(Bench Opinion) OCTOBER TERM, 2006 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

FEDERAL ELECTION COMMISSION v. WISCONSIN 

RIGHT TO LIFE, INC. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF COLUMBIA

No. 06ñ969. Argued April 25, 2007óDecided June 25, 2007* 

Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 

makes it a federal crime for a corporation to use its general treasury 

funds to pay for any ìelectioneering communication,î 2 U. S. C. 

ß441b(b)(2), which BCRA defines as any broadcast that refers to a 

candidate for federal office and is aired within 30 days of a federal 

primary election or 60 days of a federal general election in the jurisdiction where that candidate is running, ß434(f)(3)(A). In McConnell

v. Federal Election Commín, 540 U. S. 93, this Court upheld ß203 

against a First Amendment facial challenge even though the section 

encompassed not only campaign speech, or ìexpress advocacyî promoting a candidateís election or defeat, but also ìissue advocacy,î or 

speech about public issues more generally, that also mentions such a 

candidate. The Court concluded there was no overbreadth concern to 

the extent the speech in question was the ìfunctional equivalentî of 

express advocacy. Id., at 204ñ205, 206. 

 On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL), 

began broadcasting advertisements declaring that a group of Senators was filibustering to delay and block federal judicial nominees 

and telling voters to contact Wisconsin Senators Feingold and Kohl to 

urge them to oppose the filibuster. WRTL planned to run the ads 

throughout August 2004 and finance them with its general treasury 

funds. Recognizing, however, that as of August 15, 30 days before 

the Wisconsin primary, the ads would be illegal ìelectioneering communication[s]î under BCRA ß203, but believing that it nonetheless 

óóóóóó 

*Together with No. 06ñ970, McCain, United States Senator, et al. v. 

Wisconsin Right to Life, Inc., also on appeal from the same court. 
2 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Syllabus 

had a First Amendment right to broadcast them, WRTL filed suit 

against the Federal Election Commission (FEC), seeking declaratory 

and injunctive relief and alleging that ß203ís prohibition was unconstitutional as applied to the three ads in question, as well as any materially similar ads WRTL might run in the future. Just before the 

BCRA blackout, the three-judge District Court denied a preliminary 

injunction, concluding that McConnellís reasoning that ß203 was not 

facially overbroad left no room for such ìas-appliedî challenges. 

WRTL did not run its ads during the blackout period, and the court 

subsequently dismissed the complaint. This Court vacated that 

judgment, holding that McConnell ìdid not purport to resolve future 

as-applied challengesî to ß203. Wisconsin Right to Life, Inc. v. Federal Election Commín (WRTL I), 546 U. S. 410, 412. On remand, the 

District Court granted WRTL summary judgment, holding ß203 unconstitutional as applied to the three ads. The court first found that 

adjudication was not barred by mootness because the controversy 

was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or 

its ìfunctional equivalentî under McConnell, and held that no compelling interest justified BCRAís regulation of such ads. 

Held: The judgment is affirmed. 

466 F. Supp. 2d 195, affirmed. 

 THE CHIEF JUSTICE delivered the opinion of the Court with respect 

to Parts I and II, concluding that the Court has jurisdiction to decide 

these cases. The FEC argues that the cases are moot because the 

2004 election has passed and WRTL neither asserts a continuing interest in running its ads nor identifies any reason to believe that a 

significant dispute over Senate filibusters of judicial nominees will 

occur in the foreseeable future. These cases, however, fit comfortably 

within the established exception to mootness for disputes capable of 

repetition, yet evading review. That exception applies where ì(1) the 

challenged action is in its duration too short to be fully litigated prior 

to cessation or expiration; and (2) there is a reasonable expectation 

that the same complaining party will be subject to the same action 

again,î Spencer v. Kemna, 523 U. S. 1, 17. Both circumstances are 

present here. First, it would be unreasonable to expect that WRTL 

could have obtained complete judicial review of its claims in time to 

air its ads during the BCRA blackout periods. Indeed, two BCRA 

blackout periods have passed during the pendency of this action. 

Second, there exists a reasonable expectation that the same ìcontroversyî involving the same party will recur: WRTL has credibly 

claimed that it plans to run materially similar targeted ads during 

future blackout periods, and there is no reason to believe that the 

FEC will refrain from prosecuting future BCRA violations. Pp. 7ñ10. 
 Cite as: 551 U. S. ____ (2007) 3 

Syllabus 

 THE CHIEF JUSTICE, joined by JUSTICE ALITO, concluded that BCRA 

ß203 is unconstitutional as applied to the ads at issue in these cases. 

Pp. 10ñ29. 

 1. The speech at issue is not the ìfunctional equivalentî of express 

campaign speech. Pp. 10ñ22. 

 (a) Appellants are wrong in arguing that WRTL has the burden 

of demonstrating that ß203 is unconstitutional. Because ß203 burdens political speech, it is subject to strict scrutiny, see, e.g., McConnell, supra, at 205, under which the Government must prove that applying BCRA to WRTLís ads furthers a compelling governmental 

interest and is narrowly tailored to achieve that interest, see First 

Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786. Given that 

McConnell, supra, at 206, already ruled that BCRA survives strict 

scrutiny to the extent it regulates express advocacy or its functional 

equivalent, the FECís burden is not onerous insofar as these ads fit 

this description. Pp. 10ñ11. 

 (b) Contrary to the FECís contention, McConnell, 540 U. S., at 

205ñ206, did not establish an intent-and-effect test for determining if 

a particular ad is the functional equivalent of express advocacy. Indeed, McConnell did not adopt any test for future as-applied challenges, but simply grounded its analysis in the evidentiary record, 

which included two key studies that separated ads based on whether 

they were intended to, or had the effect of, supporting candidates for 

federal office. Id., at 308ñ309. More importantly, Buckley v. Valeo, 

424 U. S. 1, 14, 43ñ44, rejected an intent-and-effect test for distinguishing between discussions of issues and candidates, and McConnell did not purport to overrule Buckley on this pointóor even address what Buckley had to say on the subject. Pp. 11ñ15. 

 (c) Because WRTLís ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, 

they are not the functional equivalent of express advocacy, and therefore fall outside McConnellís scope. To safeguard freedom of speech 

on public issues, the proper standard for an as-applied challenge to 

BCRA ß203 must be objective, focusing on the communicationís substance rather than on amorphous considerations of intent and effect. 

See Buckley, supra, at 43ñ44. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling 

speech through the threat of burdensome litigation. See Virginia v. 

Hicks, 539 U. S. 113, 119. And it must eschew ìthe open-ended 

rough-and-tumble of factors,î which ìinvit[es] complex argument in a 

trial court and a virtually inevitable appeal.î Jerome B. Grubart, Inc.

v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547. In short, it 

must give the benefit of any doubt to protecting rather than stifling 

speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 269ñ270. 
4 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Syllabus 

In light of these considerations, a court should find that an ad is the 

functional equivalent of express advocacy only if the ad is susceptible 

of no reasonable interpretation other than as an appeal to vote for or 

against a specific candidate. WRTLís three ads are plainly not the 

functional equivalent of express advocacy under this test. First, their 

content is consistent with that of a genuine issue ad: They focus and 

take a position on a legislative issue and exhort the public to adopt 

that position and to contact public officials with respect to the matter. 

Second, their content lacks indicia of express advocacy: They do not 

mention an election, candidacy, political party, or challenger; and 

they take no position on a candidateís character, qualifications, or 

fitness for office. Pp. 15ñ22. 

 2. Because WRTLís ads are not express advocacy or its functional 

equivalent, and because appellants identify no interest sufficiently 

compelling to justify burdening WRTLís speech, BCRA ß203 is unconstitutional as applied to the ads. The section can be constitutionally 

applied only if it is narrowly tailored to further a compelling interest. 

E.g., McConnell, supra, at 205. None of the interests that might justify regulating WRTLís ads are sufficiently compelling. Although the 

Court has long recognized ìthe governmental interest in preventing 

corruption and the appearance of corruptionî in election campaigns, 

Buckley, 424 U. S., at 45, it has invoked this interest as a reason for 

upholding contribution limits, id., at 26ñ27, and suggested that it 

might also justify limits on electioneering expenditures posing the 

same dangers as large contributions, id., at 45. McConnell arguably 

applied this interest to ads that were the ìfunctional equivalentî of 

express advocacy. See 540 U. S., at 204ñ206. But to justify regulation of WRTLís ads, this interest must be stretched yet another step 

to ads that are not the functional equivalent of express advocacy. Issue ads like WRTLís are not equivalent to contributions, and the corruption interest cannot justify regulating them. A second possible 

compelling interest lies in addressing ìthe 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 publicís support for the corporationís political ideas.î Austin v. 

Michigan Chamber of Commerce, 494 U. S. 652, 660. McConnell held 

that this interest justifies regulating the ìfunctional equivalentî of 

campaign speech, 540 U. S., at 205ñ206. This interest cannot be extended further to apply to genuine issue ads like WRTLís, see, e.g., 

id., at 206, n. 88, because doing so would call into question this 

Courtís holdings that the corporate identity of a speaker does not 

strip corporations of all free speech rights. WRTL I reinforced the validity of this point by holding ß203 susceptible to as-applied challenges. 546 U. S., at 411ñ412. Pp. 23ñ28. 
 Cite as: 551 U. S. ____ (2007) 5 

Syllabus 

 3. These cases present no occasion to revisit McConnellís holding 

that a corporationís express advocacy of a candidate or his opponent 

shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. But when it comes to defining what speech qualifies as the functional equivalent of express 

advocacy subject to such a banóthe question hereóthe Court should 

give the benefit of the doubt to speech, not censorship. Pp. 28ñ29. 

 JUSTICE SCALIA, joined by JUSTICE KENNEDY and JUSTICE THOMAS, 

agreed that the Court has jurisdiction in these cases and concurred in 

the Courtís judgment because he would overrule that part of McConnell v. Federal Election Commín, 540 U. S. 93, upholding ß203(a) of 

the Bipartisan Campaign Reform Act of 2002 (BCRA). Pp. 4ñ23. 

 1. The pertinent case law begins with Buckley v. Valeo, 424 U. S. 1, 

in which the Court held, inter alia, that a federal limitation on campaign expenditures not made in coordination with a candidateís campaign (contained in the Federal Election Campaign Act of 1971 

(FECA)) was unconstitutional, id., at 39ñ51. In light of vagueness 

concerns, the Court narrowly construed the independent-expenditure 

provision to cover only express advocacy of the election or defeat of a 

clearly identified candidate for federal office by use of such magic 

words ìas ëvote for,í ëelect,í . . . ëvote against,í ëdefeat,í ëreject.í î Id., at 

44, and n. 52. This narrowing construction excluded so-called ìissue 

advocacyî referring to a clearly identified candidateís position on an 

issue, but not expressly advocating his election or defeat. Even as 

narrowly construed, however, the Court struck the provision down. 

Id., at 45ñ46. Despite Buckley, some argued that independent expenditures by corporations should be treated differently. A postBuckley case, First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 

776ñ777, struck down, on First Amendment grounds, a state statute 

prohibiting corporations from spending money in connection with a 

referendum. The Court strayed far from these principles, however, in 

Austin v. Michigan Chamber of Commerce, 494 U. S. 652, upholding 

state restrictions on corporationsí independent expenditures in support of, or in opposition to, candidates for state office, id., at 654ñ655. 

Austin was wrongly decided, but at least it was limited to express advocacy. Nonexpress advocacy was presumed to remain protected under Buckley and Bellotti, even when engaged in by corporations, until 

McConnell. McConnell held, inter alia, that the compelling governmental interest supporting restrictions on corporate expenditures for 

express advocacyói.e., Austinís perceived ìcorrosive and distorting effects of immense aggregations of [corporate] wealth,î 540 U. S., at 

205óalso justified extending those restrictions to ads run during the 

BCRA blackout period ìto the extent . . . [they] are the functional 

equivalent of express advocacy,î id., at 206 (emphasis added). 
6 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Syllabus 

McConnell upheld BCRA ß203(a) against a facial challenge. Subsequently, in Wisconsin Right to Life, Inc. v. Federal Election Commín, 

546 U. S. 410, 411ñ412, the Court held that McConnell did not foreclose as-applied challenges to ß203. Pp. 4ñ10. 

 2. McConnellís holding concerning ß203 was wrong. The answer to 

whether WRTL meets the standard for prevailing in an as-applied 

challenge requires the Court to articulate the standard. The most 

obvious standard is McConnellís, which asks whether an ad is the 

ìfunctional equivalent of express advocacy,î 540 U. S., at 206. The 

fundamental and inescapable problem with this test, with the principal opinionís susceptible-of-no-other-reasonable-interpretation standard, and with other similar tests is that each is impermissibly vague 

and thus ineffective to vindicate the fundamental First Amendment 

rights at issue. Buckley itself compelled the conclusion that such 

tests fall short when it narrowed the statutory language there at issue to cover only advertising that used the magic words of express 

advocacy. 424 U. S., at 43ñ44. The only plausible explanation for 

Buckleyís ìhighly strainedî reading of FECA, McConnell, supra, at 

280, is that the Court there eschewed narrowing constructions that 

would have been more faithful to FECAís text and more effective at 

capturing campaign speech because those tests were all too vague. If 

Buckley foreclosed such vagueness in a statutory test, it also must 

foreclose such vagueness in an as-applied test. Yet any clear rule 

that would protect all genuine issue ads would cover such a substantial number of ads prohibited by ß203 that ß203 would be rendered 

substantially overbroad. Thus, McConnell (which presupposed the 

availability of as-applied challenges) was mistaken. Pp. 10ñ18. 

 3. Stare decisis would not prevent the Court from overruling 

McConnellís ß203 holding. This Courtís ìconsidered practiceî is not to 

apply that principle ìas rigidly in constitutional as in nonconstitutional cases,î Glidden Co. v. Zdanok, 370 U. S. 530, 543, and it has 

not hesitated to overrule a decision offensive to the First Amendment 

that was decided just a few years earlier, see West Virginia Bd. of Ed.

v. Barnette, 319 U. S. 624, 642. Pp. 19ñ22. 

 ROBERTS, C. J., announced the judgment of the Court and delivered 

the opinion of the Court with respect to Parts I and II, in which SCALIA,

KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect 

to Parts III and IV, in which ALITO, J., joined. ALITO, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined. 

SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and 

BREYER, JJ., joined. 
 Cite as: 551 U. S. ____ (2007) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES _________________ 

Nos. 06ñ969 and 06ñ970 

_________________ 

FEDERAL ELECTION COMMISSION, APPELLANT 

06ñ969 v.

WISCONSIN RIGHT TO LIFE, INC. 

SENATOR JOHN MCCAIN, ET AL., APPELLANTS 

06ñ970 v.

WISCONSIN RIGHT TO LIFE, INC. 

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007] 

 CHIEF JUSTICE ROBERTS announced the judgment of the 

Court and delivered the opinion of the Court with respect 

to Parts I and II, and an opinion with respect to Parts III 

and IV, in which JUSTICE ALITO joins. 

 Section 203 of the Bipartisan Campaign Reform Act of 

2002 (BCRA), 116 Stat. 91, 2 U. S. C. ß441b(b)(2) (2000 

ed., Supp. IV), makes it a federal crime for any corporation 

to broadcast, shortly before an election, any communication that names a federal candidate for elected office and 

is targeted to the electorate. In McConnell v. Federal 

Election Commín, 540 U. S. 93 (2003), this Court considered whether ß203 was facially overbroad under the First 

Amendment because it captured within its reach not only 

campaign speech, or ìexpress advocacy,î but also speech 

about public issues more generally, or ìissue advocacy,î 

that mentions a candidate for federal office. The Court 

Opinion of ROBERTS, C. J. 
2 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

concluded that there was no overbreadth concern to the 

extent the speech in question was the ìfunctional equivalentî of express campaign speech. Id., at 204ñ205, 206. 

On the other hand, the Court ìassume[d]î that the interests it had found to ìjustify the regulation of campaign 

speech might not apply to the regulation of genuine issue 

ads.î Id., at 206, n. 88. The Court nonetheless determined that ß203 was not facially overbroad. Even assuming ß203 ìinhibit[ed] some constitutionally protected corporate and union speech,î the Court concluded that those 

challenging the law on its face had failed to carry their 

ìheavy burdenî of establishing that all enforcement of the 

law should therefore be prohibited. Id., at 207. 

 Last Term, we reversed a lower court ruling, arising in 

the same litigation before us now, that our decision in 

McConnell left ìno roomî for as-applied challenges to ß203. 

App. to Juris. Statement 52a. We held on the contrary 

that ì[i]n upholding ß203 against a facial challenge, we did 

not purport to resolve future as-applied challenges.î 

Wisconsin Right to Life, Inc. v. Federal Election Commín, 

546 U. S. 410, 411ñ412 (2006) (per curiam) (WRTL I). 

 We now confront such an as-applied challenge. Resolving it requires us first to determine whether the speech at 

issue is the ìfunctional equivalentî of speech expressly 

advocating the election or defeat of a candidate for federal 

office, or instead a ìgenuine issue a[d].î McConnell, supra,

at 206, and n. 88. We have long recognized that the distinction between campaign advocacy and issue advocacy 

ìmay often dissolve in practical application. Candidates, 

especially incumbents, are intimately tied to public issues 

involving legislative proposals and governmental actions.î 

Buckley v. Valeo, 424 U. S. 1, 42 (1976) (per curiam). Our 

development of the law in this area requires us, however, 

to draw such a line, because we have recognized that the 

interests held to justify the regulation of campaign speech 

and its ìfunctional equivalentî ìmight not applyî to the 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 3 

Opinion of the Court 

regulation of issue advocacy. McConnell, supra, at 206, 

and n. 88. 

 In drawing that line, the First Amendment requires us 

to err on the side of protecting political speech rather than 

suppressing it. We conclude that the speech at issue in 

this as-applied challenge is not the ìfunctional equivalentî 

of express campaign speech. We further conclude that the 

interests held to justify restricting corporate campaign 

speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA 

ß203 is unconstitutional as applied to the advertisements 

at issue in these cases. 

I 

 Prior to BCRA, corporations were free under federal law 

to use independent expenditures to engage in political 

speech so long as that speech did not expressly advocate 

the election or defeat of a clearly identified federal candidate. See Federal Election Commín v. Massachusetts 

Citizens for Life, Inc., 479 U. S. 238, 249 (1986) (MCFL); 

Buckley, supra, at 44ñ45; 2 U. S. C. ßß441b(a), (b)(2) (2000 

ed. and Supp. IV). 

 BCRA significantly cut back on corporationsí ability to 

engage in political speech. BCRA ß203, at issue in these 

cases, makes it a crime for any labor union or incorporated 

entityówhether the United Steelworkers, the American 

Civil Liberties Union, or General Motorsóto use its general treasury funds to pay for any ìelectioneering communication.î ß441b(b)(2) (2000 ed., Supp. IV). BCRAís definition of ìelectioneering communicationî is clear and 

expansive. It encompasses any broadcast, cable, or satellite communication that refers to a candidate for federal 

office and that is aired within 30 days of a federal primary 

election or 60 days of a federal general election in the 

jurisdiction in which that candidate is running for office. 
4 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

ß434(f)(3)(A).1 

 Appellee Wisconsin Right to Life, Inc. (WRTL), is a 

nonprofit, nonstock, ideological advocacy corporation 

recognized by the Internal Revenue Service as tax exempt 

under ß501(c)(4) of the Internal Revenue Code. On July 

26, 2004, as part of what it calls a ìgrassroots lobbying 

campaign,î Brief for Appellee 8, WRTL began broadcasting a radio advertisement entitled ìWedding.î The transcript of ìWeddingî reads as follows: 

 ìëPASTOR: And who gives this woman to be married to this man? 

 ìëBRIDEíS FATHER: Well, as father of the bride, I 

certainly could. But instead, Iíd like to share a few 

tips on how to properly install drywall. Now you put 

the drywall up . . . 

 ìëVOICE-OVER: Sometimes itís just not fair to delay an important decision. 

 ìëBut in Washington itís happening. A group of 

Senators is using the filibuster delay tactic to block 

federal judicial nominees from a simple ìyesî or ìnoî 

vote. So qualified candidates donít get a chance to 

óóóóóó 

1Subparagraph (A) provides: 

 ì(i) The term ëelectioneering communicationí means any broadcast, 

cable, or satellite communication whichó 

 ì(I) refers to a clearly identified candidate for Federal office; 

 ì(II) is made withinó 

 ì(aa) 60 days before a general, special, or runoff election for the office 

sought by the candidate; or 

 ì(bb) 30 days before a primary or preference election, or a convention 

or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and 

 ì(III) in the case of a communication which refers to a candidate for 

an office other than President or Vice President, is targeted to the 

relevant electorate.î 2 U. S. C. ß434(f)(3)(A) (2000 ed., Supp. IV). 

Subsection (B) defines exceptions to ìelectioneering communicationî not 

relevant to this litigation. Subsection (C) defines the term ìtargeted to 

the relevant electorate.î 
 Cite as: 551 U. S. ____ (2007) 5 

Opinion of the Court 

serve. 

 ìëItís politics at work, causing gridlock and backing 

up some of our courts to a state of emergency. 

 ìëContact Senators Feingold and Kohl and tell them 

to oppose the filibuster. 

 ìëVisit: BeFair.org 

 ìëPaid for by Wisconsin Right to Life (befair.org), 

which is responsible for the content of this advertising 

and not authorized by any candidate or candidateís 

committee.íî 466 F. Supp. 2d 195, 198, n. 3 (DC 

2006). 

On the same day, WRTL aired a similar radio ad entitled 

ìLoan.î2 It had also invested treasury funds in producing 

a television ad entitled ìWaiting,î3 which is similar in 

óóóóóó 

2The radio script for ìLoanî differs from ìWeddingî only in its lead-in. 

