# Austin v. Michigan Chamber of Commerce/Concurrence Stevens

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Brennan Stevens
* Dissenting Opinions Scalia Kennedy
* Wikipedia article
Justice STEVENS, concurring.
In my opinion the distinction between individual expenditures and individual contributions that the Court identified in Buckley v. Valeo, 424 U.S. 1, 45-47, 96 S.Ct. 612, 647-648, 46 L.Ed.2d 659 (1976), should have little, if any, weight in reviewing corporate participation in candidate elections. In that context, I believe the danger of either the fact, or the appearance, of quid pro quo relationships provides an adequate justification for state regulation of both expenditures and contributions. Moreover, as we recognized in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), there 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. #fn-s Accordingly, I join the Court's opinion and judgment.
Justice SCALIA, dissenting.
"Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: _____." In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the "fairness" of political debate.
* A.
The Court's opinion says that political speech of corporations can be regulated because "[s]tate law grants [them] special advantages," ante, at 658, and because this "unique state-conferred corporate structure . . . facilitates the amassing of large treasuries," ante, at 660. This analysis seeks to create one good argument by combining two bad ones. Those individuals who form that type of voluntary association known as a corporation are, to be sure, given special advantages-notably, the immunization of their personal fortunes from liability for the actions of the association-that the State is under no obligation to confer. But so are other associations and private individuals given all sorts of special advantages that the State need not confer, ranging from tax breaks to contract awards to public employment to outright cash subsidies. It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights. See Pickering v. Board of Education of Township High School Dist. No. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). The categorical suspension of the right of any person, or of any association of persons, to speak out on political matters must be justified by a compelling state need. See Buckley v. Valeo, 424 U.S. 1, 44-45, 96 S.Ct. 612, 646-647, 46 L.Ed.2d 659 (1976) (per curiam ). That is why the Court puts forward its second bad argument, the fact that corporations "amas[s] large treasuries." But that alone is also not sufficient justification for the suppression of political speech, unless one thinks it would be lawful to prohibit men and women whose net worth is above a certain figure from endorsing political candidates. Neither of these two flawed arguments is improved by combining them and saying, as the Court in effect does, that "since the State gives special advantages to these voluntary associations, and since they thereby amass vast wealth, they may be required to abandon their right of political speech." #fn-s-1
The Court's extensive reliance upon the fact that the objects of this speech restriction, corporations, receive "special advantages" is in stark contrast to our opinion issued just six years ago in FCC v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). In that decision, striking down a congressionally imposed ban upon editorializing by noncommercial broadcasting stations that receive federal funds, the only respect in which we considered the receipt of that "special advantage" relevant was in determining whether the speech limitation could be justified under Congress' spending power, as a means of assuring that the subsidy was devoted only to the purposes Congress intended, which did not include political editorializing. We held it could not be justified on that basis, since "a noncommercial educational station that receives only 1% of its overall income from [federal] grants is barred absolutely from all editorializing. . . . The station has no way of limiting the use of its federal funds to all noneditorializing activities, and, more importantly, it is barred from using even wholly private funds to finance its editorial activity." Id., at 400, 104 S.Ct., at 3127. Of course the same is true here, even assuming that tax exemptions and other benefits accorded to incorporated associations constitute an exercise of the spending power. It is not just that portion of the corporation's assets attributable to the gratuitously conferred "special advantages" that is prohibited from being used for political endorsements, but all of the corporation's assets. I am at a loss to explain the vast difference between the treatment of the present case and League of Women Voters. Commercial corporations may not have a public persona as sympathetic as that of public broadcasters, but they are no less entitled to this Court's concern.
As for the second part of the Court's argumentation, the fact that corporations (or at least some of them) possess "massive wealth": Certain uses of "massive wealth" in the electoral process-whether or not the wealth is the result of "special advantages" conferred by the State-pose a substantial risk of corruption which constitutes a compelling need for the regulation of speech. Such a risk plainly exists when the wealth is given directly to the political candidate, to be used under his direction and control. We held in Buckley v. Valeo, supra, however, that independent expenditures to express the political views of individuals and associations do not raise a sufficient threat of corruption to justify prohibition. Id., at 45, 96 S.Ct., at 647. Neither the Court's opinion nor either of the concurrences makes any effort to distinguish that case-except, perhaps, by misdescribing the case as involving "federal laws regulating individual donors," ante, at 659, or as involving "individual expenditures," ante, at 678 (STEVENS, J., concurring). Section 608(e)(1) of the Federal Election Campaign Act of 1971, 18 U.S.C. § 608(e)(1) (1970 ed., Supp. V), which we found unconstitutional in Buckley, was directed, like the Michigan law before us here, to expenditures made for the purpose of advocating the election or defeat of a particular candidate, see 424 U.S., at 42, 96 S.Ct., at 645. It limited to $1,000 (a lesser restriction than the absolute prohibition at issue here) such expenditures not merely by "individuals," but by "persons," specifically defined to include corporations. See id., at 187, 96 S.Ct., at 712 (setting forth § 591(g) of the statute). The plaintiffs in the case included corporations, see id., at 8, 96 S.Ct., at 629, and we specifically discussed § 608(e)(1) as a restriction addressed not just to individuals but to "individuals and groups," id., at 39, 48, 96 S.Ct., at 648, "persons and groups," id., at 45, 96 S.Ct., at 647, "persons and organizations," ibid., "person[s] [and] association[s]," id., at 50, 96 S.Ct., at 650. In support of our determination that the restriction was "wholly at odds with the guarantees of the First Amendment" we cited Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), which involved limitations upon a corporation. 424 U.S., at 50, 96 S.Ct., at 650. Of course, if § 608(e)(1) had been unconstitutional only as applied to individuals and not as applied to corporations, we might nonetheless have invalidated it in toto for substantial overbreadth, see Broadrick v. Oklahoma, 413 U.S. 601, 611-613, 93 S.Ct. 2908, 2915-2916, 37 L.Ed.2d 830 (1973), but there is not a hint of that doctrine in our opinion. Our First Amendment law is much less certain than I had thought it to be if we are free to recharacterize each clear holding as a disguised "overbreadth" determination.
