SUPREME COURT OF THE UNITED STATES
CITIZENS UNITED
v
. FEDERAL ELECTION
COMMISSION
COMMISSION
appeal from the united states district court for the district of columbia
No. 08–205. Argued March 24, 2009—Reargued September 9, 2009––Decided January 21, 2010
As amended by §203 of the Bipartisan Campaign Reform Act of 2002
(BCRA), federal law prohibits corporations and unions from using their
general treasury funds to make independent expenditures for speech that
is an “electioneering communication” or for speech that expressly
advocates the election or defeat of a candidate.
2 U. S. C. §441b.
An electioneering communication is “any broadcast, cable, or satellite
communication” that “refers to a clearly identified candidate for
Federal office” and is made within 30 days of a primary election,
§434(f)(3)(A), and that is “publicly distributed,”
11 CFR §100.29(a)(2),
which in “the case of a candidate for nomination for President … means”
that the communication “[c]an be received by 50,000 or more persons in a
State where a primary election … is being held within 30 days,”
§100.29(b)(3)(ii). Corporations and unions may establish a political
action committee (PAC) for express advocacy or electioneering
communications purposes.
2 U. S. C. §441b(b)(2). In
McConnell
v.
Federal Election Comm’n
,
540 U. S. 93
, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in
Austin
v.
Michigan Chamber of Commerce
,
494 U. S. 652
, that political speech may be banned based on the speaker’s corporate identity.
In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter
Hillary
) critical of then-Senator Hillary Clinton, a candidate for her
party’s Presidential nomination. Anticipating that it would make
Hillary
available on cable television through video-on-demand within 30 days
of primary elections, Citizens United produced television ads to run on
broadcast and cable television. Concerned about possible civil and
criminal penalties for violating §441b, it sought declaratory and
injunctive relief, arguing that (1) §441b is unconstitutional as applied
to
Hillary;
and (2) BCRA’s disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to
Hillary
and the ads. The District Court denied Citizens United a
preliminary injunction and granted appellee Federal Election Commission
(FEC) summary judgment.
Held:
1. Because the question whether §441b applies to
Hillary
cannot be resolved on other, narrower grounds without chilling
political speech, this Court must consider the continuing effect of the
speech suppression upheld in
Austin
. Pp. 5–20.
(a) Citizen United’s narrower arguments—that
Hillary
is not an “electioneering communication”
covered by §441b because it is not “publicly distributed” under
11 CFR §100.29(a)(2); that §441b may not be applied to
Hillary
under
Federal Election Comm’n
v.
Wisconsin Right to Life, Inc.
,
551 U. S. 449
(WRTL),
which found §441b unconstitutional as applied to speech that was not “express advocacy or its functional equivalent,”
id.,
at 481 (opinion of R
oberts
, C. J.), determining that a communication “is the functional
equivalent of express advocacy only if [it] is susceptible of no
reasonable interpretation other than as an appeal to vote for or against
a specific candidate,”
id.
, at 469–470; that §441b should be invalidated as applied to movies
shown through video-on-demand because this delivery system has a lower
risk of distorting the political process than do television ads; and
that there should be an exception to §441b’s ban for nonprofit corporate
political speech funded overwhelming by individuals—are not sustainable
under a fair reading of the statute. Pp. 5–12.
(b) Thus, this case cannot be resolved on a narrower ground without
chilling political speech, speech that is central to the
First Amendment ’s meaning and purpose. Citizens United did not waive this challenge to
Austin
when it stipulated to dismissing the facial challenge below, since
(1) even if such a challenge could be waived, this Court may reconsider
Austin
and §441b’s facial validity here because the District Court “passed upon” the issue,
Lebron
v.
National Railroad Passenger Corporation
,
513 U. S. 374
; (2) throughout the litigation, Citizens United has asserted a claim
that the FEC has violated its right to free speech; and (3) the parties
cannot enter into a stipulation that prevents the Court from considering
remedies necessary to resolve a claim that has been preserved. Because
Citizen United’s narrower arguments are not sustainable, this Court
must, in an exercise of its judicial responsibility, consider §441b’s
facial validity. Any other course would prolong the substantial,
nationwide chilling effect caused by §441b’s corporate expenditure ban.