ìLoanî begins: 

 ìëLOAN OFFICER: Welcome Mr. and Mrs. Shulman. Weíve reviewed 

your loan application, along with your credit report, the appraisal on 

the house, the inspections, and well . . . 

 ìëCOUPLE: Yes, yes . . . weíre listening. 

 ìëOFFICER: Well, it all reminds me of a time I went fishing with my 

father. We were on the Wolf River Waupaca . . . 

 ìëVOICE-OVER: Sometimes itís just not fair to delay an important 

decision. 

 ìëBut in Washington itís happening. . . .íî 466 F. Supp. 2d, at 198, 

n. 4. 

The remainder of the script is identical to ìWedding.î 3 In ìWaiting,î the images on the television ad depict a ìëmiddle-aged 

man being as productive as possible while his professional life is in 

limbo.íî Id., at 198, n. 5. The man reads the morning paper, polishes 

his shoes, scans through his Rolodex, and does other similar activities. 

The television script for this ad reads: 

 ìëVOICE-OVER: There are a lot of judicial nominees out there who 

canít go to work. Their careers are put on hold because a group of 

Senators is filibusteringóblocking qualified nominees from a simple 

ìyesî or ìnoî vote. 

 ìëItís politics at work and itís causing gridlock. . . .íî Ibid. 

The remainder of the script is virtually identical to ìWedding.î 
6 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

substance and format to ìWeddingî and ìLoan.î 

 WRTL planned on running ìWedding,î ìWaiting,î and 

ìLoanî throughout August 2004 and financing the ads 

with funds from its general treasury. It recognized, however, that as of August 15, 30 days prior to the Wisconsin 

primary, the ads would be illegal ìelectioneering communication[s]î under BCRA ß203. 

 Believing that it nonetheless possessed a First Amendment right to broadcast these ads, WRTL filed suit against 

the Federal Election Commission (FEC) on July 28, 2004, 

seeking declaratory and injunctive relief before a threejudge District Court. See note following 2 U. S. C. ß437h 

(2000 ed., Supp. IV); 28 U. S. C. ß2284. WRTL alleged 

that BCRAís prohibition on the use of corporate treasury 

funds for ìelectioneering communication[s]î as defined in 

the Act is unconstitutional as applied to ìWedding,î 

ìLoan,î and ìWaiting,î as well as any materially similar 

ads it might seek to run in the future. 

 Just before the BCRA blackout period was to begin, the 

District Court denied a preliminary injunction, concluding 

that ìthe reasoning of the McConnell Court leaves no room 

for the kind of ëas appliedí challenge WRTL propounds 

before us.î App. to Juris. Statement 52a. In response to 

this ruling, WRTL did not run its ads during the blackout 

period. The District Court subsequently dismissed 

WRTLís complaint. See id., at 47añ48a (ìWRTLís ëasappliedí challenge to BCRA [ß203] is foreclosed by the 

Supreme Courtís decision in McConnellî). On appeal, we 

vacated the District Courtís judgment, holding that 

McConnell ìdid not purport to resolve future as-applied 

challengesî to BCRA ß203, and remanded ìfor the District 

Court to consider the merits of WRTLís as-applied challenge in the first instance.î WRTL I, 546 U. S., at 412. 

 On remand, after allowing four Members of Congress to 

intervene as defendants, the three-judge District Court 

granted summary judgment for WRTL, holding BCRA 
 Cite as: 551 U. S. ____ (2007) 7 

Opinion of the Court 

ß203 unconstitutional as applied to the three advertisements WRTL planned to run during the 2004 blackout 

period. The District Court first found adjudication of the 

dispute not barred by mootness because the controversy 

was ìëcapable of repetition, yet evading review.íî 466 

F. Supp. 2d, at 202. Turning to the merits, the court 

began by noting that under McConnell, BCRA could constitutionally proscribe ìexpress advocacyîódefined as ads 

that expressly advocate the election or defeat of a candidate for federal officeóand the ìfunctional equivalentî of 

such advocacy. 466 F. Supp. 2d, at 204. Stating that it 

was limiting its inquiry to ìlanguage within the four cornersî of the ads, id., at 207, the District Court concluded 

that the ads were not express advocacy or its functional 

equivalent, but instead ìgenuine issue ads.î Id., at 205ñ

208. Then, reaching a question ìleft open in McConnell,î 

the court held that no compelling interest justified BCRAís 

regulation of genuine issue ads such as those WRTL 

sought to run. Id., at 208ñ210. 

 One judge dissented, contending that the majorityís 

ìplain facial analysis of the text in WRTLís 2004 advertisementsî ignored ìthe context in which the text was 

developed.î Id., at 210 (opinion of Roberts, J.). In that 

judgeís view, a contextual analysis of the ads revealed 

ìdeep factual rifts between the parties concerning the 

purpose and intended effects of the adsî such that neither 

side was entitled to summary judgment. Id., at 210, 211. 

 The FEC and intervenors filed separate notices of appeal and jurisdictional statements. We consolidated the 

two appeals and set the matter for briefing and argument, 

postponing further consideration of jurisdiction to the 

hearing on the merits. 549 U. S. ___ (2007). 

II 

 Article IIIís ìcase-or-controversy requirement subsists 

through all stages of federal judicial proceedings . . . . [I]t 
8 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

is not enough that a dispute was very much alive when 

suit was filed.î Lewis v. Continental Bank Corp., 494 U. S. 

472, 477 (1990). Based on these principles, the FEC argues (though the intervenors do not) that these cases are 

moot because the 2004 election has passed and WRTL 

ìdoes not assert any continuing interest in running [its 

three] advertisements, nor does it identify any reason to 

believe that a significant dispute over Senate filibusters of 

judicial nominees will occur in the foreseeable future.î 

Brief for Appellant FEC 21. 

 As the District Court concluded, however, these cases fit 

comfortably within the established exception to mootness 

for disputes capable of repetition, yet evading review. See 

Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern 

Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). 

The exception applies where ì(1) the challenged action is 

in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the 

same action again.î Spencer v. Kemna, 523 U. S. 1, 17 

(1998) (internal quotation marks and brackets omitted). 

Both circumstances are present here. 

 As the District Court found, it would be ìentirely unreasonable . . . to expect that [WRTL] could have obtained 

complete judicial review of its claims in time for it to air 

its adsî during the BCRA blackout periods. 466 F. Supp. 

2d, at 202. The FEC contends that the 2-year window 

between elections provides ample time for parties to litigate their rights before each BCRA blackout period. But 

groups like WRTL cannot predict what issues will be 

matters of public concern during a future blackout period. 

In these cases, WRTL had no way of knowing well in 

advance that it would want to run ads on judicial filibusters during the BCRA blackout period. In any event, 

despite BCRAís command that the cases be expedited ìto 

the greatest possible extent,î ß403(a)(4), 116 Stat. 113, 
 Cite as: 551 U. S. ____ (2007) 9 

Opinion of the Court 

note following 2 U. S. C. ß437h (2000 ed., Supp. IV), two 

BCRA blackout periods have come and gone during the 

pendency of this action. ì[A] decision allowing the desired 

expenditures would be an empty gesture unless it afforded 

appellants sufficient opportunity prior to the election date 

to communicate their views effectively.î First Nat. Bank 

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

 The second prong of the ìcapable of repetitionî exception 

requires a ìëreasonable expectationíî or a ìëdemonstrated 

probabilityíî that ìthe same controversy will recur involving the same complaining party.î Murphy v. Hunt, 455 

U. S. 478, 482 (1982) (per curiam). Our cases find the 

same controversy sufficiently likely to recur when a party 

has a reasonable expectation that it ìwill again be subjected to the alleged illegality,î Lyons, supra, at 109, or 

ìwill be subject to the threat of prosecutionî under the 

challenged law, Bellotti, supra, at 774ñ775 (citing 

Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per 

curiam)). The FEC argues that in order to prove likely 

recurrence of the same controversy, WRTL must establish 

that it will run ads in the future sharing all ìthe characteristics that the district court deemed legally relevant.î 

Brief for Appellant FEC 23. 

 The FEC asks for too much. We have recognized that 

the ìëcapable of repetition, yet evading reviewí doctrine, in 

the context of election cases, is appropriate when there are 

ëas appliedí challenges as well as in the more typical case 

involving only facial attacks.î Storer v. Brown, 415 U. S. 

724, 737, n. 8 (1974). Requiring repetition of every ìlegally relevantî characteristic of an as-applied challengeó

down to the last detailówould effectively overrule this 

statement by making this exception unavailable for virtually all as-applied challenges. History repeats itself, but 

not at the level of specificity demanded by the FEC. Here, 

WRTL credibly claimed that it planned on running ìëmaterially similaríî future targeted broadcast ads mentioning 
10 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Opinion of the Court 

a candidate within the blackout period, 466 F. Supp. 2d, at 

197, and there is no reason to believe that the FEC will 

ìrefrain from prosecuting violationsî of BCRA, Bellotti,

supra, at 775. Under the circumstances, particularly 

where WRTL sought another preliminary injunction based 

on an ad it planned to run during the 2006 blackout period, see 466 F. Supp. 2d, at 203, n. 15, we hold that there 

exists a reasonable expectation that the same controversy 

involving the same party will recur. We have jurisdiction 

to decide these cases. 

III 

 WRTL rightly concedes that its ads are prohibited by 

BCRA ß203. Each ad clearly identifies Senator Feingold, 

who was running (unopposed) in the Wisconsin Democratic primary on September 14, 2004, and each ad would 

have been ìtargeted to the relevant electorate,î see 2 

U. S. C. ß434(f)(3)(C) (2000 ed., Supp. IV), during the 

BCRA blackout period. WRTL further concedes that its 

ads do not fit under any of BCRAís exceptions to the term 

ìelectioneering communication.î See ß434(f)(3)(B). The 

only question, then, is whether it is consistent with the 

First Amendment for BCRA ß203 to prohibit WRTL from 

running these three ads. 

A 

 Appellants contend that WRTL should be required to 

demonstrate that BCRA is unconstitutional as applied to 

the ads. Reply Brief for Appellant Sen. John McCain et al. 

in No. 06ñ970, p. 5, n. 4; Brief for Appellant FEC 34. After 

all, appellants reason, McConnell already held that BCRA 

ß203 was facially valid. These cases, however, present the 

separate question whether ß203 may constitutionally be 

applied to these specific ads. Because BCRA ß203 burdens 

political speech, it is subject to strict scrutiny. See 

McConnell, 540 U. S., at 205; Austin v. Michigan Chamber 

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Opinion of the Court 

of Commerce, 494 U. S. 652, 658 (1990); MCFL, 479 U. S., 

at 252 (plurality opinion); Bellotti, supra, at 786; Buckley,

424 U. S., at 44ñ45. Under strict scrutiny, the Government must prove that applying BCRA to WRTLís ads 

furthers a compelling interest and is narrowly tailored to 

achieve that interest. See Bellotti, supra, at 786 (ìEspecially where, as here, a prohibition is directed at speech 

itself, and the speech is intimately related to the process of 

governing, . . . ëthe burden is on the government to show 

the existence of [a compelling] interestíî (footnote omitted)). 

 The strict scrutiny analysis is, of course, informed by 

our precedents. This Court has already ruled that BCRA 

survives strict scrutiny to the extent it regulates express 

advocacy or its functional equivalent. McConnell, supra,

at 206. So to the extent the ads in these cases fit this 

description, the FECís burden is not onerous; all it need do 

is point to McConnell and explain why it applies here. If, 

on the other hand, WRTLís ads are not express advocacy 

or its equivalent, the Governmentís task is more formidable. It must then demonstrate that banning such ads 

during the blackout periods is narrowly tailored to serve a 

compelling interest. No precedent of this Court has yet 

reached that conclusion. 

B 

 The FEC, intervenors, and the dissent below contend 

that McConnell already established the constitutional test 

for determining if an ad is the functional equivalent of 

express advocacy: whether the ad is intended to influence 

elections and has that effect. See, e.g., 466 F. Supp. 2d, at 

214 (opinion of Roberts, J.). Here is the relevant portion of 

our opinion in McConnell: 

ì[P]laintiffs argue that the justifications that adequately support the regulation of express advocacy do 

not apply to significant quantities of speech encomOpinion of ROBERTS, C. J. 
12 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Opinion of the Court 

passed by the definition of electioneering communications. 

 ìThis 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 votersí decisions and have 

that effect.î 540 U. S., at 205ñ206. 

 WRTL and the District Court majority, on the other 

hand, claim that McConnell did not adopt any test as the 

standard for future as-applied challenges. We agree. 

McConnellís analysis was grounded in the evidentiary 

record before the Court. Two key studies in the McConnell 

record constituted ìthe central piece of evidence marshaled by defenders of BCRAís electioneering communication provisions in support of their constitutional validity.î 

McConnell v. FEC, 251 F. Supp. 2d 176, 307, 308 (DC 

2003) (opinion of Henderson, J.) (internal quotation marks 

and brackets omitted). Those studies asked ìstudent 

codersî to separate ads based on whether the students 

thought the ìpurposeî of the ad was ìto provide information about or urge action on a bill or issue,î or ìto generate 

support or opposition for a particular candidate.î Id., at 

308ñ309 (internal quotation marks omitted; emphasis 

deleted); see Brief for Appellee 38. The studies concluded 

ìëthat BCRAís definition of Electioneering Communications accurately captures those ads that have the purpose 

or effect of supporting candidates for election to office.î 

Ibid. (emphasis in original). 

 When the McConnell Court considered the possible 

facial overbreadth of ß203, it looked to the studies in the 

record analyzing ads broadcast during the blackout periods, and those studies had classified the ads in terms of 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 13 

Opinion of the Court 

intent and effect. The Courtís assessment was accordingly 

phrased in the same terms, which the Court regarded as 

sufficient to conclude, on the record before it, that the 

plaintiffs had not ìcarried their heavy burden of provingî 

that ß203 was facially overbroad and could not be enforced 

in any circumstances. 540 U. S., at 207. The Court did 

not explain that it was adopting a particular test for determining what constituted the ìfunctional equivalentî of 

express advocacy. The fact that the student coders who 

helped develop the evidentiary record before the Court in 

McConnell looked to intent and effect in doing so, and that 

the Court dealt with the record on that basis in deciding 

the facial overbreadth claim, neither compels nor warrants 

accepting that same standard as the constitutional test for 

separating, in an as-applied challenge, political speech 

protected under the First Amendment from that which 

may be banned.4

 More importantly, this Court in Buckley had already 

rejected an intent-and-effect test for distinguishing between discussions of issues and candidates. See 424 U. S., 

at 43ñ44. After noting the difficulty of distinguishing 

between discussion of issues on the one hand and advocacy 

of election or defeat of candidates on the other, the Buckley Court explained that analyzing the question in terms 

ìëof intent and of effectíî would afford ìëno security for free 

óóóóóó 

4This is particularly true given that the methodology, data, and conclusions of the two studies were the subject of serious dispute among 

the District Court judges. Compare McConnell v. FEC, 251 F. Supp. 2d 

176, 307ñ312 (DC 2003) (opinion of Henderson, J.) (stating that the 

studies were flawed and of limited evidentiary value), with id., at 585, 

583ñ588 (opinion of Kollar-Kotelly, J.) (finding the studies generally 

credible, but stating that ìI am troubled by the fact that coders in both 

studies were asked questions regarding their own perceptions of the 

advertisementsí purposes, and that [some of] these perceptions were 

later recodedî by study supervisors). Nothing in this Courtís opinion in 

McConnell suggests it was resolving the sharp disagreements about the 

evidentiary record in this respect. 

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14 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Opinion of the Court 

discussion.íî Id., at 43 (quoting Thomas v. Collins, 323 

U. S. 516, 535 (1945)). It therefore rejected such an approach, and McConnell did not purport to overrule Buckley

on this pointóor even address what Buckley had to say on 

the subject. 

 For the reasons regarded as sufficient in Buckley, we 

decline to adopt a test for as-applied challenges turning on 

the speakerís intent to affect an election. The test to 

distinguish constitutionally protected political speech from 

speech that BCRA may proscribe should provide a safe 

harbor for those who wish to exercise First Amendment 

rights. The test should also ìreflec[t] our ëprofound national commitment to the principle that debate on public 

issues should be uninhibited, robust, and wide-open.íî 

Buckley, supra, at 14 (quoting New York Times Co. v. 

Sullivan, 376 U. S. 254, 270 (1964)). A test turning on the 

intent of the speaker does not remotely fit the bill. 

 Far from serving the values the First Amendment is 

meant to protect, an intent-based test would chill core 

political speech by opening the door to a trial on every ad 

within the terms of ß203, on the theory that the speaker 

actually intended to affect an election, no matter how 

compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker 

would choose to run an ad covered by BCRA if its only 

defense to a criminal prosecution would be that its motives 

were pure. An intent-based standard ìblankets with 

uncertainty whatever may be said,î and ìoffers no security 

for free discussion.î Buckley, supra, at 43 (internal quotation marks omitted). The FEC does not disagree. In its 

brief filed in the first appeal in this litigation, it argued 

that a ìconstitutional standard that turned on the subjective sincerity of a speakerís message would likely be incapable of workable application; at a minimum, it would 

invite costly, fact-dependent litigation.î Brief for Appellee 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 15 

Opinion of the Court 

in WRTL I, O. T. 2005, No. 04ñ1581, p. 39.5

 A test focused on the speakerís intent could lead to the 

bizarre result that identical ads aired at the same time 

could be protected speech for one speaker, while leading to 

criminal penalties for another. See M. Redish, Money 

Talks: Speech, Economic Power, and the Values of Democracy 91 (2001) (ì[U]nder well-accepted First Amendment 

doctrine, a speakerís motivation is entirely irrelevant to 

the question of constitutional protectionî). ìFirst Amendment freedoms need breathing space to survive.î NAACP

v. Button, 371 U. S. 415, 433 (1963). An intent test provides none. 

Buckley also explains the flaws of a test based on the 

actual effect speech will have on an election or on a particular segment of the target audience. Such a test ìëputs 

the speaker . . . wholly at the mercy of the varied understanding of his hearers.íî 424 U. S., at 43. It would also 

typically lead to a burdensome, expert-driven inquiry, 

with an indeterminate result. Litigation on such a standard may or may not accurately predict electoral effects, 

but it will unquestionably chill a substantial amount of 

political speech. 

C 

 ìThe freedom of speech . . . guaranteed by the Constitution embraces at the least the liberty to discuss publicly 

and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.î Bellotti, 

435 U. S., at 776 (internal quotation marks omitted). See 

óóóóóó 

5Consider what happened in these cases. The District Court permitted extensive discovery on the assumption that WRTLís intent was 

relevant. As a result, the defendants deposed WRTLís executive 

director, its legislative director, its political action committee director, 

its lead communications consultant, and one of its fundraisers. WRTL 

also had to turn over many documents related to its operations, plans, 

and finances. Such litigation constitutes a severe burden on political 

speech. 

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16 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Consolidated Edison Co. of N. Y. v. Public Serv. Commín of 

N. Y., 447 U. S. 530, 534 (1980). To safeguard this liberty, 

the proper standard for an as-applied challenge to BCRA 

ß203 must be objective, focusing on the substance of the 

communication rather than amorphous considerations of 

intent and effect. See Buckley, supra, at 43ñ44. It must 

entail minimal if any discovery, to allow parties to resolve 

disputes quickly without chilling speech through the 

threat of burdensome litigation. See Virginia v. Hicks, 

539 U. S. 113, 119 (2003). And it must eschew ìthe openended rough-and-tumble of factors,î which ìinvit[es] complex argument in a trial court and a virtually inevitable 

appeal.î Jerome B. Grubart, Inc. v. Great Lakes Dredge & 

Dock Co., 513 U. S. 527, 547 (1995). In short, it must give 

the benefit of any doubt to protecting rather than stifling 

speech. See New York Times Co. v. Sullivan, supra, at 

269ñ270. 

 In light of these considerations, a court should find that 

an ad is the functional equivalent of express advocacy only 

if the ad is susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific 

candidate. Under this test, WRTLís three ads are plainly 

not the functional equivalent of express advocacy. First, 

their content is consistent with that of a genuine issue ad: 

The ads focus on a legislative issue, take a position on the 

issue, exhort the public to adopt that position, and urge 

the public to contact public officials with respect to the 

matter. Second, their content lacks indicia of express 

advocacy: The ads do not mention an election, candidacy, 

political party, or challenger; and they do not take a position on a candidateís character, qualifications, or fitness 

for office. 

 Despite these characteristics, appellants assert that the 

content of WRTLís ads alone betrays their electioneering 

nature. Indeed, the FEC suggests that any ad covered by 

ß203 that includes ìan appeal to citizens to contact their 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 17 

Opinion of the Court 

elected representativeî is the ìfunctional equivalentî of an 

ad saying defeat or elect that candidate. Brief for Appellant FEC 31; see Brief for Appellant Sen. John McCain 

et al. in No. 06ñ970, pp. 21ñ23 (hereinafter McCain Brief). 

We do not agree. To take just one example, during a 

blackout period the House considered the proposed Universal National Service Act. See App. to Brief for American Center for Law and Justice et al. as Amicus Curiae Bñ

3. There would be no reason to regard an ad supporting or 

opposing that Act, and urging citizens to contact their 

Representative about it, as the equivalent of an ad saying 

vote for or against the Representative. Issue advocacy 

conveys information and educates. An issue adís impact 

on an election, if it exists at all, will come only after the 

voters hear the information and chooseóuninvited by the 

adóto factor it into their voting decisions.6

 The FEC and intervenors try to turn this difference to 

their advantage, citing McConnellís statements ìthat the 

óóóóóó 

6For these reasons, we cannot agree with JUSTICE SOUTERís assertion 

that ìanyone who heard the Feingold ads . . . would know that WRTLís 

message was to vote against Feingold.î Post, at 23. The dissent supports this assertion by likening WRTLís ads to the ìJane Doeî example 

identified in McConnell v. Federal Election Commín, 540 U. S. 93 

(2003). But that ad ìcondemned Jane Doeís record on a particular 

issue.î Post, at 23 (internal quotation marks omitted). WRTLís ads do 

not do so; they instead take a position on the filibuster issue and exhort 

constituents to contact Senators Feingold and Kohl to advance that 

position. Indeed, one would not even know from the ads whether 

Senator Feingold supported or opposed filibusters. JUSTICE SOUTER is 

confident Wisconsinites independently knew Senator Feingoldís position on filibusters, but we think that confidence misplaced. A prominent study found, for example, that during the 2000 election cycle, 85 

percent of respondents to a survey were not even able to name at least 

one candidate for the House of Representatives in their own district. 

