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MCCONNELL V. FEDERAL ELECTION COMM’N (02-1674) 540 U.S. 93 (2003)
251 F. Supp. 2d 176, 251 F. Supp. 2d 948, affirmed in part and reversed in part. | ||||||||
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| Syllabus |
Opinion [ Stevens ] |
Opinion [ Rehnquist ] |
Opinion [ Breyer ] |
Dissent [ Rehnquist ] |
Dissent [ Stevens ] |
Other [ Opinion of Scalia ] |
Other [ Opinion of Thomas ] |
Other [ Opinion of Kennedy ] |
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02—1740, 02—1747,
02—1753, 02—1755, and 02—1756
ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[December 10, 2003]
Justice Stevens and
Justice O’Connor delivered the opinion of the Court with
respect to BCRA Titles I and II.*
The Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 11, as amended, 2 U.S.C. A. §431 et seq. (main ed. and Supp. 2003), the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U.S.C. A. §315, and other portions of the United States Code, 18 U.S.C. A. §607 (Supp. 2003), 36 U.S.C. A. §§510—511, that are challenged in these cases.1 In this opinion we discuss Titles I and II of BCRA. The opinion of the Court delivered by The Chief Justice, post, p. ___, discusses Titles III and IV, and the opinion of the Court delivered by Justice Breyer, post, p. ___, discusses Title V.
I
More than a century ago the
“sober-minded Elihu Root” advocated legislation that
would prohibit political contributions by corporations in order
to prevent “
BCRA is the most recent federal
enactment designed “to purge national politics of what was
conceived to be the pernicious influence of ‘big
money’ campaign contributions.” Id., at 572.
As Justice Frankfurter explained in his opinion for the Court
in Automobile Workers, the first such enactment
responded to President Theodore Roosevelt’s call for
legislation forbidding all contributions by corporations
“
In 1925 Congress extended the
prohibition of “contributions” “to include
‘anything of value,’ and made acceptance of a
corporate contribution as well as the giving of such a
contribution a crime.” Federal Election
Comm’n v. National Right to Work Comm., 459 U.S. 197, 209
(1982) (citing Federal Corrupt Practices Act, 1925,
§§301, 313, 43 Stat. 1070, 1074). During the debates
preceding that amendment, a leading Senator characterized
“
Congress’ historical concern with the “political potentialities of wealth” and their “untoward consequences for the democratic process,” Automobile Workers, supra, at 577—578, has long reached beyond corporate money. During and shortly after World War II, Congress reacted to the “enormous financial outlays” made by some unions in connection with national elections. 352 U.S., at 579. Congress first restricted union contributions in the Hatch Act, 18 U.S.C. § 6102 and it later prohibited “union contributions in connection with federal elections … altogether.” National Right to Work, supra, at 209 (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch. 144, §9, 57 Stat. 167). Congress subsequently extended that prohibition to cover unions’ election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general elections. Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat. 136. See Automobile Workers, supra, at 578—584. During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S. Rep. No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H. R. Rep. No. 2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, Congress’ “careful legislative adjustment of the federal election laws, in a ‘cautious advance, step by step,’ to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference.” National Right to Work, 352 U.S., at 209 (citations omitted).
In early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, 86 Stat. 3. As first enacted, that statute required disclosure of all contributions exceeding $100 and of expenditures by candidates and political committees that spent more than $1,000 per year. Id., at 11—19. It also prohibited contributions made in the name of another person, id., at 19, and by Government contractors, id., at 10. The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. Id., at 12—13.3 See Pipefitters v. United States, 407 U.S. 385, 409—410 (1972).
As the 1972 presidential elections made clear, however, FECA’s passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. Reviewing a constitutional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as “by far the most comprehensive … reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress.” Buckley v. Valeo, 519 F.2d 821, 831 (1975) (en banc) (per curiam).
The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees’ receipts and disbursements. They also limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national conventions; required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. Id., at 831—834.
