McConnell v. Federal Election Commission
540 U.S. 93
Case Year: 2003
Case Ruling: 5-4
Opinion Justice: O'Connor and Stevens (joint) on primary constitutional issues; Breyer and Rehnquist on secondary issues
Court Opinion Joiner(s):
Breyer, Ginsburg, Souter
1st Concurring Opinion
1st Dissenting Opinion
Joiner(s): Rehnquist, Scalia, Thomas
2nd Concurring Opinion
2nd Dissenting Opinion
3rd Concurring Opinion
3rd Dissenting Opinion
Other Concurring Opinions:
On March 27, 2002, President George W. Bush signed into law the Bipartisan Campaign Reform Act (BCRA), popularly known as the McCain-Feingold law. Named after its primary sponsors senators John McCain, R-Ariz., and Russ Feingold, D-Wisc., the law formally amended the Federal Election Campaign Act (FECA). When passed in 1971, FECA was an attempt to limit the influence of money on U.S. politics by restricting how much individuals and groups can contribute to candidates, parties, and political action committees for use in federal elections. The law also imposed record-keeping requirements and provided for federal funding of presidential election campaigns.
In Buckley v. Valeo (1976), the Supreme Court upheld these key provisions, but struck down others that had limited independent campaign expenditures and candidate expenditures of personal funds. The Court's decision rested on the assumption that to restrict campaign expenditures was equivalent to restricting political speech. In addition, the Court balanced the need to secure the integrity of federal elections against the right to political expression. It concluded that reducing electoral corruption was a sufficient interest to limit campaign contributions, but not to restrict campaign expenditures.
In the years following the implementation of FECA, political strategists developed creative ways to circumvent the law. First, campaign contributors were able to exploit a loophole that distinguished money given to a political campaign from contributions made to political party organizations for "party building" activities or "get out the vote" drives. Amounts of money given to campaign organizations in support of a candidate (called "hard money") were clearly regulated and limited by FECA, but general funds given to political parties (called "soft money") were not. Funded by unregulated soft money, political parties were shrewdly able to develop advertising campaigns that supported the election of candidates without explicit pleas to voters to cast their ballots for specific candidates. As a consequence, the use of soft money to fund campaign activities grew exponentially, undercutting the goals of FECA.
Second, interest groups and other entities launched "issue campaigns"--supposedly to promote certain public policies. These campaigns were unregulated because, at least on their face, they did not urge voters to cast their ballots for any particular candidate. In fact, as long as the advertisements avoided certain "magic words," such as "Vote for John Smith" or "Defeat Nancy Johnson," they were considered issue ads outside the reach of FECA regulation. Such advertisements often promoted or attacked policies or positions clearly associated with specific candidates and even praised or criticized the candidates themselves. They were run during the heat of a political campaign. Again, these activities tended to undermine the policy goals of FECA.
The BCRA is an attempt to plug these loopholes. Title I of the Act deals with the soft money issue. It prohibits the national political parties from raising or spending soft money, bars officeholders and candidates for federal office from soliciting or receiving soft money, and prevents state and local party organizations from spending soft money to promote or attack candidates for federal office. Title II prohibits labor unions and corporations (including incorporated interest groups) from using their general funds to engage in "electioneering communication." Electioneering communication is advertising (primarily televised) that clearly refers to a candidate for federal office that appears within sixty days of a general election or within thirty days of a primary election and targets the relevant constituency. This provision was intended to stop unions and corporations from thinly cloaking candidate funding as issue advocacy. The law also requires comprehensive disclosure and record keeping related to such advertising. Other sections of the act deal with a broad range of less significant issues in which Congress saw the existing campaign laws to be in need of reform.
In order to compensate political organizations for the loss of soft money, the law increases the ceiling on hard money contributions. Individuals can give up to $2,000 per election to a candidate, $5,000 annually to a political action committee, $10,000 annually to a state or local party, and $25,000 annually to a national political party. In aggregate, such contributions cannot exceed $95,000 per two-year election cycle (with limits of $37,500 to candidates and $57,500 to groups, such as national party organizations and political actions committees). Higher limits are allowed for individual contributions to candidates running against wealthy opponents financing their own campaigns. Contribution limitations for multicandidate committees ($5,000 to a candidate per election, $5,000 annually to a political action committee, $15,000 annually to a national party) and for other political committees ($1,000 to a candidate per election, $5,000 to a political action committee, $20,000 annually to a national party) were not changed from the earlier FECA ceilings.