See Inter-university Consortium for Political and Social Research, 

American National Election Study, 2000: Pre- and Post-Election Survey 

243 (N. Burns et al. eds. 2002) online at http://www.icpsr.umich.edu/ 

cocoon/ICPSR/STUDY/03131.xml (as visited June 22, 2007, and available in Clerk of Courtís case file). 

Opinion of ROBERTS, C. J. 
18 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Opinion of the Court 

most effective campaign ads, like the most effective commercials for products . . . avoid the [Buckley] magic words 

[expressly advocating the election or defeat of a candidate],î 540 U. S., at 127, and that advertisers ìwould 

seldom choose to use such words even if permitted,î id., at 

193. See McCain Brief 19. An expert for the FEC in these 

cases relied on those observations to argue that WRTLís 

ads are especially effective electioneering ads because they 

are ìsubtl[e],î focusing on issues rather than simply exhorting the electorate to vote against Senator Feingold. 

App. 56ñ57. Rephrased a bit, the argument perversely 

maintains that the less an issue ad resembles express 

advocacy, the more likely it is to be the functional equivalent of express advocacy. This ìheads I win, tails you loseî 

approach cannot be correct. It would effectively eliminate 

First Amendment protection for genuine issue ads, contrary to our conclusion in WRTL I that as-applied challenges to ß203 are available, and our assumption in 

McConnell that ìthe interests that justify the regulation of 

campaign speech might not apply to the regulation of 

genuine issue ads,î 540 U. S., at 206, n. 88. Under appellantsí view, there can be no such thing as a genuine issue 

ad during the blackout periodóit is simply a very effective 

electioneering ad. 

 Looking beyond the content of WRTLís ads, the FEC and 

intervenors argue that several ìcontextualî factors prove 

that the ads are the equivalent of express advocacy. First, 

appellants cite evidence that during the same election 

cycle, WRTL and its Political Action Committee (PAC) 

actively opposed Senator Feingoldís reelection and identified filibusters as a campaign issue. This evidence goes to 

WRTLís subjective intent in running the ads, and we have 

already explained that WRTLís intent is irrelevant in an 

as-applied challenge. Evidence of this sort is therefore 

beside the point, as it should beóWRTL does not forfeit 

its right to speak on issues simply because in other aspects 

Opinion of ROBERTS, C. J. 
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Opinion of the Court 

of its work it also opposes candidates who are involved 

with those issues. 

 Next, the FEC and intervenors seize on the timing of 

WRTLís ads. They observe that the ads were to be aired 

near elections but not near actual Senate votes on judicial 

nominees, and that WRTL did not run the ads after the 

elections. To the extent this evidence goes to WRTLís 

subjective intent, it is again irrelevant. To the extent it 

nonetheless suggests that the ads should be interpreted as 

express advocacy, it falls short. That the ads were run 

close to an election is unremarkable in a challenge like 

this. Every ad covered by BCRA ß203 will by definition air 

just before a primary or general election. If this were 

enough to prove that an ad is the functional equivalent of 

express advocacy, then BCRA would be constitutional in 

all of its applications. This Court unanimously rejected 

this contention in WRTL I. 

 That the ads were run shortly after the Senate had 

recessed is likewise unpersuasive. Members of Congress 

often return to their districts during recess, precisely to 

determine the views of their constituents; an ad run at 

that time may succeed in getting more constituents to 

contact the Representative while he or she is back home. 

In any event, a group can certainly choose to run an issue 

ad to coincide with public interest rather than a floor vote. 

Finally, WRTL did not resume running its ads after the 

BCRA blackout period because, as it explains, the debate 

had changed. Brief for Appellee 16. The focus of the 

Senate was on whether a majority would vote to change 

the Senate rules to eliminate the filibusterónot whether 

individual Senators would continue filibustering. Given 

this change, WRTLís decision not to continue running 

its ads after the blackout period does not support an 

inference that the ads were the functional equivalent of 

electioneering. 

 The last piece of contextual evidence the FEC and interOpinion of ROBERTS, C. J. 
20 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Opinion of the Court 

venors highlight is the adsí ìspecific and repeated crossreferenceî to a website. Reply Brief for Appellant FEC 15. 

In the middle of the websiteís homepage, in large type, 

were the addresses, phone numbers, fax numbers, and 

email addresses of Senators Feingold and Kohl. Wisconsinites who viewed ìWedding,î ìLoan,î or ìWaitingî and 

wished to contact their Senatorsóas the ads requestedó

would be able to obtain the pertinent contact information 

immediately upon visiting the website. This is fully consistent with viewing WRTLís ads as genuine issue ads. 

The website also stated both Wisconsin Senatorsí positions 

on judicial filibusters, and allowed visitors to sign up for 

ìe-alerts,î some of which contained exhortations to vote 

against Senator Feingold. These details lend the electioneering interpretation of the ads more credence, but again, 

WRTLís participation in express advocacy in other aspects 

of its work is not a justification for censoring its issuerelated speech. Any express advocacy on the website, 

already one step removed from the text of the ads themselves, certainly does not render an interpretation of the 

ads as genuine issue ads unreasonable. 

 Given the standard we have adopted for determining 

whether an ad is the ìfunctional equivalentî of express 

advocacy, contextual factors of the sort invoked by appellants should seldom play a significant role in the inquiry. 

Courts need not ignore basic background information that 

may be necessary to put an ad in contextósuch as 

whether an ad ìdescribes a legislative issue that is either 

currently the subject of legislative scrutiny or likely to be 

the subject of such scrutiny in the near future,î 466 

F. Supp. 2d, at 207óbut the need to consider such background should not become an excuse for discovery or a 

broader inquiry of the sort we have just noted raises First 

Amendment concerns. 

 At best, appellants have shown what we have acknowledged at least since Buckley: that ìthe distinction between 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 21 

Opinion of the Court 

discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical 

application.î 424 U. S., at 42. Under the test set forth 

above, that is not enough to establish that the ads can 

only reasonably be viewed as advocating or opposing a 

candidate in a federal election. ìFreedom of discussion, if 

it would fulfill its historic function in this nation, must 

embrace all issues about which information is needed or 

appropriate to enable the members of society to cope with 

the exigencies of their period.î Thornhill v. Alabama, 310 

U. S. 88, 102 (1940). Discussion of issues cannot be suppressed simply because the issues may also be pertinent in 

an election. Where the First Amendment is implicated, 

the tie goes to the speaker, not the censor.7

óóóóóó 

7 JUSTICE SCALIA thinks our test impermissibly vague. See post, at 

11ñ12 (opinion concurring in part and concurring in judgment). As 

should be evident, we agree with JUSTICE SCALIA on the imperative for 

clarity in this area; that is why our test affords protection unless an ad 

is susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate. It is why we emphasize that (1) 

there can be no free-ranging intent-and-effect test; (2) there generally 

should be no discovery or inquiry into the sort of ìcontextualî factors 

highlighted by the FEC and intervenors; (3) discussion of issues cannot 

be banned merely because the issues might be relevant to an election; 

and (4) in a debatable case, the tie is resolved in favor of protecting 

speech. And keep in mind this test is only triggered if the speech meets 

the brightline requirements of BCRA ß203 in the first place. JUSTICE 

SCALIAís criticism of our test is all the more confusing because he 

accepts WRTLís proposed three-prong test as ìclear.î Post, at 17. We 

do not think our test any vaguer than WRTLís, and it is more protective 

of political speech. 

 JUSTICE SCALIA also asserts that our test conflicts with Buckley v. 

Valeo, 424 U. S. 1 (1976) (per curiam). Post, at 13ñ16. The Buckley 

Court confronted a statute restricting ìany expenditure . . . relative to a 

clearly identified candidate.î 424 U. S., at 42 (internal quotation marks 

omitted). To avoid vagueness concerns, this Court first narrowed the 

statute to cover only expenditures expressly ìadvocating the election or 

defeat of a candidateîóusing the so-called ìmagic wordsî of express 

advocacy. Ibid. (internal quotation marks omitted). The Court then 

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22 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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 We confronted a similar issue in Ashcroft v. Free Speech 

Coalition, 535 U. S. 234 (2002), in which the Government 

argued that virtual images of child pornography were 

difficult to distinguish from real images. The Governmentís solution was ìto prohibit both kinds of images.î 

Id., at 254ñ255. We rejected the argument that ìprotected 

speech may be banned as a means to ban unprotected 

speech,î concluding that it ìturns the First Amendment 

upside down.î Id., at 255. As we explained: ìThe Government may not suppress lawful speech as the means to 

suppress unlawful speech. Protected speech does not 

become unprotected merely because it resembles the 

latter. The Constitution requires the reverse.î Ibid.

 Because WRTLís ads may reasonably be interpreted as 

something other than as an appeal to vote for or against a 

specific candidate, we hold they are not the functional 

equivalent of express advocacy, and therefore fall outside 

the scope of McConnellís holding.8

óóóóóó 

proceeded to strike down the newly narrowed statute under strict 

scrutiny on the ground that its reach was not broad enough. Id., at 44. 

From this, JUSTICE SCALIA concludes that ì[i]f a permissible test short 

of the magic-words test existed, Buckley would surely have adopted it.î 

Post, at 14. We are not so sure. The question in Buckley was how a 

particular statutory provision could be construed to avoid vagueness 

concerns, not what the constitutional standard for clarity was in the 

abstract, divorced from specific statutory language. Buckleyís intermediate step of statutory construction on the way to its constitutional 

holding does not dictate a constitutional test. The Buckley Courtís 

ìexpress advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law.î McConnell, 540 U. S., 

at 190. And despite JUSTICE SCALIAís claim to the contrary, our citation 

of Buckley along with other decisions in rejecting an intent-and-effect 

test does not force us to adopt (or reject) Buckleyís statutory construction as a constitutional test. 8Nothing in McConnellís statement that the ìvast majorityî of issue 

ads broadcast in the periods preceding federal elections had an ìelectioneering purposeî forecloses this conclusion. 540 U. S., at 206. 

Courts do not resolve unspecified as-applied challenges in the course of 

resolving a facial attack, so McConnell could not have settled the issue 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 23 

Opinion of the Court 

 IV 

 BCRA ß203 can be constitutionally applied to WRTLís 

ads only if it is narrowly tailored to further a compelling 

interest. McConnell, 540 U. S., at 205; Bellotti, 435 U. S., 

at 786; Buckley, supra, at 44ñ45. This Court has never 

recognized a compelling interest in regulating ads, like 

WRTLís, that are neither express advocacy nor its functional equivalent. The District Court below considered 

interests that might justify regulating WRTLís ads here, 

and found none sufficiently compelling. 466 F. Supp. 2d, 

at 208ñ210. We reach the same conclusion.9

óóóóóó 

we address today. See Members of City Council of Los Angeles v. 

Taxpayers for Vincent, 466 U. S. 789, 803, n. 22 (1984) (ìThe fact that [a 

law] is capable of valid applications does not necessarily mean that it is 

valid as applied to these litigantsî). Indeed, WRTL I confirmed as 

much. 546 U. S., at 411ñ412. By the same token, in deciding this asapplied challenge, we have no occasion to revisit McConnellís conclusion 

that the statute is not facially overbroad. 

The ìvast majorityî language, moreover, is beside the point. The 

McConnell Court did not find that a ìvast majorityî of the issue ads 

considered were the functional equivalent of direct advocacy. Rather, it 

found that such ads had an ìelectioneering purpose.î For the reasons 

we have explained, ìpurposeî is not the appropriate test for distinguishing between genuine issue ads and the functional equivalent of express 

campaign advocacy. See supra, at 14ñ15. In addition, the ìvast majorityî statement was not necessary to the Courtís facial holding in 

McConnell. The standard required for a statute to survive an overbreadth challenge is not that the ìvast majorityî of a statuteís applications be legitimate. ì[B]road language . . . unnecessary to the Courtís 

decision . . . cannot be considered binding authority.î Kastigar v. 

United States, 406 U. S. 441, 454ñ455 (1972). 9The dissent stresses a number of points that, while not central to 

our decision, nevertheless merit a response. First, the dissent overstates its case when it asserts that the ìPAC alternativeî gives corporations a constitutionally sufficient outlet to speak. See post, at 30. PACs 

impose well-documented and onerous burdens, particularly on small 

nonprofits. See MCFL, 479 U. S. 238, 253ñ255 (1986) (plurality opinion). McConnell did conclude that segregated funds ìprovid[e] corporations and unions with a constitutionally sufficient opportunity to 

engage in express advocacyî and its functional equivalent, 540 U. S., at 

Opinion of ROBERTS, C. J. 
24 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

 At the outset, we reject the contention that issue advocacy may be regulated because express election advocacy 

may be, and ìthe speech involved in so-called issue advocacy is [not] any more core political speech than are words 

of express advocacy.î McConnell, supra, at 205. This 

greater-includes-the-lesser approach is not how strict 

scrutiny works. A corporate ad expressing support for the 

local football team could not be regulated on the ground 

that such speech is less ìcoreî than corporate speech about 

an election, which we have held may be restricted. A court 

applying strict scrutiny must ensure that a compelling 

interest supports each application of a statute restricting 

speech. That a compelling interest justifies restrictions on 

express advocacy tells us little about whether a compelling 

interest justifies restrictions on issue advocacy; the 

McConnell Court itself made just that point. See 540 

óóóóóó 

203, but that holding did not extend beyond functional equivalentsó

and if it did, the PAC option would justify regulation of all corporate 

speech, a proposition we have rejected, see Bellotti, 435 U. S., at 777ñ

778. Second, the response that a speaker should just take out a newspaper ad, or use a website, rather than complain that it cannot speak 

through a broadcast communication, see post, at 18ñ19, 33, is too glib. 

Even assuming for the sake of argument that the possibility of using a 

different medium of communication has relevance in determining the 

permissibility of a limitation on speech, newspaper ads and websites 

are not reasonable alternatives to broadcast speech in terms of impact 

and effectiveness. See McConnell v. FEC, 251 F. Supp. 2d, at 569ñ573, 

646 (Kollar-Kotelly, J.). Third, we disagree with the dissentís view that 

corporations can still speak by changing what they say to avoid mentioning candidates, post, at 30ñ31. That argument is akin to telling 

Cohen that he cannot wear his jacket because he is free to wear one 

that says ìI disagree with the draft,î cf. Cohen v. California, 403 U. S. 

15 (1971), or telling 44 Liquormart that it can advertise so long as it 

avoids mentioning prices, cf. 44 Liquormart, Inc. v. Rhode Island, 517 

U. S. 484 (1996). Such notions run afoul of ìthe fundamental rule of 

protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.î Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 

557, 573 (1995). 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 25 

Opinion of the Court 

U. S., at 206, n. 88. Such a greater-includes-the-lesser 

argument would dictate that virtually all corporate speech 

can be suppressed, since few kinds of speech can lay claim 

to being as central to the First Amendment as campaign 

speech. That conclusion is clearly foreclosed by our precedent. See, e.g., Bellotti, supra, at 776ñ777. 

 This Court has long recognized ìthe governmental interest in preventing corruption and the appearance of corruptionî in election campaigns. Buckley, 424 U. S., at 45. 

This interest has been invoked as a reason for upholding 

contribution limits. As Buckley explained, ì[t]o the extent 

that large contributions are given to secure a political quid 

pro quo from current and potential office holders, the 

integrity of our system of representative democracy is 

undermined.î Id., at 26ñ27. We have suggested that this 

interest might also justify limits on electioneering expenditures because it may be that, in some circumstances, 

ìlarge independent expenditures pose the same dangers of 

actual or apparent quid pro quo arrangements as do large 

contributions.î Id., at 45. 

 McConnell arguably applied this interestówhich this 

Court had only assumed could justify regulation of express 

advocacyóto ads that were the ìfunctional equivalentî of 

express advocacy. See 540 U. S., at 204ñ206. But to 

justify regulation of WRTLís ads, this interest must be 

stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough. 

Issue ads like WRTLís are by no means equivalent to 

contributions, and the quid-pro-quo corruption interest 

cannot justify regulating them. To equate WRTLís ads 

with contributions is to ignore their value as political 

speech. 

 Appellants argue that an expansive definition of ìfunctional equivalentî is needed to ensure that issue advocacy 

does not circumvent the rule against express advocacy, 

which in turn helps protect against circumvention of the 

Opinion of ROBERTS, C. J. 
26 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

rule against contributions. Cf. McConnell, supra, at 205 

(ì[R]ecent cases have recognized that certain restrictions 

on corporate electoral involvement permissibly hedge 

against circumvention of [valid] contribution limitsî (internal quotation marks omitted; brackets in original)). 

But such a prophylaxis-upon-prophylaxis approach to 

regulating expression is not consistent with strict scrutiny. ì[T]he desire for a bright-line rule . . . hardly constitutes the compelling state interest necessary to justify any 

infringement on First Amendment freedom.î MCFL, 479 

U. S., at 263. See Free Speech Coalition, 535 U. S., at 255 

(ìThe Government may not suppress lawful speech as the 

means to suppress unlawful speechî); Buckley, supra, at 

44 (expenditure limitations ìcannot be sustained simply by 

invoking the interest in maximizing the effectiveness of 

the less intrusive contribution limitationsî). 

 A second possible compelling interest recognized by this 

Court lies in addressing a ìdifferent 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 publicís support for the corporationís 

political ideas.î Austin, 494 U. S., at 660. Austin invoked 

this interest to uphold a state statute making it a felony 

for corporations to use treasury funds for independent 

expenditures on express election advocacy. Id., at 654ñ

655. McConnell also relied on this interest in upholding 

regulation not just of express advocacy, but also its ìfunctional equivalent.î 540 U. S., at 205ñ206. 

 These cases did not suggest, however, that the interest 

in combating ìa different type of corruptionî extended 

beyond campaign speech. Quite the contrary. Two of the 

Justices who joined the 6-to-3 majority in Austin relied, in 

upholding the constitutionality of the ban on campaign 

speech, on the fact that corporations retained freedom to 

speak on issues as distinct from election campaigns. See 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 27 

Opinion of the Court 

494 U. S., at 675ñ678 (Brennan, J., concurring) (describing 

fact that campaign speech ban ìdoes not regulate corporate expenditures in referenda or other corporate expressionî as ìreflect[ing] the requirements of our decisionsî); 

id., at 678 (STEVENS, J., concurring) (ì[T]here is a vast 

difference between lobbying and debating public issues on 

the one hand, and political campaigns for election to public 

office on the otherî). The McConnell Court similarly was 

willing to ìassume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads.î 540 U. S., at 206, n. 88. And 

our decision in WRTL I reinforced the validity of that 

assumption by holding that BCRA ß203 is susceptible to 

as-applied challenges. 546 U. S., at 411ñ412. 

 Accepting the notion that a ban on campaign speech 

could also embrace issue advocacy would call into question 

our holding in Bellotti that the corporate identity of a 

speaker does not strip corporations of all free speech 

rights. 435 U. S., at 778. It would be a constitutional 

ìbait and switchî to conclude that corporate campaign 

speech may be banned in part because corporate issue 

advocacy is not, and then assert that corporate issue 

advocacy may be banned as well, pursuant to the same 

asserted compelling interest, through a broad conception 

of what constitutes the functional equivalent of campaign 

speech, or by relying on the inability to distinguish campaign speech from issue advocacy. 

 The FEC and intervenors do not argue that the Austin

interest justifies regulating genuine issue ads. Instead, 

they focus on establishing that WRTLís ads are the functional equivalent of express advocacyóa contention we 

have already rejected. We hold that the interest recognized in Austin as justifying regulation of corporate campaign speech and extended in McConnell to the functional 

equivalent of such speech has no application to issue 

Opinion of ROBERTS, C. J. 
28 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of the Court 

advocacy of the sort engaged in by WRTL.10

 Because WRTLís ads are not express advocacy or its 

functional equivalent, and because appellants identify no 

interest sufficiently compelling to justify burdening 

WRTLís speech, we hold that BCRA ß203 is unconstitutional as applied to WRTLís ìWedding,î ìLoan,î and ìWaitingî ads. 

* * * 

 These cases are about political speech. The importance 

of the cases to speech and debate on public policy issues is 

reflected in the number of diverse organizations that have 

joined in supporting WRTL before this Court: the American Civil Liberties Union, the National Rifle Association, 

the American Federation of Labor and Congress of Industrial Organizations, the Chamber of Commerce of the 

United States of America, Focus on the Family, the Coalition of Public Charities, the Cato Institute, and many 

others. 

 Yet, as is often the case in this Courtís First Amendment opinions, we have gotten this far in the analysis 

without quoting the Amendment itself: ìCongress shall 

make no law . . . abridging the freedom of speech.î The 

óóóóóó 

10The interest recognized in Austin stems from a concern that ìë[t]he 

resources in the treasury of a business corporation . . . are not an 

indication of popular support for the corporationís political ideas.íî 

Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 659 (1990) 

(alteration in original). Some of WRTLís amici contend that this 

interest is not implicated here because of WRTLís status as a nonprofit 

advocacy organization. They assert that ì[s]peech by nonprofit advocacy groups on behalf of their members does not ëcorruptí candidates or 

ëdistortí the political marketplace,î and that ì[n]onprofit advocacy 

groups funded by individuals are readily distinguished from for-profit 

corporations funded by general treasuries.î Brief for Family Research 

Council et al. as Amici Curiae 3, 4. Cf. MCFL, 479 U. S., at 264. We do 

not pass on this argument in this as-applied challenge because WRTLís 

funds for its ads were not derived solely from individual contributions. 