Buckley v. Valeo should not be overruled, because it is entirely correct. The contention that prohibiting overt advocacy for or against a political candidate satisfies a "compelling need" to avoid "corruption" is easily dismissed. As we said in Buckley, "[i]t would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign." 424 U.S., at 45, 96 S.Ct., at 647. Independent advocacy, moreover, unlike contributions, "may well provide little assistance to the candidate's campaign and indeed may prove counterproductive," thus reducing the danger that it will be exchanged "as a quid pro quo for improper commitments from the candidate." Id., at 47, 96 S.Ct., at 648. The latter point seems even more plainly true with respect to corporate advocates than it is with respect to individuals. I expect I could count on the fingers of one hand the candidates who would generally welcome, much less negotiate for, a formal endorsement by AT & T or General Motors. The advocacy of such entities that have "amassed great wealth" will be effective only to the extent that it brings to the people's attention ideas which despite the invariably self-interested and probably uncongenial source-strike them as true.
The Court does not try to defend the proposition that independent advocacy poses a substantial risk of political "corruption," as English speakers understand that term. Rather, it asserts that that concept (which it defines as " 'financial quid pro quo ' corruption," ante, at 659) is really just a narrow subspecies of a hitherto unrecognized genus of political corruption. "Michigan's regulation," we are told, "aims at 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 corporations's political ideas." Ibid. Under this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption-by simply describing its effects as politically "corrosive," which is close enough to "corruptive" to qualify. It is sad to think that the First Amendment will ultimately be brought down not by brute force but by poetic metaphor.
The Court's opinion ultimately rests upon that proposition whose violation constitutes the "New Corruption": Expenditures must "reflect actual public support for the political ideas espoused." Ibid. This illiberal free-speech principle of "one man, one minute" was proposed and soundly rejected in Buckley:
"It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608(e)(1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed 'to secure "the widest possible dissemination of information from diverse and antagonistic sources," ' and ' "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." ' " 424 U.S., at 48-49, 96 S.Ct., at 648-649 (citations omitted).
But it can be said that I have not accurately quoted today's decision. It does not endorse the proposition that government may ensure that expenditures "reflect actual public support for the political ideas espoused," but only the more limited proposition that government may ensure that expenditures "reflect actual public support for the political ideas espoused by corporations." Ante, at 660 (emphasis added). The limitation is of course entirely irrational. Why is it perfectly all right if advocacy by an individual billionaire is out of proportion with "actual public support" for his positions? There is no explanation, except the effort I described at the outset of this discussion to make one valid proposition out of two invalid ones: When the vessel labeled "corruption" begins to founder under weight too great to be logically sustained, the argumentation jumps to the good ship "special privilege"; and when that in turn begins to go down, it returns to "corruption." Thus hopping back and forth between the two, the argumentation may survive but makes no headway towards port, where its conclusion waits in vain.
Justice BRENNAN's concurrence would have us believe that the prohibition adopted by Michigan and approved by the Court is a paternalistic measure to protect the corporate shareholders of America. It is designed, we are told, "to avert [the] danger" that "corporate funds drawn from the general treasury-which represents, after all, [the shareholder's] money," might be used on behalf of a political candidate he opposes. Ante, at 670 (BRENNAN, J., concurring). But such solicitude is a most implausible explanation for the Michigan statute, inasmuch as it permits corporations to take as many ideological and political positions as they please, so long as they are not "in assistance of, or in opposition to, the nomination or election of a candidate." Mich.Comp. Laws § 169.206(1) (1979). That is indeed the Court's sole basis for distinguishing First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), which invalidated restriction of a corporation's general political speech. The Michigan law appears to be designed, in other words, neither to protect shareholders, nor even (impermissibly) to "balance" general political debate, but to protect political candidates. Given the degree of political sophistication that ought to attend the exercise of our constitutional responsibilities, it is regrettable that this should come as a surprise.
But even if the object of the prohibition could plausibly be portrayed as the protection of shareholders (which the Court's opinion, at least, does not even assert), that would not suffice as a "compelling need" to support this blatant restriction upon core political speech. A person becomes a member of that form of association known as a for-profit corporation in order to pursue economic objectives, i.e., to make money. Some corporate charters may specify the line of commerce to which the company is limited, but even that can be amended by shareholder vote. Thus, in joining such an association, the shareholder knows that management may take any action that is ultimately in accord with what the majority (or a specified supermajority) of the shareholders wishes, so long as that action is designed to make a profit. That is the deal. The corporate actions to which the shareholder exposes himself, therefore, include many things that he may find politically or ideologically uncongenial: investment in South Africa, operation of an abortion clinic, publication of a pornographic magazine, or even publication of a newspaper that adopts absurd political views and makes catastrophic political endorsements. His only protections against such assaults upon his ideological commitments are (1) his ability to persuade a majority (or the requisite minority) of his fellow shareholders that the action should not be taken, and ultimately (2) his ability to sell his stock. (The latter course, by the way, does not ordinarily involve the severe psychic trauma or economic disaster that Justice BRENNAN's opinion suggests.) It seems to me entirely fanciful, in other words, to suggest that the Michigan statute makes any significant contribution toward insulating the exclusively profit-motivated shareholder from the rude world of politics and ideology.
But even if that were not fanciful, it would be fanciful to think, as Justice BRENNAN's opinion assumes, that there is any difference between for-profit and not-for-profit corporations insofar as the need for protection of the individual member's ideological psyche is concerned. Would it be any more upsetting to a shareholder of General Motors that it endorsed the election of Henry Wallace (to stay comfortably in the past) than it would be to a member of the American Civil Liberties Union that it endorsed the election of George Wallace? I should think much less so. Yet in the one case as in the other, the only protection against association-induced trauma is the will of the majority and, in the last analysis, withdrawal from membership.
In Part V of its opinion, the Court accurately sets forth our longstanding First Amendment law as follows:
"Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest." Ante, at 666.