The Court of Appeals upheld the 1974 amendments almost in their entirety.4 It concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. Id., at 841. The court’s opinion relied heavily on findings that large contributions facilitated access to public officials5 and described methods of evading the contribution limits that had enabled contributors of massive sums to avoid disclosure. Id., at 837—841.6
The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as regulations of conduct rather than speech. Id., at 840—841 (citing United States v. O’Brien, 391 U.S. 367, 376—377 (1968)). This Court, however, concluded that each set of limitations raised serious–though different–concerns under the First Amendment. Buckley v. Valeo, 424 U.S. 1, 14—23 (1976) (per curiam). We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only “a marginal restriction upon the contributor’s ability to engage in free communication.” Id., at 20—21. Considering the “deeply disturbing examples” of corruption related to candidate contributions discussed in the Court of Appeals’ opinion, we determined that limiting contributions served an interest in protecting “the integrity of our system of representative democracy.” Id., at 26—27. In the end, the Act’s primary purpose–“to limit the actuality and appearance of corruption resulting from large individual financial contributions”–provided “a constitutionally sufficient justification for the $1,000 contribution limitation.” Id., at 26.
We prefaced our analysis of the
$1,000 limitation on expenditures by observing that it broadly
encompassed every expenditure “
44. We
concluded, however, that as so narrowed, the provision would
not provide effective protection against the dangers of quid
pro quo arrangements, because persons and groups could
eschew expenditures that expressly advocated the election or
defeat of a clearly identified candidate while remaining
“free to spend as much as they want to promote the
candidate and his views.” Id., at 45. We
also rejected the argument that the expenditure limits were
necessary to prevent attempts to circumvent the Act’s
contribution limits, because FECA already treated expenditures
controlled by or coordinated with the candidate as
contributions, and we were not persuaded that independent
expenditures posed the same risk of real or apparent corruption
as coordinated expenditures. Id., at 46—47. We
therefore held that Congress’ interest in preventing real
or apparent corruption was inadequate to justify the heavy
burdens on the freedoms of expression and association that the
expenditure limits imposed.
We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act. Id., at 66—68. In order to avoid an overbreadth problem, however, we placed the same narrowing construction on the term “expenditure” in the disclosure context that we had adopted in the context of the expenditure limitations. Thus, we construed the reporting requirement for persons making expenditures of more than $100 in a year “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id., at 80 (footnote omitted).
Our opinion in Buckley addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. Id., at 28—29, n. 31; see also n. 3, supra.
Three important developments in the years after our decision in Buckley persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections.
Under FECA, “contributions” must be made with funds that are subject to the Act’s disclosure requirements and source and amount limitations. Such funds are known as “federal” or “hard” money. FECA defines the term “contribution,” however, to include only the gift or advance of anything of value “made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. § 431(8)(A)(i) (emphasis added). Donations made solely for the purpose of influencing state or local elections are therefore unaffected by FECA’s requirements and prohibitions. As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidates, to contribute “nonfederal money”–also known as “soft money”–to political parties for activities intended to influence state or local elections.
Shortly after Buckley was decided, questions arose concerning the treatment of contributions intended to influence both federal and state elections. Although a literal reading of FECA’s definition of “contribution” would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activities–including get-out-the-vote drives and generic party advertising–in part with soft money.7 In 1995 the FEC concluded that the parties could also use soft money to defray the costs of “legislative advocacy media advertisements,” even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidate’s election or defeat. FEC Advisory Op. 1995—25.
As the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. Of the two major parties’ total spending, soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000.8 The national parties transferred large amounts of their soft money to the state parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose activities under FEC rules.9 In the year 2000, for example, the national parties diverted $280 million–more than half of their soft money–to state parties.
Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave, in total, more than $9 million in nonfederal funds to the two national party committees.10 In the most recent election cycle the political parties raised almost $300 million–60% of their total soft-money fundraising–from just 800 donors, each of which contributed a minimum of $120,000.11 Moreover, the largest corporate donors often made substantial contributions to both parties.12 Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties.13
Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already “contributed the legal maximum” to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party.14 Such solicitations were not uncommon.15
The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source and amount of contributions in connection with federal elections.
In Buckley we construed FECA’s disclosure and reporting requirements, as well as its expenditure limitations, “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U.S., at 80 (footnote omitted). As a result of that strict reading of the statute, the use or omission of “magic words” such as “Elect John Smith” or “Vote Against Jane Doe” marked a bright statutory line separating “express advocacy” from “issue advocacy.” See id., at 44, n. 52. Express advocacy was subject to FECA’s limitations and could be financed only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be financed with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors.