See Brief for Appellant FEC 11. 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 29 

Opinion of the Court 

Framersí actual words put these cases in proper perspective. Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but 

when it comes to drawing difficult lines in the area of pure 

political speechóbetween what is protected and what the 

Government may banóit is worth recalling the language 

we are applying. McConnell held that express advocacy of 

a candidate or his opponent by a corporation shortly before 

an election may be prohibited, along with the functional 

equivalent of such express advocacy. We have no occasion 

to revisit that determination today. But when it comes to 

defining what speech qualifies as the functional equivalent 

of express advocacy subject to such a banóthe issue we do

have to decideówe give the benefit of the doubt to speech, 

not censorship. The First Amendmentís command that 

ìCongress shall make no law . . . abridging the freedom of 

speechî demands at least that. 

 The judgment of the United States District Court for the 

District of Columbia is affirmed. 

It is so ordered. 

Opinion of ROBERTS, C. J. 
 Cite as: 551 U. S. ____ (2007) 1 

ALITO, J., concurring 

SUPREME COURT OF THE UNITED STATES _________________ 

Nos. 06ñ969 and 06ñ970 

_________________ 

FEDERAL ELECTION COMMISSION, APPELLANT 

06ñ969 v.

WISCONSIN RIGHT TO LIFE, INC. 

SENATOR JOHN MCCAIN, ET AL., APPELLANTS 

06ñ970 v.

WISCONSIN RIGHT TO LIFE, INC. 

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007] 

 JUSTICE ALITO, concurring. 

 I join the principal opinion because I conclude (a) that 

ß203 of the Bipartisan Campaign Reform Act of 2002, 2 

U. S. C. ß441b(b)(2) (2000 ed., Supp. IV), as applied, cannot constitutionally ban any advertisement that may 

reasonably be interpreted as anything other than an 

appeal to vote for or against a candidate, (b) that the ads 

at issue here may reasonably be interpreted as something 

other than such an appeal, and (c) that because ß203 is 

unconstitutional as applied to the advertisements before 

us, it is unnecessary to go further and decide whether 

ß203 is unconstitutional on its face. If it turns out that the 

implementation of the as-applied standard set out in the 

principal opinion impermissibly chills political speech, see 

post, at 15ñ16 (SCALIA, J., joined by KENNEDY, and 

THOMAS, JJ., concurring in part and concurring in judgment), we will presumably be asked in a future case 

to reconsider the holding in McConnell v. Federal 

Election Commín, 540 U. S. 93 (2003), that ß203 is facially 

constitutional. 
 Cite as: 551 U. S. ____ (2007) 1 

Opinion of SCALIA, J. 

SUPREME COURT OF THE UNITED STATES _________________ 

Nos. 06ñ969 and 06ñ970 

_________________ 

FEDERAL ELECTION COMMISSION, APPELLANT 

06ñ969 v.

WISCONSIN RIGHT TO LIFE, INC. 

SENATOR JOHN MCCAIN, ET AL., APPELLANTS 

06ñ970 v.

WISCONSIN RIGHT TO LIFE, INC. 

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007] 

 JUSTICE SCALIA, with whom JUSTICE KENNEDY and 

JUSTICE THOMAS join, concurring in part and concurring 

in the judgment. 

 A Moroccan cartoonist once defended his criticism of the 

Moroccan monarch (lËse majestÈ being a serious crime in 

Morocco) as follows: ìëIím not a revolutionary, Iím just 

defending freedom of speech. . . . I never said we had to 

change the kingóno, no, no, no! But I said that some 

things the king is doing, I do not like. Is that a crime?íî1 

Well, in the United States (making due allowance for the 

fact that we have elected representatives instead of a 

king) it is a crime, at least if the speaker is a union or a 

corporation (including not-for-profit public-interest corporations) and if the representative is identified by name 

within a certain period before a primary or congressional 

election in which he is running. That is the import of ß203 

of the Bipartisan Campaign Reform Act of 2002 (BCRA), 

óóóóóó 

1Whitlock, Satirist Continues to Prove Himself a Royal Pain, Washington Post, Apr. 26, 2005, pp. C1, C8. 
2 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of SCALIA, J. 

the constitutionality of which we upheld three Terms ago 

in McConnell v. Federal Election Commín, 540 U. S. 93 

(2003). As an element essential to that determination of 

constitutionality, our opinion left open the possibility that 

a corporation or union could establish that, in the particular circumstances of its case, the ban was unconstitutional 

because it was (to pursue the analogy) only the kingís 

policies and not his tenure in office that was criticized. 

Todayís cases present the question of what sort of showing 

is necessary for that purpose. For the reasons I set forth 

below, it is my view that no test for such a showing can 

both (1) comport with the requirement of clarity that 

unchilled freedom of political speech demands, and (2) be 

compatible with the facial validity of ß203 (as pronounced 

in McConnell). I would therefore reconsider the decision 

that sets us the unsavory task of separating issue-speech 

from election-speech with no clear criterion. 

I 

 Todayís cases originated in the efforts of Wisconsin 

Right to Life, Inc. (WRTL), a Wisconsin nonprofit, nonstock ideological advocacy corporation, to lobby Wisconsin 

voters concerning the filibustering of the Presidentís judicial nominees. The problem for WRTL was that, under 

ß203 of BCRA, it would have been unlawful to air its 

television and radio ads within 30 days before the September 14, 2004, primary or within 60 days before the 

November 2, 2004, general election because the ads named 

Senator Feingold, who was then seeking reelection. Section 203(a) of BCRA amended ß316(b)(2) of the Federal 

Election Campaign Act Amendments of 1974, which prohibited corporations and unions from ìmak[ing] a contribution or expenditure in connection with any election to 

any political office, or in connection with any primary 

election . . . for any political office.î 2 U. S. C. ß441b(a). 

Prior to BCRA, that section covered only expenditures for 
 Cite as: 551 U. S. ____ (2007) 3 

Opinion of SCALIA, J. 

communications that expressly advocated the election or 

defeat of a candidate (in campaign-finance speak, so-called 

ìexpress advocacyî). McConnell, supra, at 204. As 

amended, however, that section was broadened to cover 

ìelectioneering communication[s],î ß441b(b)(2) (2000 ed., 

Supp. IV), which include ìany broadcast, cable, or satellite 

communicationî that ìrefers to a clearly identified candidate for Federal officeî and that is aired within 60 days 

before a general election, or 30 days before a primary 

election, in the jurisdiction in which the candidate is 

running. ß434(f)(3) (2000 ed., Supp. IV).2 Under the new 

law, a corporation or union wishing to air advertisements 

covered by the definition of ìelectioneering communicationî is prohibited by ß203 from doing so unless it first 

creates a separate segregated fund run by a ìpolitical 

action committee,î commonly known as a ìPAC.î 

ß441b(b)(2)(C) (2000 ed., Supp. IV). Three Terms ago, in 

McConnell, supra, this Court upheld most of BCRAís provisions against constitutional challenge, including ß203. The 

Court found that the ìvast majorityî of ads aired during the 

30-day and 60-day periods before elections were ìthe functional equivalent of express advocacy,î id., at 206, but suggested that ìpure issue ads,î id., at 207, or ìgenuine issue 

ads,î id., at 206, would be protected. 

 The question in these cases is whether ß203 can be 

applied to WRTLís ads consistently with the First Amendment. Last Term, this Court unanimously held, in Wisóóóóóó 

2BCRA also includes a backup definition of ìelectioneering communicationî that will take effect in the event the primary definition is ìheld 

to be constitutionally insufficient . . . to support the regulation provided 

herein.î 2 U. S. C. ß434(f)(3)(A)(ii) (2000 ed., Supp. IV). This defines 

ìelectioneering communicationî as ìany broadcast, cable, or satellite 

communication which promotes or supports a candidate for [a federal] 

office, or attacks or opposes a candidate for that office (regardless of 

whether the communication expressly advocates a vote for or against a 

candidate) and which also is suggestive of no plausible meaning other 

than an exhortation to vote for or against a specific candidate.î Ibid.
4 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of SCALIA, J. 

consin Right to Life, Inc. v. Federal Election Commín, 546 

U. S. 410, 411ñ412 (2006) (per curiam) (WRTL I), that asapplied challenges to ß203 are available. The District 

Court in these cases subsequently held that ß203 is unconstitutional as applied to the three ads at issue. The Court 

today affirms the judgment of the District Court. While I 

agree with that result, I disagree with the principal opinionís reasons. 

II 

 A proper explanation of my views in these cases requires 

some discussion of the case law leading up to McConnell. I 

begin with the seminal case of Buckley v. Valeo, 424 U. S. 

1 (1976) (per curiam), wherein this Court considered the 

constitutionality of various political contribution and 

expenditure limitations contained in the Federal Election 

Campaign Act of 1971 (FECA), 86 Stat. 3, as amended, 88 

Stat. 1263. Buckley set forth a now-familiar framework 

for evaluating the constitutionality of campaign-finance 

regulations. The Court began with the recognition that 

contributing money to, and spending money on behalf of, 

political candidates implicates core First Amendment 

protections, and that restrictions on such contributions 

and expenditures ìoperate in an area of the most fundamental First Amendment activities.î 424 U. S., at 14. 

The Court also recognized, however, that the Government 

has a compelling interest in ìprevention of corruption and 

the appearance of corruption.î Id., at 25. The ìcorruptionî 

to which the Court repeatedly referred was of the ìquid 

pro quoî variety, whereby an individual or entity makes a 

contribution or expenditure in exchange for some action by 

an official. Id., at 26, 27, 45, 47. 

 The Court then held that FECAís contribution limitations passed constitutional muster because they represented a ìmarginal restriction upon the contributorís 

ability to engage in free communication,î id., at 20ñ21, 
 Cite as: 551 U. S. ____ (2007) 5 

Opinion of SCALIA, J. 

and were thus subject to a lower level of scrutiny, id., at 

25. The Court invalidated, however, FECAís limitation on 

independent expenditures (i.e., expenditures made to 

express oneís own positions and not in coordination with a 

campaign). Id., at 39ñ51. In the Courtís view, expenditure limitations restrict speech that is ìëat the core of our 

electoral process and of the First Amendment freedoms,íî 

id., at 39, and require the highest scrutiny, id., at 44ñ45. 

 The independent-expenditure restriction at issue in 

Buckley limited the amount of money that could be spent 

ìërelative to a clearly identified candidate.íî Id., at 41 

(quoting 18 U. S. C. ß608(e)(1) (1970 ed., Supp. IV) (repealed 1976)). Before striking down the expenditure 

limitation, the Court narrowly construed ß608(e)(1), in 

light of vagueness concerns, to cover only express advocacyóthat is, advertising that ìin express terms advocate[s] the election or defeat of a clearly identified candidate for federal officeî by use of such words of advocacy ìas 

ëvote for,í ëelect,í ësupport,í ëcast your ballot for,í ëSmith for 

Congress,í ëvote against,í ëdefeat,í ëreject.íî 424 U. S., at 44, 

and n. 52. This narrowing construction excluded so-called 

ìissue advocacyîófor example, an ad that refers to a clearly 

identified candidateís position on an issue, but does not 

expressly advocate his election or defeat. Even as narrowly 

construed to cover only express advocacy, however, 

ß608(e)(1) was held to be unconstitutional because the 

narrowed prohibition was too narrow to be effective and 

(quite apart from that shortcoming) independent expenditures did not pose a serious enough threat of corruption. 

Id., at 45ñ46. Notably, the Court also found the Governmentís interest in ìequalizing the relative ability of individuals and groups to influence the outcome of electionsî 

insufficient to support limitations on independent expenditures. Id., at 48. 

Buckley might well have been the last word on limitations on independent expenditures. Some argued, how-
6 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of SCALIA, J. 

ever, that independent expenditures by corporations

should be treated differently. That argument should have 

been foreclosed by Buckley for several reasons: (1) the 

particular provision at issue in Buckley, ß608(e)(1) of 

FECA, was directed to expenditures not just by ìindividuals,î but by ìpersons,î with ìëpersonsíî specifically defined 

to include ìëcorporation[s],íî id., at 23, 39, n. 45; (2) the 

plaintiffs in Buckley included corporations, id., at 8; and 

(3) Buckley, id., at 50ñ51, cited a case that involved limitations on corporations in support of its striking down the 

restriction at issue, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Moreover, pre-Buckley cases 

had accorded corporations full First Amendment protection. See, e.g., NAACP v. Button, 371 U. S. 415, 428ñ429, 

431 (1963) (holding that the corporationís activities were 

ìmodes of expression and association protected by the 

First and Fourteenth Amendmentsî); Grosjean v. American Press Co., 297 U. S. 233, 244 (1936) (holding that 

corporations are guaranteed the ìfreedom of speech and of 

the press . . . safeguarded by the due process of law clause 

of the Fourteenth Amendmentî). See also Pacific Gas & 

Elec. Co. v. Public Util. Commín of Cal., 475 U. S. 1, 8 

(1986) (plurality opinion) (ìThe identity of the speaker is 

not decisive in determining whether speech is protectedî; 

ì[c]orporations and other associations, like individuals, 

contribute to the ëdiscussion, debate, and the dissemination of information and ideasí that the First Amendment 

seeks to fosterî). 

 Indeed, one would have thought the coup de gr‚ce to the 

argument that corporations can be treated differently for 

these purposes was dealt by First Nat. Bank of Boston v. 

Bellotti, 435 U. S. 765 (1978), decided just two years after 

Buckley. In that case, the Court struck down a Massachusetts statute that prohibited corporations from spending 

money in connection with a referendum unless the referendum materially affected the corporationís property, 
 Cite as: 551 U. S. ____ (2007) 7 

Opinion of SCALIA, J. 

business, or assets. As the Court explained: The principle 

that such advocacy is ìat the heart of the First Amendmentís protectionî and is ìindispensable to decisionmaking 

in a democracyî is ìno less true because the speech comes 

from a corporation rather than an individual.î 435 U. S., 

at 776ñ777. And the Court rejected the arguments that 

corporate participation ìwould exert an undue influence 

on the outcome of a referendum voteî; that corporations 

would ìdrown out other points of viewî and ìdestroy the 

confidence of the people in the democratic process,î id., at 

789; and that the prohibition was needed to protect corporate shareholders ìby preventing the use of corporate 

resources in furtherance of views with which some shareholders may disagree,î id., at 792ñ793.3

 The Court strayed far from these principles, however, in 

one post-Buckley case: Austin v. Michigan Chamber of 

Commerce, 494 U. S. 652 (1990). This was the only preMcConnell case in which this Court had ever permitted 

the Government to restrict political speech based on the 

corporate identity of the speaker. Austin upheld state 

restrictions on corporate independent expenditures in 

support of, or in opposition to, any candidate in elections 

for state office. 494 U. S., at 654ñ655. The statute had 

been modeled after the federal statute that BCRA ß203 

amended, which had been construed to reach only express 

advocacy, id., at 655, n. 1. And the ad at issue in Austin

used the magical and forbidden words of express advocacy: 

óóóóóó 

3 In Federal Election Commín v. Massachusetts Citizens for Life, Inc., 

479 U. S. 238, 248 (1986) (MCFL), we addressed the pre-BCRA version 

of 2 U. S. C. ß441b, which was interpreted to ban corporate treasury 

expenditures for express advocacy in connection with federal elections. 

We held that, ì[r]egardless of whether th[e] concern [for unfair advantage to organizations that amass great wealth] is adequate to support 

application of ß441b to commercial enterprises, a question not before us, 

that justificationî did not support application of the statute to the 

nonprofit organization that brought the challenge in MCFL. 479 U. S., 

at 263 (emphasis added). 
8 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

Opinion of SCALIA, J. 

ìElect Richard Bandstra.î Id., at 714 (App. to opinion of 

KENNEDY, J., dissenting). How did the Court manage to 

reach this result without overruling Bellotti? It purported 

to recognize a different class of corruption: ìthe 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 publicís support for the corporationís political ideas.î Austin, supra, at 

660.

 Among the many problems with this ìnewî theory of 

corruption was that it actually constituted ìthe same ëcorrosive and distorting effects of immense aggregations of 

wealth,í found insufficient to sustain a similar prohibition 

just a decade earlier,î in Bellotti. McConnell, 540 U. S., at 

325 (opinion of KENNEDY, J.) (quoting Austin, supra, at 660; 

citation omitted). Indeed, Buckley itself had cautioned that 

ì[t]he First Amendmentís protection against governmental 

abridgment of free expression cannot properly be made to 

depend on a personís financial ability to engage in public 

discussion.î 424 U. S., at 49. However, two Members of 

Austinís 6-to-3 majority appear to have thought it significant that Austin involved express advocacy whereas Bellotti

involved issue advocacy. 494 U. S., at 675ñ676 (Brennan, 

J., concurring); id., at 678 (STEVENS, J., concurring).4

Austin was a significant departure from ancient First 

Amendment principles. In my view, it was wrongly decided. The flawed rationale upon which it is based is 

examined at length elsewhere, including in a dissenting 

óóóóóó 

4The dissent asserts that Austin was faithful to Bellottiís principles, 

to prove which it quotes a footnote in Bellotti leaving open the possibility that independent expenditures by corporations might someday be 

demonstrated to beget quid-pro-quo corruption. Post, at 12, n. 6 (opinion of SOUTER, J.) (quoting Bellotti, 435 U. S., at 788, n. 26). That 

someday has never come. No one seriously believes that independent

expenditures could possibly give rise to quid-pro-quo corruption without being subject to regulation as coordinated expenditures.
 Cite as: 551 U. S. ____ (2007) 9 

Opinion of SCALIA, J. 

opinion in Austin that a Member of the 5-to-4 McConnell

majority had joined, see Austin, 494 U. S., at 695ñ713 

(opinion of KENNEDY, J., joined by OíConnor, J.). See also 

id., at 679ñ695 (SCALIA, J., dissenting); McConnell, 540 

U. S., at 257ñ259 (opinion of SCALIA, J.); id., at 325ñ330 

(opinion of KENNEDY, J.); id., at 273ñ275 (opinion of 

THOMAS, J.). But at least Austin was limited to express 

advocacy, and nonexpress advocacy was presumed to 

remain protected under Buckley and Bellotti, even when 

engaged in by corporations. 

 Three Terms ago the Court extended Austinís flawed 

rationale to cover an even broader class of speech. In 

McConnell, the Court rejected a facial overbreadth challenge to BCRA ß203ís restrictions on corporate and union 

advertising, which were not limited to express advocacy 

but covered vast amounts of nonexpress advocacy (embraced within the term ìelectioneering communicationsî). 

540 U. S., at 203ñ209. The Court held that, at least in 

light of the availability of the PAC option, the compelling 

governmental interest that supported restrictions on 

corporate expenditures for express advocacy also justified 

the extension of those restrictions to ìelectioneering communications,î the ìvast majorityî of which were intended 

to influence elections. Id., at 206. Of course, the compelling interest to which the Court referred was ìëthe corrosive and distorting effects of immense aggregations of 

[corporate] wealth,íî id., at 205 (quoting Austin, supra, at 

660). ìThe justifications for the regulation of express 

advocacy,î the Court explained, ìapply equallyî to ads run 

during the BCRA blackout period ìto the extent . . . [those 

ads] are the functional equivalent of express advocacy.î 

540 U. S., at 206 (emphasis added). The Court found that 

the ìvast majorityî of ads aired during the 30- and 60-day 

periods before elections fit that description. Finally, the 

Court concluded that, ì[e]ven . . . assum[ing] that BCRA 

will inhibit some constitutionally protected corporate and 
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union speechî (i.e., ìpure issue ads,î id., at 207, or ìgenuine issue ads,î id., at 206, and n. 88), its application to 

such ads was insubstantial, and thus the statute was not 

overbroad, id., at 207. But McConnell did not foreclose asapplied challenges to ß203, WRTL I, 546 U. S., at 411ñ412, 

which brings me back to the present cases. 

III 

 The question is whether WRTL meets the standard for 

prevailing in an as-applied challenge to BCRA ß203. 

Answering that question obviously requires the Court to 

articulate the standard. The most obvious one, and the 

one suggested by the Federal Election Commission (FEC) 

and intervenors, is the standard set forth in McConnell

itself: whether the advertisement is the ìfunctional 

equivalent of express advocacy.î McConnell, supra, at 

206. See also Brief for Appellant FEC 18 (arguing that 

WRTLís ìadvertisements are the functional equivalent of 

the sort of express advocacy that this Court has long 

recognized may be constitutionally regulatedî); Reply 

Brief for Appellant Sen. John McCain et al. in No. 06ñ970, 

p. 14 (ì[C]ourts should apply the standard articulated in 

McConnell; Congress may constitutionally restrict corporate funding of ads that are the ëfunctional equivalent of 

express advocacyí for or against a candidateî). Intervenors 

flesh out the standard somewhat further: ì[C]ourts should 

ask whether the adís audience would reasonably understand the ad, in the context of the campaign, to promote or 

attack the candidate.î Id., at 15. The District Court 

instead articulated a five-factor test that looks to whether 

the ad under review ì(1) describes a legislative issue that 

is either currently the subject of legislative scrutiny or 

likely to be the subject of such scrutiny in the near future; 

(2) refers to the prior voting record or current position of 

the named candidate on the issue described; (3) exhorts 

the listener to do anything other than contact the candi-
 Cite as: 551 U. S. ____ (2007) 11 

Opinion of SCALIA, J. 

date about the described issue; (4) promotes, attacks, 

supports, or opposes the named candidate; and (5) refers 

to the upcoming election, candidacy, and/or political party 

of the candidate.î 466 F. Supp. 2d 195, 207 (DC 2006). 