Immediately after it became effective, BCRA was challenged in court by a number of individuals and organizations. The challengers included competing interests that rarely found themselves on the same side of public policy issues: the National Rifle Association, the National Right to Life Committee, the American Civil Liberties Union, the California Democratic Party, the Republican National Committee, the Chamber of Commerce of the United States, and the AFL/CIO. All believed that the new law violated the First Amendment. The soft money and issue advocacy provisions were the most vigorously attacked by opponents.
The cases were consolidated in the district court, with the lawsuit filed by Senator Mitch McConnell, R-Ky., designated as the lead case. In May 2003 a divided three-judge district court struck down nine of twenty challenged provisions in the act. The opinion ran over 1,600 pages. Parties on both sides of the case were dissatisfied with the ruling, and direct appeals were made to the Supreme Court. The importance of the case led the Supreme Court to hold a special hearing in September 2003 to consider the case. It issued its ruling in December, and the opinions approached three hundred pages in length. The Court's response to the primary constitutional issues is excerpted here.
JUSTICE STEVENS AND JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT WITH RESPECT TO BCRA TITLES I AND II.
. . .BCRA is the most recent federal enactment designed "to purge national politics of what was conceived to be the pernicious influence of 'big money' campaign contributions.". . .
In 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal elections. The report gave particular attention to the effect of soft money on the American political system, including elected officials' practice of granting special access in return for political contributions.
The committee's principal findings relating to Democratic Party fundraising were set forth in the majority's report, while the minority report primarily described Republican practices. The two reports reached consensus, however, on certain central propositions. They agreed that the "soft money loophole" had led to a "meltdown" of the campaign finance system that had been intended "to keep corporate, union and large individual contributions from influencing the electoral process." One Senator stated that "the hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble.". . .
In 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal elections. The Committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns. The ads thus provided a means for evading FECA's candidate contribution limits. . ..
The report discussed potential reforms, including a ban on soft money at the national and state party levels and restrictions on sham issue advocacy by nonparty groups. . ..
In BCRA, Congress enacted many of the committee's proposed reforms. BCRA's central provisions are designed to address Congress' concerns about the increasing use of soft money and issue advertising to influence federal elections. Title I regulates the use of soft money by political parties, officeholders, and candidates. Title II primarily prohibits corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections. . ..
Title I is Congress' effort to plug the soft-money loophole. The cornerstone of Title I is new FECA §323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. . .. In short, §323(a) takes national parties out of the soft-money business. . ..
Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits--interests in preventing "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption."...We have said that these interests directly implicate "the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process."...Because the electoral process is the very "means through which a free society democratically translates political speech into concrete governmental action," ...contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate. For that reason, when reviewing Congress' decision to enact contribution limits, "there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words 'strict scrutiny.'"...The less rigorous standard of review we have applied to contribution limits (Buckley's "closely drawn" scrutiny) shows proper deference to Congress' ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. It also provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process. . ..
The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress' belief that they do. ... [T]he FEC's allocation regime has invited widespread circumvention of FECA's limits on contributions to parties for the purpose of influencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate's federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.
The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA's hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees "solely in order to assist federal campaigns," including the officeholder's own. . .. Parties kept tallies of the amounts of soft money raised by each officeholder, and "the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Member's campaign."...Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. . .. National party committees often teamed with individual candidates' campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party's higher contribution limits while still allowing donors to give to their preferred candidate. . .. Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders. . ..
For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D.C., stated in his declaration:
"'You are doing a favor for somebody by making a large [soft-money] donation and they appreciate it. Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for someone--that is, write a larger check--and they feel even more compelled to reciprocate. In my experience, overt words are rarely exchanged about contributions, but people do have understandings.'". . .
Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology. . ..
Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress' failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. . .. To claim that such actions do not change legislative outcomes surely misunderstands the legislative process.
More importantly, plaintiffs conceive of corruption too narrowly. . ..
...This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation. . ..