While the distinction between “issue” and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words.16 Little difference existed, for example, between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s record on a particular issue before exhorting viewers to “call Jane Doe and tell her what you think.”17 Indeed, campaign professionals testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words.18 Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.19 Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads,20 and those expenditures, like soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive to organizations and candidates precisely because they were beyond FECA’s reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money.21
Because FECA’s disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. “Citizens for Better Medicare,” for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers.22 And “Republicans for Clean Air,” which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals–brothers who together spent $25 million on ads supporting their favored candidate.23
While the public may not have been
fully informed about the sponsorship of so-called issue ads,
the record indicates that candidates and officeholders often
were. A former Senator confirmed that candidates and officials
knew who their friends were and “sometimes suggest[ed]
that corporations or individuals make donations to interest
groups that run ‘issue ads.’
In 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal elections. The report gave particular attention to the effect of soft money on the American political system, including elected officials’ practice of granting special access in return for political contributions.
The committee’s principal findings
relating to Democratic Party fundraising were set forth in the
majority’s report, while the minority report primarily
described Republican practices. The two reports reached
consensus, however, on certain central propositions. They
agreed that the “soft money loophole” had led to a
“meltdown” of the campaign finance system that had
been intended “to keep corporate, union and large
individual contributions from influencing the electoral
process.”26 One Senator stated that “the hearings
provided overwhelming evi-
dence that the twin loopholes of
soft money and bogus issue advertising have virtually destroyed
our campaign finance laws, leaving us with little more than a
pile of legal rubble.”27
The report was critical of both
parties’ methods of raising soft money, as well as their
use of those funds. It concluded that both parties promised
and provided special access to candidates and senior Government
officials in exchange for large soft-money contributions. The
Committee majority described the White House coffees that
rewarded major donors with access to President Clinton,28 and the
courtesies extended to an international businessman named Roger
Tamraz, who candidly acknowledged that his donations of about
$300,000 to the DNC and to state parties were motivated by his
interest in gaining the Federal Government’s support for
an oil-line project in the Caucasus.29 The minority described the
promotional materials used by the RNC’s two principal
donor programs, “Team 100” and the “Republican
Eagles,” which promised “special access to
high-ranking Republican elected officials, including governors,
senators, and representatives.”30 One fundraising
letter recited that the chairman of the RNC had personally
escorted a donor on appointments that “
In 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal elections. The Committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.32 The ads thus provided a means for evading FECA’s candidate contribution limits.
The report also emphasized the role of state and local parties. While the FEC’s allocation regime permitted national parties to use soft money to pay for up to 40% of the costs of both generic voter activities and issue advertising, they allowed state and local parties to use larger percentages of soft money for those purposes.33 For that reason, national parties often made substantial transfers of soft money to “state and local political parties for ‘generic voter activities’ that in fact ultimately benefit[ed] federal candidates because the funds for all practical purposes remain[ed] under the control of the national committees.” The report concluded that “[t]he use of such soft money thus allow[ed] more corporate, union treasury, and large contributions from wealthy individuals into the system.”34
The report discussed potential reforms, including a ban on soft money at the national and state party levels and restrictions on sham issue advocacy by nonparty groups.35 The majority expressed the view that a ban on the raising of soft money by national party committees would effectively address the use of union and corporate general treasury funds in the federal political process only if it required that candidate-specific ads be funded with hard money.36 The minority similarly recommended the elimination of soft-money contributions to political parties from individuals, corporations, and unions, as well as “reforms addressing candidate advertisements masquerading as issue ads.”37
II
In BCRA, Congress enacted many of the committee’s proposed reforms. BCRA’s central provisions are designed to address Congress’ concerns about the increasing use of soft money and issue advertising to influence federal elections. Title I regulates the use of soft money by political parties, officeholders, and candidates. Title II primarily prohibits corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections.