The backup definition of ìelectioneering communicationsî 

contained in BCRA itself, see n. 2, supra, offers another 

possibility. It covers any communication that ìpromotes 

or supports a candidate for that office . . . (regardless of 

whether the communication expressly advocates a vote for 

or against a candidate) and which also is suggestive of no 

plausible meaning other than an exhortation to vote for or 

against a specific candidate.î And the principal opinion in 

this case offers a variation of its own (one bearing a strong 

likeness to BCRAís backup definition): whether ìthe ad is 

susceptible of no reasonable interpretation other than as 

an appeal to vote for or against a specific candidate.î 

Ante, at 16. 

 There is a fundamental and inescapable problem with 

all of these various tests. Each of them (and every other 

test that is tied to the public perception, or a courtís perception, of the import, the intent, or the effect of the ad) is 

impermissibly vague and thus ineffective to vindicate the 

fundamental First Amendment rights of the large segment 

of society to which ß203 applies. Consider the application 

of these tests to WRTLís ads: There is not the slightest 

doubt that these ads had an issue-advocacy component. 

They explicitly urged lobbying on the pending legislative 

issue of appellate-judge filibusters. The question before us 

is whether something about them caused them to be the 

ìfunctional equivalentî of express advocacy, and thus 

constitutionally subject to BCRAís criminal penalty. Does 

any of the tests suggested above answer this question with 

the degree of clarity necessary to avoid the chilling of 

fundamental political discourse? I think not. 

 The ìfunctional equivalentî test does nothing more than 

restate the question (and make clear that the electoral 
12 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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Opinion of SCALIA, J. 

advocacy need not be express). The test which asks how 

the adís audience ìwould reasonably understand the adî 

provides ample room for debate and uncertainty. The 

District Courtís five-factor test does not (and could not 

possibly) specify how much weight is to be given to each 

factoróand includes the inherently vague factor of 

whether the ad ìpromotes, attacks, supports, or opposes 

the named candidate.î (Does attacking the kingís position 

attack the king?) The tests which look to whether the ad 

is ìsusceptible of no plausible meaningî or ìsusceptible of 

no reasonable interpretationî other than an exhortation to 

vote for or against a specific candidate seem tighter. They 

ultimately depend, however, upon a judicial judgment (or 

is itóworse stillóa jury judgment?) concerning ìreasonableî or ìplausibleî import that is far from certain, that 

rests upon consideration of innumerable surrounding 

circumstances which the speaker may not even be aware 

of, and that lends itself to distortion by reason of the 

decisionmakerís subjective evaluation of the importance or 

unimportance of the challenged speech. In this critical 

area of political discourse, the speaker cannot be compelled to risk felony prosecution with no more assurance of 

impunity than his prediction that what he says will be 

found susceptible of some ìreasonable interpretation other 

than as an appeal to vote for or against a specific candidate.î Under these circumstances, ì[m]any persons, 

rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case 

litigation, will choose simply to abstain from protected 

speechóharming not only themselves but society as a 

whole, which is deprived of an uninhibited marketplace of 

ideas.î Virginia v. Hicks, 539 U. S. 113, 119 (2003) (citation omitted). 

 It will not do to say that this burden must be acceptedó

that WRTLís antifilibustering, constitutionally protected 

speech can be constrainedóin the necessary pursuit of 
 Cite as: 551 U. S. ____ (2007) 13 

Opinion of SCALIA, J. 

electoral ìcorruption.î We have rejected the ìcanít-makean-omelet-without-breaking-eggsî approach to the First 

Amendment, even for the infinitely less important (and 

less protected) speech category of virtual child pornography. In Ashcroft v. Free Speech Coalition, 535 U. S. 234 

(2002), the Government argued: 

ìthe possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real 

children. Experts . . . may have difficulty in saying 

whether the pictures were made by using real children or by using computer imaging. The necessary solution . . . is to prohibit both kinds of images.î Id., at 

254ñ255. 

The Court rejected the principle that protected speech 

may be banned because it is difficult to distinguish from 

unprotected speech. Ibid. ì[T]hat protected speech may 

be banned as a means to ban unprotected speech,î it said, 

ìturns the First Amendment upside down.î Id., at 255. 

The same principle must be applied here. Indeed, it must 

be applied a fortiori, since laws targeting political speech 

are the principal object of the First-Amendment guarantee. The fact that the line between electoral advocacy and 

issue advocacy dissolves in practice is an indictment of the 

statute, not a justification of it. 

Buckley itself compels the conclusion that these tests 

fall short of the clarity that the First Amendment demands. Recall that Buckley narrowed the ambiguous 

phrase ìany expenditure . . . relative to a clearly identified 

candidateî to mean any expenditure ìadvocating the election or defeat of a candidate.î 424 U. S., at 42 (internal 

quotation marks omitted). But that construction alone did 

not eliminate the vagueness problem because ìthe distinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often 
14 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

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dissolve in practical application.î Ibid. Any effort to 

distinguish between the two based on intent of the 

speaker or effect of the speech on the listener would ìëpu[t] 

the speaker . . . wholly at the mercy of the varied understanding of his hearers,íî would ìëoffe[r] no security for 

free discussion,íî and would ìëcompe[l] the speaker to 

hedge and trim.íî Id., at 43 (quoting Thomas v. Collins, 

323 U. S. 516, 535 (1945)). In order to avoid these ìconstitutional deficiencies,î the Court was compelled to narrow 

the statutory language even further to cover only advertising that used the magic words of express advocacy. 424 

U. S., at 43ñ44. 

 If a permissible test short of the magic-words test existed, Buckley would surely have adopted it. Especially 

since a consequence of the express-advocacy interpretation

was the invalidation of the entire limitation on independent expenditures, in part because the statute (as thus 

narrowed) could not be an effective limitation on expenditures for electoral advocacy. (It would be ìnaiv[e],î Buckley said, to pretend that persons and groups would have 

difficulty ìdevising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidateís campaign.î Id., at 45.) 

Why did Buckley employ such a ìhighly strainedî reading 

of the statute, McConnell, 540 U. S., at 280 (opinion of 

THOMAS, J.), when broader readings, more faithful to the 

text, were available that might not have resulted in such 

underinclusiveness? In particular, after going to the 

trouble of narrowing the statute to cover ìadvocacy of [the] 

election or defeat of a candidat[e],î why not do what the 

principal opinion in these cases does, which is essentially 

to preface that phrase with the phrase ìsusceptible of no 

reasonable interpretation other than asî? Ante, at 16. 

There is only one plausible explanation: The Court eschewed narrowing constructions that would have been 

more faithful to the text and more effective at capturing 
 Cite as: 551 U. S. ____ (2007) 15 

Opinion of SCALIA, J. 

campaign speech because those tests were all too vague. 

We cannot now adopt a standard held to be facially vague 

on the theory that it is somehow clear enough for constitutional as-applied challenges. If Buckley foreclosed such 

vagueness in a statutory test, it also must foreclose such 

vagueness in an as-applied test. 

 Though the principal opinion purports to recognize the 

ìimperative for clarityî in this area of First Amendment 

law, its attempt to distinguish its test from the test found 

to be vague in Buckley falls far short. It claims to be ìnot 

so sureî that Buckley rejected its test because Buckleyís 

holding did not concern ìwhat the constitutional standard 

was in the abstract, divorced from specific statutory language.î Ante, at 21, n. 7. Forget about abstractions: The

specific statutory language at issue in Buckley was interpreted to mean ìëadvocating the election or defeat of a 

candidate,íî and that is materially identical to the operative language in the principal opinionís test. The principal 

opinionís protestation that Buckleyís vagueness holding 

ìd[id] not dictate a constitutional test,î ante, at 21, n. 7, is 

utterly compromised by the fact that the principal opinion 

itself relies on the very same vagueness holding to reject 

an intent-and-effect test in this case. See ante, at 13ñ14 

(citing Buckley, supra, at 43ñ44). It is the same vagueness 

holding, and the principal opinion cannot invoke it on page 

13 of its opinion and disclaim it on page 22. Finally, the 

principal opinion quotes McConnell for the proposition 

that ì[t]he Buckley Courtís ëexpress advocacy restriction 

was an endpoint of statutory interpretation, not a first 

principle of constitutional law.í î Ante, at 21, n. 7 (quoting 

McConnell, 540 U. S., at 190). I am not sure why this 

cryptic statement is at all relevant, since we are discussing here the principle of constitutional law that underlay 

Buckleyís express-advocacy restriction. In any case, the 

statement is assuredly not a repudiation of Buckleyís 

vagueness holding, since overbreadth and not vagueness 
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was the issue in McConnell.5 

 What, then, is to be done? We could adopt WRTLís 

proposed test, under which ß203 may not be applied to any 

ad (1) that ìfocuses on a current legislative branch matter, 

takes a position on the matter, and urges the public to ask 

a legislator to take a particular position or action with 

respect to the matter,î and (2) that ìdoes not mention any 

election, candidacy, political party, or challenger, or the 

officialís character, qualifications, or fitness for office,î (3) 

whether or not it ìsay[s] that the public official is wrong or 

right on the issue,î so long as it does not expressly say he 

is ìwrong for [the] office.î Brief for Appellee 56ñ57 (footnote omitted).6 Or we could of course adopt the Buckley 

óóóóóó 

5 JUSTICE ALITOís concurrence at least hints that the principal opinionís test may impermissibly chill speech, and offers to reconsider 

McConnellís holding ì[i]f it turns out that the implementation of the asapplied standard set out in the [principal opinion] impermissibly chills 

political speech.î Post, at 1 (emphasis added). The wait-and-see 

approach makes no sense and finds no support in our cases. How will 

we know that would-be speakers have been chilled and have not spoken? If a tree does not fall in the forest, can we hear the sound it would 

have made had it fallen? Our normal practice is to assess ex ante the 

risk that a standard will have an impermissible chilling effect on First 

Amendment protected speech. JUSTICE ALITO seemed to recognize that 

as recently as, well, today. In another opinion released this morning, 

he finds that a proposed test for censoring student speech ìcan easily be 

manipulated in dangerous ways,î wherefore he ìwould reject it before 

such abuse occurs.î Morse v. Frederick, ante, at 2 (concurring opinion) 

(emphasis added). I would accord the core First Amendment speech at 

issue here at least the same respect he accords speech in the classroom. 6The principal opinion claims that its test is no more vague than 

WRTLís test. See ante, at 21, n. 7. I disagree. WRTLís test requires 

yes or no answers to a series of precise and focused questions: Does the 

ad take a position on a legislative matter? Does it mention the election? Does it expressly say the candidate is wrong for the office? A 

group of childrenóindeed, even a group of college studentsócould 

answer these questions with great consistency. The principal opinionís 

test, by contrast, hinges on assessment of the reasonableness of a 

determination that something does not constitute advocacy of the 

election or defeat of a candidate. 
 Cite as: 551 U. S. ____ (2007) 17 

Opinion of SCALIA, J. 

test of express advocacy. The problem is that, although 

these tests are clear, they are incompatible with McConnellís holding that ß203 is facially constitutional, which 

was premised on the finding that a vast majority of ads 

proscribed by ß203 are ìsham issue ads,î 540 U. S., at 185, 

that fall outside the First Amendmentís protection. Indeed, any clear rule that would protect all genuine issue 

ads would cover such a substantial number of ads prohibited by ß203 that ß203 would be rendered substantially 

overbroad. The Government claims that even the amorphous test adopted by the District Court ìcall[s] into question a substantial percentage of the statuteís applications,î 

Tr. of Oral Arg. 4,7 and that any test providing relief to 

WRTL is incompatible with McConnellís facial holding 

because WRTLís ads are in the ìheartlandî of what Congress meant to prohibit, Brief for Appellant FEC 18, 28, 

36, n. 9. If that is so, then McConnell cannot be sustained. 

 Like the Buckley Court and the parties to these cases, I 

óóóóóó 

7The same must be said, I think, of the test proposed by the principal 

opinion. While its coverage is not entirely clear, it would apparently 

protect even McConnellís paradigmatic example of the functional equivalent of express advocacyóthe so-called ìJane Doe ad,î which ìcondemned Jane Doeís record on a particular issue before exhorting viewers 

to ëcall Jane Doe and tell her what you think,íî 540 U. S., at 126ñ127. 

Indeed, it at least arguably protects the most ìstrikingî example of a socalled sham issue ad in the McConnell record, the notorious ìYellowtail 

ad,î which accused Bill Yellowtail of striking his wife and then urged 

listeners to call him and ì[t]ell him to support family values.î Id., at 

193ñ194, n. 78 (internal quotation marks omitted). The claim that ß203 

on its face does not reach a substantial amount of speech protected 

under the principal opinionís testóand that the test is therefore compatible with McConnellóseems to me indefensible. Indeed, the principal opinionís attempt at distinguishing McConnell is unpersuasive 

enough, and the change in the law it works is substantial enough, that 

seven Justices of this Court, having widely divergent views concerning 

the constitutionality of the restrictions at issue, agree that the opinion 

effectively overrules McConnell without saying so. See post, at 24ñ25 

(SOUTER, J., dissenting). This faux judicial restraint is judicial obfuscation. 
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recognize the practical reality that corporations can evade 

the express-advocacy standard. I share the instinct that 

ì[w]hat separates issue advocacy and political advocacy is 

a line in the sand drawn on a windy day.î See McConnell, 

supra, at 126, n. 16 (internal quotation marks omitted); 

Brief for Appellant FEC 30; Brief for Appellant Sen. John 

McCain et al. in No. 06ñ970, p. 35. But the way to indulge 

that instinct consistently with the First Amendment is 

either to eliminate restrictions on independent expenditures altogether or to confine them to one side of the traditional lineóthe express-advocacy line, set in concrete on a 

calm day by Buckley, several decades ago. Section 203ís 

line is bright, but it bans vast amounts of political advocacy indistinguishable from hitherto protected speech. 

 The foregoing analysis shows that McConnell was mistaken in its belief that as-applied challenges could eliminate the unconstitutional applications of ß203. They can 

do so only if a test is adopted which contradicts the holding of McConnellóthat ß203 is facially valid because the 

vast majority of pre-election issue ads can constitutionally 

be proscribed. In light of the weakness in Austinís rationale, and in light of the longstanding acceptance of the 

clarity of Buckleyís express-advocacy line, it was adventurous for McConnell to extend Austin beyond corporate 

speech constituting express advocacy. Todayís cases make 

it apparent that the adventure is a flop, and that McConnellís holding concerning ß203 was wrong.8

óóóóóó 

8 JUSTICE KENNEDYís opinion in McConnell explained why the possibility of corporationsí funding speech out of a PAC does not save the 

statute from constitutional infirmity. See 540 U. S., at 330ñ333. 

McConnellís rejection of those arguments rested, of course, upon the 

assumption that for non-PAC genuine issue ads as-applied challenges 

would be available. See id., at 207; WRTL I, 546 U. S. 410, 411ñ412 

(2006) (per curiam). The discussion today shows that to be mistaken. 

 The dissent asserts, post, at 31, that there is no reason ìwhy substituting the phrase ëContact your Senatorsí for the phrase ëContact 

Senators Feingold and Kohlí would have denied WRTL a constitution-
 Cite as: 551 U. S. ____ (2007) 19 

Opinion of SCALIA, J. 

IV 

 Which brings me to the question of stare decisis. ìStare 

decisis is not an inexorable commandî or ìëa mechanical 

formula of adherence to the latest decision.íî Payne v. 

Tennessee, 501 U. S. 808, 828 (1991) (quoting Helvering v. 

Hallock, 309 U. S. 106, 119 (1940)). It is instead ìëa principle of policy,íî Payne, supra, at 828, and this Court has a 

ìconsidered practiceî not to apply that principle of policy 

ìas rigidly in constitutional as in nonconstitutional cases.î 

Glidden Co. v. Zdanok, 370 U. S. 530, 543 (1962). This 

Court has not hesitated to overrule decisions offensive to 

the First Amendment (a ìfixed star in our constitutional 

constellation,î if there is one, West Virginia Bd. of Ed. v. 

Barnette, 319 U. S. 624, 642 (1943))óand to do so 

promptly where fundamental error was apparent. Just 

three years after our erroneous decision in Minersville 

School Dist. v. Gobitis, 310 U. S. 586 (1940), the Court 

corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from 

unprecedented.9

óóóóóó 

ally sufficient . . . alternative.î Surely that is not so. The purpose of 

the ad was to put political pressure upon Senator Feingold to change 

his position on the filibusterónot only through the constituents who 

accepted the invitation to contact him, but also through the very 

existence of an ad bringing to the publicís attention that he, Senator 

Feingold, stood athwart the allowance of a vote on judicial nominees. 

(Unlike the principal opinion, I think that the fair import of the ad in 

context.) 9See, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989)); Adarand 

Constructors, Inc. v. PeÒa, 515 U. S. 200 (1995) (overruling in part 

Metro Broadcasting, Inc. v. FCC, 497 U. S. 547 (1990)); United States v. 

Dixon, 509 U. S. 688 (1993) (overruling Grady v. Corbin, 495 U. S. 508 

(1990)); Payne v. Tennessee, 501 U. S. 808 (1991) (overruling South 

Carolina v. Gathers, 490 U. S. 805 (1989), and Booth v. Maryland, 482 

U. S. 496 (1987)); Daniels v. Williams, 474 U. S. 327 (1986) (overruling 

in part Parratt v. Taylor, 451 U. S. 527 (1981)); Garcia v. San Antonio 

Metropolitan Transit Authority, 469 U. S. 528 (1985) (overruling 
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 Of particular relevance to the stare decisis question in 

these cases is the impracticability of the regime created by 

McConnell. Stare decisis considerations carry little weight 

when an erroneous ìgoverning decisio[n]î has created an 

ìunworkableî legal regime. Payne, supra, at 827. As 

described above, the McConnell regime is unworkable 

because of the inability of any acceptable as-applied test to 

validate the facial constitutionality of ß203óthat is, its 

inability to sustain proscription of the vast majority of 

issue ads. We could render the regime workable only by 

effectively overruling McConnell without saying soó

adopting a clear as-applied rule protective of speech in the 

ìheartlandî of what Congress prohibited. The promise of 

an administrable as-applied rule that is both effective in 

the vindication of First Amendment rights and consistent 

with McConnellís holding is illusory. 

 It is not as though McConnell produced a settled body of 

law. Indeed, it is far more accurate to say that McConnell

unsettled a body of law. Not until 1947, with the enactment of the Taft-Hartley amendments to the Federal 

Corrupt Practices Act, 1925, did Congress even purport to 

regulate campaign-related expenditures of corporations 

and unions. See United States v. CIO, 335 U. S. 106, 107, 

113ñ115 (1948). In the three decades following, this Court 

expressly declined to pronounce upon the constitutionality 

óóóóóó 

National League of Cities v. Usery, 426 U. S. 833 (1976)); United States

v. Scott, 437 U. S. 82 (1978) (overruling United States v. Jenkins, 420 

U. S. 358 (1975)); National League of Cities, supra, (overruling Maryland v. Wirtz, 392 U. S. 183 (1968)); Edelman v. Jordan, 415 U. S. 651 

(1974) (overruling in part Shapiro v. Thompson, 394 U. S. 618 (1969); 

State Dept. of Health and Rehabilitative Servs. of Fla. v. Zarate, 407 

U. S. 918 (1972); and Sterrett v. Mothersí & Childrenís Rights Organization, 409 U. S. 809 (1972)); Miller v. California, 413 U. S. 15 (1973) 

(overruling Book Named ìJohn Clelandís Memoirs of a Woman of 

Pleasureî v. Attorney General of Mass., 383 U. S. 413 (1966)); Perez v. 

Campbell, 402 U. S. 637 (1971) (overruling Kesler v. Department of 

Public Safety of Utah, 369 U. S. 153 (1962)). 
 Cite as: 551 U. S. ____ (2007) 21 

Opinion of SCALIA, J. 

of such restrictions on independent expenditures. See 

Pipefitters v. United States, 407 U. S. 385, 400 (1972); 

United States v. Automobile Workers, 352 U. S. 567, 591ñ

592 (1957); CIO, supra, at 110, 124. When the Court 

finally did turn to that question, it struck them down. See 

Buckley, 424 U. S. 1. Our subsequent pre-McConnell

decisions, with the lone exception of Austin, disapproved 

limits on independent expenditures. The modest medicine 

of restoring First Amendment protection to nonexpress 

advocacyóspeech that was protected until three Terms 

agoódoes not unsettle an established body of law. 

 Neither do any of the other considerations relevant to 

stare decisis suggest adherence to McConnell. These cases 

do not involve property or contract rights, where reliance 

interests are involved. Payne, supra, at 828. And 

McConnellís ß203 holding has assuredly not become ìembeddedî in our ìnational culture.î Dickerson v. United 

States, 530 U. S. 428, 443ñ444 (2000) (declining to overrule Miranda v. Arizona, 384 U. S. 436 (1966), in part 

because it had become embedded in our national culture). 

If ß203 has had any cultural impact, it has been to undermine the traditional and important role of grassroots 

advocacy in American politics by burdening the ìbudgetstrapped nonprofit entities upon which many of our citizens rely for political commentary and advocacy.î McConnell, 540 U. S., at 340 (opinion of KENNEDY, J.). 