The Court finds this requirement fully met for the following reason:
"As we explained in the context of our discussions of whether the statute was overinclusive, supra, at 660-661, or underinclusive, supra, at 665 and this page, the State's decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political 'war chests' amassed with the aid of the legal advantages given to corporations." Ibid.
That state interest (assuming it is compelling) does indeed explain why the State chose to silence "only corporations" rather than wealthy individuals as well. But it does not explain (what "narrow tailoring" pertains to) why the State chose to silence all corporations, rather than just those that possess great wealth. If narrow tailoring means anything, surely it must mean that action taken to counter the effect of amassed "war chests" must be targeted, if possible, at amassed "war chests." And surely such targeting is possible-either in the manner accomplished by the provision that we invalidated in Buckley, i.e., by limiting the prohibition to independent expenditures above a certain amount, or in some other manner, e.g., by limiting the expenditures of only those corporations with more than a certain amount of net worth or annual profit.
No more satisfactory explanation for the obvious lack of "narrow tailoring" is to be found in the Court's discussion of overinclusiveness, to which the above-quoted passage refers. That discussion asserts that we "rejected a similar argument" in FEC v. National Right to Work Comm., 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (NRWC ), where we said that " 'we accept Congress' judgment' " that " 'the special characteristics of the corporate structure' " create a " 'potential for . . . influence thatdemands regulation.' " Ante, at 661, quoting 459 U.S., at 209-210, 103 S.Ct., at 560 (emphasis added by the Court). Today's opinion then continues: "Although some closely held corporations, just as some publicly held ones, may not have accumulated significant amounts of wealth, they receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process. This potential for distortion justifies § 54(1)'s general applicability to all corporations." Ante, at 661.
The Court thus holds, for the first time since Justice Holmes left the bench, that a direct restriction upon speech is narrowly enough tailored if it extends to speech that has the mere potential for producing social harm. NRWC (which in any event involved not a direct restriction upon corporate speech but a restriction upon corporate solicitation of funds for candidates) is no authority for that startling proposition, since it did not purport to be applying the First Amendment narrow-tailoring requirement. The principle the Court abandons today-that the mere potential for harm does not justify a restriction upon speech-had its origin in the "clear and present danger" test devised by Justice Holmes in 1919, see Schenck v. United States, 249 U.S. 47, 49-51, 39 S.Ct. 247, 248, 63 L.Ed. 470, and championed by him and Justice Brandeis over the next decade in a series of famous opinions opposing the affirmance of convictions for subversive speech, see Abrams v. United States, 250 U.S. 616, 624, 40 S.Ct. 17, 20, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting); Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357, 374, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). The Court finally adopted their view in 1937, see Herndon v. Lowry, 301 U.S. 242, 258, 57 S.Ct. 732, 739, 81 L.Ed. 1066; see also Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941); Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093 (1940); West Virginia Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943); Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949). Today's reversal of field will require adjustment of a fairly large number of significant First Amendment holdings. Presumably the State may now convict individuals for selling books found to have a potentially harmful influence on minors, Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), ban indecent telephone communications that have the potential for reaching minors, Sable Communications of California v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), restrain the press from publishing information that has the potential for jeopardizing a criminal defendant's right to a fair trial, Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), or the potential for damaging the reputation of the subject of an investigation, Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), compel publication of the membership lists of organizations that have a potential for illegal activity, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958), and compel an applicant for bar membership to reveal her political beliefs and affiliations to eliminate the potential for subversive activity, Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971).
It is perplexing, or perhaps revealing, to compare the Court's cavalier treatment of the narrow-tailoring requirement today with its elaborate discussion of that issue six years ago in League of Women Voters. See 468 U.S., at 392-395, 397-398, 104 S.Ct. 3106, 3126, 82 L.Ed.2d 278. As my earlier discussion makes clear, it would make no difference if the law were narrowly tailored to serve its goal, since that goal is not compelling. But the fact that, even having made that first error, the Court must make yet a second in order to reach today's judgment suggests what an impregnable fortress our First Amendment jurisprudence has been. The Court's explicit acceptance of "potential danger" as adequate to establish narrow tailoring, even more than its recognition of an insubstantial interests as "compelling," greatly weakens those defenses.
Finally, a few words are in order concerning the Court's approval of the Michigan law's exception for "media corporations." This is all right, we are told, because of "the unique role that the press plays in 'informing and educating the public, offering criticism, and providing a forum for discussion and debate.' " Ante, at 667 (citation omitted). But if one believes in the Court's rationale of "compelling state need" to prevent amassed corporate wealth from skewing the political debate, surely that "unique role" of the press does not give Michigan justification for excluding media corporations from coverage, but provides especially strong reason to include them. Amassed corporate wealth that regularly sits astride the ordinary channels of information is much more likely to produce the New Corruption (too much of one point of view) than amassed corporate wealth that is generally busy making money elsewhere. Such media corporations not only have vastly greater power to perpetrate the evil of overinforming, they also have vastly greater opportunity. General Motors, after all, will risk a stockholder suit if it makes a political endorsement that is not plausibly tied to its ability to make money for its shareholders. But media corporations make money by making political commentary, including endorsements. For them, unlike any other corporations, the whole world of politics and ideology is fair game. Yet the Court tells us that it is reasonable to exclude media corporations, rather than target them specially.
Members of the institutional press, despite the Court's approval of their illogical exemption from the Michigan law, will find little reason for comfort in today's decision. The theory of New Corruption it espouses is a dagger at their throats. The Court today holds merely that media corporations may be excluded from the Michigan law, not that they must be. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers. See Bellotti, 435 U.S., at 782, 98 S.Ct., at 1418, and cases cited. Thus, the Court's holding on this point must be put in the following unencouraging form: "Although the press' unique societal role may not entitle the press to greater protection under the Constitution, Bellotti, supra, at 782, 98 S.Ct., at 1418, and n. 18, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure limitations." Ante, at 668. One must hope, I suppose, that Michigan will continue to provide this generous and voluntary exemption.