Section 403 of BCRA provides special rules for actions challenging the constitutionality of any of the Act’s provisions. 2 U.S.C. A. §437h note (Supp. 2003). Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by §403, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 403 directed the District Court to advance the cases on the docket and to expedite their disposition “to the greatest possible extent.” The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate, lengthy opinions, each of which contained extensive commentary on the facts and a careful analysis of the legal issues. 251 F. Supp. 2d 176 (2003). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 2003, held some parts of BCRA unconstitutional and upheld others. 251 F. Supp. 2d 948.
As authorized by §403, all of the losing parties filed direct appeals to this Court within 10 days. 2 U.S.C. A. §437h note. On June 5, 2003, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 2003. 539 U.S. ___. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Ibid. Mindful of §403’s instruction that we expedite our disposition of these appeals to the greatest extent possible, we also consider each of the issues in order. Accordingly, we first turn our attention to Title I of BCRA.
III
Title I is Congress’ effort to plug the soft-money loophole. The cornerstone of Title I is new FECA §323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U.S.C. A. §441i(a) (Supp. 2003).38 In short, §323(a) takes national parties out of the soft-money business.
The remaining provisions of new FECA §323 largely reinforce the restrictions in §323(a). New FECA §323(b) prevents the wholesale shift of soft-money influence from national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal elections. 2 U.S.C. A. §441i(b). These “Federal election activit[ies],” defined in new FECA §301(20)(A), are almost identical to the mixed-purpose activities that have long been regulated under the FEC’s pre-BCRA allocation regime. 2 U.S.C. A. §431(20)(A). New FECA §323(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. 2 U.S.C. A. §441i(d). New FECA §323(e) restricts federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local elections. 2 U.S.C. A. §441i(e). Finally, new FECA §323(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates. 2 U.S.C. A. §441i(f).
Plaintiffs mount a facial First Amendment challenge to new FECA §323, as well as challenges based on the Elections Clause, U.S. Const., Art. I, §4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn.
A
In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. See, e.g., Federal Election Comm’n v. Beaumont, 539 U.S. ___, ___ (2003) (slip op., at 14); see also Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387—388 (2000); Buckley, 424 U.S., at 19. In these cases we have recognized that contribution limits, unlike limits on expenditures, “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication.” Id., at 20; see also, e.g., Beaumont, supra, at ___ (slip op., at 14); Shrink Missouri, supra, at 386—388. In Buckley we said that:
“A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U.S., at 21 (footnote omitted).
Because the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to “preven[t] candidates and political committees from amassing the resources necessary for effective advocacy.” Ibid.
We have recognized that
contribution limits may bear “more heavily on the
associational right than on freedom to speak,” Shrink
Missouri, supra, at 388, since contributions serve
“to affiliate a person with a candidate” and
“enabl[e] like-minded persons to pool their
resources,” Buckley, 424 U.S., at 22. Unlike
expenditure limits, however, which “preclud[e] most
associations from effectively amplifying the voice of their
adherents,” contribution limits both “leave the
contributor free to become a member of any political
association and to assist personally in the association’s
efforts on behalf of candidates,” and allow associations
“to aggregate large sums of money to promote effective
advocacy.” Ibid. The “overall effect”
of dollar limits on contributions is “merely to require
candidates and political committees to raise funds from a
greater number of persons.” Id., at 21—22.
Thus, a contribution limit involving even “
Our treatment of contribution
restrictions reflects more than the limited burdens they impose
on First
Amendment freedoms. It also reflects the importance of the
interests that underlie contribution limits–interests in
preventing “both the actual corruption threatened by large
financial contributions and the eroding of public confidence in
the electoral process through the appearance of
corruption.” National Right to Work, 459 U.S., at
208; see also Federal Election Comm’n v.
Colorado Republican Federal Campaign Comm., 533 U.S. 431,
440—441 (2001) (Colorado II). We have said that
these interests directly implicate “
Our application of this less rigorous degree of scrutiny has given rise to significant criticism in the past from our dissenting colleagues. See, e.g., Shrink Missouri, 528 U.S., at 405—410 (Kennedy, J., dissenting); id., at 410—420 (Thomas, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604, 635—644 (1996) (Colorado I) (Thomas, J., dissenting). We have rejected such criticism in previous cases for the reasons identified above. We are also mindful of the fact that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in Buckley and its progeny. Considerations of stare decisis, buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley was decided. See Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991).40
Like the contribution limits we upheld in Buckley, §323’s restrictions have only a marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in effective political speech. Beaumont, 539 U.S., at ___ (slip op., at 14). Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.