This conclusion is further supported by the following: (1) the
uncertainty caused by the Government’s litigating position; (2)
substantial time would be required to clarify §441b’s application on the
points raised by the Government’s position in order to avoid any
chilling effect caused by an improper interpretation; and (3) because
speech itself is of primary importance to the integrity of the election
process, any speech arguably within the reach of rules created for
regulating political speech is chilled. The regulatory scheme at issue
may not be a prior restraint in the strict sense. However, given its
complexity and the deference courts show to administrative
determinations, a speaker wishing to avoid criminal liability threats
and the heavy costs of defending against FEC enforcement must ask a
governmental agency for prior permission to speak. The restrictions
thus function as the equivalent of a prior restraint, giving the FEC
power analogous to the type of government practices that the
First Amendment
was drawn to prohibit. The ongoing chill on speech makes it
necessary to invoke the earlier precedents that a statute that chills
speech can and must be invalidated where its facial invalidity has been
demonstrated. Pp. 12–20.
2.
Austin
is overruled, and thus provides no basis for allowing the
Government to limit corporate independent expenditures. Hence, §441b’s
restrictions on such expenditures are invalid and cannot be applied to
Hillary.
Given this conclusion, the part of
McConnell
that upheld BCRA §203’s extension of §441b’s restrictions on
independent corporate expenditures is also overruled. Pp. 20–51.
(a) Although the
First Amendment
provides that “Congress shall make no law … abridging the freedom of
speech,” §441b’s prohibition on corporate independent expenditures is an
outright ban on speech, backed by criminal sanctions. It is a ban
notwithstanding the fact that a PAC created by a corporation can still
speak, for a PAC is a separate association from the corporation.
Because speech is an essential mechanism of democracy—it is the means to
hold officials accountable to the people—political speech must prevail
against laws that would suppress it by design or inadvertence. Laws
burdening such speech are subject to strict scrutiny, which requires the
Government to prove that the restriction “furthers a compelling
interest and is narrowly tailored to achieve that interest.”
WRTL,
551 U. S.,
at 464. This language provides a sufficient framework for
protecting the interests in this case. Premised on mistrust of
governmental power, the
First Amendment
stands against attempts to disfavor certain subjects or viewpoints or
to distinguish among different speakers, which may be a means to control
content. The Government may also commit a constitutional wrong when by
law it identifies certain preferred speakers. There is no basis for
the proposition that, in the political speech context, the Government
may impose restrictions on certain disfavored speakers. Both history
and logic lead to this conclusion. Pp. 20–25.
(b) The Court has recognized that the
First Amendment applies to corporations,
e.g., First Nat. Bank of Boston
v.
Bellotti
,
435 U. S. 765
, and extended this protection to the context of political speech, see,
e.g., NAACP
v.
Button
,
371 U. S. 415
. Addressing challenges to the Federal Election Campaign Act of 1971, the
Buckley
Court upheld limits on direct contributions to candidates,
18 U. S. C. §608(b), recognizing a governmental interest in preventing
quid pro quo
corruption. 424 U. S., at 25–26. However, the Court invalidated
§608(e)’s expenditure ban, which applied to individuals, corporations,
and unions, because it “fail[ed] to serve any substantial governmental
interest in stemming the reality or appearance of corruption in the
electoral process,”
id.
, at 47–48. While
Buckley
did not consider a separate ban on corporate and union independent
expenditures found in §610, had that provision been challenged in
Buckley
’s
wake, it could not have been squared with the precedent’s reasoning and analysis. The
Buckley
Court did not invoke the overbreadth doctrine to suggest that
§608(e)’s expenditure ban would have been constitutional had it applied
to corporations and unions but not individuals. Notwithstanding this
precedent, Congress soon recodified §610’s corporate and union
expenditure ban at
2 U. S. C. §441b, the provision at issue. Less than two years after
Buckley, Bellotti
reaffirmed the
First Amendment
principle that the Government lacks the power to restrict political
speech based on the speaker’s corporate identity. 435 U.S., at 784–785.
Thus the law stood until
Austin
upheld a corporate independent expenditure restriction, bypassing
Buckley
and
Bellotti
by recognizing a new governmental interest in preventing “the
corrosive and distorting effects of immense aggregations of [corporate]
wealth … that have little or no correlation to the public’s support for
the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32.