I would not do justice to the significance of today's decision to discuss only its lapses from case precedent and logic. Infinitely more important than that is its departure from long-accepted premises of our political system regarding the benevolence that can be expected of government in managing the arena of public debate, and the danger that is to be anticipated from powerful private institutions that compete with government, and with one another, within that arena.
Perhaps the Michigan law before us here has an unqualifiedly noble objective-to "equalize" the political debate by preventing disproportionate expression of corporations' points of view. But governmental abridgment of liberty is always undertaken with the very best of announced objectives (dictators promise to bring order, not tyranny), and often with the very best of genuinely intended objectives (zealous policemen conduct unlawful searches in order to put dangerous felons behind bars). The premise of our Bill of Rights, however, is that there are some things-even some seemingly desirable things-that government cannot be trusted to do. The very first of these is establishing the restrictions upon speech that will assure "fair" political debate. The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition. Perhaps the Michigan Legislature was genuinely trying to assure a "balanced" presentation of political views; on the other hand, perhaps it was trying to give unincorporated unions (a not insubstantial force in Michigan) political advantage over major employers. Or perhaps it was trying to assure a "balanced" presentation because it knows that with evenly balanced speech incumbent officeholders generally win. The fundamental approach of the First Amendment, I had always thought, was to assume the worst, and to rule the regulation of political speech "for fairness' sake" simply out of bounds.
I doubt that those who framed and adopted the First Amendment would agree that avoiding the New Corruption, that is, calibrating political speech to the degree of public opinion that supports it, is even a desirable objective, much less one that is important enough to qualify as a compelling state interest. Those Founders designed, of course, a system in which popular ideas would ultimately prevail; but also, through the First Amendment, a system in which true ideas could readily become popular. For the latter purpose, the calibration that the Court today endorses is precisely backwards: To the extent a valid proposition has scant public support, it should have wider rather than narrower public circulation. I am confident, in other words, that Jefferson and Madison would not have sat at these controls; but if they did, they would have turned them in the opposite direction.
Ah, but then there is the special element of corporate wealth: What would the Founders have thought of that? They would have endorsed, I think, what Tocqueville wrote in 1835:
"When the members of an aristocratic community adopt a new opinion or conceive a new sentiment, they give it a station, as it were, beside themselves, upon the lofty platform where they stand; and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around. In democratic countries the governing power alone is naturally in a condition to act in this manner; but it is easy to see that its action is always inadequate, and often dangerous. . . . No sooner does a government attempt to go beyond its political sphere and to enter upon this new track than it exercises, even unintentionally, an insupportable tyranny. . . . Worse still will be the case if the government really believes itself interested in preventing all circulation of ideas; it will then stand motionless and oppressed by the heaviness of voluntary torpor. Governments, therefore, should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away." 2 A. de Tocqueville, Democracy in America 109 (P. Bradley ed. 1948).
While Tocqueville was discussing "circulation of ideas" in general, what he wrote is also true of candidate endorsements in particular. To eliminate voluntary associations-not only including powerful ones, but especially including powerful ones from the public debate is either to augment the always dominant power of government or to impoverish the public debate. The case at hand is a good enough example. Why should the Michigan voters in the 93d House District be deprived of the information that private associations owning and operating a vast percentage of the industry of the State, and employing a large number of its citizens, believe that the election of a particular candidate is important to their prosperity? Contrary to the Court's suggestion, the same point cannot effectively be made through corporate PACs to which individuals may voluntarily contribute. It is important to the message that it represents the views of Michigan's leading corporations as corporations, occupying the "lofty platform" that they do within the economic life of the State-not just the views of some other voluntary associations to which some of the corporations' shareholders belong.
Despite all the talk about "corruption and the appearance of corruption"-evils that are not significantly implicated and that can be avoided in many other ways-it is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing but to prevent speech. Since those private associations known as corporations have so much money, they will speak so much more, and their views will be given inordinate prominence in election campaigns. This is not an argument that our democratic traditions allow-neither with respect to individuals associated in corporations nor with respect to other categories of individuals whose speech may be "unduly" extensive (because they are rich) or "unduly" persuasive (because they are movie stars) or "unduly" respected (because they are clergymen). The premise of our system is that there is no such thing as too much speech-that the people are not foolish but intelligent, and will separate the wheat from the chaff. As conceded in Lincoln's aphorism about fooling "all of the people some of the time," that premise will not invariably accord with reality; but it will assuredly do so much more frequently than the premise the Court today embraces: that a healthy democratic system can survive the legislative power to prescribe how much political speech is too much, who may speak, and who may not.
Because today's decision is inconsistent with unrepudiated legal judgments of our Court, but even more because it is incompatible with the unrepealable political wisdom of our First Amendment, I dissent.
Justice KENNEDY, with whom Justice O'CONNOR and Justice SCALIA join, dissenting.
The majority opinion validates not one censorship of speech but two. One is Michigan's content-based law which decrees it a crime for a nonprofit corporate speaker to endorse or oppose candidates for Michigan public office. By permitting the statute to stand, the Court upholds a direct restriction on the independent expenditure of funds for political speech for the first time in its history.
The other censorship scheme, I most regret to say, is of our own creation. It is value-laden, content-based speech suppression that permits some nonprofit corporate groups, but not others, to engage in political speech. After failing to disguise its animosity and distrust for the particular kind of political speech here at issue-the qualifications of a candidate to understand economic matters-the Court adopts a rule that allows Michigan to stifle the voices of some of the most respected groups in public life on subjects central to the integrity of our democratic system. Each of these schemes is repugnant to the First Amendment and contradicts its central guarantee, the freedom to speak in the electoral process. I dissent.
* To understand the force of the Michigan statutory censorship scheme, one need not go beyond the facts of the case before us. The Michigan Chamber of Commerce (Chamber) is a nonprofit corporation with an interest in candidates and public policy issues throughout the State of Michigan. The Chamber sought, on its own initiative and without communication with the candidate, to place a newspaper advertisement in support of one Richard Bandstra, a candidate for the House of Representatives in Michigan. (The proposed advertisement is reproduced in the Appendix to this opinion.) The advertisement discussed the local economy and unemployment and explained why the candidate supported by the Chamber would understand and improve local economic conditions. This communication is banned by the law here in question, the Michigan Campaign Finance Act (Act), 1976 Mich.Pub. Acts 388, Mich.Comp. Laws § 169.201 et seq. (1979).