Plaintiffs contend that we must apply strict scrutiny to §323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECA’s contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in §323 to regulate contributions on the demand rather than the supply side. See, e.g., National Right to Work, supra, at 206—211 (upholding a provision restricting PACs’ ability to solicit funds). The relevant inquiry is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here.
For example, while §323(a) prohibits national parties from receiving or spending nonfederal money, and §323(b) prohibits state party committees from spending nonfederal money on federal election activities, neither provision in any way limits the total amount of money parties can spend. 2 U.S.C. A. §§441i(a), (b) (Supp. 2003). Rather, they simply limit the source and individual amount of donations. That they do so by prohibiting the spending of soft money does not render them expenditure limitations.41
Similarly, the solicitation provisions of §323(a) and §323(e), which restrict the ability of national party committees, federal candidates, and federal officeholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities subject to FECA’s source and amount restrictions. Even §323(d), which on its face enacts a blanket ban on party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to solicit funds to the organizations’ federal PACs. 2 U.S.C. A. §441i(d). As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. See infra, at 72—73 (construing §323(d)’s restriction on donations by parties to apply only to donations from a party committee’s nonfederal or soft-money account). And as with §323(a), §323(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party officers acting in their individual capacities. 2 U.S.C. A. §§441i(a), (d).
Section 323 thus shows “due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views.” Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or union contribute money through its PAC in no way alters or impairs the political message “intertwined” with the solicitation. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988) (treating solicitation restriction that required fundraisers to disclose particular information as a content-based regulation subject to strict scrutiny because it “necessarily alter[ed] the content of the speech”). And rather than chill such solicitations, as was the case in Schaumburg, the restriction here tends to increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, §323’s spending and solicitation restrictions have only a marginal impact on political speech.42
Finally, plaintiffs contend that the type of associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley’s contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. E.g., California Democratic Party v. Jones, 530 U.S. 567, 573—574 (2000). In making this argument, plaintiffs greatly exaggerate the effect of §323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. See infra, at 51—52. Section 323 merely subjects a greater percentage of contributions to parties and candidates to FECA’s source and amount limitations. Buckley has already acknowledged that such limitations “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.” 424 U.S., at 22. The modest impact that §323 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. None of this is to suggest that the alleged associational burdens imposed on parties by §323 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny.43
With these principles in mind, we apply the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new FECA §323. Because the five challenged provisions of §323 implicate different First Amendment concerns, we discuss them separately. We are mindful, however, that Congress enacted §323 as an integrated whole to vindicate the Government’s important interest in preventing corruption and the appearance of corruption.
The core of Title I is new FECA §323(a), which provides that “national committee[s] of a political party … may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.” 2 U.S.C. A. §441i(a)(1) (Supp. 2003). The prohibition extends to “any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, or maintained, or controlled by such a national committee.” §441(a)(2).
The main goal of §323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FEC’s allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. See supra, at 11—13, and n. 7. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to influence federal elections.44 New §323(a) is designed to put a stop to that practice.
§323(a)
The Government defends §323(a)’s ban on national parties’ involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and officeholders. Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. In Buckley, we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws “deal[t] with only the most blatant and specific attempts of those with money to influence government action.” 424 U.S., at 28. Thus, “[i]n speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink Missouri, 528 U.S., at 389; see also Colorado II, 533 U.S., at 441 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to “undue influence on an officeholder’s judgment”).
Of “almost equal” importance has been the Government’s interest in combating the appearance or perception of corruption engendered by large campaign contributions. Buckley, supra, at 27; see also Shrink Missouri, supra, at 390; Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 496—497 (1985). Take away Congress’ authority to regulate the appearance of undue influence and “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” Shrink Missouri, 528 U.S., at 390; see also id., at 401 (Breyer, J., concurring). And because the First Amendment does not require Congress to ignore the fact that “candidates, donors, and parties test the limits of the current law,” Colorado II, 533 U.S., at 457, these interests have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits, id., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”).