 Perhaps overruling this one part of McConnell with 

respect to one part of BCRA would not ìai[d] the legislative effort to combat real or apparent corruption.î Id., at 

194. But the First Amendment was not designed to facilitate legislation, even wise legislation. Indeed, the assessment of former House Minority Leader Richard Gephardt, 

a proponent of campaign-finance reform, may well be 

correct. He said that ìë[w]hat we have is two important 

values in direct conflict: freedom of speech and our desire 

for healthy campaigns in a healthy democracy,íî and 
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ìë[y]ou canít have both.íî Gibbs, The Wake-Up Call, Time, 

Feb. 3, 1997, pp. 22, 25. (He was referring, presumably, 

to incumbentsí notions of healthy campaigns.) If he was 

wrong, however, and the two values can coexist, it is 

pretty clear which side of the equation this institution is 

primarily responsible for. It is perhaps our most important constitutional task to assure freedom of political 

speech. And when a statute creates a regime as unworkable and unconstitutional as todayís effort at as-applied 

review proves ß203 to be, it is our responsibility to decline enforcement. 

* * * 

 There is wondrous irony to be found in both the genesis 

and the consequences of BCRA. In the fact that the institutions it was designed to muzzleóunions and nearly all 

manner of corporationsófor all the ìcorrosive and distorting effectsî of their ìimmense aggregations of wealth,î 

were utterly impotent to prevent the passage of this legislation that forbids them to criticize candidates (including 

incumbents). In the fact that the effect of BCRA has been 

to concentrate more political power in the hands of the 

countryís wealthiest individuals and their so-called 527 

organizations, unregulated by ß203. (In the 2004 election 

cycle, a mere 24 individuals contributed an astounding 

total of $142 million to 527s. S. Weissman & R. Hassan, 

BCRA and the 527 Groups, in The Election After Reform 

79, 92ó96 (M. Malbin ed. 2006).) And in the fact that 

while these wealthy individuals dominate political discourse, it is this small, grass-roots organization of Wisconsin Right to Life that is muzzled. 

 I would overrule that part of the Courtís decision in 

McConnell upholding ß203(a) of BCRA. Accordingly, I join 

Parts I and II of todayís principal opinion and otherwise 

concur only in the judgment. 
 Cite as: 551 U. S. ____ (2007) 1 

SOUTER, J., dissenting 

SUPREME COURT OF THE UNITED STATES _________________ 

Nos. 06ñ969 and 06ñ970 

_________________ 

FEDERAL ELECTION COMMISSION, APPELLANT 

06ñ969 v.

WISCONSIN RIGHT TO LIFE, INC. 

SENATOR JOHN MCCAIN, ET AL., APPELLANTS 

06ñ970 v.

WISCONSIN RIGHT TO LIFE, INC. 

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

[June 25, 2007] 

 JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE 

GINSBURG, and JUSTICE BREYER join, dissenting. 

 The significance and effect of todayís judgment, from 

which I respectfully dissent, turn on three things: the 

demand for campaign money in huge amounts from large 

contributors, whose power has produced a cynical electorate; the congressional recognition of the ensuing threat to 

democratic integrity as reflected in a century of legislation 

restricting the electoral leverage of concentrations of 

money in corporate and union treasuries; and McConnell

v. Federal Election Commín, 540 U. S. 93 (2003), declaring 

the facial validity of the most recent Act of Congress in 

that tradition, a decision that is effectively, and unjustifiably, overruled today.1

I 

 The indispensable ingredient of a political candidacy is 

óóóóóó 

1Substantially for the reasons stated by the Court, ante, at 7ñ10, I 

believe these cases are justiciable. 
2 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

money for advertising. In the 2004 campaign, more than 

half of the combined expenditures by the two principal 

presidential candidates (excluding fundraising) went for 

media time and space. See The Costliest Campaign, 

Washington Post, Dec. 30, 2004, p. A7.2 And in the 2005ñ

óóóóóó 

2Between candidates, political action committees, interest groups, 

and national, state, and local parties, spending on the 2004 state and 

federal elections exceeded $4 billion. K. Patterson, Spending in the 

2004 Election, in Financing the 2004 Election 68, 71, tbl. 3ñ1 (D. 

Magleby, A. Corrado, & K. Patterson eds. 2006). Congressional campaigns spent over $1 billion in 2004, id., at 75, tbl. 3ñ4, state legislative 

candidates raised three-quarters of a billion dollars in the 2003ñ2004 

election cycle, The Institute on Money in State Politics, State Elections Overview 2004, p. 2 (2005), available at http://www.followthe 

money.org/press/Reports/200601041.pdf (all Internet materials as 

visited June 20, 2007, and available in Clerk of Courtís case file), and 

gubernatorial candidates raised over $200 million, id., at 6. State 

judicial campaigns have become flush with cash as well, with state 

supreme court candidates raising over $30 million in the 2005ñ2006 

cycle. Sample et al., The New Politics of Judicial Elections 2006, p. 16 

(2007), available at http://www.justiceatstake.org/files/NewPoliticsof 

JudicialElections2006.pdf. In a single 2004 judicial election in Illinois, 

the candidates raised a breathtaking $9.3 million, an amount the 

winner called ìëobscene.íî The Justice-elect wondered, ìëHow can 

people have faith in the system?íî Moyer & Brandenburg, Big Money 

and Special Interests are Warping Judicial Elections, Legal Times, Oct. 

9, 2006, p. 50 (quoting Justice Lloyd Karmeier of the Illinois Supreme 

Court). According to polling data, the fear that people will lose trust in 

the system is well founded. With respect to judicial elections, a context 

in which the influence of campaign contributions is most troubling, a 

recent poll of business leaders revealed that about four in five thought 

that campaign contributions have at least ìsome influenceî on judgesí 

decisions, while 90 percent are at least ìsomewhat concernedî that 

ì[c]ampaign contributions and political pressure will make judges 

accountable to politicians and special interest groups instead of the law 

and the Constitution.î Zogby International, Attitudes and Views of 

American Business Leaders on State Judicial Elections and Political 

Contributions to Judges 4ñ5 (May 2007), available at http://www. 

ced.org/docs/report/report_2007judicial_survey.pdf. People have similar 

feelings about other elected officials. See M. Mellman & R. Wirthlin, 

Public Views of Party Soft Money, in Inside the Campaign Finance 
 Cite as: 551 U. S. ____ (2007) 3 

SOUTER, J., dissenting 

2006 election cycle, the expenditure of more than $2 billion on television shattered the previous record, even 

without a presidential contest. See Inside Media, MediaWeek, Nov. 20, 2006, p. 18. The portent is for still 

greater spending. By the end of March 2007, almost a 

year before the first primary and more than 18 months 

before the general election, presidential candidates had 

already raised over $150 million. See Balz, Fundraising 

Totals Challenge Early Campaign Assumptions, Washington Post, Apr. 17, 2007, p. A1 (citing figures and noting 

that ì[t]he campaign is living up to its reputation as the 

most expensive in U. S. historyî). To reach this total, the 

leading fundraisers collected over $250,000 per day in the 

first quarter of 2007, Mullins, Clinton Leads the Money 

Race, Wall Street Journal, Apr. 16, 2007, p. A8, and the 

eventual nominees are expected to raise $500 million 

apiece (about $680,000 per day over a 2-year election 

cycle), Kirkpatrick and Pilhofer, McCain Lags in Income 

But Excels in Spending, Report Shows, N. Y. Times, Apr. 

15, 2007, p. 20. 

 The indispensability of these huge sums has two significant consequences for American Government that are 

particularly on point here. The enormous demands, first, 

assign power to deep pockets. See Balz, supra, at A6 (ìFor 

all the interest in Internet fundraising, big donors still 

ruled in the first quarter, with roughly 80 percent of donations coming in amounts of $1,000 or moreî). Candidates 

occasionally boast about the number of contributors they 

have, but the headlines speaking in dollars reflect political 

reality. See, e.g., Mullins, supra, at A8 (headlined ìClinton Leads the Money Raceî). 

 Some major contributors get satisfaction from pitching 

in for their candidates, but political preference fails to 

óóóóóó 

Battle 266ñ269 (A. Corrado, T. Mann, & T. Potter eds. 2003) (hereinafter Mellman & Wirthlin); see also infra, at 4ñ5. 
4 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

account for the frequency of giving ìsubstantial sums to 

both major national parties,î McConnell, 540 U. S., at 148, 

a practice driven ìby stark political pragmatism, not by 

ideological support for either party or their candidates,î 

Brief for Committee for Economic Development et al. as 

Amici Curiae in McConnell, O. T. 2003, No. 02ñ1674, p. 3 

(hereinafter CED Brief). What the high-dollar pragmatists of either variety get is special access to the officials 

they help elect, and with it a disproportionate influence on 

those in power. See McConnell, supra, at 130ñ131. As the 

erstwhile officer of a large American corporation put it, 

ìë[b]usiness leaders believeóbased on experience and with 

good reasonóthat . . . access gives them an opportunity to 

shape and affect governmental decisions and that their 

ability to do so derives from the fact that they have given 

large sums of money to the parties.íî CED Brief 9. At a 

critical level, contributions that underwrite elections are 

leverage for enormous political influence. 

 Voters know this. Hence, the second important consequence of the demand for big money to finance publicity: 

pervasive public cynicism. A 2002 poll found that 71 

percent of Americans think Members of Congress cast 

votes based on the views of their big contributors, even 

when those views differ from the Memberís own beliefs 

about what is best for the country. Mellman & Wirthlin 

267; see also id., at 266 (ìIn public opinion research it is 

uncommon to have 70 percent or more of the public see an 

issue the same way. When they do, it indicates an unusually strong agreement on that issueî). The same percentage believes that the will of contributors tempts Members 

to vote against the majority view of their constituents. Id., 

at 267. Almost half of Americans believe that Members 

often decide how to vote based on what big contributors to 

their party want, while only a quarter think Members 

often base their votes on perceptions of what is best for the 

country or their constituents. Ibid.
 Cite as: 551 U. S. ____ (2007) 5 

SOUTER, J., dissenting 

 Devoting concentrations of money in self-interested 

hands to the support of political campaigning therefore 

threatens the capacity of this democracy to represent its 

constituents and the confidence of its citizens in their 

capacity to govern themselves. These are the elements 

summed up in the notion of political integrity, giving it a 

value second to none in a free society. 

II 

 If the threat to this value flowing from concentrations of 

money in politics has reached an unprecedented enormity, 

it has been gathering force for generations. Before the 

turn of the last century, as now, it was obvious that the 

purchase of influence and the cynicism of voters threaten 

the integrity and stability of democratic government, each 

derived from the responsiveness of its law to the interests 

of citizens and their confidence in that focus. The danger 

has traditionally seemed at its apex when no reasonable 

limits constrain the campaign activities of organizations 

whose ìunique legal and economic characteristicsî are 

tailored to ìfacilitat[e] the amassing of large treasuries,î 

Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 

658, 660 (1990). Corporations were the earliest subjects of 

concern; the same characteristics that have made them 

engines of the Nationís extraordinary prosperity have 

given them the financial muscle to gain ìadvantage in the 

political marketplaceî when they turn from core corporate 

activity to electioneering, Federal Election Commín v. 

Massachusetts Citizens for Life, Inc., 479 U. S. 238, 258 

(1986) (MCFL), and in ìCongressí judgmentî the same 

concern extends to labor unions as to corporations, Federal 

Election Commín v. National Right to Work Comm., 459 

U. S. 197, 210 (1982); see also Austin, supra, at 661. 

A 

 In the wake of the industrial expansion after the Civil 

War there developed a momentum for civic reform that led 
6 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

to the enactment of the Pendleton Civil Service Act of 

1883, ch. 27, 22 Stat. 403, which stopped political parties 

from raising money through compulsory assessments on 

federal employees. Not unnaturally, corporations filled 

the vacuum, see R. Mutch, Campaigns, Congress, and 

Courts xviñxvii (1988) (hereinafter Mutch), and in due 

course demonstrated what concentrated capital could do. 

The resulting political leverage disturbed ìthe confidence 

of the plain people of small means in our political institutions,î E. Root, The Political Use of Money (delivered Sept. 

3, 1894), in Addresses on Government and Citizenship 

141, 143ñ144 (R. Bacon & J. Scott eds. 1916) (cited in 

United States v. Automobile Workers, 352 U. S. 567, 571 

(1957)), and the 1904 Presidential campaign eventually 

ìcrystallized popular sentimentî on the subject of money 

and politics, id., at 572. In his next message to Congress, 

President Theodore Roosevelt invoked the power ìto protect the integrity of the elections of its own officials [as] 

inherentî in government, and called for ìvigorous measures to eradicateî perceived political corruption, for he 

found ìno enemy of free government more dangerous and 

none so insidious.î3 39 Cong. Rec. 17 (1904). 

 The following year, the President urged that ì[a]ll contributions by corporations to any political committee or for 

any political purpose should be forbidden by law.î 40 

Cong. Rec. 96 (1905). His call was seconded by the Senate 

sponsor of the eventual legislation, whose ìsad thought 

[was] that the Senate is discredited by the people of the 

United States as being a body more or less corruptible or 

óóóóóó 

3Perhaps the Presidentís call was inspired by the accusations from 

his own 1904 Democratic opponent, Judge Alton B. Parker, that the 

Republican camp accepted corporate campaign contributions intended 

to buy influence. See A. Corrado, Money and Politics: A History of 

Federal Campaign Finance Law, in A. Corrado, T. Mann, D. Ortiz, & T. 

Potter, The New Campaign Finance Sourcebook 7, 10ñ11 (2005) (hereinafter Campaign Finance Sourcebook). 
 Cite as: 551 U. S. ____ (2007) 7 

SOUTER, J., dissenting 

corrupted.î Id., at 229. The President persisted in his 

1906 message to Congress with another call for ìa law 

prohibiting all corporations from contributing to the campaign expenses of any party,î 41 Cong. Rec. 22, and the 

next year Congress passed the Tillman Act of 1907: 

ìit shall be unlawful for any national bank, or any 

corporation organized by authority of any laws of 

Congress, to make a money contribution in connection 

with any election to any political office. It shall also 

be unlawful for any corporation whatever to make a 

money contribution in connection with any election at 

which Presidential and Vice-Presidential electors or a 

Representative in Congress is to be voted for or any 

election by any State legislature of a United States 

Senator.î 34 Stat. 864ñ865.4

The aim was ìnot merely to prevent the subversion of the 

integrity of the electoral process,î but ìto sustain the 

active, alert responsibility of the individual citizen in a 

democracy for the wise conduct of government.î Automobile Workers, supra, at 575. 

B 

 Thirty years later, new questions about the electoral 

influence of accumulated wealth surfaced as organized 

labor expanded during the New Deal. In the 1936 election, labor unions contributed ìunprecedentedî sums, 

S. Rep. No. 151, 75th Cong., 1st Sess., 127 (1937), the 

greater part of them by the United Mine Workers, see 

Campaign Finance Sourcebook 17. And in due course 

óóóóóó 

4A bill along similar lines had been unsuccessfully introduced years 

earlier by Senator William Chandler, a New Hampshire Republican 

whom the railroad interests helped defeat in 1900. See Mutch 4ñ6 

(discussing the unlikely alliance between Chandler, a radical Republican, and Senator Benjamin Tillman, a South Carolina Democrat who 

ultimately succeeded in enacting the law that carries his name). 
8 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

reaction began to build: ì[w]artime strikes gave rise to 

fears of the new concentration of power represented by the 

gains of trade unionism. And so the belief grew that, just 

as the great corporations had made huge political contributions to influence governmental action . . . , the powerful 

unions were pursuing a similar course, and with the same 

untoward consequences for the democratic process.î 

Automobile Workers, supra, at 578. Congress responded 

with the War Labor Disputes Act of 1943, which extended 

the ban on corporate donations to labor organizations, ch. 

144, ß9, 57 Stat. 167ñ168, an extension that was made 

permanent in the Labor Management Relations Act, 1947, 

better known as Taft-Hartley, ß304, 61 Stat. 159ñ160. 

C 

 At the same time, Congress had another worry that 

foreshadows our case today. It was concerned that the 

statutory prohibition on corporate ìcontribution[s]î was 

being so narrowly construed as to open a ìloophole 

whereby corporations, national banks, and labor organizations are enabled to avoid the obviously intended restrictive policy of the statute by garbing their financial assistance in the form of an ëexpenditureí rather than a 

contribution.î S. Rep. No. 1, 80th Cong., 1st Sess., 38ñ39 

(1947); see also H. Rep. No. 2739, 79th Cong., 2d Sess., 40 

(1947) (ìThe intent and purpose of the provision of the act 

prohibiting any corporation or labor organization making 

any contribution in connection with any election would be 

wholly defeated if it were assumed that the term ëmaking 

any contributioní related only to the donating of money 

directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to 

prohibit the contributing direct to a candidate and yet 

permit the expenditure of large sums in his behalf?î). 

Taft-Hartley therefore extended the prohibition to any 
 Cite as: 551 U. S. ____ (2007) 9 

SOUTER, J., dissenting 

ìcontribution or expenditureî by a corporation or a union 

ìin connection withî a federal election. ß304, 61 Stat. 

159.5

D 

 The new law left open, however, the right of a union to 

spend money on electioneering from a segregated fund 

raised specifically for that purpose from members, but not 

drawn from the general treasury. Segregated funding 

entities, the now-familiar political action committees or 

PACs, had been established prior to Taft-Hartley, and we 

concluded in Pipefitters v. United States, 407 U. S. 385, 

409 (1972), that Taft-Hartley did not prohibit ìunion 

contributions and expenditures from political funds 

financed in some sense by the voluntary donations of 

employees.î 

 This balance of authorized and restricted financing 

methods for corporate and union electioneering was made 

explicit in the Federal Election Campaign Act of 1971 

(FECA). See 86 Stat. 10 (ì[T]he phrase ëcontribution or 

expenditureí . . . shall not include . . . the establishment, 

administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by 

a corporation or labor organizationî). ì[T]he underlying 

theory [of the statute was] that substantial general purpose treasuries should not be diverted to political purposes, both because of the effect on the political process of 

such aggregated wealth and out of concern for the dissenting member or stockholder.î 117 Cong. Rec. 43381 (1971) 

(statement of Rep. Hansen). But the PAC exception mainóóóóóó 

5Taft-Hartley also specified that the prohibition extends to primary 

elections, 61 Stat. 159, an extension that had been thought likely to 

exceed the authority of Congress under Art. I, ß4 of the Constitution 

until our decision in United States v. Classic, 313 U. S. 299, 317 (1941). 

See H. Rep. No. 2093, 78th Cong., 2d Sess., 8ñ9 (1945) (discussing the 

significance of Classic). 
10 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

tained ìëthe proper balance in regulating corporate and 

union political activity required by sound policy and the 

Constitution.íî Pipefitters, supra, at 431 (quoting 117 

Cong. Rec. 43381 (statement of Rep. Hansen)).6

E 

 In 1986, in MCFL, we reexamined the longstanding ban 

on spending corporate and union treasury funds ìin connection withî federal elections, 2 U. S. C. ß441b, and drew 

two conclusions implicated in the present case. First, we 

construed the ìin connection withî phrase in much the 

same way we had interpreted comparable FECA language 

challenged in Buckley v. Valeo, 424 U. S. 1 (1976) (per 

curiam). We held that to avoid vagueness, the product of 

prohibited corporate and union expenditures ìmust constitute ëexpress advocacyí in order to be subject to the prohibition.î MCFL, 479 U. S., at 249. 

 We thus held that the prohibition applied ìonly to expenditures for communications that in express terms 

advocate the election or defeat of a clearly identified candidate for federal office.î Buckley, 424 U. S., at 44. ì[E]xpress terms,î in turn, meant what had already become 

known as ìmagic words,î such as ìëvote for,í ëelect,í ësupport,í ëcast your ballot for,í ëSmith for Congress,í ëvote 

óóóóóó 

6FECA also validated corporate and union spending on internal 

communications and nonpartisan activities designed to promote voting. 

See 86 Stat. 10 (ì[T]he phrase ëcontribution or expenditureí . . . shall not 

include communications by a corporation to its stockholders and their 

families, or by a labor organization to its members and their families on 

any subject [or] nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families or 

by a labor organization aimed at its members and their familiesî). ìëIf 

an organization . . . believes that certain candidates pose a threat to its 

well-being or the well-being of its members or stockholders, it should be 

able to get its views to those members or stockholders. . . . Both union 

members and stockholders have the right to expect this expert guidance.íî Pipefitters, 407 U. S., at 431, n. 42 (quoting 117 Cong. Rec. 

43380 (statement of Rep. Hansen)). 
 Cite as: 551 U. S. ____ (2007) 11 

SOUTER, J., dissenting 

against,í ëdefeat,í ëreject.íî Ibid., n. 52. The consequence of 

this construction was obvious: it pulled the teeth out of the 

statute, as we had understood when we announced it in its 

earlier application in Buckley:

ìThe exacting interpretation of the statutory language 

necessary to avoid unconstitutional vagueness . . . undermines the limitationís effectiveness as a loopholeclosing provision by facilitating circumvention by 

those seeking to exert improper influence upon a candidate or officeholder. It 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 candidateís 

campaign.î Id., at 45. 

