Federal Election Comm'n v. Wisconsin Right to Life, Inc., No.
06–969 (2007)
Argued April 25, 2007
Decided June 25, 2007*


APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA

Syllabus

     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. Sec. 441b(b)(2), which BCRA defines as
any broadcast that refers to a candidate for federal office and is
aired within 30 days of a federal primary election or 60 days of a
federal general election in the jurisdiction where that candidate
is running, Sec. 434(f)(3)(A).  In McConnell v. Federal Election
Comm'n, 540 U.S. 93, this Court upheld Sec. 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 issues more generally, that also mentions such
a candidate.  The Court concluded there was no overbreadth concern
to the extent the speech in question was the "functional
equivalent" of express advocacy.  Id. at 204–205, 206.

     On July 26, 2004, appellee Wisconsin Right to Life, Inc.
(WRTL), began broadcasting advertisements declaring that a group
of 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 August, 2004 and finance them with its
general treasury funds.  Recognizing, however, that as of August
15, 30 days before the Wisconsin primary, the ads would be illegal
"electioneering communication[s]" under BCRA Sec. 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
alleging that Sec. 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 reasoning that Sec. 203
was not facially overbroad left no room for such "as-applied"
challenges.  WRTL did not run its ads during the blackout period,
and the court subsequently dismissed the complaint.  This Court
vacated that judgment, holding that McConnell "did not purport to
resolve future as-applied challenges" to Sec. 203.  Wisconsin
Right to Life, Inc. v. Federal Election Comm'n (WRTL I), 546 U.S.
410.  On remand, the District Court granted WRTL summary judgment,
holding Sec. 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 merits, it concluded that the ads were genuine
issue ads, not express advocacy 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 action is in its duration too short to be
fully litigated prior to cessation or expiration; and (2) there is
a reasonable expectation that the same complaining party will be
subject to the same action again,

Spencer v. Kemna, 523 U.S. 1.  Both circumstances are present
here.  First, it would be unreasonable to expect that WRTL could
have obtained complete judicial review of its claims in time to
air its ads during the BCRA blackout periods.  Indeed, two BCRA
blackout periods have passed during the pendency of this action.
Second, there exists a reasonable expectation that the same
"controversy" involving the same party will recur:  WRTL has
credibly claimed that it plans to run materially similar targeted
ads during future blackout periods, and there is no reason to
believe that the FEC will refrain from prosecuting future BCRA
violations.  Pp. ___.

     THE CHIEF JUSTICE, joined by JUSTICE ALITO, concluded that
BCRA Sec. 203 is unconstitutional as applied to the ads at issue
in these cases.  Pp. ___.

     1. The speech at issue is not the "functional equivalent" of
express campaign speech.  Pp. ___.

     (a) Appellants are wrong in arguing that WRTL has the burden
of demonstrating that Sec. 203 is unconstitutional.  Because Sec.
203 burdens 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.
Given that McConnell, supra, at 206, already ruled that BCRA
survives strict scrutiny to the extent it regulates express
advocacy or its functional equivalent, the FEC's burden is not
onerous insofar as these ads fit this description.  Pp. ___.

     (b) Contrary to the FEC's contention, McConnell, 540 U.S. at
205–206, did not establish an "intent and effect" test for
determining if a particular ad is the functional equivalent of
express advocacy.  Indeed, McConnell 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 intended to, or had the
effect of, supporting candidates for federal office.  Id. at
308–309.  More importantly, Buckley v. Valeo, 424 U.S. 1, rejected
an "intent and effect" test for distinguishing between discussions
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. ___.

     (c) Because WRTL's ads may reasonably be interpreted as
something 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 public issues, the proper standard
for an as-applied challenge to BCRA Sec. 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 parties
to resolve disputes quickly without chilling speech through the
threat of burdensome litigation.  See Virginia v. Hicks, 539 U.S.
113.  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.  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.  In light of
these considerations, a court should find that an ad is the
functional equivalent of express advocacy only if the ad is
susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate.  WRTL's three
ads are plainly not the functional equivalent of express advocacy
under this test.  First, their content is consistent with that of
a genuine issue ad:  they focus and take a position on a
legislative issue and exhort the public to adopt that position and
to contact public officials with respect to the matter.  Second,
their content lacks indicia of express advocacy:  they do not
mention an election, candidacy, political party, or challenger,
and they take no position on a candidate's character,
qualifications, or fitness for office.  Pp. ___.

     2. Because WRTL's ads are not express advocacy or its
functional equivalent, and because appellants identify no interest
sufficiently compelling to justify burdening WRTL's speech, BCRA
Sec. 203 is unconstitutional 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 regulating WRTL's ads are
sufficiently compelling.  Although the Court has long recognized
"the governmental interest in preventing corruption and the
appearance of corruption" in election campaigns, Buckley, 424 U.S.
at 45, it has invoked this interest as a reason for upholding
contribution limits, id. at 26–27, and suggested that it might
also justify limits on electioneering expenditures posing the same
dangers as large contributions, id. at 45.  McConnell arguably
applied this interest to ads that were the "functional equivalent"
of express advocacy.  See 540 U.S. at 204–206.  But to justify
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 justify
regulating them.  A second possible compelling interest lies in
addressing

>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 v. Michigan Chamber of Commerce, 494 U.S. 652.  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 reinforced the validity of this point by
holding Sec. 203 susceptible to as-applied challenges.  546 U.S.
at 411–412.  Pp. ___.

     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 equivalent 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. ___.

     JUSTICE SCALIA, joined by JUSTICE KENNEDY and JUSTICE THOMAS,
agreed that the Court has jurisdiction in these cases and
concurred in the Court's judgment because he would overrule that
part of McConnell v. Federal Election Comm'n, 540 U.S. 93,
upholding Sec. 203(a) of the Bipartisan Campaign Reform Act of
2002 (BCRA).  Pp. ___.

     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 (contained in the Federal Election Campaign
Act of 1971 (FECA)) was unconstitutional, id. at 39–51.  In light
of vagueness concerns, the Court narrowly construed the
independent expenditure provision to cover only express advocacy
of the election or defeat of a clearly identified candidate for
federal office by use of such magic words "as ‘vote for,' ‘elect,'
. . . ‘vote against,' ‘defeat,' ‘reject.'"  Id. at 44, and n. 52.
This narrowing construction excluded so-called "issue advocacy"
referring to a clearly identified candidate's position on an
issue, but not expressly advocating his election or defeat.  Even
as narrowly construed, however, the Court struck the provision
down.  Id. at 45–46.  Despite Buckley, some argued that
independent expenditures by corporations should be treated
differently.  A post-Buckley case, First Nat. Bank of Boston v.
Bellotti, 435 U.S. 765, struck down on First Amendment grounds a
state statute prohibiting corporations from spending money in
connection with a referendum.  The Court strayed far from these
principles, however, in Austin v. Michigan Chamber of Commerce,
494 U.S. 652, upholding state restrictions on corporations'
independent expenditures in 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 presumed to remain protected under Buckley
and Bellotti, even when engaged 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
Sec. 203(a) against a facial challenge.  Subsequently, in
Wisconsin Right to Life, Inc. v. Federal Election Comm'n, 546 U.S.
410, the Court held that McConnell did not foreclose as-applied
challenges to Sec. 203.  Pp. ___.

     2. McConnell's holding concerning Sec. 203 was wrong.  The
answer to whether WRTL meets the standard for prevailing in an as-
applied challenge requires the Court to articulate the standard.
The most obvious standard is McConnell's, which asks whether an ad
is the "functional equivalent of express advocacy," 540 U.S. at
206.  The fundamental and inescapable problem with this test, with
the principal opinion's "susceptible of no other reasonable
interpretation" standard, and with other similar tests is that
each is impermissibly vague, and thus ineffective to vindicate the
fundamental First Amendment rights at issue.  Buckley itself
compelled the conclusion that such tests fall short when it
narrowed the statutory language there at issue to cover only
advertising that used the magic words of express advocacy.  424
U.S. at 43–44.  The only plausible explanation for Buckley's
"highly strained" reading of FECA, McConnell, supra, at 280, is
that the Court there eschewed narrowing constructions that would
have been more faithful to FECA's text and more effective at
capturing campaign speech because those tests were all too vague.
If Buckley foreclosed such vagueness in a statutory test, it also
must foreclose such vagueness in an as-applied test.  Yet any
clear rule that would protect all genuine issue ads would cover
such a substantial number of ads prohibited by Sec. 203 that Sec.
203 would be rendered substantially overbroad.  Thus, McConnell
(which presupposed the availability of as-applied challenges) was
mistaken.  Pp. ___.

     3. Stare decisis would not prevent the Court from overruling
McConnell's Sec. 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, 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.  Pp. ___.

     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.  SCALIA, J., filed
an opinion concurring in part and concurring in the judgment in
which KENNEDY and THOMAS, JJ., joined.  SOUTER, J., filed a
dissenting opinion in which STEVENS, GINSBURG, and BREYER, JJ.,
joined.