The Act prohibits "a corporation," including a non-profit corporation, from making any "expenditure" in connection with an election campaign for state office. An expenditure includes any payment or other contribution in "assistance of, or in opposition to, the nomination or election of a candidate. . . ." The Act by its terms forbids corporations to make "independent expenditures" undertaken without any coordination or even communication with a candidate's organization. Under the Act, a corporate expenditure made for purposes of communicating on issues of public policy is permissible only if it does not support or oppose a candidate by name or by "inference." Violation of the Act is a felony.
The State has conceded that among those communications prohibited by its statute are the publication by a nonprofit corporation of its own assessment of a candidate's voting record. With the imprimatur of this Court, it is now a felony in Michigan for the Sierra Club, or the American Civil Liberties Union, or the Michigan Chamber of Commerce, to advise the public how a candidate voted on issues of urgent concern to its members. In both practice and theory, the prohibition aims at the heart of political debate.
As the majority must acknowledge, and as no party contests, the advertisement in this case is a paradigm of political speech. Buckley v. Valeo, 424 U.S. 1, 14-15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976). The Michigan statute bans it, however, along with all other communications by nonprofit corporate speakers that carry an inference of support for, or opposition to, a candidate, on the sole ground that the speaker is organized in corporate form. The Act operates to prohibit information essential to the ability of voters to evaluate candidates. In my view, this speech cannot be restricted.
Far more than the interest of the Chamber is at stake. We confront here society's interest in free and informed discussion on political issues, a discourse vital to the capacity for self-government. "In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue." First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-785, 98 S.Ct. 1407, 1420, 55 L.Ed.2d 707 (1978). There is little doubt that by silencing advocacy groups that operate in the corporate form and forbidding them to speak on electoral politics, Michigan's law suffers from both of these constitutional defects.
First, the Act prohibits corporations from speaking on a particular subject, the subject of candidate elections. It is a basic precept that the State may not confine speech to certain subjects. Content-based restrictions are the essence of censorial power. Ibid. (invalidating statute that allowed corporations to speak on referenda issues that materially affected their business, but not on other subjects). See also Consolidated Edison Co. of New York v. Public Service Comm'n of New York, 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 L.Ed.2d 319 (1980) ("The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic").
Second, the Act discriminates on the basis of the speaker's identity. Under the Michigan law, any person or group other than a corporation may engage in political debate over candidate elections; but corporations, even nonprofit corporations that have unique views of vital importance to the electorate, must remain mute. Our precedents condemn this censorship. See Bellotti, supra, at 784-786, 98 S.Ct., at 1420-1421; Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (invalidating state statute that prohibited picketing near certain buildings but allowed certain labor picketers); Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980).
The protection afforded core political speech is not diminished because the speaker is a nonprofit corporation. Even in the case of a for-profit corporation, we have upheld the right to speak on ballot issues. The Bellotti Court stated:
"If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." 435 U.S., at 777, 98 S.Ct., at 1416 (footnotes omitted).
By using distinctions based upon both the speech and the speaker, the Act engages in the rawest form of censorship: the State censors what a particular segment of the political community might say with regard to candidates who stand for election. The Court's holding cannot be reconciled with the principle that " 'legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment.' " Meyer v. Grant, 486 U.S. 414, 428, 108 S.Ct. 1886, 1895, 100 L.Ed.2d 425 (1988), quoting Buckley v. Valeo, supra, 424 U.S., at 50, 96 S.Ct., at 650.
The second censorship scheme validated by today's holding is the one imposed by the Court. In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL ), a First Amendment right to use corporate treasury funds was recognized for the nonprofit corporation then before us. Those who thought that the First Amendment exists to protect all points of view in candidate elections will be disillusioned by the Court's opinion today; for that protection is given only to a preferred class of nonprofit corporate speakers: small, single issue nonprofit corporations that pass the Court's own vague test for determining who are the favored participants in the electoral process. There can be no doubt that if a State were to enact a statute empowering an administrative board to determine which corporations could place candidate advertisements in newspapers and which could not, with authority to enforce the guidelines the Court adopts today to distinguish between the Massachusetts Citizens for Life and the Michigan Chamber of Commerce, the statute would be held unconstitutional. The First Amendment does not permit courts to exercise speech suppression authority denied to legislatures.
The Court draws support for its discrimination among nonprofit corporate speakers from portions of our opinion in MCFL, supra. It must be acknowledged that certain language in MCFL, in particular the discussion which pointed to the express purpose of the organization to promote political ideas, id. at 263-265, 107 S.Ct., at 630-631, lends support to the majority's test. That language, however, contravenes fundamental principles of neutrality for all political speech. It should not stand in the way of giving full force to the essential and vital holding of MCFL, which is that a nonprofit corporation engaged in political discussion of candidates and elections has the full protection of the First Amendment.
The Act does not meet our standards for laws that burden fundamental rights. The State cannot demonstrate that a compelling interest supports its speech restriction, nor can it show that its law is narrowly tailored to the purported statutory end. See Bellotti, supra, 435 U.S., at 786, 793-795, 98 S.Ct., at 1421, 1424-1426. Restrictions on independent expenditures are unconstitutional if they fail to meet both of these standards. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); First National Bank of Boston v. Bellotti, supra; FEC v. National Conservative Political Action Committee, 470 U.S. 480, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985) (NCPAC ); MCFL, supra. The majority opinion cannot establish either of these predicate conditions for the speech restriction imposed by the State.