“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty or the plausibility of the justification raised.” Shrink Missouri, supra, at 391. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate’s party in aid of that candidate’s campaign threaten to create–no less than would a direct contribution to the candidate–a sense of obligation. See Buckley, supra, at 38 (upholding FECA’s $25,000 limit on aggregate yearly contributions to a candidate, political committee, and political party committee as a “quite modest restraint … to prevent evasion of the $1,000 contribution limitation” by, among other things, “huge contributions to the candidate’s political party”). This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest. This close affiliation has placed national parties in a unique position, “whether they like it or not,” to serve as “agents for spending on behalf of those who seek to produce obligated officeholders.” Colorado II, supra, at 452; see also Shrink Missouri, supra, at 406 (Kennedy, J., dissenting) (“[Respondent] asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually funneled through political parties” (emphasis added)). As discussed below, rather than resist that role, the national parties have actively embraced it.
The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress’ belief that they do. As set forth above, supra, at 11—13, and n. 7, the FEC’s allocation regime has invited widespread circumvention of FECA’s limits on contributions to parties for the purpose of influencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate’s federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.45
The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA’s hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees “solely in order to assist federal campaigns,” including the officeholder’s own. 251 F. Supp. 2d, at 472 (Kollar-Kotelly, J.) (quoting declaration of Wade Randlett, CEO, Dashboard Technology ¶¶6—9 (hereinafter Randlett Decl.), App. 713—714); see also 251 F. Supp. 2d, at 471—473, 478—479 (Kollar-Kotelly, J.); id., at 842—843 (Leon, J.). Parties kept tallies of the amounts of soft money raised by each officeholder, and “the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Member’s campaign.” Id., at 474—475 (Kollar-Kotelly, J.). Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. Id., at 477—478 (Kollar-Kotelly, J.); id., at 824, 847 (Leon, J.). National party committees often teamed with individual candidates’ campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party’s higher contribution limits while still allowing donors to give to their preferred candidate. Id., at 478 (Kollar-Kotelly, J.); id., at 847—848 (Leon, J.); see also App. 1286 (Krasno & Sorauf Expert Report (characterizing the joint fundraising committee as one “in which Senate candidates in effect rais[e] soft money for use in their own races”)). Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders. 251 F. Supp. 2d, at 487—488 (Kollar-Kotelly, J.) (“[F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge, as it is provided by the national political parties and the donors themselves”); id., at 853—855 (Leon, J.).
For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D. C., stated in his declaration:
“
Particularly telling is the fact that, in 1996 and 2000, more
than half of the top 50 soft-money donors gave substantial sums
to both major national parties, leaving room for no
other conclusion but that these donors were seeking influence,
or avoiding retaliation, rather than promoting any particular
ideology. See, e.g., 251 F. Supp. 2d, at
508—510 (Kollar-Kotelly, J.) (citing Mann Expert Report
Tbls. 5—6); 251 F. Supp. 2d, at 509 (“
The evidence from the federal officeholders’ perspective is similar. For example, one former Senator described the influence purchased by nonfederal donations as follows:
“
See also id., at 489 (Kollar-Kotelly, J.) (“
Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. See, e.g., 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.); id., at 852 (Leon, J.); App. 390—394 (declaration of Sen. John McCain ¶¶5, 8—11 (hereinafter McCain Decl.)); App. 811 (Simpson Decl. ¶10) (“Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform”); App. 805 (declaration of former Sen. Paul Simon ¶¶13—14). To claim that such actions do not change legislative outcomes surely misunderstands the legislative process.
More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing “undue influence on an officeholder’s judgment, and the appearance of such influence.” Colorado II, supra, at 441. Many of the “deeply disturbing examples” of corruption cited by this Court in Buckley, 424 U.S., at 27, to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley, 519 F.2d, at 821, 839—840, n. 36; nn. 5—6, supra. Even if that access did not secure actual influence, it certainly gave the “appearance of such influence.” Colorado II, supra, at 441; see also 519 F.2d, at 838.