     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. Sec. 441b(b)(2) (2000 ed., Supp.
IV), makes it a federal crime for any corporation to broadcast,
shortly before an election, any communication that names a federal
candidate for elected office and is targeted to the electorate.
In McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), this
Court considered whether Sec. 203 was facially overbroad under the
First Amendment because it captured within its reach not only
campaign speech, or "express advocacy," but also speech about
public issues more generally, or "issue advocacy," that mentions a
candidate for federal office.  The Court 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 "assume[d]" that the
interests it had found to "justify the regulation of campaign
speech might not apply to the regulation of genuine issue ads."
Id. at 206, n. 88.  The Court nonetheless determined that Sec. 203
was not facially overbroad.  Even assuming Sec. 203 "inhibit[ed]
some constitutionally protected 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 McConnell left
"no room" for as-applied challenges to Sec. 203.  App. to
Juris.Statement 52a.  We held, on the contrary, that "[i]n
upholding Sec. 203 against a facial challenge, we did not purport
to resolve future as-applied challenges."  Wisconsin Right to
Life, Inc. v. Federal Election Comm'n, 546 U.S. 410, 411–412
(2006) (per curiam) (WRTL I).

     We now confront such an as-applied challenge.  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 instead 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, are intimately tied to public issues
involving legislative proposals and governmental actions.

Buckley v. Valeo, 424 U.S. 1, 42 (1976) (per curiam).  Our
development of the law in this area requires us, however, to draw
such a line, because we have recognized that the interests held to
justify the regulation of campaign speech and its "functional
equivalent" "might not apply" to the regulation of issue advocacy.
McConnell, supra, at 206, and n. 88.

     In drawing that line, the First Amendment requires us to err
on the side of protecting political speech, rather than
suppressing it.  We conclude that the speech at issue in this as-
applied challenge is not the "functional equivalent" of express
campaign speech.  We further conclude that the interests held to
justify restricting corporate campaign speech or its functional
equivalent do not justify restricting issue advocacy, and
accordingly we hold that BCRA Sec. 203 is unconstitutional as
applied to the advertisements at issue in these cases.

I

     Prior to BCRA, corporations were free under federal law to
use independent expenditures to engage in political speech so long
as that speech did not expressly advocate the election or defeat
of a clearly identified federal candidate.  See Federal Election
Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249
(1986) (MCFL); Buckley, supra, at 44–45; 2 U.S.C. Secs. 441b(a),
(b)(2) (2000 ed. and Supp. IV).

     BCRA significantly cut back on corporations' ability to
engage in political speech.  BCRA Sec. 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 communication."  Sec. 441b(b)(2) (2000
ed., Supp. IV).  BCRA's definition of "electioneering
communication" is clear and expansive.  It encompasses any
broadcast, cable, or satellite communication that refers to a
candidate for federal office and that is aired within 30 days of a
federal primary election or 60 days of a federal general election
in the jurisdiction in which that candidate is running for office.
Sec. 434(f)(3)(A).{1}

     Appellee Wisconsin Right to Life, Inc. (WRTL), is a
nonprofit, nonstock, ideological advocacy corporation recognized
by the Internal Revenue Service as tax exempt under Sec. 501(c)(4)
of the Internal Revenue Code.  On July 26, 2004, as part of what
it calls a "grass roots lobbying campaign," Brief for Appellee 8,
WRTL began broadcasting a radio advertisement entitled "Wedding."
The transcript of "Wedding" 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 Senators is
using the filibuster delay tactic to block federal judicial
nominees from a simple "yes" or "no" vote.  So qualified
candidates don't get a chance to serve.

>   It's politics at work, causing gridlock and backing up some of
our courts to a state of emergency.

>   Contact Senators Feingold and Kohl and tell them to oppose the
filibuster.

>   Visit:  BeFair.org

>   Paid for by Wisconsin Right to Life (befair.org), which is
responsible for the content of this advertising and not authorized
by any candidate or candidate's committee.

466 F.Supp.2d 195, 198, n. 3 (DC 2006).  On the same day, WRTL
aired a similar radio ad entitled "Loan."{2}  It had also invested
treasury funds in producing a television ad entitled "Waiting,"{3}
which is similar in substance and format to "Wedding" and "Loan."

     WRTL planned on running "Wedding," "Waiting," and "Loan"
throughout August, 2004, and financing the ads with funds from its
general treasury.  It recognized, however, that as of August 15,
30 days prior to the Wisconsin primary, the ads would be illegal
"electioneering communication[s]" under BCRA Sec. 203.

     Believing that it nonetheless possessed a First Amendment
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. Sec. 437h (2000 ed., Supp. IV); 28 U.S.C.
Sec. 2284.  WRTL alleged that BCRA's prohibition on the use of
corporate treasury funds for "electioneering communication[s]" as
defined in the Act is unconstitutional as applied to "Wedding,"
"Loan," and "Waiting," as well as any materially similar ads it
might seek to run in the future.

     Just before the BCRA blackout period was to begin, the
District Court denied a preliminary injunction, concluding that
"the reasoning of the McConnell Court leaves no room for the kind
of ‘as applied' challenge WRTL propounds before us."  App. to
Juris.Statement 52a.  In response to this ruling, WRTL did not run
its ads during the blackout period.  The District Court
subsequently dismissed WRTL's complaint.  See id. at 47a–48a
("WRTL's ‘as-applied' challenge to BCRA [Sec. 203] is foreclosed
by the Supreme Court's decision in McConnell").  On appeal, we
vacated the District Court's judgment, holding that McConnell "did
not purport to resolve future as-applied challenges" to BCRA Sec.
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 Sec. 203 unconstitutional
as applied to the three advertisements 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
election or defeat of a candidate for federal office -- and the
"functional equivalent" of such advocacy.  466 F.Supp.2d at 204.
Stating that it was limiting its inquiry to "language within the
four corners" of the ads, id. at 207, the District Court concluded
that the ads were not express advocacy or its functional
equivalent, but instead "genuine issue ads."  Id. at 205–208.
Then, reaching a question "left open in McConnell," the court held
that no compelling interest justified BCRA's regulation of genuine
issue ads such as those WRTL sought to run.  Id. at 208–210.

     One judge dissented, contending that the majority's "plain
facial analysis of the text in WRTL's 2004 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 summary judgment.  Id. at
210, 211.

     The FEC and intervenors filed separate notices of appeal and
jurisdictional statements.  We consolidated the two appeals and
set the matter for briefing and argument, postponing further
consideration of jurisdiction to the hearing on the merits.  549
U.S. ___ (2007).

II

     Article III's "case or controversy requirement subsists
through all stages of federal judicial proceedings. . . .  [I]t is
not enough that a dispute was very much alive when suit was
filed."  Lewis v. Continental Bank Corp., 494 U.S. 472, 477
(1990).  Based on these principles, the FEC 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]
advertisements, nor does it identify any reason to believe that a
significant dispute over Senate filibusters of judicial nominees
will occur in the foreseeable future.

Brief for Appellant FEC 21.

     As the District Court concluded, however, these cases fit
comfortably within the established exception to mootness for
disputes capable of repetition, yet evading review.  See Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983); Southern Pacific
Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).  The exception
applies where

>(1) the challenged action is in its duration too short to be
fully litigated prior to 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 (1998) (internal quotation marks
and brackets omitted).  Both circumstances are present here.

     As the District Court found, it would be "entirely
unreasonable . . . to expect that [WRTL] could have obtained
complete judicial review of its claims in time for it to air its
ads" during the BCRA blackout periods.  466 F.Supp.2d at 202.  The
FEC contends that the 2-year window between elections provides
ample time for parties to 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 expedited "to the greatest possible extent," Sec.
403(a)(4), 116 Stat. 113, note following 2 U.S.C. Sec. 437h (2000
ed., Supp. IV), two BCRA blackout periods have come and gone
during the pendency of this action.

>[A] decision allowing the desired expenditures would be an empty
gesture unless it afforded appellants sufficient opportunity prior
to the election date to communicate their views effectively.

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

     The second prong of the "capable of repetition" exception
requires a "‘reasonable expectation'" or a "‘demonstrated
probability'" that "the same controversy will recur involving the
same complaining party."  Murphy v. Hunt, 455 U.S. 478, 482 (1982)
(per curiam).  Our cases find the same controversy sufficiently
likely to recur when a party has a reasonable expectation that it
"will again be 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 sharing 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 (3
Dall.) >"capable of repetition, yet evading review" doctrine, in
the context of election cases, is appropriate when there are "as
applied" challenges as well as in the more typical case involving
only facial attacks.