 Nor was the statute, even as thus narrowed, enforceable 

against the particular advocacy corporation challenging 

the limit in MCFL. This was the second holding of MCFL 

relevant here; we explained that the congressional effort 

to limit the political influence of corporate money ìhas 

reflected concern not about use of the corporate form per 

se, but about the potential for unfair deployment of wealth 

for political purposes,î 479 U. S., at 259. We held that this 

ìlegitima[te]î concern could not reasonably extend to 

electioneering expenditures by the corporation at issue in 

MCFL, which neither ìengage[d] in business activitiesî 

nor accepted donations from business corporations and 

unions (and thus could not serve as a ìcondui[t]î for political spending by those entities). Id., at 263ñ264.7

óóóóóó 

7Compare Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 

664 (1990) (First Amendment does not protect a nonprofit corporation 

from expenditure limits if the corporation accepts corporate and union 

contributions, lest corporations and unions readily ìcircumventî restrictions on their own election spending ìby funneling money throughî 
12 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

F 

As was expectable, narrowing the corporate-union electioneering limitation to magic words soon reduced it to 

futility. ì[P]olitical money . . . is a moving target,î Issacharoff & Karlan, The Hydraulics of Campaign Finance 

Reform, 77 Tex. L. Rev. 1705, 1707 (1999), and the ìingenuity and resourcefulnessî of political financiers revealed 

the massive regulatory gap left by the ìmagic wordsî test, 

óóóóóó 

nonprofits). JUSTICE SCALIA asserts that Austin ìstrayed far fromî the 

principles we announced in First Nat. Bank of Boston v. Bellotti, 435 

U. S. 765 (1978). Ante, at 7 (opinion concurring in part and concurring 

in judgment). Bellotti, however, concerned corporate spending in 

connection with a referendum, and we went out of our way in that case 

to avoid casting any doubt upon the constitutionality of limiting corporate expenditures during candidate elections. We said: 

ìThe overriding concern behind the enactment of [the federal restrictions on corporate contributions and expenditures] was the problem of 

corruption of elected representatives through the creation of political 

debts. The importance of the governmental interest in preventing this 

occurrence has never been doubted. The case before us presents no 

comparable problem, and our consideration of a corporationís right to 

speak on issues of general public interest implies no comparable right 

in the quite different context of participation in a political campaign for 

election to public office. Congress might well be able to demonstrate 

the existence of a danger of real or apparent corruption in independent 

expenditures by corporations to influence candidate elections.î 435 

U. S., at 788, n. 26 (citations omitted). 

 Eight years before Austin, we unanimously reaffirmed that Bellotti

ìspecifically pointed out that in elections of candidates to public office, 

unlike in referenda on issues of general public interest, there may well 

be a threat of real or apparent corruption.î Federal Election Commín v. 

National Right to Work Comm., 459 U. S. 197, 210, n. 7 (1982). Then, 

four years later, in MCFL, we also noted that an expenditure limit 

offering corporations a PAC alternative is ìdistinguishable from the 

complete foreclosure of any opportunity for political speechî that we 

addressed in Bellotti. 479 U. S., at 259, n. 12. So Austin did not 

ìstra[y]î from Bellotti, ante, at 7 (opinion of SCALIA, J.); the reasons 

Bellotti was not controlling in Austin had been clearly foreshadowed in 

Bellotti itself and confirmed repeatedly in our decisions leading up to 

Austin. 
 Cite as: 551 U. S. ____ (2007) 13 

SOUTER, J., dissenting 

Buckley, 424 U. S., at 45. It proved to be the door through 

which so-called ìissue adsî of current practice entered 

American politics. 

 An issue ad is an advertisement on a political subject 

urging the reader or listener to let a politician know what 

he thinks, but containing no magic words telling the recipient to vote for or against anyone. By the 1996 election 

cycle, between $135 and $150 million was being devoted to 

these ads, see McConnell, 540 U. S., at 127, n. 20, and 

because they had no magic words, they failed to trigger 

the limitation on union or corporate expenditures for 

electioneering. Experience showed, however, just what we 

foresaw in Buckley, that the line between ìissueî broadcasts and outright electioneering was a patent fiction, as 

in the example of a television ìissue adî that ran during a 

Montana congressional race between Republican Rick Hill 

and Democrat Bill Yellowtail in 1996: 

ìëìWho is Bill Yellowtail? He preaches family values 

but took a swing at his wife. And Yellowtailís response? He only slapped her. But ëher nose was not 

broken.í He talks law and order . . . but is himself a 

convicted felon. And though he talks about protecting 

children, Yellowtail failed to make his own child support paymentsóthen voted against child support enforcement. Call Bill Yellowtail. Tell him to support 

family values.îíî McConnell, supra, at 193ñ194, 

n. 78.8

óóóóóó 

8Or this example from a Texas district where Democrat Nick 

Lampson challenged incumbent Republican Steve Stockman, and 

where the AFLñCIO ran the following advertisement in September and 

October of 1996: 

 ìë[Narrator] Whatís important to Americaís families? [Middle-aged 

man] ìMy pension is very important because it will provide a significant amount of my income when I retire.î [Narrator] And where do the 

candidates stand? Congressman Steve Stockman voted to make it 

easier for corporations to raid employee pension funds. Nick Lampson 
14 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

There are no ìmagic wordsî of ìexpress advocacyî in that 

statement, but no one could deny with a straight face that 

the message called for defeating Yellowtail. 

 There was nothing unusual about the Yellowtail issue 

ad in 1996, and an enquiry into campaign practices by the 

Senate Committee on Governmental Affairs found as a 

general matter that ìthe distinction between issue and 

express advocacy . . . appeared to be meaningless in the 

1996 elections.î 3 S. Rep. No. 105ñ167, p. 3994 (1998). 

ìëìWhat separates issue advocacy and political advocacy is 

a line in the sand drawn on a windy day.îíî McConnell, 

supra, at 126, n. 169 (quoting the former director of an 

advocacy organizationís PAC). Indeed, the President of 

the AFLñCIO stated that ìëthe bulk ofíî its ads were targeted for broadcast in districts represented by ìëfirst-term, 

freshmen Republicans who . . . may be defeatable,íî 3 

S. Rep. No. 105ñ167, at 3997, 3998, and n. 23, and the 

Senate Committee found that the union used a ì$.15 per 

member, per month assessmentî to finance ìissue ads that 

were clearly designed to influence the outcome of the 

election,î id., at 3999, 4000. Not surprisingly, ìostensibly 

independentî ads ìwere often actually coordinated with, 

and controlled by, the campaigns.î McConnell, supra, at 

131. 

 Nor was it surprising that the Senate Committee heard 

testimony that ìë[w]ithout tamingíî the vast sums flowing 

into issue ads, ìëcampaign finance reformóno matter how 

thoroughly it addresses . . . perceived problemsówill come 

óóóóóó 

opposes that plan. He supports new safeguards to protect employee 

pension funds. When it comes to your pension, there is a difference. 

Call and find out.íî McConnell v. FEC, 251 F. Supp. 2d 176, 201 (DC 

2003) (per curiam) (emphasis deleted; brackets in original). 9Quoting McConnell, supra, at 536, 537 (Kollar-Kotelly, J.) (in turn 

quoting T. Metaksa, Opening Remarks at the American Assn. of Political Consultants Fifth General Session on ìIssue Advocacy,î Jan. 17, 

1997, p. 2). 
 Cite as: 551 U. S. ____ (2007) 15 

SOUTER, J., dissenting 

to naught.íî 3 S. Rep. No. 105ñ167, at 4480 (quoting 

testimony of Professor Daniel R. Ortiz). The Committee 

predicted that ìif the course of non-action is followed, . . . 

Congress would be encouraging further growth of union, 

corporate nonprofit and individual independent expenditures.î Id., at 4481.10 The next two elections validated the 

óóóóóó 

10The Senate Committee was not alone in its concerns. In Wisconsin, 

for example, the Governorís Blue-Ribbon Commission on Campaign 

Finance Reform reported: 

ìEspecially beginning in 1996, issue advocacy during the campaign 

season dramatically expanded in Wisconsin. 

. . . . . 

 ìThe Commission concludes that, in each of these cases, the expenditures were clearly campaign-oriented activities. They were quite 

clearly designed to influence the electoral process. They were focused 

either on electing or defeating a candidate. The Commission bases this 

conclusion on the following points: 

 ìAlthough those paying for the activities claimed they were aimed 

solely at educating voters on the issues, they each mentioned the names 

of candidates for office. 

 ìThey occurred only when election races were in progress that involved a contest between an incumbent and a challenger. When the 

election was over, the activities ended. 

 ìThe activity has occurred after legislative sessions when the issues 

about which advocacy was occurring were not being deliberated by the 

legislature. 

 ìThe activity occurred in campaign season, between the candidateís 

filing for candidacy and election time. Advertisements of this sort have 

tended to occur at virtually no other time. 

 ìThe activity involved the electronic media, mass mailings, or centrally located telephone banks. 

. . . . . 

 ìThe explosive growth of campaign-based advocacy, without even 

disclosure of its activities and funding sources, poses a grave risk to the 

integrity of elections. It has created a two-tiered campaign process: one, 

based in candidates and political parties, which is tightly regulated and 

controlled; the other, based in interest group activity under the guise of 

ëissue advocacyí but actually quite clearly election-focused, which lies 

beyond accountability.î 1 Governorís Blue-Ribbon Commission on 

Campaign Finance Reform, State of Wisconsin: Report of the Commis-
16 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

prediction: during the 1998 cycle, spending on issue ads 

doubled to between $270 and $340 million, and the figure 

climbed to $500 million in the 2000 cycle. McConnell, 540 

U. S., at 127, n. 20. A report from the Annenberg Public 

Policy Center concluded that ì[t]he type of issue ad that 

dominated depended greatly on how close we were to the 

general election. . . . Though candidate-centered issue ads 

always made up a majority of issue ads, as the election 

approached the percent [of] candidate-centered spots 

increased . . . such that by the last two months before the 

election almost all televised issue spots made a case for or 

against a candidate.î Issue Advertising in the 1999ñ2000 

Election Cycle 14 (2001). 

 They were worth the money of those who ultimately 

paid for them. According to one former Senator, ìëMembers will . . . be favorably disposed to those who financeíî 

interest groups that run ìëissue adsíî when those financiers ìëlater seek access to discuss pending legislation.íî 

McConnell v. FEC, 251 F. Supp. 2d 176, 556 (DC 

2003) (Kollar-Kotelly, J.) (quoting the declaration of Dale 

Bumpers). 

 The congressional response was ß203 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA), 116 Stat. 91, which 

redefined prohibited ìexpenditureî so as to restrict corporations and unions from funding ìelectioneering communication[s]î out of their general treasuries. 2 U. S. C. 

ß441b(b)(2) (2000 ed., Supp. IV). The new phrase ìelectioneering communicationî was narrowly defined in 

BCRAís ß201 as ìany broadcast, cable, or satellite communicationî that 

 ì(I) refers to a clearly identified candidate for Federal office; 

 ì(II) is made withinó 

 ì(aa) 60 days before a general, special, or runoff 

óóóóóó 

sion, available at http://www.lafollette.wisc.edu/campaign_reform/final. 

htm. 
 Cite as: 551 U. S. ____ (2007) 17 

SOUTER, J., dissenting 

election for the office sought by the candidate; or 

 ì(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that 

has authority to nominate a candidate, for the office 

sought by the candidate; and 

 ì(III) in the case of a communication which refers 

to a candidate for an office other than President or 

Vice President, is targeted to the relevant electorate.î 

ß434(f)(3)(A)(i). 

III 

 In McConnell, we found this definition to be ìeasily 

understood and objectiv[e],î raising ìnone of the vagueness 

concerns that drove our analysisî of the statutory language at issue in Buckley and MCFL, 540 U. S., at 194, 

and we held that the resulting line separating regulated 

election speech from general political discourse does not, 

on its face, violate the First Amendment. We rejected any 

suggestion ìthat Buckley drew a constitutionally mandated line between express advocacy [with magic words] 

and so-called issue advocacy [without them], and that 

speakers possess an inviolable First Amendment right to 

engage in the latter category of speech.î Id., at 190. To 

the contrary, we held that ìour decisions in Buckley and 

MCFL were specific to the statutory language before us; 

they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating 

campaign-related speech.î Id., at 192ñ193. ì[T]he presence or absence of magic words cannot meaningfully distinguish electioneering speech,î which is prohibitable, 

ìfrom a true issue ad,î we said, since ads that ìesche[w] 

the use of magic words . . . are no less clearly intended to 

influence the election.î Id., at 193. We thus found ì[l]ittle 

difference . . . between an ad that urged viewers to ëvote 

against Jane Doeí and one that condemned Jane Doeís 

record on a particular issue before exhorting viewers to 
18 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

ëcall Jane Doe and tell her what you think.íî Id., at 126ñ

127. 

 We understood that Congress had a compelling interest 

in limiting this sort of electioneering by corporations and 

unions, for ß203 exemplified a tradition of ìrepeatedly 

sustained legislation aimed at ëthe 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 publicís support for the corporationís political ideas.íî Id., at 205 (quoting Austin, 494 

U. S., at 660). Nor did we see any plausible claim of substantial overbreadth from incidentally prohibiting ads 

genuinely focused on issues rather than elections, given 

the limitation of ìelectioneering communicationî by time, 

geographical coverage, and clear reference to candidate. 

ìFar from establishing that BCRAís 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.î 540 

U. S., at 207. Finally, we underscored the reasonableness 

of the ß203 line by emphasizing that it defined a category 

of limited, but not prohibited, corporate and union speech: 

ìBecause corporations can still fund electioneering communications with PAC money, it is ësimply wrongí to view 

[ß203] as a ëcomplete baní on expression rather than a 

regulation.î Id., at 204 (quoting Federal Election Commín

v. Beaumont, 539 U. S. 146, 162 (2003)). Thus ìcorporations and unions may finance genuine issue ads [in the 

runup period] by simply avoiding any specific reference to 

federal candidates, or in doubtful cases by paying for the 

ad from a segregated [PAC] fund.î 540 U. S., at 206. 

 We may add that a nonprofit corporation, no matter 

what its source of funding, is free to pelt a federal candidate like Jane Doe with criticism or shower her with 

praise, by name and within days of an election, if it speaks 

through a newspaper ad or on a website, rather than a 
 Cite as: 551 U. S. ____ (2007) 19 

SOUTER, J., dissenting 

ìbroadcast, cable, or satellite communication,î 2 U. S. C. 

ß434(f)(3)(A)(i) (2000 ed., Supp. IV). And a nonprofit may 

use its general treasury to pay for clearly ìelectioneering 

communication[s]î so long as it declines to serve as a 

conduit for money from business corporations and unions 

(and thus qualifies for the MCFL exception).11 

* * * 

 In sum, Congress in 1907 prohibited corporate contributions to candidates and in 1943 applied the same ban to 

unions. In 1947, Congress extended the complete ban 

from contributions to expenditures ìin connection withî an 

election, a phrase so vague that in 1986 we held it must be 

confined to instances of express advocacy using magic 

words. Congress determined, in 2002, that corporate and 

union expenditures for fake issue ads devoid of magic 

words should be regulated using a narrow definition of 

ìelectioneering communicationî to reach only broadcast 

ads that were the practical equivalents of express advocacy. In 2003, this Court found the provision free from 

vagueness and justified by the concern that drove its 

enactment. 

 This century-long tradition of legislation and judicial 

precedent rests on facing undeniable facts and testifies to 

an equally undeniable value. Campaign finance reform 

has been a series of reactions to documented threats to 

electoral integrity obvious to any voter, posed by large 

sums of money from corporate or union treasuries, with no 

redolence of ìgrassrootsî about them. Neither Congressís 

decisions nor our own have understood the corrupting 

óóóóóó 

11Campaign finance laws also continue to provide several specific 

exemptions from the general prohibition on corporate election-related 

spending, including communications ìon any subjectî with stockholders 

and certain personnel, as well as ìnonpartisan registration and get-outthe-vote campaignsî similarly aimed at shareholders and personnel. 

ß441b(b)(2); see also n. 6, supra. 
20 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

influence of money in politics as being limited to outright 

bribery or discrete quid pro quo; campaign finance reform 

has instead consistently focused on the more pervasive 

distortion of electoral institutions by concentrated wealth, 

on the special access and guaranteed favor that sap the 

representative integrity of American government and defy 

public confidence in its institutions. From early in the 

20th century through the decision in McConnell, we have 

acknowledged that the value of democratic integrity justifies a realistic response when corporations and labor 

organizations commit the concentrated moneys in their 

treasuries to electioneering. 

IV 

 The corporate appellee in these cases, Wisconsin Right 

to Life (WRTL), is a nonprofit corporation funded to a 

significant extent by contributions from other corporations.12 In 2004, WRTL accepted over $315,000 in corporate donations, App. 40, and of its six general fund contributions of $50,000 or more between 2002 and 2005, three, 

including the largest (for $140,000), came from corporate 

donors, id., at 118ñ121. 

 WRTL also runs a PAC, funded by individual donations, 

which has been active over the years in making independent campaign expenditures, as in the previous two elections involving Senator Feingold. Id., at 15. During the 

1998 campaign, for example, WRTLís PAC spent $60,000 

to oppose him. Ibid. In 2004, however, despite a sharp 

nationwide increase in PAC receipts, WRTL focused its 

fundraising on its corporate treasury, not the PAC, id., at 

41ñ43, and took in only $17,000 in PAC contributions, as 

óóóóóó 

12To the extent these facts are disputed, we must view them in the 

light most favorable to the Federal Election Commission and the 

intervenor-defendants, since the District Court granted WRTLís motion 

for summary judgment. See Pennsylvania State Police v. Suders, 542 

U. S. 129, 134 (2004). 
 Cite as: 551 U. S. ____ (2007) 21 

SOUTER, J., dissenting 

against over $150,000 during 2000, id., at 41ñ42. 

 Throughout the 2004 senatorial campaign, WRTL made 

no secret of its views about who should win the election 

and explicitly tied its position to the filibuster issue. Its 

PAC issued at least two press releases saying that its ìTop 

Election Prioritiesî were to ìRe-elect George W. Bushî and 

ìSend Feingold Packing!î Id., at 78ñ80, 82ñ84. In one of 

these, the Chair of WRTLís PAC was quoted as saying, 

ìëWe do not want Russ Feingold to continue to have the 

ability to thwart President Bushís judicial nominees.íî Id., 

at 82ñ83. The Spring 2004 issue of the WRTL PACís 

quarterly magazine ran an article headlined ìRadically 

Pro-Abortion Feingold Must Go!î, which reported that 

ìFeingold has been active in his opposition to Bushís judicial nomineesî and said that ìthe defeat of Feingold must 

be uppermost in the minds of Wisconsinís pro-life community in the 2004 elections.î Id., at 101ñ103. 

 It was under these circumstances that WRTL ran the 

three television and radio ads in question. The bills for 

them were not paid by WRTLís PAC, but out of the general 

treasury with its substantial proportion of corporate contributions; in fact, corporations earmarked more than 

$50,000 specifically to pay for the ads, id., at 41. Each one 

criticized an unnamed ìgroup of Senatorsî for ìusing the 

filibuster delay tactic to block federal judicial nominees 

from a simple ëyesí or ënoí vote,î and described the Senatorsí actions as ìpolitics at work, causing gridlock and 

backing up some of our courts to a state of emergency.î13 

They exhorted viewers and listeners to ì[c]ontact Senators 

Feingold and Kohl and tell them to oppose the filibuster,î 

but instead of providing a phone number or e-mail address, they told the audience to go to BeFair.org, a website 

óóóóóó 

13These quotations are taken from the ìWeddingî ad, although the 

relevant language in all of the ads is virtually identical. See ante, at 4ñ

6, and nn. 2ñ3 (principal opinion). 
22 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

set up by WRTL. A visit to this website would erase any 

doubt a listener or viewer might have as to whether Senators Feingold and Kohl were part of the ìgroupî condemned in the ads: it displayed a document that criticized 

the two Senators for voting to filibuster ì16 out of 16 

timesî and accused them of ìputting politics into the court 

system, creating gridlock, and costing taxpayers money.î 

Id., at 86. 

 WRTLís planned airing of the ads had no apparent 

relation to any Senate filibuster vote but was keyed to the 

timing of the senatorial election. WRTL began broadcasting the ads on July 26, 2004, four days after the Senate 

recessed for the summer, and although the filibuster 

controversy raged on through 2005, WRTL did not resume 

running the ads after the election. Id., at 29, 32. During 

the campaign period that the ads did cover, Senator Feingoldís support of the filibusters was a prominent issue. 

His position was well known,14 and his Republican opponents, who vocally opposed the filibusters, made the issue 

a major talking point in their campaigns against him.15

 In sum, any Wisconsin voter who paid attention would 

have known that Democratic Senator Feingold supported 

filibusters against Republican presidential judicial nominees, that the propriety of the filibusters was a major 

issue in the senatorial campaign, and that WRTL along 

with the Senatorís Republican challengers opposed his 

reelection because of his position on filibusters. Any alert 

óóóóóó 

14See, e.g., Hearing before the Subcommittee on the Constitution, 

Civil Rights and Property Rights of the Senate Committee on the 

Judiciary, 108th Congress, 1st Sess., 5ñ7 (2003) (statement of Sen. 

Feingold). 15See Gilbert, 3 Seeking Feingold Seat Attack Him on Judges Issue, 

Milwaukee Journal Sentinel, Nov. 18, 2003, App. 70ñ76 (ìIn Wisconsin, 

the three Republicans vying to take on Senate Democrat Russ Feingold 

are attacking him on judges and assert the controversy resonates with 

votersî). 
 Cite as: 551 U. S. ____ (2007) 23 

SOUTER, J., dissenting 

voters who heard or saw WRTLís ads would have understood that WRTL was telling them that the Senatorís 

position on the filibusters should be grounds to vote 

against him. 

 Given these facts, it is beyond all reasonable debate that 

the ads are constitutionally subject to regulation under 

McConnell. There, we noted that BCRA was meant to 

remedy the problem of ì[s]o-called issue adsî being used 

ìto advocate the election or defeat of clearly identified 

federal candidates.î 540 U. S., at 126. We then gave a 

paradigmatic example of these electioneering ads subject 

to regulation, saying that ì[l]ittle difference existed . . . 

between an ad that urged viewers to ëvote against Jane 

Doeí and one that condemned Jane Doeís record on a 

particular issue before exhorting viewers to ëcall Jane Doe 

and tell her what you think.íî Id., at 126ñ127. 

 The WRTL ads were indistinguishable from the Jane 

Doe ad; they ìcondemned [Senator Feingoldís] record on a 

particular issueî and exhorted the public to contact him 

and ìtell [him] what you think.î16 And just as anyone who 

heard the Jane Doe ad would understand that the point 

was to defeat Doe, anyone who heard the Feingold ads (let 

alone anyone who went to the website they named) would 

know that WRTLís message was to vote against Feingold. 