In sum, there is substantial evidence to support Congress' determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption.
Title II of BCRA [is] entitled "Noncandidate Campaign Expenditures. . ..
...[W]e must examine the degree to which [Title II] burdens First Amendment expression and evaluate whether a compelling governmental interest justifies that burden. . .. The latter question--whether the state interest is compelling--is easily answered by our prior decisions regarding campaign finance regulation, which "represent respect for the 'legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.'"...We have repeatedly sustained legislation aimed at "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.". . .
In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, "the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office," Monitor Patriot Co. v. Roy (1971), and "[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation." Buckley. Rather, plaintiffs 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. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. . .. Nevertheless, the vast majority of ads clearly had such a purpose. . .. Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.
We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA §316(b)(2) is overbroad. . .. Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not "justify prohibiting all enforcement" of the law unless its application to protected speech is substantial, "not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications."Virginia v. Hicks (2003). Far from establishing that BCRA's application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.
Plaintiffs also argue that FECA §316(b)(2) 's segregated-fund requirement for electioneering communications is underinclusive because it does not apply to advertising in the print media or on the Internet. . .. The records developed in this litigation and by the Senate Committee adequately explain the reasons for this legislative choice. Congress found that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately preceding federal elections, and that remedial legislation was needed to stanch that flow of money. . .. As we held in Buckley, "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." One might just as well argue that the electioneering communication definition is underinclusive because it leaves advertising 61 days in advance of an election entirely unregulated. The record amply justifies Congress' line drawing.
In addition to arguing that §316(b)(2)'s segregated-fund requirement is underinclusive, some plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA §304(f)(3)(B)(i) excludes from the definition of electioneering communications any "communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate."...Plaintiffs argue this provision gives free rein to media companies to engage in speech without resort to PAC money. Section 304(f)(3)(B)(i)'s effect, however, is much narrower than plaintiffs suggest. The provision excepts news items and commentary only; it does not afford carte blanche to media companies generally to ignore FECA's provisions. The statute's narrow exception is wholly consistent with First Amendment principles. "A valid distinction ... exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public."...Numerous federal statutes have drawn this distinction to ensure that the law "does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events.". . .
Many years ago we observed that "[t]o say that Congress is without power to pass appropriate legislation to safeguard ... an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection." Burroughs v. United States. We abide by that conviction in considering Congress' most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. In the main we uphold BCRA's two principal, complementary features: the control of soft money and the regulation of electioneering communications. . ..
It is so ordered.
Error accessing [Note: In separate majority opinions, Chief Justice Rehnquist and Justice Breyer announced the Court's decisions on less significant portions of BCRA. Rehnquist's opinion dealt with miscellaneous provisions in Title III and IV. Most importantly, his opinion struck down as unconstitutional the law's ban on political contributions by individuals under eighteen years of age. Breyer wrote upholding Title V provisions requiring broadcasters to keep comprehensive records of political advertising activity.], Note is an unknown datasource.
CHIEF JUSTICE REHNQUIST, DISSENTING. . ..
...The issue presented by Title I is not, as the Court implies, whether Congress can permissibly regulate campaign contributions to candidates, de facto or otherwise, or seek to eliminate corruption in the political process. Rather, the issue is whether Congress can permissibly regulate much speech that has no plausible connection to candidate contributions or corruption to achieve those goals. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are "closely drawn" to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo. Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as "do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders."...Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.
The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from "solicit[ing]," "receiv[ing]," "direct[ing] to another person," and "spend[ing]" any funds not subject to federal regulation, even if those funds are used for nonelection related activities. . .. The Court concludes that such a restriction is justified because under FECA, "donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate's federal election."...Accordingly, "[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude."...But the Court misses the point. Certainly "infusions of money into [candidates'] campaigns," ...can be regulated, but §323(a) does not regulate only donations given to influence a particular federal election; it regulates all donations to national political committees, no matter the use to which the funds are put.
The Court attempts to sidestep the unprecedented breadth of this regulation by stating that the "close relationship between federal officeholders and the national parties" makes all donations to the national parties "suspect."...But a close association with others, especially in the realm of political speech, is not a surrogate for corruption; it is one of our most treasured First Amendment rights. . .. The Court's willingness to impute corruption on the basis of a relationship greatly infringes associational rights and expands Congress' ability to regulate political speech. . ..