Storer v. Brown, 415 U.S. 724, 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 challenges.  History repeats itself, but not at the
level of specificity demanded by the FEC.  Here, WRTL credibly
claimed that it planned on running "‘materially similar'" future
targeted broadcast ads mentioning a candidate within the blackout
period, 466 F.Supp.2d at 197, and there is no reason to believe
that the FEC will "refrain from prosecuting violations" of BCRA,
Bellotti, supra, at 775.  Under the circumstances, particularly
where WRTL sought another preliminary injunction based on an ad it
planned to run during the 2006 blackout 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
Sec. 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. Sec. 434(f)(3)(C) (2000 ed.,
Supp. IV), during the BCRA blackout period.  WRTL further concedes
that its ads do not fit under any of BCRA's exceptions to the term
"electioneering communication."  See Sec. 434(f)(3)(B).  The only
question, then, is whether it is consistent with the First
Amendment for BCRA Sec. 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 Sec. 203 was facially
valid.  These cases, however, present the separate question
whether Sec. 203 may constitutionally be applied to these specific
ads.  Because BCRA Sec. 203 burdens political speech, it is
subject to strict scrutiny.  See McConnell, 540 U.S. at 205;
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658 (1990);
MCFL, 479 U.S. at 252 (plurality opinion); Bellotti, supra, at
786; Buckley, 424 U.S. at 44–45.  Under strict scrutiny, the
Government must prove that applying BCRA to WRTL's ads furthers a
compelling interest and is narrowly tailored to achieve that
interest.  See Bellotti, supra, at 786 ("Especially where, as
here, a prohibition is directed at speech itself, and the speech
is intimately related to the process of governing, . . . ‘the
burden is on the government to show the existence of [a
compelling] interest'" (footnote omitted)).

     The strict scrutiny analysis is, of course, informed by our
precedents.  This Court has already ruled that BCRA survives
strict scrutiny to the extent it regulates express advocacy or its
functional equivalent.  McConnell, supra, at 206.  So to the
extent the ads in these cases fit this description, the FEC's
burden is not onerous; all it need do is point to McConnell and
explain why it applies here.  If, on the other hand, WRTL's ads
are not express advocacy or its equivalent, the Government's task
is more 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
determining if an ad is the functional equivalent of express
advocacy:  whether the ad is intended to influence elections and
has that effect.  See, e.g., 466 F.Supp.2d at 214 (opinion of
ROBERTS, J.).  Here is the relevant portion of our opinion in
McConnell:

>[P]laintiffs argue that the justifications that 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 influence the voters' decisions and have that
effect.

540 U.S. at 205–206.

     WRTL and the District Court majority, on the other hand,
claim that McConnell did not adopt any test as the standard for
future as-applied challenges.  We agree.  McConnell's analysis was
grounded in the evidentiary record before the Court.  Two key
studies in the McConnell record constituted "the central piece of
evidence marshaled by defenders of BCRA's electioneering
communication provisions in support of their constitutional
validity."  McConnell v. FEC, 251 F.Supp.2d 176, 307, 308 (DC
2003) (opinion of Henderson, J.) (internal quotation marks and
brackets omitted).  Those studies asked "student coders" to
separate ads based on whether the students thought the "purpose"
of the ad was "to provide 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
omitted; emphasis deleted); see Brief for Appellee 38.  The
studies 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 Sec. 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 Sec. 203 was facially overbroad and could not be
enforced in any circumstances.  540 U.S. at 207.  The Court did
not explain that it was adopting a particular test for determining
what constituted the "functional equivalent" of express advocacy.
The fact that the student coders who helped develop the
evidentiary record before the Court in McConnell looked to intent
and effect in doing so, and that the Court dealt with the record
on that basis in deciding the facial overbreadth claim, neither
compels nor warrants accepting that same standard as the
constitutional test for separating, in an as-applied challenge,
political speech protected under the First Amendment from that
which may be banned.{4}

     More importantly, this Court in Buckley had already rejected
an "intent and effect" test for distinguishing 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 explained 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 McConnell did not purport to overrule Buckley on this point --
or even address what Buckley had to say on the subject.

      For the reasons regarded as sufficient in Buckley, we
decline to adopt a test for as-applied challenges turning on the
speaker's intent to affect an election.  The test to distinguish
constitutionally protected political speech from speech that BCRA
may proscribe should provide a safe harbor for those who wish to
exercise First Amendment rights.  The test should also "reflec[t]
our ‘profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open.'"
Buckley, supra, at 14 (quoting New York Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)).  A test turning on the intent of the
speaker does not remotely fit the bill.

     Far from serving the values the First Amendment is meant to
protect, an intent-based test would chill core political speech by
opening the door to a trial on every ad within the terms of Sec.
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 prosecution would be that its motives were
pure.  An intent-based standard "blankets with uncertainty
whatever may be said," and "offers no security for free
discussion."  Buckley, supra, at 43 (internal 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 minimum, 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 criminal
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 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 actual
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 indeterminate result.  Litigation
on such a standard may or may not accurately predict electoral
effects, but it will unquestionably chill a substantial amount of
political speech.

C

>   The freedom of speech . . . guaranteed by the Constitution
embraces at the least the liberty to discuss publicly and
truthfully all matters of public concern without previous
restraint or fear of subsequent punishment.

Bellotti, 435 U.S. at 776 (internal quotation marks omitted).
See Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of
N.Y., 447 U.S. 530, 534 (1980).  To safeguard this liberty, the
proper standard for an as-applied challenge to BCRA Sec. 203 must
be objective, focusing on the substance of the communication
rather than amorphous considerations of intent and effect.  See
Buckley, supra, at 43–44.  It must entail minimal if any
discovery, to allow parties to resolve disputes quickly without
chilling speech through the threat of burdensome litigation.  See
Virginia v. Hicks, 539 U.S. 113, 119 (2003).  And it must eschew
"the open-ended rough and tumble of factors," which "invit[es]
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 the ad
is susceptible of no reasonable interpretation other than as an
appeal to vote for or against a specific candidate.  Under this
test, WRTL's three ads are plainly not the functional equivalent
of express advocacy.  First, their content is consistent with that
of a genuine issue ad:  the ads focus on a legislative issue, take
a position on the issue, exhort the public to adopt that position,
and urge the public to contact public officials with respect to
the matter.  Second, their content lacks indicia of express
advocacy:  the ads do not mention an election, candidacy,
political party, or challenger; and they do not take a 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 nature.
Indeed, the FEC suggests that any ad covered by Sec. 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 period the House considered the
proposed Universal National Service Act.  See App. to Brief for
American Center for Law and Justice et al. as Amicus Curiae B–3.
There would be no reason to regard an ad supporting or opposing
that Act, and urging citizens to contact their Representative
about it, as the equivalent of an ad saying vote for or against
the Representative.  Issue advocacy conveys information and
educates.  An issue ad's impact on an election, if it exists at
all, will come only after the voters hear the information and
choose -- uninvited by the ad -- to factor it into their voting
decisions.{6}

     The FEC and intervenors try to turn this difference to their
advantage, citing McConnell's statements

>that the most effective campaign ads, like the most effective
commercials for products . . . avoid the [Buckley] magic words
[expressly 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]," focusing 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 Sec. 203 are available, and our assumption in
McConnell that "the interests that justify the regulation of
campaign speech might not apply to the regulation of genuine issue
ads," 540 U.S. at 206, n. 88.  Under appellants' view, there can
be no such thing as a genuine issue ad during the blackout period
-- it is simply a very effective electioneering ad.

     Looking beyond the content of WRTL's ads, the FEC and
intervenors argue that several "contextual" factors prove that the
ads are the equivalent of express advocacy.  First, appellants
cite evidence that during the same election cycle, WRTL and its
Political Action Committee (PAC) actively opposed Senator
Feingold's reelection and identified filibusters as a campaign
issue.  This evidence goes to WRTL's subjective intent in running
the ads, and we have already explained that WRTL's intent is
irrelevant in an as-applied challenge.  Evidence of this sort is
therefore beside the point, as it should be -- WRTL does not
forfeit its right to speak on issues simply because in other
aspects of its work it also opposes candidates who are involved
with those issues.

     Next, the FEC and intervenors seize on the timing of WRTL's
ads.  They observe that the ads were to be aired near elections
but not near actual Senate votes on judicial nominees, and that
WRTL did not run the ads after the elections.  To the extent this
evidence goes to WRTL's subjective intent, it is again irrelevant.
To the extent it nonetheless suggests that the ads should be
interpreted as express advocacy, it falls short.  That the ads
were run close to an election is unremarkable in a challenge like
this.  Every ad covered by BCRA Sec. 203 will by definition air
just before a primary or general election.  If this were enough to
prove that an ad is the functional equivalent of express advocacy,
then BCRA would be constitutional in all of its applications.
This Court unanimously rejected this contention in WRTL I.

     That the ads were run shortly after the Senate had recessed
is likewise unpersuasive.  Members of Congress often return to
their districts during recess, precisely to determine the views of
their constituents; an ad run at that time may succeed in getting
more constituents to contact the Representative while he or she is
back home.  In any event, a group can certainly choose to run an
issue ad to coincide with public interest rather than a floor
vote.  Finally, WRTL did not resume running its ads after the BCRA
blackout period because, as it explains, the debate had changed.
Brief for Appellee 16.  The focus of the Senate was on whether a
majority would vote to change the Senate rules to eliminate the
filibuster -- not whether individual Senators would continue
filibustering.  Given this change, WRTL's decision not to continue
running its ads after the blackout period does not support an
inference that the ads were the functional equivalent of
electioneering.