If it is now unconstitutional to restrict WRTLís Feingold 

ads, then it follows that ß203 can no longer be applied 

constitutionally to McConnellís Jane Doe paradigm. 

McConnellís holding that ß203 is facially constitutional 

is overruled. By what steps does the principal opinion 

reach this unacknowledged result less than four years 

after McConnell was decided? 

óóóóóó 

16That the ads purported to target Senator Kohl as well as Senator 

Feingold is of little import; since the ads would have run during the 

peak of the 2004 campaign, the audienceís focus would naturally fall 

more heavily on Senator Feingold (who was up for reelection) rather 

than Senator Kohl (who was not). 
24 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

A 

 First, it lays down a new test to identify a severely 

limited class of ads that may constitutionally be regulated 

as electioneering communications, a test that is flatly 

contrary to McConnell. An ad is the equivalent of express 

advocacy and subject to regulation, the opinion says, only 

if it is ìsusceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate.î Ante, at 16. Since the Feingold ads could, in isolation, be read as at least including calls to communicate 

views on filibusters to the two Senators, those ads cannot 

be treated as the functional equivalent of express advocacy 

to elect or defeat anyone, and therefore may not constitutionally be regulated at all. 

 But the same could have been said of the hypothetical 

Jane Doe ad. Its spoken message ended with the instruction to tell Doe what the voter thinks. The same could 

also have been said of the actual Yellowtail ad. Yet in 

McConnell, we gave the Jane Doe ad as the paradigm of a 

broadcast message that could be constitutionally regulated 

as election conduct, and we explicitly described the Yellowtail ad as a ìstriking exampleî of one that was ìclearly 

intended to influence the election,î McConnell, 540 U. S., 

at 193, and n. 78. 

 The principal opinion, in other words, simply inverts 

what we said in McConnell. While we left open the possibility of a ìgenuineî or ìpureî issue ad that might not be 

open to regulation under ß203, id., at 206ñ207, and n. 88, 

we meant that an issue ad without campaign advocacy 

could escape the restriction. The implication of the adjectives ìgenuineî and ìpureî is unmistakable: if an ad is 

reasonably understood as going beyond a discussion of 

issues (that is, if it can be understood as electoral advocacy), then by definition it is not ìgenuineî or ìpure.î But 

the principal opinion inexplicably wrings the opposite 

conclusion from those words: if an ad is susceptible to any 
 Cite as: 551 U. S. ____ (2007) 25 

SOUTER, J., dissenting 

ìreasonable interpretation other than as an appeal to vote 

for or against a specific candidate,î then it must be a 

ìpureî or ìgenuineî issue ad. Ante, at 16. This stands 

McConnell on its head, and on this reasoning it is possible that even some ads with magic words could not be 

regulated. 

B 

 Second, the principal opinion seems to defend this inversion of McConnell as a necessary alternative to an 

unadministrable subjective test for the equivalence of 

express (and regulable) electioneering advocacy. The 

principal opinion acknowledges, of course, that in McConnell we said that ì[t]he justifications for the regulation of 

express advocacy apply equally to ads aired during [the 

period shortly before an election] if the ads are intended to 

influence the votersí decisions and have that effect.î 540 

U. S., at 206. But THE CHIEF JUSTICE says that statement 

in McConnell cannot be accepted at face value because we 

could not, consistent with precedent, have focused our 

First Amendment enquiry on whether ìthe speaker actually intended to affect an election.î Ante, at 14.17 THE 

óóóóóó 

17THE CHIEF JUSTICE says that Buckley v. Valeo, 424 U. S. 1 (1976) 

(per curiam), ìalready rejectedî any test that calls for an assessment of 

the intent and effect of corporate electioneering. Ante, at 13. The 

ìreject[ion]î to which THE CHIEF JUSTICE presumably refers is Buckleyís 

quotation of Thomas v. Collins, 323 U. S. 516 (1945), where we found 

impermissibly vague a statute that permitted a union leader to ìëlaud 

unionismíî but forbade him to ìimply an invitationî to join a union. Id., 

at 534. The problem with this predicament, we reasoned, was the lack 

of a clearly permissible opportunity for expression: Whether words 

ìdesigned to fall short of invitation would miss that mark is a question 

both of intent and of effect,î and no speaker ìsafely could assume that 

anything he might say . . . would not be understood by some as an 

invitation.î Id., at 535. We then specified that the speaker in Thomas 

was left with an impermissibly limited universe of ìthree choices: (1) to 

stand on his right and speak freely; (2) to quit, refusing entirely to 

speak; (3) to trim, and even thus to risk the penalty.î Id., at 536. 
26 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

CHIEF JUSTICE suggests it is more likely that the McConnell opinion inadvertently borrowed the language of ìintended . . . effect[s],î 540 U. S., at 206, from academic 

studies in the record of viewersí perceptions of the adsí 

purposes, ante, at 12.18

óóóóóó 

 THE CHIEF JUSTICE implies that considering the intent and effect of 

corporate advertising during as-applied challenges to ß203 would put 

corporations in precisely the same bind; thus, he wonders how McConnell could use the language of intent and effect without ìeven address[ing] what Buckleyî (and by extension, Thomas) ìhad to say on the 

subject.î Ante, at 14. But one need not look far in our McConnell

opinion to understand why we thought that corporations have more 

than the constrained set of options available to the union leader in 

Thomas. Just a few sentences after holding that ads with electioneering intent and effect are regulable, we gave this explanation: ìin the 

future corporations and unions may finance genuine issue ads [shortly 

before an election] by simply avoiding any specific reference to federal 

candidates, or in doubtful cases by paying for the ad from a segregated 

fund.î 540 U. S., at 206. In other words, corporations can find refuge 

in constitutionally sufficient and clearly delineated safe harbors by 

modifying the content of their ads (by omitting a candidateís name) or 

by altering the sources of their adsí financing (from general treasuries 

to PACs). THE CHIEF JUSTICE thus wrongly jettisons our conclusions 

about the constitutionality of regulating ads with electioneering purpose; we meant what we said in McConnell, and we did not overlook 

First Amendment jurisprudence when we said it. Whereas THE CHIEF 

JUSTICE says that BCRA ìshould provide a safe harbor for those who 

wish to exercise First Amendment rights,î ante, at 14, we already held 

in McConnell that the campaign finance law accomplishes precisely 

that. 18THE CHIEF JUSTICE speculates that McConnell derived its test for 

functional equivalence from ì[t]wo key studies,î ante, at 12, but not a 

shred of language in McConnell supports that theory. In stating the 

legal standard, McConnell made no mention of any study. What is the 

authority, then, for asserting that the studies were pivotal to the 

standard we announced in McConnell? See ante, at 12. Other than 

WRTLís brief, THE CHIEF JUSTICE cites only Judge Hendersonís separate district court opinion in McConnell. Ante, at 12. But THE CHIEF 

JUSTICE quotes one part of Judge Hendersonís analysis and neglects to 

mention that she in turn was quoting the lead author of one of the 

studies in question: ìAccording to the Brennan Center, the Buying Time
 Cite as: 551 U. S. ____ (2007) 27 

SOUTER, J., dissenting 

 If THE CHIEF JUSTICE were correct that McConnell

made the constitutional application of ß203 contingent on 

whether a corporationís ìmotives were pure,î or its issue 

advocacy ìsubjective[ly] sincer[e],î ante, at 14 (internal 

quotation marks omitted), then I, too, might be inclined to 

reconsider McConnellís language. But McConnell did not 

do that. It did not purport to draw constitutional lines 

based on the subjective motivations of corporations (or 

their principals) sponsoring political ads, but merely 

described our test for equivalence to express advocacy as 

resting on the adsí ìelectioneering purpose,î which will be 

objectively apparent from those adsí content and context 

(as these cases and the examples cited in McConnell readily show). We therefore held that ß203 was not substantially overbroad because ìthe vast majority of ads clearly 

had such a purpose,î and consequently could be regulated 

consistent with the First Amendment. 540 U. S., at 206. 

 For that matter, if the studies to which THE CHIEF 

JUSTICE refers were now to inform our reading of McConnell, they would merely underscore the objective character 

of the proper way to determine whether ß203 is constitutional as applied to a given ad. The authors of those studies did not conduct discovery of the ìactua[l] inten[tions],î 

ante, at 14, behind any ads; nor, to my knowledge, were 

the sponsors of campaign ads summoned before researchers to explain their motivations. The studies merely confirmed that ìreasonable people are . . . able to discern 

between ads whose primary purpose is to support a candidate and those intended to provide information about a 

policy issue.î J. Krasno & D. Seltz, Buying Time: Televióóóóóó 

reports were ëthe central piece of evidence marshaled by defenders ofí 

BCRAís electioneering communication provisions ëin support of their 

constitutional validity.íî McConnell, 251 F. Supp. 2d, at 307ñ308 

(opinion of Henderson, J.) (italics in original) (quoting deposition of 

Craig P. Holman, principal co-author of Buying Time 2000: Television 

Advertising in the 2000 Federal Elections (Brennan Center 2001)). 
28 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

sion Advertising in the 1998 Congressional Elections 9 

(2000). To be clear, I am not endorsing the precise methodology of those studies (and THE CHIEF JUSTICE is correct 

that we did not do so in McConnell, ante, at 13, n. 4); the 

point is only that the studies relied on a ìreasonableî 

personís understanding of the adsí apparent purpose, and 

thus were no less objective than THE CHIEF JUSTICEís own 

approach. 

 A similarly mistaken fear of an unadministrable and 

speech-chilling subjective regime seems to underlie THE

CHIEF JUSTICEís unwillingness to acknowledge the part 

that consideration of an adís context necessarily plays in 

any realistic assessment of its meaning. A reasonable 

Wisconsinite watching or listening to WRTLís ads would 

likely ask and answer some obvious questions about their 

circumstances. Is the group that sponsors these ads the 

same one publicly campaigning against Senator Feingoldís 

reelection? THE CHIEF JUSTICE says that this information 

is ìbeside the point,î because WRTLís history of overt 

electioneering only ìgoes to [its] subjective intent.î Ante, 

at 18. Did these ìissueî ads begin appearing on the air 

during the election season, rather than at the time the 

filibuster ìissueî was in fact being debated in the Senate? 

This, too, is said to be irrelevant. Ante, at 19. And does 

the website to which WRTLís ads direct viewers contain 

material expressly advocating Senator Feingoldís defeat? 

This enquiry is dismissed as being ìone step removed from 

the text of the ads themselves.î Ante, at 20. But these 

questions are central to the meaning of the ads, and any 

reasonable person would take account of circumstances in 

coming to understand the object of WRTLís ad. And why 

not? Each of the contextual facts here can be established 

by an objective look at a public record; none requires a 

voter (or a litigant) to engage in discovery of evidence 

about WRTLís operations or internal communications, and 

none goes to a hidden state of mind. 
 Cite as: 551 U. S. ____ (2007) 29 

SOUTER, J., dissenting 

 This refusal to see and hear what any listener to 

WRTLís ads would actually consider produces a rule no 

different in practice from the one adopted by the District 

Court, which declined to look beyond the ìfour cornersî of 

the ads themselves. 466 F. Supp. 2d 195, 207 (DC 2006). 

Although THE CHIEF JUSTICE ostensibly stops short of 

categorically foreclosing consideration of context, see ante, 

at 20, the application of his test here makes it difficult to 

see how relevant contextual evidence could ever be taken 

into account the way it was in McConnell,19 and it is hard 

to imagine THE CHIEF JUSTICE would ever find an ad to be 

ìsusceptible of no reasonable interpretation other than as 

an appeal to vote for or against a specific candidate,î ante, 

at 16, unless it contained words of express advocacy. THE 

CHIEF JUSTICE thus effectively reinstates the same toothless ìmagic wordsî criterion of regulable electioneering 

that led Congress to enact BCRA in the first place. 

C 

 Third, it may be that the principal opinion rejects 

McConnell on the erroneous assumption that ß203 flatly 

bans independent electioneering communications by a 

corporation. THE CHIEF JUSTICE argues that corporations 

must receive ìthe benefit of any doubt,î ante, at 16, whenóóóóóó 

19Like the District Court, the only bit of context THE CHIEF JUSTICE

would allow the reasonable listener is the congressional agenda: 

whether the ìëissueíî addressed in an ad currently is, or soon will be, 

ìëthe subject of legislative scrutiny.íî Ante, at 20 (quoting 466 F. Supp. 

2d, at 207). For example, THE CHIEF JUSTICE says, there would have 

been ìno reasonî to think that WRTLís ad constituted anything but a 

pure issue ad if it addressed a bill pending during Senator Feingoldís 

reelection campaign, such as the Universal National Service Act. Ante, 

at 17. It is revealing, of course, that THE CHIEF JUSTICE does not invoke 

the filibuster issue, the subject of WRTLís ads, as the legislative matter 

with particular salience during the 2004 election. But why the reasonable listener can look to Congress but not the calendar on the wall or a 

WRTL website is difficult to fathom. 
30 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

ever we undertake the task of ìseparating . . . political 

speech protected under the First Amendment from that 

which may be banned,î ante, at 13. But this is a fundamental misconception of the task at hand: we have already held that it is ìësimply wrongí to view [ß203] as a 

ëcomplete baní on expression,î because PAC financing 

provides corporations ìwith a constitutionally sufficient 

opportunity to engage in express advocacy.î20 McConnell, 

540 U. S., at 203ñ204 (quoting Beaumont, 539 U. S., at 

162). Thus, a successful as-applied challenger to ß203 

should necessarily show, at the least, that it could not 

constitutionally be subjected to the administrative rules 

that govern a PACís formation and operation. See id., at 

163. This would be an uphill fight, after our repeated 

affirmations that the PAC structure does not impose 

excessive burdens, ibid. (citing National Right to Work 

Comm., 459 U. S., at 201ñ202), and WRTL has a particularly weak position on this point: it set up its own PAC 

long before the 2004 election, used it to campaign openly 

against Senator Feingold in the past, and could have 

raised noncorporate donations to it in the 2004 election 

cycle. Any argument that establishing and maintaining a 

PAC is unconstitutionally burdensome for WRTL would 

thus likely be futile, and certainly should not prevail on 

WRTLís summary judgment motion. 

 For that matter, even without the PAC alternative, it 

would be untrue that ß203 ìbannedî WRTL from saying 

anything a genuine issue ad would say, for WRTL could 

have availed itself of either or both of the following additional options. It is undisputed that WRTLís ads could 

have been broadcast lawfully in the runup to the election 

óóóóóó 

20JUSTICE SCALIA also adopts the same misconception that ß203 is a 

ìbanî on speech. See ante, at 18 (ìSection 203ís line is bright, but it 

bans vast amounts of political advocacy indistinguishable from hitherto 

protected speechî). 
 Cite as: 551 U. S. ____ (2007) 31 

SOUTER, J., dissenting 

(and bankrolled from WRTLís general treasury) if Senator 

Feingoldís name had been omitted and the Senator not 

otherwise singled out. Since members of todayís majority 

apparently view WRTLís broadcasts either as ìgenuine 

issue ad[s],î ante, at 16 (opinion of THE CHIEF JUSTICE), or 

as ìlobby[ing] Wisconsin voters concerning the filibustering of the Presidentís judicial nominees,î ante, at 2 

(SCALIA, J., concurring in part and concurring in judgment), a claim that omitting Senator Feingoldís name 

would ìbanî WRTLís message is specious. Yet one 

searches my Brothersí opinions in vain for any persuasive 

reason why substituting the phrase ìContact your Senatorsî for the phrase ìContact Senators Feingold and Kohlî 

would have denied WRTL a constitutionally sufficient 

(and clearly lawful) alternative way to send its message. 

If WRTL is to be believed when it claims that the issue 

was the point of the ads, it would have lost nothing by 

referring simply to the ìSenators.î 

 Finally, the suggestion that ß203 is a ban on political 

speech is belied by MCFLís safe harbor for nonprofit advocacy corporations: under that rule, WRTL would have 

been free to attack Senator Feingold by name at any time 

with ads funded from its corporate treasury, if it had not 

also chosen to serve as a funnel for hundreds of thousands 

of dollars from other corporations. Thus, what is called a 

ìbanî on speech is a limit on the financing of electioneering broadcasts by entities that refuse to take advantage of 

the PAC structure but insist on acting as conduits from 

the campaign war chests of business corporations. 

D 

 In sum, McConnell does not graft a subjective standard 

onto campaign regulation, the context of campaign advertising cannot sensibly be ignored, and ß203 is not a ban on 

speech. What cannot be gainsaid, in any event, is that in 

treating these subjects as it does, the operative opinion 
32 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

produces the result of overruling McConnellís holding on 

ß203, less than four years in the Reports. Anyone who 

doubts that need merely ask what the law would have 

been if, back in 2003, this Court had held ß203 facially 

unconstitutional. 

 BCRAís definition of ìelectioneering communication,î 

which identifies the communications regulable under 

ß203, includes a backup to be used if the primary definition ìis held to be constitutionally insufficient by final 

judicial decision to support the regulation provided 

herein.î 2 U. S. C. ß434(f)(3)(A)(ii) (2000 ed., Supp. IV). If 

this should occur, ìelectioneering communicationî is to be 

defined as 

ìany broadcast, cable, or satellite communication 

which promotes or supports a candidate for that office, 

or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which 

also is suggestive of no plausible meaning other than 

an exhortation to vote for or against a specific candidate.î Ibid.

 This backup sounds familiar because it is essentially 

identical to THE CHIEF JUSTICEís test for evaluating an asapplied challenge to the original definition of ìelectioneering communicationî: regulation is permissible only if the 

communication is ìsusceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,î ante, at 16. Thus does the principal opinion institute the very standard that would have prevailed 

if the Court formally overruled McConnell. There is neither a theoretical nor a practical basis to claim that 

McConnellís treatment of ß203 survives. 

E 

 The price of McConnellís demise as authority on ß203 

seems to me to be a high one. The Court (and, I think, the 
 Cite as: 551 U. S. ____ (2007) 33 

SOUTER, J., dissenting 

country) loses when important precedent is overruled without good reason, and there is no justification for departing 

from our usual rule of stare decisis here. The same combination of alternatives that was available to corporations 

affected by McConnell in 2003 is available today: WRTL 

could have run a newspaper ad, could have paid for the 

broadcast ads through its PAC, could have established itself 

as an MCFL organization free of corporate money, and 

could have said ìcall your Senatorsî instead of naming 

Senator Feingold in its ads broadcasted just before the 

election. Nothing in the related law surrounding ß203 has 

changed in any way, let alone in any way that undermines 

McConnellís rationale. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854ñ855 (1992). 

 Nor can any serious argument be made that McConnellís holding has been ìunworkable in practice.î AlliedSignal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 

783 (1992) (internal quotation marks omitted). McConnell 

validated a clear rule resting on mostly bright-line conditions, and there is no indication that the statute has been 

difficult to apply.21 Although WRTL contends that the asapplied remedy has proven to be ì[i]nadequateî because 

such challenges cannot be litigated quickly enough to 

avoid being mooted, Brief for Appellee 65ñ66, nothing 

prevents an advertiser from obtaining a preliminary injunction if it can qualify for one, and WRTL does not point 

to any evidence that district courts have been unable to 

óóóóóó 

21These as-applied challenges provide no reason to second-guess our 

conclusion in McConnell that the rule for differentiating between 

electioneering ads and genuine issue ads is administrable. WRTLís ads 

clearly have an electioneering purpose and, as explained above, fall 

comfortably within the heartland of electioneering communications 

that ß203 may validly regulate. Thus, although JUSTICE SCALIA claims 

that ì[t]odayís cases make it apparentî that McConnell must be overruled, ante, at 18, there is nothing about todayís cases that suggests 

that McConnell is unworkable. We therefore have no occasion to 

reconsider McConnell from first principles. 
34 FEDERAL ELECTION COMMíN v. WISCONSIN RIGHT TO 

 LIFE, INC. 

SOUTER, J., dissenting 

rule on any such matters in a timely way. 

 Finally, it goes without saying that nothing has changed 

about the facts. In Justice Frankfurterís words, they 

demonstrate a threat to ìthe integrity of our electoral 

process,î Automobile Workers, 352 U. S., at 570, which for 

a century now Congress has repeatedly found to be imperiled by corporate, and later union, money: witness the 

Tillman Act, Taft-Hartley, FECA, and BCRA. See Part II, 

supra. McConnell was our latest decision vindicating 

clear and reasonable boundaries that Congress has drawn 

to limit ìëthe corrosive and distorting effects of immense 

aggregations of wealth,íî 540 U. S., at 205 (quoting Austin, 

494 U. S., at 660), and the decision could claim the justification of ongoing fact as well as decisional history in recognizing Congressís authority to protect the integrity of 

elections from the distortion of corporate and union funds. 

 After today, the ban on contributions by corporations 

and unions and the limitation on their corrosive spending 

when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate 

and union campaign money are unclear. The ban on 

contributions will mean nothing much, now that companies and unions can save candidates the expense of advertising directly, simply by running ìissue adsî without 

express advocacy, or by funneling the money through an 

independent corporation like WRTL. 

 But the understanding of the voters and the Congress 

that this kind of corporate and union spending seriously 

jeopardizes the integrity of democratic government will 

remain. The facts are too powerful to be ignored, and 

further efforts at campaign finance reform will come. It is 

only the legal landscape that now is altered, and it may be 

that todayís departure from precedent will drive further 

reexamination of the constitutional analysis: of the distinction between contributions and expenditures, or the 

relation between spending and speech, which have given 
 Cite as: 551 U. S. ____ (2007) 35 

SOUTER, J., dissenting 

structure to our thinking since Buckley itself was decided. 

 I cannot tell what the future will force upon us, but I 

respectfully dissent from this judgment today.