The Court fails to recognize that the national political parties are exemplars of political speech at all levels of government, in addition to effective fundraisers for federal candidates and officeholders. For sure, national political party committees exist in large part to elect federal candidates, but as a majority of the District Court found, they also promote coordinated political messages and participate in public policy debates unrelated to federal elections, promote, even in off-year elections, state and local candidates and seek to influence policy at those levels, and increase public participation in the electoral process. . .. Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. . ..
As these activities illustrate, political parties often foster speech crucial to a healthy democracy ...and fulfill the need for like-minded individuals to ban together and promote a political philosophy. . .. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities. . ..
JUSTICE SCALIA, ...DISSENTING IN PART. . ..
...This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography,Ashcroft v. Free Speech Coalition (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc. (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of "soft" money to fund "issue ads" that incumbents find so offensive.
To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If allelectioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.
Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much "hard money"--the sort of funding generally not restricted by this legislation--as do their challengers?...Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in "hard" contributions?...Is it an oversight, do you suppose, that the so-called "millionaire provisions" raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election "war chest"?...And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents?. . .
...This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce "fairer" campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. . .. Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. . ..
...The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues:
"This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system." ...(statement of Sen. Feingold).
The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents' writing of the rules of political debate. The federal election campaign laws, which are already (as today's opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come--and always, always, with the objective of reducing the excessive amount of speech.
JUSTICE THOMAS, [CONCURRING IN PART AND DISSENTING IN PART].
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." Nevertheless, the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War. With breathtaking scope, the Bipartisan Campaign Reform Act of 2002 (BCRA), directly targets and constricts core political speech, the "primary object of First Amendment protection."...Because "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office," ...our duty is to approach these restrictions "with the utmost skepticism" and subject them to the "strictest scrutiny.". . .
In response to this assault on the free exchange of ideas and with only the slightest consideration of the appropriate standard of review or of the Court's traditional role of protecting First Amendment freedoms, the Court has placed itsimprimatur on these unprecedented restrictions. The very "purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." Red Lion Broadcasting Co. v. FCC (1969). Yet today the fundamental principle that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," Abrams v. United States (1919) (Holmes, J., dissenting), is cast aside in the purported service of preventing "corruption," or the mere "appearance of corruption." Buckley v. Valeo (1976). Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan (1964); nude dancers, Barnes v. Glen Theatre, Inc. (1991); pornographers, Ashcroft v. Free Speech Coalition (2002); flag burners, United States v. Eichman (1990); and cross burners,Virginia v. Black (2003). . ..
The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. "This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations."...Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. In terms of "the corrosive and distorting effects" of wealth accumulated by corporations that has "little or no correlation to the public's support for the corporation's political ideas,"...there is no distinction between a media corporation and a nonmedia corporation.Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is "too influential," and that the "appearance of corruption" is significant when media organizations endorse candidates or run "slanted" or "biased" news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy "circumvention" of the limitations of the current campaign finance laws?. . .
Hence, "the freedom of the press," described as "one of the greatest bulwarks of liberty," ...could be next on the chopping block. Although today's opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court's reasoning in that setting. The press now operates at the whim of Congress.
JUSTICE KENNEDY, [CONCURRING IN PART AND DISSENTING IN PART].
The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. . ..
Today's decision upholding these laws purports simply to follow Buckley v. Valeo (1976) and to abide by stare decisis, ...but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today's decision, the Court surpasses Buckley's limits and expands Congress' regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech. . ..
Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations. . ..
The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and the Government may not prescribe the means used to conduct it.
The First Amendment commands that Congress "shall make no law ... abridging the freedom of speech." The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. Our pluralistic society is filled with voices expressing new and different viewpoints, speaking through modes and mechanisms that must be allowed to change in response to the demands of an interested public. As communities have grown and technology has evolved, concerted speech not only has become more effective than a single voice but also has become the natural preference and efficacious choice for many Americans. The Court, upholding multiple laws that suppress both spontaneous and concerted speech, leaves us less free than before. Today's decision breaks faith with our tradition of robust and unfettered debate.