     The last piece of contextual evidence the FEC and intervenors
highlight is the ads' "specific and repeated cross-reference" to a
website.  Reply Brief for Appellant FEC 15.  In the middle of the
website's homepage, in large type, were the addresses, phone
numbers, fax numbers, and email addresses of Senators Feingold and
Kohl.  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 website.  This is fully consistent
with viewing WRTL's ads as genuine issue ads.  The website also
stated both Wisconsin Senators' positions on judicial filibusters,
and allowed visitors to sign up for "e-alerts," some of which
contained exhortations to vote against Senator Feingold.  These
details lend the electioneering interpretation of the ads more
credence, but again, WRTL's participation in express advocacy in
other aspects of its work is not a justification for censoring its
issue-related speech.  Any express advocacy on the website,
already one step removed from the text of the ads 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 advocacy, contextual
factors of the sort invoked by appellants should seldom play a
significant role in the inquiry.  Courts need not ignore basic
background information that may be necessary to put an ad in
context -- such as whether an ad "describes a legislative issue
that is either currently the subject of legislative scrutiny or
likely to be the subject of such scrutiny in the near future," 466
F.Supp.2d at 207 -- but the need to consider such background
should not become an excuse for discovery or a broader inquiry of
the sort we have just noted raises First Amendment concerns.

     At best, appellants have shown what we have acknowledged 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 application."  424 U.S.
at 42.  Under the test set forth above, that is not enough to
establish that the ads can only reasonably be viewed as advocating
or opposing a candidate in a federal election.

>Freedom of discussion, if it would fulfill its historic function
in this nation, must embrace all issues about which information is
needed or appropriate to enable the members of society to cope
with the exigencies of their period.

Thornhill v. Alabama, 310 U.S. 88, 102 (1940).  Discussion of
issues cannot be 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}

     We confronted a similar issue in Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002), in which the Government argued
that virtual images of child pornography were difficult to
distinguish from real images.  The 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 because it resembles the latter.  The
Constitution requires the reverse.

Ibid.  Because WRTL's ads may reasonably be interpreted as
something other than as an appeal to vote for or against a
specific candidate, we hold they are not the functional equivalent
of express advocacy, and therefore fall outside the scope of
McConnell's holding.{8}

IV

     BCRA Sec. 203 can be constitutionally applied to WRTL's ads
only if it is narrowly tailored to further a compelling interest.
McConnell, 540 U.S. at 205; Bellotti, 435 U.S. at 786; Buckley,
supra, at 44–45.  This Court has never recognized a compelling
interest in regulating ads, like WRTL's, that are neither express
advocacy nor its functional equivalent.  The District Court below
considered interests that might justify regulating WRTL's ads
here, and found none sufficiently compelling.  466 F.Supp.2d at
208–210.  We reach the same conclusion.{9}

     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 express advocacy."
McConnell, supra, at 205.  This "greater includes the lesser"
approach is not how strict scrutiny works.  A corporate ad
expressing support for the local football team could not be
regulated on the ground that such speech is less "core" than
corporate speech about an election, which we have held may be
restricted.  A court applying strict scrutiny must ensure that a
compelling interest supports each application of a statute
restricting speech.  That a compelling interest justifies
restrictions on express advocacy tells us little about whether a
compelling interest justifies restrictions on issue advocacy; the
McConnell Court itself made just that point.  See 540 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 interest in
preventing corruption and the appearance of corruption" in
election campaigns.  Buckley, 424 U.S. at 45.  This interest has
been invoked as a reason for upholding contribution limits.  As
Buckley explained,

>[t]o the extent that large contributions are given to secure a
political quid pro quo from current and potential office holders,
the integrity of our system of representative democracy is
undermined.

Id. at 26–27.  We have suggested that this interest might also
justify limits on electioneering 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 the quid pro quo corruption interest cannot
justify regulating them.  To equate WRTL's ads with contributions
is to ignore their value as political speech.

     Appellants argue that an expansive definition of "functional
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 quotation marks omitted; brackets in original)).
But such a "prophylaxis upon prophylaxis" approach to regulating
expression 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 unlawful speech"); Buckley,
supra, at 44 (expenditure limitations "cannot be sustained simply
by invoking the interest in maximizing the effectiveness of the
less intrusive contribution limitations").

     A second possible compelling interest recognized by this
Court lies in addressing a

>different type of corruption in the political arena:  the
corrosive and distorting effects of immense aggregations of wealth
that are accumulated with the help of the corporate form and that
have little or no correlation to the public's support for the
corporation's political ideas.

Austin, 494 U.S. at 660.  Austin invoked this interest to uphold a
state statute making it a felony for corporations to use treasury
funds for independent expenditures on express election advocacy.
Id. at 654–655.  McConnell also relied on this interest in
upholding regulation not just of express advocacy, but also its
"functional equivalent."  540 U.S. at 205–206.

     These cases did not suggest, however, that the interest in
combating "a different type of corruption" extended beyond
campaign speech.  Quite the contrary.  Two of the Justices who
joined the 6-to-3 majority in Austin relied, in upholding the
constitutionality of the ban on campaign speech, on the fact that
corporations retained freedom to speak on issues as distinct from
election campaigns.  See 494 U.S. at 675–678 (Brennan, J.,
concurring) (describing fact that campaign speech ban "does not
regulate corporate expenditures in referenda 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 Sec. 203 is susceptible to
as-applied challenges.  546 U.S. at 411–412.

     Accepting the notion that a ban on campaign speech could also
embrace issue advocacy would call into question our holding in
Bellotti that the corporate identity of a speaker does not strip
corporations of all free speech rights.  435 U.S. at 778.  It
would be a constitutional "bait and switch" to conclude that
corporate campaign speech may be banned in part because corporate
issue advocacy is not, and then assert that corporate issue
advocacy may be banned as well, pursuant to the same asserted
compelling interest, through a broad conception of what
constitutes the functional equivalent of campaign speech, or by
relying on the inability to distinguish 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 functional equivalent of
express advocacy -- a contention we have 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 functional
equivalent, and because appellants identify no interest
sufficiently compelling to justify burdening WRTL's speech, we
hold that BCRA Sec. 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 Public 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 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 jurisprudence over the past 216 years
has rejected an absolutist interpretation of those words, but when
it comes to drawing difficult lines in the area of pure political
speech -- between what is protected and what the Government may
ban -- it is worth recalling the language we are applying.
McConnell held that express advocacy of a candidate or his
opponent by a corporation shortly before an election may be
prohibited, along with the functional equivalent of such express
advocacy.  We have no occasion to revisit that determination
today.  But when it comes to defining what speech qualifies as the
functional equivalent of express advocacy subject to such a ban --
the issue we do have to decide -- we give the benefit of the doubt
to speech, not censorship.  The First Amendment's command that
"Congress shall make no law . . . abridging the freedom of speech"
demands at least that.

     The judgment of the United States District Court for the
District of Columbia is affirmed.

     It is so ordered.

     * Together with No. 06–970, McCain, United States Senator, et
al. v. Wisconsin Right to Life, Inc., also on appeal from the same
court.

     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. Sec. 434(f)(3)(A) (2000 ed., Supp. IV).  Subsection (B)
defines exceptions to "electioneering communication" not relevant
to this litigation.  Subsection (C) defines the term "targeted to
the relevant electorate."

     2. The radio script for "Loan" differs from "Wedding" only in
its lead-in.  "Loan" begins:

>   LOAN OFFICER:  Welcome Mr. and Mrs. Shulman.  We've reviewed
your loan application, along with your credit report, the
appraisal on the house, the inspections, and well . . .

>   COUPLE:  Yes, yes . . . we're listening.

>   OFFICER:  Well, it all reminds me of a time I went fishing
with my father.  We were on the Wolf River Waupaca . . .

>   VOICE-OVER:  Sometimes it's just not fair to delay an
important decision.

>   But in Washington it's happening. . . .

466 F.Supp.2d at 198, n. 4.  The remainder of the script is
identical to "Wedding."

     3. In "Waiting," the images on the television ad depict a
"‘middle-aged man being as productive as possible while his
professional life is in limbo.'"  Id. at 198, n. 5.  The man reads
the morning paper, polishes his shoes, scans through his Rolodex,
and does other similar activities.  The television script for this
ad reads:

>   VOICE-OVER:  There are a lot of judicial nominees out there
who can't go to work.  Their careers are put on hold because a
group of Senators is filibustering -- blocking qualified nominees
from a simple "yes" or "no" vote.

>   It's politics at work and it's causing gridlock. . . .

Ibid.  The remainder of the script is virtually identical to
"Wedding."

     4. This is particularly true given that the methodology,
data, and conclusions of the two studies were the subject of
serious dispute among the District Court judges.  Compare
McConnell v. FEC, 251 F.Supp.2d 176, 307–312 (DC 2003) (opinion of
Henderson, J.) (stating that the studies were flawed and of
limited evidentiary value), with id. at 585, 583–588 (opinion of
Kollar-Kotelly, J.) (finding the studies generally credible, but
stating that "I am troubled by the fact that coders in both
studies were asked questions regarding their own perceptions of
the advertisements' purposes, and that [some of] these perceptions
were later recoded" by study supervisors).  Nothing in this
Court's opinion in McConnell suggests it was resolving the sharp
disagreements about the evidentiary record in this respect.

     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 legislative director, its political action
committee director, its lead communications consultant, and one of
its fundraisers.  WRTL also had to turn over many documents
related to its operations, plans, and finances.  Such litigation
constitutes a severe burden on political speech.