The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See 251 F. Supp. 2d, at 492—506 (Kollar-Kotelly, J.). As one former Senator put it:
“
So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $100,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking members, and two retreats with the Democratic House leader and DCCC chair in Telluride, Colorado, and Hyannisport, Massachusetts. Id., at 504—505 (Kollar-Kotelly, J.); see also id., at 506 (describing records indicating that DNC offered meetings with President in return for large donations); id., at 502—503 (describing RNC’s various donor programs); id., at 503—504 (same for NRSC); id., at 500—503 (same for DSCC); id., at 504 (same for NRCC). Similarly, “the RNC’s donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors.” Id., at 500—503 (finding, further, that the RNC holds out the prospect of access to officeholders to attract soft-money donations and encourages officeholders to meet with large soft-money donors); accord, id., at 860—861 (Leon, J.).
Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual or apparent quid pro quo corruption “inherent in” contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post, at 8—10, 15. Regulation of any other donation or expenditure–regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence–would, according to Justice Kennedy, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.48
Justice Kennedy’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. The evidence set forth above, which is but a sampling of the reams of disquieting evidence contained in the record, convincingly demonstrates that soft-money contributions to political parties carry with them just such temptation.
Justice Kennedy likewise takes too narrow a view of the appearance of corruption. He asserts that only those transactions with “inherent corruption potential,” which he again limits to contributions directly to candidates, justify the inference “that regulating the conduct will stem the appearance of real corruption.” Post, at 14.49 In our view, however, Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context. To be sure, mere political favoritism or opportunity for influence alone is insufficient to justify regulation. Post, at 12—14. As the record demonstrates, it is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influence. Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. It is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption.
In sum, there is substantial evidence to support Congress’ determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption.
Receiving
Soft Money
Plaintiffs and The Chief Justice contend that §323(a) is impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA’s hard-money source and amount limits, including, for example, funds spent on purely state and local elections in which no federal office is at stake.50 Post, 2—5 (Rehnquist, C. J., dissenting). Such activities, The Chief Justice asserts, pose “little or no potential to corrupt … federal candidates or officeholders.” Post, at 5 (dissenting opinion). This observation is beside the point. Section 323(a), like the remainder of §323, regulates contributions, not activities. As the record demonstrates, it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect.
As one expert noted, “
“Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the funding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft-money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties.” 148 Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays).
Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used.
This close affiliation has also placed national parties in a position to sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes. Access to federal officeholders is the most valuable favor the national party committees are able to give in exchange for large donations. The fact that officeholders comply by donating their valuable time indicates either that officeholders place substantial value on the soft-money contribution themselves, without regard to their end use, or that national committees are able to exert considerable control over federal officeholders. See, e.g., App. 1196—1198 (Expert Report of Donald P. Green, Yale University) (“Once elected to legislative office, public officials enter an environment in which political parties-in-government control the resources crucial to subsequent electoral success and legislative power. Political parties organize the legislative caucuses that make committee assignments”); App. 1298 (Krasno & Sorauf Expert Report) (indicating that officeholders’ re-election prospects are significantly influenced by attitudes of party leadership). Either way, large soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put. As discussed above, Congress had sufficient grounds to regulate the appearance of undue influence associated with this practice. The Government’s strong interests in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source, amount, and disclosure limitations of FECA.51
Directing
Soft Money
Plaintiffs also contend that §323(a)’s prohibition on national parties’ soliciting or directing soft-money contributions is substantially overbroad. The reach of the solicitation prohibition, however, is limited. It bars only solicitations of soft money by national party committees and by party officers in their official capacities. The committees remain free to solicit hard money on their own behalf, as well as to solicit hard money on behalf of state committees and state and local candidates.52 They also can contribute hard money to state committees and to candidates. In accordance with FEC regulations, furthermore, officers of national parties are free to solicit soft money in their individual capacities, or, if they are also officials of state parties, in that capacity. See 67 Fed. Reg. 49083 (2002).
This limited restriction on solicitation follows sensibly from the prohibition on national committees’ receiving soft money. The same observations that led us to approve the latter compel us to reach the same conclusion regarding the former. A national committee is likely to respond favorably to a donation made at its request regardless of whether the recipient is the committee itself or another entity. This principle accords with common sense and appears elsewhere in federal laws. E.g., 18 U.S.C. § 201(b)(2) (prohibition on public officials “demand[ing] [or] seek[ing] … anything of value personally or for any other person or entity …” (emphasis added)); 5 CFR § 2635.203(f)(2) (2003) (restriction on gifts to federal employees encompasses gifts “[g]iven to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee”).