(c) This Court is confronted with conflicting lines of precedent: a pre-
Austin
line forbidding speech restrictions based on the speaker’s corporate identity and a post-
Austin
line permitting them. Neither
Austin
’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47.
(1) The
First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but
Austin
’s antidistortion rationale would permit the Government to ban
political speech because the speaker is an association with a corporate
form. Political speech is “indispensable to decisionmaking in a
democracy, and this is no less true because the speech comes from a
corporation.”
Bellotti, supra,
at 777 (footnote omitted). This protection is inconsistent with
Austin
’s rationale, which is meant to prevent corporations from obtaining
“ ‘an unfair advantage in the political marketplace’ ” by using
“ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659.
First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.”
Buckley
,
supra,
at 49. These conclusions were reaffirmed when the Court
invalidated a BCRA provision that increased the cap on contributions to
one candidate if the opponent made certain expenditures from personal
funds.
Davis
v.
Federal Election Comm’n
, 554 U. S. ___, ___. Distinguishing wealthy individuals from corporations based on the latter’s special advantages of,
e.g.,
limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for
First Amendment
purposes that corporate funds may “have little or no correlation to
the public’s support for the corporation’s political ideas.”
Austin, supra,
at 660. All speakers, including individuals and the media, use
money amassed from the economic marketplace to fund their speech, and
the
First Amendment
protects the resulting speech. Under the antidistortion rationale,
Congress could also ban political speech of media corporations.
Although currently exempt from §441b, they accumulate wealth with the
help of their corporate form, may have aggregations of wealth, and may
express views “hav[ing] little or no correlation to the public’s
support” for those views. Differential treatment of media corporations
and other corporations cannot be squared with the
First Amendment
, and there is no support for the view that the Amendment’s original
meaning would permit suppressing media corporations’ political speech.
Austin
interferes with the “open marketplace” of ideas protected by the
First Amendment .
New York State Bd. of Elections
v.
Lopez Torres
,
552 U. S. 196
. Its censorship is vast in its reach, suppressing the speech of both
for-profit and nonprofit, both small and large, corporations.
Pp. 32–40.
(2) This reasoning also shows the invalidity of the Government’s
other arguments. It reasons that corporate political speech can be
banned to prevent corruption or its appearance. The
Buckley
Court found this rationale “sufficiently important” to allow
contribution limits but refused to extend that reasoning to expenditure
limits, 424 U.S., at 25, and the Court does not do so here. While a
single
Bellotti
footnote purported to leave the question open, 435 U. S., at 788, n.
26, this Court now concludes that independent expenditures, including
those made by corporations, do not give rise to corruption or the
appearance of corruption. That speakers may have influence over or
access to elected officials does not mean that those officials are
corrupt. And the appearance of influence or access will not cause the
electorate to lose faith in this democracy.
Caperton
v.
A. T. Massey Coal Co.
, 556 U. S. ___, distinguished. Pp. 40–45.
(3) The Government’s asserted interest in protecting shareholders
from being compelled to fund corporate speech, like the antidistortion
rationale, would allow the Government to ban political speech even of
media corporations. The statute is underinclusive; it only protects a
dissenting shareholder’s interests in certain media for 30 or 60 days
before an election when such interests would be implicated in any media
at any time. It is also overinclusive because it covers all
corporations, including those with one shareholder. P. 46.
(4) Because §441b is not limited to corporations or associations
created in foreign countries or funded predominately by foreign
shareholders, it would be overbroad even if the Court were to recognize a
compelling governmental interest in limiting foreign influence over the
Nation’s political process. Pp. 46–47.
(d) The relevant factors in deciding whether to adhere to
stare decisis,
beyond workability—the precedent’s antiquity, the reliance interests
at stake, and whether the decision was well reasoned—counsel in favor
of abandoning
Austin,
which itself contravened the precedents of
Buckley
and
Bellotti.