     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 ___.
The dissent supports this assertion by likening WRTL's ads to the
"Jane Doe" example identified in McConnell v. Federal Election
Comm'n, 540 U.S. 93 (2003).  But that ad "condemned Jane Doe's
record on a particular issue."  Post at ___ (internal quotation
marks omitted).  WRTL's ads do not do so; they instead take a
position on the filibuster issue and exhort constituents to
contact Senators Feingold and Kohl to advance that position.
Indeed, one would not even know from the ads whether Senator
Feingold supported or opposed filibusters.  JUSTICE SOUTER is
confident Wisconsinites independently knew Senator Feingold's
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
Representatives in their own district.  See Inter-university
Consortium for Political and Social Research, American National
Election Study, 2000:  Pre- and Post-Election Survey 243 (N. Burns
et al. eds. 2002) online at
http://www.icpsr.umich.edu/cocoon/ICPSR/STUDY/03131.xml (as
visited June 22, 2007, and available in Clerk of Court's case
file).

     7. JUSTICE SCALIA thinks our test impermissibly vague.  See
post at ___ (opinion concurring in part and concurring in
judgment).  As should be evident, we agree with JUSTICE SCALIA on
the imperative for clarity in this area; that is why our test
affords protection unless an ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a
specific candidate.  It is why we emphasize that (1) there can be
no free-ranging "intent and effect" test; (2) there generally
should be no discovery or inquiry into the sort of "contextual"
factors highlighted by the FEC and intervenors; (3) discussion of
issues cannot be banned merely because the issues might be
relevant to an election; and (4) in a debatable case, the tie is
resolved in favor of protecting speech.  And keep in mind this
test is only triggered if the speech meets the brightline
requirements of BCRA Sec. 203 in the first place.  JUSTICE
SCALIA's criticism of our test is all the more confusing because
he accepts WRTL's proposed three-prong test as "clear."  Post at
___.  We do not think our test any vaguer than WRTL's, and it is
more protective of political speech.  JUSTICE SCALIA also asserts
that our test conflicts with Buckley v. Valeo, 424 U.S. 1 (1976)
(per curiam).  Post at ___.  The Buckley Court confronted a
statute restricting "any expenditure . . . relative to a clearly
identified candidate."  424 U.S. at 42 (internal quotation marks
omitted).  To avoid vagueness concerns, this Court first narrowed
the statute to cover only expenditures expressly "advocating the
election or defeat of a candidate" -- using the so-called "magic
words" of express advocacy.  Ibid. (internal quotation marks
omitted).  The Court then proceeded to strike down the newly
narrowed statute under strict scrutiny on the ground that its
reach was not broad enough.  Id. at 44.  From this, JUSTICE SCALIA
concludes that "[i]f a permissible test short of the magic words
test existed, Buckley would surely have adopted it."  Post at ___.
We are not so sure.  The question in Buckley was how a particular
statutory provision could be construed to avoid vagueness
concerns, not what the constitutional standard for clarity was in
the abstract, divorced from specific statutory language.
Buckley's intermediate step of statutory construction on the way
to its constitutional holding does not dictate a constitutional
test.  The Buckley Court's "express advocacy restriction was an
endpoint of statutory interpretation, not a first principle of
constitutional law."  McConnell, 540 U.S. at 190.  And despite
JUSTICE SCALIA's claim to the contrary, our citation of Buckley
along with other decisions in rejecting an "intent and effect"
test does not force us to adopt (or reject) Buckley's statutory
construction as a constitutional test.

     8. Nothing in McConnell's statement that the "vast majority"
of issue ads broadcast in the periods preceding federal elections
had an "electioneering purpose" forecloses this conclusion.  540
U.S. at 206.  Courts do not resolve unspecified as-applied
challenges in the course of resolving a facial attack, so
McConnell could not have settled the issue we address today.   See
Members of City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 803, n. 22 (1984) ("The fact that [a law] is capable
of valid applications does not necessarily mean that it is valid
as applied to these litigants").  Indeed, WRTL I confirmed as
much.  546 U.S. at 411–412.  By the same token, in deciding this
as-applied challenge, we have no occasion to revisit McConnell's
conclusion that the statute is not facially overbroad.  The "vast
majority" language, moreover, is beside the point.  The McConnell
Court did not find that a "vast majority" of the issue ads
considered were the functional equivalent of direct advocacy.
Rather, it found that such ads had an "electioneering purpose."
For the reasons we have explained, "purpose" is not the
appropriate test for distinguishing between genuine issue ads and
the functional equivalent of express campaign advocacy.  See supra
at ___.  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).

     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 constitutionally sufficient
outlet to speak.  See post at ___.  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 website, rather than
complain that it cannot speak through a broadcast communication,
see post at ___, is too glib.  Even assuming for the sake of
argument that the possibility of using a different medium of
communication has relevance in determining the permissibility of a
limitation on speech, newspaper ads and websites are not
reasonable alternatives to broadcast speech in terms of impact and
effectiveness.  See McConnell v. FEC, 251 F.Supp.2d at 569–573,
646 (Kollar-Kotelly, J.).  Third, we disagree with the dissent's
view that corporations can still speak by changing what they say
to avoid mentioning candidates, post at ___.  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,
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573
(1995).

     10. The interest recognized in Austin stems from a concern
that "‘[t]he resources in the treasury of a business corporation .
. . are not an indication of popular support for the corporation's
political ideas.'"  Austin v. Michigan Chamber of Commerce, 494
U.S. 652, 659 (1990) (alteration in original).  Some of WRTL's
amici contend that this interest is not implicated here because of
WRTL's status as a nonprofit advocacy organization.  They assert
that "[s]peech by nonprofit advocacy groups on behalf of their
members does not ‘corrupt' candidates or ‘distort' the political
marketplace," and that "[n]onprofit advocacy groups funded by
individuals are readily distinguished from for-profit corporations
funded by general treasuries."  Brief for Family Research Council
et al. as Amici Curiae 3, 4.   Cf. MCFL, 479 U.S. at 264.  We do
not pass on this argument in this as-applied challenge because
WRTL's funds for its ads were not derived solely from individual
contributions.  See Brief for Appellant FEC 11.

     JUSTICE ALITO, concurring.

     I join the principal opinion because I conclude (a) that Sec.
203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. Sec.
441b(b)(2) (2000 ed., Supp. IV), as applied, cannot
constitutionally ban any advertisement that may reasonably be
interpreted as anything other than an appeal to vote for or
against a candidate, (b) that the ads at issue here may reasonably
be interpreted as something other than such an appeal, and (c)
that because Sec. 203 is unconstitutional as applied to the
advertisements before us, it is unnecessary to go further and
decide whether Sec. 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 ___ (SCALIA, J., joined by KENNEDY, and
THOMAS, JJ., concurring in part and concurring in judgment), we
will presumably be asked in a future case to reconsider the
holding in McConnell v. Federal Election Comm'n, 540 U.S. 93
(2003), that Sec. 203 is facially constitutional.

     JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring in part and concurring in the judgment.

     A Moroccan cartoonist once defended his criticism of the
Moroccan monarch (lese majeste being a serious crime in Morocco)
as follows:

>"I'm not a revolutionary, I'm just defending freedom of speech. .
. .  I never said we had to change the king -- no, no, no, no!
But I said that some things the king is doing I do not like.  Is
that a crime?"{1}

Well, in the United States (making due allowance for the fact that
we have elected representatives instead of a king), it is a crime,
at least if the speaker is a union or a corporation (including not-
for-profit public interest corporations) and if the representative
is identified by name within a certain period before a primary or
congressional election in which he is running.  That is the import
of Sec. 203 of the Bipartisan Campaign Reform 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 criticized.  Today's cases present the question of what
sort of showing is necessary for that purpose.  For the reasons I
set forth below, it is my view that no test for such a showing can
both (1) comport with the requirement of clarity that unchilled
freedom of political speech demands, and (2) be compatible with
the facial validity of Sec. 203 (as pronounced in McConnell).  I
would therefore reconsider the decision that sets us the unsavory
task of separating issue speech from election speech with no clear
criterion.

I

     Today's cases originated in the efforts of Wisconsin Right to
Life, Inc. (WRTL), a Wisconsin nonprofit, nonstock ideological
advocacy corporation, to lobby Wisconsin voters concerning the
filibustering of the President's judicial nominees.  The problem
for WRTL was that, under Sec. 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 seeking reelection.  Section 203(a) of BCRA
amended Sec. 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 election . . . for any political office.