* Our cases acknowledge the danger that corruption poses for the electoral process, but draw a line in permissible regulation between payments to candidates ("contributions") and payments or expenditures to express one's own views ("independent expenditures"). Today's decision abandons this distinction and threatens once-protected political speech. The Michigan statute prohibits independent expenditures by a nonprofit corporate speaker to express its own views about candidate qualifications. Independent expenditures are entitled to greater protection than campaign contributions. MCFL, supra, 479 U.S., at 259-260, 107 S.Ct., at 628-629. See also Buckley, 424 U.S., at 20-21, 96 S.Ct., at 635. "[E]xpenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do . . . limitations on financial contributions." Id., at 23, 96 S.Ct., at 636. Candidate campaign contributions are subject to greater regulation because of the enhanced risk of corruption from the possibility that a large contribution would be given to secure political favors; independent expenditures pose no such risk:
"Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." Id., at 47, 96 S.Ct., at 648.
Appellants' reliance on cases involving contributions, such as FEC v. National Right to Work Committee, 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982), is misplaced.
The proper analysis must follow our cases on independent expenditures. We have established that limitations on independent political expenditures are subject to exacting First Amendment scrutiny. In Buckley, we invalidated a federal limitation on independent expenditures because they had no tendency to corrupt. By like analysis, we invalidated a ban on independent corporate expenditures for referenda issues, First National Bank of Boston v. Bellotti, supra, and a federal limitation which prohibited political committees from spending more than $1,000 in support of any candidate who had accepted public funding, NCPAC, 470 U.S., at 491, 105 S.Ct., at 1465. In NCPAC, we found that the mere hypothetical possibility that candidates may take notice of and reward political action committee (PAC) expenditures by giving official favors was insufficient to demonstrate that the threat of corruption justified the spending regulation. Id., at 497, 105 S.Ct., at 1468.
The majority almost admits that, in the case of independent expenditures, the danger of a political quid pro quo is insufficient to justify a restriction of this kind. Since the specter of corruption, which had been "the only legitimate and compelling government interest[s] thus far identified for restricting campaign finances," NCPAC, supra, at 496-497, 105 S.Ct., at 1468, is missing in this case, the majority invents a new interest: combating the "corrosive and distorting effects of immense aggregations of wealth," ante, at 660, accumulated in corporate form without shareholder or public support. The majority styles this novel interest as simply a different kind of corruption, but has no support for its assertion. While it is questionable whether such imprecision would suffice to justify restricting political speech by for-profit corporations, it is certain that it does not apply to nonprofit entities.
The evil of political corruption has been defined in more precise terms. We have said: "Corruption is a subversion of the political process" whereby "[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain. . . ." NCPAC, supra, at 497, 105 S.Ct., at 1468. In contrast, the interest touted by the majority is the impermissible one of altering political debate by muting the impact of certain speakers.
The regulatory mechanism adopted by the Michigan statute is aimed at reducing the quantity of political speech, a rationale endorsed by today's majority. The First Amendment rests on quite the opposite theory. As we have already said in the context of political expenditures:
"A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money." Buckley, 424 U.S., at 19, 96 S.Ct., at 634 (footnote omitted); see also id., at 39, 96 S.Ct., at 644.
In Buckley and Bellotti, acting on these precepts, we rejected the argument that the expenditure of money to increase the quantity of political speech somehow fosters corruption. The key to the majority's reasoning appears to be that because some corporate speakers are well supported and can buy press space or broadcast time to express their ideas, government may ban all corporate speech to ensure that it will not dominate political debate. The argument is flawed in at least two respects. First, the statute is overinclusive because it covers all groups which use the corporate form, including all nonprofit corporations. Second, it assumes that the government has a legitimate interest in equalizing the relative influence of speakers.
With regard to nonprofit corporations in particular, there is no reason to assume that the corporate form has an intrinsic flaw that makes it corrupt, or that all corporations possess great wealth, or that all corporations can buy more media coverage for their views than can individuals or other groups. There is no reason to conclude that independent speech by a corporation is any more likely to dominate the political arena than speech by the wealthy individual, protected in Buckley v. Valeo, supra, or by the well-funded PAC, protected in NCPAC, supra (protecting speech rights of PAC's against expenditure limitations). In NCPAC, we discredited the argument that because PAC's spend larger amounts than individuals, the potential for corruption is greater. Id., at 497-498, 105 S.Ct., at 1468-1469. We distinguished between the campaign contribution at issue in FEC v. National Right to Work Committee, supra, and independent expenditures, by noting that while "the compelling governmental interest in preventing corruption supported the restriction of the influence of political war chests funneled through the corporate form" with regard to candidate campaign contributions, a similar finding could not be supported for independent expenditures. NCPAC, supra, at 500-501, 105 S.Ct., at 1470.
In addition, the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections is antithetical to the First Amendment:
"[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed 'to secure "the widest possible dissemination of information from diverse and antagonistic sources," '. . . . The 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." Buckley, supra, 424 U.S., at 48-49, 96 S.Ct., at 648-649 (citations omitted).
That those who can afford to publicize their views may succeed in the political arena as a result does not detract from the fact that they are exercising a First Amendment right. Meyer v. Grant, 486 U.S., at 426, n. 7, 108 S.Ct., at 1894, n. 7 (upholding First Amendment right to use paid petition circulators). As we stated in Bellotti, paid advocacy "may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it." 435 U.S., at 790, 98 S.Ct., at 1423. The suggestion that the government has an interest in shaping the political debate by insulating the electorate from too much exposure to certain views is incompatible with the First Amendment. "[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments." Id., at 791, 98 S.Ct., at 1423; see also Meyer, supra, at 426, n. 7, 108 S.Ct., at 1894, n. 7; Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 1532, 71 L.Ed.2d 732 (1982).
An argument similar to that made by the majority was rejected in Bellotti. There, we rejected the assumption that "corporations are wealthy and powerful and their views may drown out other points of view" or "exert an undue influence" on the electorate in the absence of a showing that the relative voice of corporations was significant. 435 U.S., at 789, 98 S.Ct., at 1422. And even were we to assume that some record support for this assertion would make a constitutional difference, it has not been established here. The majority provides only conjecture. All censorship is suspect; but censorship based on vague surmise is not permissible in any case.