As already explained,
Austin
was not well reasoned. It is also undermined by experience since
its announcement. Political speech is so ingrained in this country’s
culture that speakers find ways around campaign finance laws. Rapid
changes in technology—and the creative dynamic inherent in the concept
of free expression—counsel against upholding a law that restricts
political speech in certain media or by certain speakers. In addition,
no serious reliance issues are at stake. Thus, due consideration leads
to the conclusion that
Austin
should be overruled. The Court returns to the principle established in
Buckley
and
Bellotti
that the Government may not suppress political speech based on the
speaker’s corporate identity. No sufficient governmental interest
justifies limits on the political speech of nonprofit or for-profit
corporations. Pp. 47–50.
3. BCRA §§201 and 311 are valid as applied to the ads for
Hillary
and to the movie itself. Pp. 50–57.
(a) Disclaimer and disclosure requirements may burden the ability to
speak, but they “impose no ceiling on campaign-related activities,”
Buckley
, 424 U. S., at 64, or “ ‘ “prevent anyone from speaking,” ’ ”
McConnell
,
supra
, at 201. The
Buckley
Court explained that disclosure can be justified by a governmental
interest in providing “the electorate with information” about
election-related spending sources. The
McConnell
Court applied this interest in rejecting facial challenges to §§201
and 311. 540 U. S., at 196. However, the Court acknowledged that
as-applied challenges would be available if a group could show a
“ ‘reasonable probability’ ” that disclosing its contributors’ names
would “ ‘subject them to threats, harassment, or reprisals from either
Government officials or private parties.’ ”
Id.,
at 198. Pp. 50–52.
(b) The disclaimer and disclosure requirements are valid as applied
to Citizens United’s ads. They fall within BCRA’s “electioneering
communication” definition: They referred to then-Senator Clinton by name
shortly before a primary and contained pejorative references to her
candidacy. Section 311 disclaimers provide information to the
electorate,
McConnell, supra,
at 196, and “insure that the voters are fully informed” about who is speaking,
Buckley
,
supra
, at 76. At the very least, they avoid confusion by making clear
that the ads are not funded by a candidate or political party. Citizens
United’s arguments that §311 is underinclusive because it requires
disclaimers for broadcast advertisements but not for print or Internet
advertising and that §311 decreases the quantity and effectiveness of
the group’s speech were rejected in
McConnell.
This Court also rejects their contention that §201’s disclosure
requirements must be confined to speech that is the functional
equivalent of express advocacy under
WRTL’
s test for restrictions on independent expenditures, 551 U. S., at 469–476 (opinion of R
oberts
, C.J.). Disclosure is the less-restrictive alternative to more
comprehensive speech regulations. Such requirements have been upheld in
Buckley
and
McConnell.
Citizens United’s argument that no informational interest justifies
applying §201 to its ads is similar to the argument this Court rejected
with regard to disclaimers. Citizens United finally claims that
disclosure requirements can chill donations by exposing donors to
retaliation, but offers no evidence that its
members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp. 52–55.
(c) For these same reasons, this Court affirms the application of
the §§201 and 311 disclaimer and disclosure requirements to
Hillary
. Pp. 55–56.
Reversed in part, affirmed in part, and remanded.
Kennedy, J.,
delivered the opinion of the Court, in which
Roberts, C. J.,
and
Scalia
and
Alito, JJ.,
joined, in which
Thomas, J.,
joined as to all but Part IV, and in which
Stevens, Ginsburg, Breyer,
and
Sotomayor, JJ.,
joined as to Part IV.
Roberts, C. J.,
filed a concurring opinion, in which
Alito, J.,
joined.
Scalia, J.,
filed a concurring opinion, in which
Alito, J.,
joined, and in which
Thomas, J.,
joined in part.
Stevens, J.,
filed an opinion concurring in part and dissenting in part, in which
Ginsburg, Breyer
, and
Sotomayor, JJ.,
joined.
Thomas, J.,
filed an opinion concurring in part and dissenting in part.
Justice Kennedy Opinion of the Court
Justice Roberts Concurring
Justice Scalia Concurring
Justice Stevens Concurring and Dissenting in Part
Justice Thomas Concurring and Dissenting in Part
Justice Kennedy Opinion of the Court
Justice Roberts Concurring
Justice Scalia Concurring
Justice Stevens Concurring and Dissenting in Part
Justice Thomas Concurring and Dissenting in Part
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