2 U.S.C. Sec. 441b(a).  Prior to BCRA, that section covered only
expenditures for communications that expressly advocated the
election or defeat of a candidate (in campaign finance speak, so-
called "express advocacy").  McConnell, supra, at 204.  As
amended, however, that section was broadened to cover
"electioneering communication[s]," Sec. 441b(b)(2) (2000 ed.,
Supp. IV), which include "any broadcast, cable, or satellite
communication" that "refers to a clearly identified candidate for
Federal office" and that is aired within 60 days before a general
election, or 30 days before a primary election, in the
jurisdiction in which the candidate is running.  Sec. 434(f)(3)
(2000 ed., Supp. IV).{2}  Under the new law, a corporation or
union wishing to air advertisements covered by the definition of
"electioneering communication" is prohibited by Sec. 203 from
doing so unless it first creates a separate segregated fund run by
a "political action committee," commonly known as a "PAC."  Sec.
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 Sec. 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 Sec. 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, 411–412 (2006) (per
curiam) (WRTL I), that as-applied challenges to Sec. 203 are
available.  The District Court in these cases subsequently held
that Sec. 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 constitutionality of
various political contribution and expenditure limitations
contained in the Federal Election Campaign Act of 1971 (FECA), 86
Stat. 3, as amended, 88 Stat. 1263.  Buckley set forth a now-
familiar framework for evaluating the constitutionality of
campaign finance regulations.  The Court began with the
recognition that contributing money to, and spending money on
behalf of, political candidates implicates core First Amendment
protections, and that restrictions on such contributions and
expenditures "operate in an area of the most 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 entity makes a contribution or expenditure in exchange for some
action by an official.  Id. at 26-27, 45, 47.

     The Court then held that FECA's contribution limitations
passed constitutional muster because they represented a "marginal
restriction upon the contributor's ability to engage 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 expenditures (i.e., expenditures
made to express one's own positions and not in coordination with a
campaign).  Id. at 39–51.  In the Court's view, 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 Buckley
limited the amount of money that could be spent "‘relative to a
clearly identified candidate.'"  Id. at 41 (quoting 18 U.S.C. Sec.
608(e)(1) (1970 ed., Supp. IV) (repealed 1976)).  Before striking
down the expenditure limitation, the Court narrowly construed Sec.
608(e)(1), in light of vagueness concerns, 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 words of advocacy "as
‘vote for,' ‘elect,' `support,' ‘cast your ballot for,' ‘Smith for
Congress,' ‘vote against,' ‘defeat,' ‘reject.'"  424 U.S. at 44,
and n. 52.  This narrowing construction excluded so-called "issue
advocacy" -- for example, an ad that refers to a clearly
identified candidate's position on an issue, but does not
expressly advocate his election or defeat.  Even as narrowly
construed to cover only express advocacy, however, Sec. 608(e)(1)
was held to be unconstitutional because the narrowed prohibition
was too narrow to be effective and (quite apart from that
shortcoming) independent expenditures did not pose a serious
enough threat of corruption.  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
expenditures.   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, Sec.
608(e)(1) of FECA, was directed to expenditures 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 corporations, 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 Publishing Co. v. Tornillo, 418 U.S. 241
(1974).  Moreover, pre-Buckley cases had accorded corporations
full First Amendment protection.  See, e.g., NAACP v. Button, 371
U.S. 415, 428–429, 431 (1963) (holding that the corporation's
activities were "modes of expression and association protected by
the First and Fourteenth Amendments"); Grosjean v. American Press
Co., 297 U.S. 233, 244 (1936) (holding that corporations are
guaranteed the "freedom of speech and of the press . . .
safeguarded by the due process of law clause of the Fourteenth
Amendment ").  See also Pacific Gas & Elec. Co. v. Public Util.
Comm'n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion) ("The
identity of the speaker is not decisive in determining whether
speech is protected"; "[c]orporations and other associations, like
individuals, contribute to the ‘discussion, debate, and the
dissemination of information and ideas' that the First Amendment
seeks to foster").

     Indeed, one would have thought the coup de grace 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 Massachusetts statute that
prohibited corporations from spending money in connection with a
referendum unless the referendum 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 protection" and is "indispensable to
decisionmaking in a democracy" is "no less true because the speech
comes from a corporation rather than an individual."  435 U.S. at
776–777.  And the Court rejected the arguments that corporate
participation "would exert an undue influence on the outcome of a
referendum vote"; that corporations would "drown out other points
of view" and "destroy the confidence of the people in the
democratic process," id. at 789, and that the prohibition was
needed to protect corporate shareholders "by preventing the use of
corporate resources in furtherance of views with which some
shareholders may disagree," id. at 792–793.{3}

     The Court strayed far from these principles, however, in one
post-Buckley case:  Austin v. Michigan Chamber of Commerce, 494
U.S. 652 (1990).  This was the only pre-McConnell case in which
this Court had ever permitted the Government to restrict political
speech based on the corporate identity of the speaker.  Austin
upheld state restrictions on corporate independent expenditures in
support of or in opposition to any candidate in elections for
state office.  494 U.S. at 654–655.  The statute had been modeled
after the federal statute that BCRA Sec. 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 (App.
to opinion of KENNEDY, J., dissenting).  How did the Court manage
to reach this result without overruling Bellotti?  It purported to
recognize a different class of corruption:

>the corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate form
and that have little or no correlation to the public's support for
the corporation's political ideas.

Austin, supra, at 660.

     Among the many problems with this "new" theory of corruption
was that it actually constituted "the same ‘corrosive and
distorting effects of immense aggregations of wealth,' found
insufficient to sustain a similar prohibition just a decade
earlier," in Bellotti.  McConnell, 540 U.S. at 325 (opinion of
KENNEDY, J.) (quoting Austin, supra, at 660; citation omitted).
Indeed, Buckley itself had cautioned that "[t]he First Amendment's
protection against governmental abridgment of free expression
cannot properly be made to depend on a person's financial ability
to engage in public discussion." 424 U.S. at 49. However, two
Members of Austin's 6-to-3 majority appear to have thought it
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 decided.  The
flawed rationale upon which it is based is examined 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 KENNEDY, J., joined by O'Connor,
J.).  See also id. at 679–695 (SCALIA, J., dissenting); McConnell,
540 U.S. at 257–259 (opinion of SCALIA, J.); id. at 325–330
(opinion of KENNEDY, J.); id. at 273–275 (opinion of THOMAS, J.).
But at least Austin was limited to express advocacy, and
nonexpress advocacy was presumed to remain protected under Buckley
and Bellotti, even when engaged in by corporations.

     Three Terms ago, the Court extended Austin's flawed rationale
to cover an even broader class of speech.  In McConnell, the Court
rejected a facial overbreadth challenge to BCRA Sec. 203's
restrictions on corporate and union advertising, 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 PAC option, the
compelling governmental interest that supported restrictions on
corporate expenditures for express advocacy also justified the
extension of those restrictions to "electioneering
communications," 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 majority" of ads aired
during the 30- and 60-day periods before elections fit that
description.  Finally, the Court concluded that, "[e]ven . . .
assum[ing] that BCRA will inhibit some constitutionally protected
corporate and 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 Sec. 203, WRTL I, 546 U.S. at 411–412, which brings
me back to the present cases.

III

     The question is whether WRTL meets the standard for
prevailing in an as-applied challenge to BCRA Sec. 203.  Answering
that question obviously requires the Court to articulate the
standard.  The most obvious one, and the one suggested by the
Federal Election Commission (FEC) and intervenors, is the standard
set forth in McConnell itself:  whether the advertisement is the
"functional equivalent of express advocacy."  McConnell, supra, at
206.  See also Brief for Appellant FEC 18 (arguing that WRTL's
"advertisements are the functional equivalent of the sort of
express advocacy that this Court has long recognized may be
constitutionally regulated"); Reply Brief for Appellant Sen. John
McCain et al. in No. 06–970, p. 14 ("[C]ourts should apply the
standard articulated in McConnell; Congress may constitutionally
restrict corporate funding of ads that are the ‘functional
equivalent of express advocacy' for or against a candidate").
Intervenors flesh out the standard somewhat further:  "[C]ourts
should ask whether the ad's audience would reasonably 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 legislative issue that is either currently the
subject of legislative scrutiny or likely to be the subject of
such scrutiny in the near future; (2) refers to the prior voting
record or current position of the named candidate on the issue
described; (3) exhorts the listener to do anything other than
contact the 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" contained in BCRA itself, see n.
2, supra, offers another possibility.  It covers any communication
that

>promotes or supports a candidate for that office . . .
(regardless of whether the communication expressly advocates a
vote for or against a candidate) and which also is suggestive of
no plausible meaning other than an exhortation to vote for or
against a specific candidate.

And the principal opinion in this case offers a variation of its
own (one bearing a strong likeness to BCRA's backup definition):
whether "the ad is susceptible of no reasonable interpretation
other than as an appeal to vote for or against a specific
candidate."  Ante at ___.

     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 impermissibly
vague and thus ineffective to vindicate the fundamental First
Amendment rights of the large segment of society to which Sec. 203
applies.  Consider the application of these tests to WRTL's ads:
there is not the slightest doubt that these ads had an issue
advocacy component.  They explicitly urged lobbying on the pending
legislative issue of appellate judge filibusters.  The question
before us is whether something about them caused them to be the
"functional equivalent" of express advocacy, and thus
constitutionally subject to BCRA's criminal penalty.  Does any of
the tests suggested above answer this question with the degree of
clarity necessary to avoid the chilling of fundamental political
discourse?  I think not.

