there is no justification for departing
from our usual rule of stare decisis here. The same combi
nation of alternatives that was available to corporations af
fected by McConnell in 2003 is available today: WRTL could
have run a newspaper ad, could have paid for the broadcast
ads through its PAC, could have established itself as an
MCFL organization free of corporate money, and could have
said “call your Senators” instead of naming Senator Feingold
in its ads broadcasted just before the election. Nothing in
the related law surrounding § 203 has changed in any way,
let alone in any way that undermines McConnell’s rationale.

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See Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992).
Nor can any serious argument be made that McConnell’s
holding has been “unworkable in practice.” Allied-Signal,
Inc. v. Director, Div. of Taxation, 504 U. S. 768, 783 (1992)
(internal quotation marks omitted). McConnell validated a
clear rule resting on mostly bright-line conditions, and there
is no indication that the statute has been difficult to apply.21
Although WRTL contends that the as-applied remedy has
proven to be “[i]nadequate” because such challenges cannot
be litigated quickly enough to avoid being mooted, Brief for
Appellee 65–66, nothing prevents an advertiser from obtain
ing a preliminary injunction if it can qualify for one, and
WRTL does not point to any evidence that district courts
have been unable to rule on any such matters in a timely
way.
Finally, it goes without saying that nothing has changed
about the facts. In Justice Frankfurter’s words, they dem
onstrate a threat to “the integrity of our electoral process,”
Automobile Workers, 352 U. S., at 570, which for a century
now Congress has repeatedly found to be imperiled by corpo
rate, and later union, money: witness the Tillman Act, Taft-
Hartley, FECA, and BCRA. See Part II, supra. McCon
nell was our latest decision vindicating clear and reasonable
boundaries that Congress has drawn to limit “ ‘the corrosive
and distorting effects of immense aggregations of wealth,’ ”
540 U. S., at 205 (quoting Austin, 494 U. S., at 660), and the
21 These as-applied challenges provide no reason to second-guess our
conclusion in McConnell that the rule for differentiating between election
eering ads and genuine issue ads is administrable. WRTL’s ads clearly
have an electioneering purpose and, as explained above, fall comfortably
within the heartland of electioneering communications that § 203 may val
idly regulate. Thus, although Justice Scalia claims that “[t]oday’s cases
make it apparent” that McConnell must be overruled, ante, at 500, there
is nothing about today’s cases that suggests that McConnell is unwork
able. We therefore have no occasion to reconsider McConnell from first
principles.

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decision could claim the justification of ongoing fact as well
as decisional history in recognizing Congress’s authority to
protect the integrity of elections from the distortion of cor
porate and union funds.
After today, the ban on contributions by corporations and
unions and the limitation on their corrosive spending when
they enter the political arena are open to easy circumvention,
and the possibilities for regulating corporate and union cam
paign money are unclear. The ban on contributions will
mean nothing much, now that companies and unions can save
candidates the expense of advertising directly, simply by
running “issue ads” without express advocacy, or by fun
neling the money through an independent corporation like
WRTL.
But the understanding of the voters and the Congress that
this kind of corporate and union spending seriously jeopar
dizes the integrity of democratic government will remain.
The facts are too powerful to be ignored, and further efforts
at campaign finance reform will come. It is only the legal
landscape that now is altered, and it may be that today’s
departure from precedent will drive further reexamination
of the constitutional analysis: of the distinction between con
tributions and expenditures, or the relation between spend
ing and speech, which have given structure to our thinking
since Buckley itself was decided.
I cannot tell what the future will force upon us, but I re
spectfully dissent from this judgment today.