The Act, as the State itself says, prevents a nonprofit corporate speaker from using its own funds to inform the voting public that a particular candidate has a good or bad voting record on issues of interest to the association's adherents. Though our era may not be alone in deploring the lack of mechanisms for holding candidates accountable for the votes they cast, that lack of accountability is one of the major concerns of our time. The speech suppressed in this case was directed to political qualifications. The fact that it was spoken by the Michigan Chamber of Commerce, and not a man or woman standing on a soapbox, detracts not a scintilla from its validity, its persuasiveness, or its contribution to the political dialogue.
The Court purports to distinguish MCFL on the ground that the nonprofit corporation permitted to speak in that case received no funds from profit-making corporations. It is undisputed that the Michigan Chamber of Commerce is itself a nonprofit corporation. The crucial difference, it is said, is that the Chamber receives corporate contributions. But this distinction rests on the fallacy that the source of the speaker's funds is somehow relevant to the speaker's right of expression or society's interest in hearing what the speaker has to say. There is no reason that the free speech rights of an individual or of an association of individuals should turn on the circumstance that funds used to engage in the speech come from a corporation. Many persons can trace their funds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary. That does not provide a basis to deprive such individuals or associations of their First Amendment freedoms. The more narrow alternative of recordkeeping and funding disclosure is available. See MCFL, 479 U.S., at 262, 107 S.Ct., at 630. A wooden rule prohibiting independent expenditures by nonprofit corporations that receive funds from business corporations invites discriminatory distinctions. The principled approach is to acknowledge that where political speech is concerned, freedom to speak extends to all nonprofit corporations, not the special favorites of a majority of this Court.
The majority concludes that the Michigan Act is narrowly tailored. First, it seeks support in the availability of PAC's as an alternative to direct speech. Second, the majority advances the rationale that the restriction protects shareholders from the use of corporate funds to support speech with which they may not agree. Third, it asserts that independent expenditures funded by corporate wealth pose inherent dangers. None of these justifications can suffice to save the Act.
That the censorship applies to the nonprofit corporate speaker itself and not to a PAC that it has organized, far from being a saving feature of the regulation, further condemns it. The argument that the availability of a PAC as an alternative means, see Mich.Comp. Laws § 169.255 (1979), can save a restriction on independent corporate expenditures was rejected by the Court in MCFL, 479 U.S., at 253-255, 107 S.Ct., at 625-626; id., at 266, 107 S.Ct., at 632 (O'CONNOR, J., concurring), as a costly and burdensome disincentive to speech. The record in this case tended to show that between 25 and 50 percent of a PAC's funds are required to establish and administer the PAC. See App. 103a, 108a. While the corporation can direct the PAC to make expenditures on behalf of candidates, the PAC can be funded only by contributions from shareholders, directors, officers, and managerial employees, and cannot receive corporate treasury funds. Mich.Comp. Laws § 169.255(3) (1979). That the avenue left open is more burdensome than the one foreclosed is "sufficient to characterize [a statute] as an infringement on First Amendment activities." 479 U.S., at 255, 107 S.Ct., at 626. Consolidated Edison Co., 447 U.S., at 541, n. 10, 100 S.Ct., at 2335, n. 10; see also Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757, n. 15, 96 S.Ct. 1817, 1823, n. 15, 48 L.Ed.2d 346 (1976). As the Court reaffirmed just two Terms ago, "[t]he First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing." Meyer v. Grant, 486 U.S., at 424, 108 S.Ct., at 1893.
The secondhand endorsement structure required by the Michigan state law debases the value of the voice of nonprofit corporate speakers. The public is not interested in what a PAC says; it does care what the group itself says, so that the group itself can be given credit or blame for the candidates it has endorsed or opposed. PAC's suffer from a poor public image. See App. 92a, 104a, 108a. An advertisement for which a nonprofit group takes direct responsibility, in all likelihood, will have more credibility and generate less distrust than one funded by a PAC. PAC's are interim, ad hoc organizations with little continuity or responsibility. The respected organizations affected by this case have a continuity, a stability, and an influence that makes it critical for their members and the public at large to evaluate their official policies to determine whether the organizations have earned credibility over a period of time. If a particular organization supports a candidate who injures its cause or offends its ideals, the organization itself, not some intermediary committee, ought to take the blame. It is a sad irony that the group before us wishes to assume that responsibility but the action of the State, endorsed by this Court, does not allow it to do so.
The diffusion of the corporate message produced by the PAC requirement also ensures a lack of fit between the statute's ends and its means. If the concern is that nonprofit corporate speech distorts the political process, it would seem that injecting the confusion of a PAC as an intermediary, albeit one controlled and directed by the corporation, further diffuses responsibility. Even if there were any possibility of corruption by allowing the Michigan Chamber of Commerce to finance the proposed advertisement supporting a candidate, it makes no sense to argue that such a possibility would be eliminated by requiring the disclaimer at the bottom to read "Paid for by the Michigan Chamber of Commerce PAC" rather than "Paid for by the Michigan Chamber of Commerce."
The majority relies on the state interest in protecting members from the use of nonprofit corporate funds to support candidates whom they may oppose. We should reject this interest as insufficient to save the Act here, just as we rejected the argument in Bellotti, 435 U.S., at 792-793, 98 S.Ct., at 1424. See also Consolidated Edison Co., supra, at 543, 100 S.Ct., at 2336.
The Court takes refuge in the argument that some members or contributors to nonprofit corporations may find their own views distorted by the organization, and cites our holding in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Abood does not apply here, as the disincentives to dissociate are not comparable. Bellotti, supra, at 794, n. 34, 98 S.Ct., at 1425, n. 34 (noting "crucial distinction" between union members and shareholders). One need not become a member of the Michigan Chamber of Commerce or the Sierra Club in order to earn a living. To the extent that members disagree with a nonprofit corporation's policies, they can seek change from within, withhold financial support, cease to associate with the group, or form a rival group of their own. Allowing government to use the excuse of protecting shareholder rights to stifle the speech of private, voluntary organizations undermines the First Amendment.