     The "functional equivalent" test does nothing more than
restate the question (and make clear that the electoral advocacy
need not be express).  The test which asks how the ad's audience
"would reasonably understand the ad" provides ample room for
debate and uncertainty.  The District Court's five-factor test
does not (and could not possibly) specify how much weight is to be
given to each factor -- and includes the inherently vague factor
of whether the ad "promotes, attacks, supports, or opposes the
named candidate."  (Does attacking the king's position attack the
king?)  The tests which look to whether the ad is "susceptible of
no plausible meaning" or "susceptible of no reasonable
interpretation" other than an exhortation to vote for or against a
specific candidate seem tighter.  They ultimately depend, however,
upon a judicial judgment (or is it -- worse still -- a jury
judgment?) concerning "reasonable" or "plausible" import that is
far from certain, that rests upon consideration of innumerable
surrounding circumstances which the speaker may not even be aware
of, and that lends itself to distortion by reason of the
decisionmaker's subjective evaluation of the importance or
unimportance of the challenged speech.  In this critical area of
political discourse, the speaker cannot be 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."  Under these circumstances,

>[m]any persons, rather than undertake the considerable burden
(and sometimes risk) of vindicating their rights through case-by-
case litigation, will choose simply to abstain from protected
speech -- harming not only themselves but 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 anti-filibustering, constitutionally protected speech
can be constrained -- in the necessary pursuit of electoral
"corruption."  We have rejected the "can't make an omelet without
breaking eggs" approach to the First Amendment, even for the
infinitely less important (and less protected) speech category of
virtual child pornography.  In Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002), the Government argued:

>the possibility of producing images by using computer 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 prohibit both kinds of images.

Id. at 254–255.  The Court rejected the principle that protected
speech may be banned because it is difficult to distinguish from
unprotected speech.  Ibid.  "[T]hat protected speech may be banned
as a means to ban unprotected speech," it said, "turns the First
Amendment upside down."  Id. at 255.  The same principle must be
applied here.  Indeed, it must be applied a fortiori, since laws
targeting political speech are the principal object of the First
Amendment 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.

     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 discussion of issues and candidates and
advocacy of election or defeat of candidates may often dissolve in
practical application."  Ibid.  Any effort to distinguish between
the two based on intent of the speaker or effect of the speech on
the listener would "‘pu[t] the speaker . . . wholly at the mercy
of the varied 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 narrow the statutory
language even further to cover only advertising 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 expenditures,
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 expenditures that skirted
the restriction on express advocacy of election or defeat but
nevertheless benefited the candidate's campaign."  Id. at 45.)
Why did Buckley employ such a "highly strained" reading of the
statute, McConnell, 540 U.S. at 280 (opinion of THOMAS, J.), when
broader readings, more faithful to the text, were available that
might not have resulted in such underinclusiveness?  In
particular, after going to the trouble of narrowing the statute to
cover "advocacy of [the] election or defeat of a candidat[e]," why
not do what the principal opinion in these cases does, which is
essentially to preface that phrase with the phrase "susceptible of
no reasonable interpretation other than as"?  Ante at ___.  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
vagueness in a statutory test, it also must foreclose such
vagueness in an as-applied test.

     Though the principal opinion purports to recognize the
"imperative for clarity" in this area of First Amendment law, its
attempt to distinguish its test from the test found to be vague in
Buckley falls far short.  It claims to be "not so sure" that
Buckley rejected its test because Buckley's holding did not
concern "what the constitutional standard was in the abstract,
divorced from specific statutory language."  Ante at ___, n. 7.
Forget about abstractions:  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 operative 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 ___, n. 7, is
utterly compromised by the fact that the principal opinion itself
relies on the very same vagueness holding to reject an "intent and
effect" test in this case.  See ante at ___ (citing Buckley,
supra, at 43–44).  It is the same vagueness holding, and the
principal opinion cannot invoke it on page ___ of its opinion and
disclaim it on page ___.  Finally, the principal opinion quotes
McConnell for the proposition that "[t]he Buckley Court's ‘express
advocacy restriction was an endpoint of statutory interpretation,
not a first principle of constitutional law.'"  Ante at ___, n. 7
(quoting McConnell, 540 U.S. 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
overbreadth and not vagueness was the issue in McConnell.{5}

     What, then, is to be done?  We could adopt WRTL's proposed
test, under which Sec. 203 may not be applied to any ad (1) that

>focuses on a current legislative branch matter, takes a position
on the matter, and urges the public to ask a legislator to take a
particular position or action with respect to the matter,

and (2) that "does not mention any election, candidacy, political
party, or challenger, or the official's character, qualifications,
or fitness for office," (3) whether or not it "say[s] that the
public official is wrong or right on the issue," so long as it
does not expressly say he is "wrong for [the] office."  Brief for
Appellee 56–57 (footnote omitted).{6}  Or we could of course adopt
the Buckley test of express advocacy.  The problem is that,
although these tests are clear, they are incompatible with
McConnell's holding that Sec. 203 is facially constitutional,
which was premised on the finding that a vast majority of ads
proscribed by Sec. 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 Sec. 203 that Sec. 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
relief to WRTL is incompatible with McConnell's facial holding
because WRTL's ads are in the "heartland" of what Congress 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 altogether 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
indistinguishable from hitherto protected speech.

     The foregoing analysis shows that McConnell was mistaken in
its belief that as-applied challenges could eliminate the
unconstitutional applications of Sec. 203.  They can do so only if
a test is adopted which contradicts the holding of McConnell --
that Sec. 203 is facially valid because the vast majority of pre-
election issue ads can constitutionally be proscribed.  In light
of the weakness in Austin's rationale, and in light of the
longstanding acceptance of the clarity of Buckley's express
advocacy line, it was adventurous for McConnell to extend Austin
beyond corporate speech constituting express advocacy.  Today's
cases make it apparent that the adventure is a flop, and that
McConnell's holding concerning Sec. 203 was wrong.{8}

IV

     Which brings me to the question of stare decisis.  "Stare
decisis is not an inexorable command" or "‘a mechanical formula of
adherence to the latest decision.'"  Payne v. Tennessee, 501 U.S.
808, 828 (1991) (quoting Helvering v. Hallock, 309 U.S. 106, 119
(1940)).  It is instead "‘a principle of policy,'" Payne, supra,
at 828, and this Court has a "considered practice" not to apply
that principle of policy "as rigidly in constitutional as in
nonconstitutional cases."  Glidden Co. v. Zdanok, 370 U.S. 530,
543 (1962).  This Court has not hesitated to overrule decisions
offensive to the First Amendment (a "fixed star in our
constitutional constellation," if there is one, West Virginia Bd.
of Ed. v. Barnette, 319 U.S. 624, 642 (1943)) -- and to do so
promptly where fundamental error was apparent.  Just three years
after our erroneous decision in Minersville School Dist. v.
Gobitis, 310 U.S. 586 (1940), the Court corrected the error in
Barnette.  Overruling a constitutional 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 described above, the
McConnell regime is unworkable because of the inability of any
acceptable as-applied test to validate the facial
constitutionality of Sec. 203 -- that is, its inability to sustain
proscription of the vast majority of issue ads.  We could render
the regime workable only by effectively overruling McConnell
without saying so -- adopting a clear as-applied rule protective
of speech in the "heartland" of what Congress prohibited.  The
promise of an administrable as-applied rule that is both effective
in the vindication of First Amendment rights and consistent with
McConnell's holding is illusory.

     It is not as though McConnell produced a settled body of law.
Indeed, it is far more accurate to say that McConnell unsettled a
body of law.  Not until 1947, with the 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 subsequent pre-
McConnell decisions, with the lone exception of Austin,
disapproved limits on independent expenditures.  The modest
medicine of restoring First Amendment protection to nonexpress
advocacy -- speech that was protected until three Terms ago --
does not unsettle an established body of law.

     Neither do any of the other considerations relevant to stare
decisis suggest adherence to McConnell.  These cases do not
involve property or contract rights, where reliance interests are
involved.  Payne, supra, at 828.  And McConnell's Sec. 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
Sec. 203 has had any cultural impact, it has been to undermine the
traditional and important role of grass roots advocacy in American
politics by burdening the "budget-strapped nonprofit entities upon
which many of our citizens rely for political commentary and
advocacy."  McConnell, 540 U.S. at 340 (opinion of KENNEDY, J.).

     Perhaps overruling this one part of McConnell with respect to
one part of BCRA would not "ai[d] the legislative effort to combat
real or apparent corruption."  Id. at 194.  But the First
Amendment was not designed to facilitate legislation, even wise
legislation.  Indeed, the assessment of former House Minority
Leader Richard Gephardt, a proponent of campaign finance reform,
may well be correct.  He said that "‘[w]hat we have is two
important values in direct conflict:  freedom of speech and our
desire for healthy campaigns in a healthy democracy,'" and "‘[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 assure freedom of political
speech.  And when a statute creates a regime as unworkable and
unconstitutional as today's effort at as-applied review proves
Sec. 203 to be, it is our responsibility to decline enforcement.

*    *    *    *

     There is wondrous irony to be found in both the genesis and
the consequences of BCRA.  In the fact that the institutions it
was designed to muzzle -- unions and nearly all manner 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 incumbents).  In the fact that the
effect of BCRA has been to concentrate more political power in the
hands of the country's wealthiest individuals and their so-called
527 organizations, unregulated by Sec. 203.  (In the 2004 election
cycle, a mere 24 individuals contributed an astounding total of
$142 million to 527s.  S. Weissman & R. Hassan, BCRA and the 527
Groups, in The Election After Reform 79, 92 -- 96 (M. Malbin ed.
2006).)  And in the fact that while these wealthy individuals
dominate political 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
McConnell upholding Sec. 203(a) of BCRA.  Accordingly, I join
Parts I and II of today's principal opinion, and otherwise concur
only in the judgment.

     1. Whitlock, Satirist Continues to Prove Himself a Royal
Pain, Washington Post, Apr. 26, 2005, pp. C1, C8.

     2. BCRA also includes a backup definition of "electioneering
communication" 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. Sec.
434(f)(3)(A)(ii) (2000 ed., Supp. IV).  This defines
"electioneering communication" as

>any broadcast, cable, or satellite communication which promotes
or supports a candidate for [a federal] office, or attacks or
opposes a candidate for that office (regardless of whether the
communication expressly advocates a vote for or against a
candidate) and which also is suggestive of no plausible meaning
other than an exhortation to vote for or against a specific
candidate.

Ibid.

     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. Sec. 441b, which was interpreted to ban
corporate treasury expenditures for express advocacy in connection
with federal elections.  We held that,

>[r]egardless of whether th[e] concern [for unfair advantage to
organizations that amass great wealth] is adequate to support
application of Sec. 441b to commercial enterprises -- a question
not before us -- that justification

did not support application of the statute to the nonprofit
organization that brought the challenge in MCFL.  479 U.S. at 263
(emphasis added).

     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 demonstrated to beget quid pro quo
corruption.  Post at ___, n. 6 (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.

     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 standard set out in the
[principal opinion] impermissibly chills political speech."  Post
at ___ (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. Frederick, ante at ___ (concurring opinion) (emphasis
added).  I would accord the core First Amendment speech at issue
here at least the same respect he accords speech in the classroom.

     6. The principal opinion claims that its test is no more
vague than WRTL's test.  See ante at ___, n. 7.  I disagree.
WRTL's test requires yes or no answers to a series of precise and
focused questions:  does the ad take a position on a legislative
matter?  Does it mention the election?  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 protect 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 (internal quotation marks omitted).  The
claim that Sec. 203 on its face does not reach a substantial
amount of speech protected under the principal opinion's test --
and that the test is therefore compatible with McConnell -- seems
to me indefensible.  Indeed the principal opinion's attempt at
distinguishing McConnell is unpersuasive enough, and the change in
the law it works is substantial enough, that seven Justices of
this Court, having widely divergent views concerning the
constitutionality of the restrictions at issue, agree that the
opinion effectively overrules McConnell without saying so.  See
post at ___ (SOUTER, J., dissenting).  This faux judicial
restraint is judicial obfuscation.

     8. JUSTICE KENNEDY's opinion in McConnell explained why the
possibility of corporations' funding speech out of a PAC does not
save the statute from constitutional infirmity.  See 540 U.S. at
330–333.  McConnell's rejection of those arguments rested, of
course, upon the assumption that for non-PAC genuine issue ads as-
applied challenges would be available.  See id. at 207; WRTL I,
546 U.S. 410, 411–412 (2006) (per curiam).  The discussion today
shows that to be mistaken.  The dissent asserts, post at ___, that
there is no reason

>why substituting 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 allowance of a vote on judicial
nominees.  (Unlike the principal opinion, I think that the fair
import of the ad in context.)

     9. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44
(1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1
(1989)); Adarand Constructors, Inc. v. Pena, 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 Shapiro v. Thompson, 394 U.S.
618 (1969); State Dept. of Health and Rehabilitative Servs. of
Fla. v. Zarate, 407 U.S. 918 (1972), and Sterrett v. Mothers' &
Children's Rights Organization, 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)).

     JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG,
and JUSTICE BREYER join, dissenting.

     The significance and effect of today's judgment, from which I
respectfully dissent, turn on three things:  the demand for
campaign money in huge amounts from large contributors, whose
power has produced a cynical 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 corporate and union
treasuries; and McConnell v. Federal Election Comm'n, 540 U.S. 93
(2003), declaring the facial validity of the most recent Act of
Congress in that tradition, a decision that is effectively, and
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 presidential
candidates (excluding fundraising) went for media time and space.
See The Costliest Campaign, Washington Post, Dec. 30, 2004, p.
A7.{2}  And in the 2005–2006 election 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
candidates had already raised over $150 million.  See Balz,
Fundraising Totals Challenge Early Campaign Assumptions,
Washington Post, Apr. 17, 2007, p. A1 (citing figures and noting
that "[t]he campaign is living up to its reputation as the most
expensive in U.S. history").  To reach this total, the leading
fundraisers collected over $250,000 per day in the first quarter
of 2007, Mullins, Clinton Leads the Money Race, Wall Street
Journal, Apr. 16, 2007, p. A8, and the eventual nominees are
expected to raise $500 million apiece (about $680,000 per day over
a 2-year election cycle), Kirkpatrick and Pilhofer, McCain Lags in
Income But Excels in Spending, Report Shows, N.Y. Times, Apr. 15,
2007, p. 20.

     The indispensability of these huge sums has two 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 interest 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 headlines 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, 540 U.S. at 148, a practice driven "by stark
political pragmatism, not by ideological support for either party
or their candidates," Brief for Committee for Economic Development
et al. as Amici Curiae in McConnell, O.T. 2003, No. 02–1674, p. 3
(hereinafter CED Brief).  What the high-dollar pragmatists of
either variety get is special access to the officials they help
elect, and with it a disproportionate influence on those in power.
See McConnell, supra, at 130–131.  As the erstwhile officer of a
large American corporation put it,

>"[b]usiness leaders believe -- based on experience and with good
reason -- that . . . access gives them an opportunity to shape and
affect governmental decisions and that their ability to do so
derives from the fact that they have given large sums of money to
the parties."

CED Brief 9.  At a critical level, contributions that underwrite
elections are leverage for enormous political influence.

     Voters know this.  Hence, the second important consequence of
the demand for big money to finance publicity:  pervasive public
cynicism.  A 2002 poll found that 71 percent of Americans think
Members of Congress cast votes based on the views of their big
contributors, even when those views differ from the Member's own
beliefs about what is best for the country.  Mellman & Wirthlin
267; see also id. at 266 ("In public opinion research it is
uncommon to have 70 percent or more of the public see an issue the
same way.  When they do, it indicates an unusually strong
agreement on that issue").  The same percentage believes that the
will of contributors tempts Members to vote against the majority
view of their constituents.  Id. at 267.  Almost half of Americans
believe that Members often decide how to vote based on what big
contributors to their party want, while only a quarter think
Members often base their votes on perceptions of what is best for
the country or their constituents.  Ibid.

     Devoting concentrations of money in self-interested hands to
the support of political campaigning therefore threatens the
capacity of this democracy to represent its constituents and the
confidence of its citizens in their capacity to govern themselves.
These are the elements summed up in the notion of political
integrity, giving it a value second to none in a free society.

II

     If the threat to this value flowing from concentrations of
money in politics has reached an unprecedented enormity, it has
been gathering force for generations.  Before the turn of the last
century, as now, it was obvious that the purchase of influence and
the cynicism of voters threaten the integrity and stability of
democratic government, each derived from the responsiveness of its
law to the interests of citizens and their confidence in that
focus.  The danger has traditionally seemed at its apex when no
reasonable limits constrain the campaign activities of
organizations whose "unique legal and economic characteristics"
are tailored to "facilitat[e] the amassing of large treasuries,"
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 658, 660
(1990).  Corporations were the earliest subjects of concern; the
same characteristics that have made them engines of the Nation's
extraordinary prosperity have given them the financial muscle to
gain "advantage in the political marketplace" when they turn from
core corporate activity to electioneering, Federal Election Comm'n
v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 258 (1986)
(MCFL), and in "Congress' judgment" the same concern extends to
labor unions as to corporations, Federal Election Comm'n v.
National Right to Work Comm., 459 U.S. 197, 210 (1982); see also
Austin, supra, at 661.

A

     In the wake of the industrial expansion after the Civil War,
there developed a momentum for civic reform that led to the
enactment of the Pendleton Civil Service Act of 1883, ch. 27, 22
Stat. 403, which stopped political parties from raising money
through compulsory assessments on federal employees.  Not
unnaturally, corporations filled the vacuum, see R. Mutch,
Campaigns, Congress, and Courts xvi–xvii (1988) (hereinafter
Mutch), and in due course demonstrated what concentrated capital
could do.  The resulting political leverage disturbed "the
confidence of the plain people of small means in our political
institutions," E. Root, The Political Use of Money (delivered
Sept. 3, 1894), in Addresses on Government and Citizenship 141,
143–144 (R. Bacon & J. Scott eds. 1916) (cited in United States v.
Automobile Workers, 352 U.S. 567, 571 (1957)), and the 1904
Presidential campaign eventually "crystallized popular sentiment"
on the subject of money and politics, id. at 572.  In his next
message to Congress,