To create second-class speakers that can be stifled on the subject of candidate qualifications is to silence some of the most significant participants in the American public dialogue, as evidenced by the amici briefs filed on behalf of the Chamber of Commerce by the American Civil Liberties Union, the Center for Public Interest Law, the American Medical Association, the National Association of Realtors, the American Insurance Association, the National Organization for Women, Greenpeace Action, the National Abortion Rights Action League, the National Right to Work Committee, the Planned Parenthood Federation of America, the Fund for the Feminist Majority, the Washington Legal Foundation, and the Allied Educational Foundation. I reject any argument based on the idea that these groups and their views are not of importance and value to the self-fulfillment and self-expression of their members, and to the rich public dialogue that must be the mark of any free society. To suggest otherwise is contrary to the American political experience and our own judicial knowledge.
It is a distinctive part of the American character for individuals to join associations to enrich the public dialogue. See, e.g., R. Horn, Groups and the Constitution 13-18 (1956). The theme of group identity is part of the history of American democracy. See, e.g., The Federalist No. 10 (J. Madison). As Toqueville observed:
"Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. . . . If it is proposed to inculcate some truth or to foster some feeling by the encouragement of a great example, they form a society. Wherever at the head of some new undertaking you see the government in France, or a man of rank in England, in the United States you will be sure to find an association." 2 A. de Toqueville, Democracy in America 106 (P. Bradley ed. 1948).
Finally, the majority's conclusion that the statute is not overinclusive because independent expenditures by nonprofit corporations may be assumed to have a pernicious, distorting effect on political processes does not withstand the rigorous scrutiny applicable to bans on speech. See NCPAC, 470 U.S., at 501, 105 S.Ct., at 1470. It even contradicts MCFL, where we said: "[A]ssociations do not suddenly present the specter of corruption merely by assuming the corporate form." 479 U.S., at 263, 107 S.Ct., at 630. The Court reasons that the Chamber of Commerce benefits from a "unique state-conferred corporate structure that facilitates the amassing of large treasuries." Ante, at 660. This proposition is not self-evident and has little or no relation to the suppression of ideas. The reality, of course, is that some groups and organizations, particularly those with many members, may find that the nonprofit corporate form is the only feasible way of organizing so that they can transmit important views to the public as a whole. Because the unincorporated association structure carries with it a high risk of personal liability for members and operates in an uncertain legal climate, groups often prefer to organize in nonprofit corporate form. The corporate form provides clear rights and responsibilities and limits the liability of members. E. Hadden & B. French, Nonprofit Organizations 12 (1987); H. Oleck, Nonprofit Corporations, Organizations and Associations 30-31 (4th ed. 1982); M. Lane, Legal Handbook for Nonprofit Organizations 4, 22-26, 43, 59-61, 124 (1980). For these reasons, in recent years the number of important unincorporated associations has dwindled while the number of incorporated associations has proliferated. Oleck, supra, at 31. By deciding to operate as a nonprofit corporation rather than an unincorporated association, a group does not forfeit its First Amendment protection to participate in political discourse.
An independent ground for invalidating this statute is the blanket exemption for media corporations. It is beyond per-adventure that the media could not be prohibited from speaking about candidate qualifications. The First Amendment would not tolerate a law prohibiting a newspaper or television network from spending on political comment because it operates through a corporation. See Mills v. Alabama, 384 U.S. 214, 218-220, 86 S.Ct. 1434, 1436-1437, 16 L.Ed.2d 484 (1966). As Justice BRENNAN, supported by a majority of the Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), state: "[T]he rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities." Id., at 784, 105 S.Ct., at 2958 (dissenting opinion, joined by MARSHALL, BLACKMUN, and STEVENS, JJ.); id., at 773, 105 S.Ct., at 2952 (WHITE, J., concurring in judgment) ("[T]he First Amendment gives no more protection to the press . . . than it does to others exercising their freedom of speech"). The argument relied on by the majority, that media corporations are in the business of communicating and other corporations are not, is unsatisfying. All corporations communicate with the public to some degree, whether it is their business or not; and communication is of particular importance for non-profit corporations.
The web of corporate ownership that links media and nonmedia corporations is difficult to untangle for the purpose of any meaningful distinction. Newspapers, television networks, and other media may be owned by parent corporations with multiple business interests. Nothing in the statutory scheme prohibits a business corporate parent from directing its newspaper to support or oppose a particular candidate. The Act not only permits that discretion or control, but makes it a crime for a public-interest nonprofit corporation to bring to light such activity if to do so infers candidate support or opposition. I can find no permissible basis under the First Amendment for the States to make this unsupported distinction among corporate speakers.
The Court's hostility to the corporate form used by the speaker in this case and its assertion that corporate wealth is the evil to be regulated is far too imprecise to justify the most severe restriction on political speech ever sanctioned by this Court. In any event, this distinction is irrelevant to a non-profit corporation. "Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation." MCFL, 479 U.S., at 265, 107 S.Ct., at 631. The wholesale ban on corporate political speech enacted by the Michigan Legislature is "too blunt an instrument for such a delicate task." Ibid.
By constructing a rationale for the jurisprudence of this Court that prevents distinguished organizations in public affairs from announcing that a candidate is qualified or not qualified for public office, the Court imposes its own model of speech, one far removed from economic and political reality. It is an unhappy paradox that this Court, which has the role of protecting speech and of barring censorship from all aspects of political life, now becomes itself the censor. In the course of doing so, the Court reveals a lack of concern for speech rights that have the full protection of the First Amendment. I would affirm the judgment.
APPENDIX TO OPINION OF KENNEDY, J., DISSENTINGn

## Notes

* ↑ Section 54 of the Act states:
* ↑ Section 6 provides:
* ↑ Section 9(1) states:
* ↑ See n. 2, supra.
* ↑ Section 54(5) states:
* ↑ As the primary objective of the statute is itself prohibited by the First Amendment, there is no need to explain that the statute is invalid also because it is vague and imprecise. It should be noted, however, that the criminal prohibition of speech which by "inference" can be taken to support a candidate, see Mich.Comp. Laws § 169.206(3)(c) (1979), must in itself chill speech on public issues, which the Court has already found protected in Bellotti.