Plaintiffs argue that BCRA itself
demonstrates the overbreadth of §323(a)’s
solicitation ban. They point in particular to §323(e),
which allows federal candidates and officeholders to solicit
limited amounts of soft money from individual donors under
certain circumstances. Compare 2 U.S.C. A §441i(a)
with §441i(e) (Supp. 2003). The differences between
§§323(a) and 323(e), however, are without
constitutional significance. We have recognized that “the
‘differing structures and purposes’ of different
entities ‘may require different forms of regulation in
order to protect the integrity of the electoral
process,’
The McConnell and political party plaintiffs contend that §323(a) is substantially overbroad and must be stricken on its face because it impermissibly infringes the speech and associational rights of minor parties such as the Libertarian National Committee, which, owing to their slim prospects for electoral success and the fact that they receive few large soft-money contributions from corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC. In Buckley, we rejected a similar argument concerning limits on contributions to minor-party candidates, noting that “any attempt to exclude minor parties and independents en masse from the Act’s contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.” 424 U.S., at 34—35. We have thus recognized that the relevance of the interest in avoiding actual or apparent corruption is not a function of the number of legislators a given party manages to elect. It applies as much to a minor party that manages to elect only one of its members to federal office as it does to a major party whose members make up a majority of Congress. It is therefore reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process.
We add that nothing in §323(a) prevents individuals from pooling resources to start a new national party. Post, at 5 (Kennedy, J., dissenting). Only when an organization has gained official status, which carries with it significant benefits for its members, will the proscriptions of §323(a) apply. Even then, a nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from “amassing the resources necessary for effective advocacy.” Buckley, supra, at 21.
Finally, plaintiffs assert that §323(a) is unconstitutional because it impermissibly interferes with the ability of national committees to associate with state and local committees. By way of example, plaintiffs point to the Republican Victory Plans, whereby the RNC acts in concert with the state and local committees of a given State to plan and implement joint, full-ticket fundraising and electioneering programs. See App. 693, 694—697 (declaration of John Peschong, RNC Western Reg. Political Dir. (describing the Republican Victory Plans)). The political parties assert that §323(a) outlaws any participation in Victory Plans by RNC officers, including merely sitting down at a table and engaging in collective decisionmaking about how soft money will be solicited, received, and spent. Such associational burdens, they argue, are too great for the First Amendment to bear.
We are not persuaded by this argument
because it hinges on an unnaturally broad reading of the terms
“spend,” “receive,” “direct,” and
“solicit.” 2 U.S.C. A. §441i(a) (Supp.
2003). Nothing on the face of §323(a) prohibits national
party officers, whether acting in their official or individual
capacities, from sitting down with state and local party
committees or candidates to plan and advise how to raise and
spend soft money. As long as the national party officer does
not personally spend, receive, direct, or solicit soft money,
§323(a) permits a wide range of joint planning and
electioneering activity. Intervenor-defendants, the principal
drafters and proponents of the legislation, concede as much.
Brief for Intervenor-Defendants Sen. John McCain et al. in
No. 02—
1674 et al., p. 22 (“BCRA leaves
parties and candidates free to coordinate campaign plans and
activities, political messages, and fundraising goals with one
another”). The FEC’s current definitions of
§323(a)’s terms are consistent with that view. See,
e.g., 11 CFR
§ 300.2(m) (2002) (defining “solicit” as
“to ask … another person” (emphasis
added)); §300.2(n) (defining “direct” as
“to ask a person who has expressed an intent to
make a contribution . . . to make that contribution …
including through a conduit or intermediary” (emphasis
added)); §300.2(c) (laying out the factors that determine
whether an entity will be considered to be controlled by a
national committee).
Given the straightforward meaning
of this provision, Justice Kennedy is incorrect that “[a]
national party’s mere involvement in the strategic
planning of fundraising for a state ballot initiative” or
its assistance in developing a state party’s Levin-money
fundraising efforts risks a finding that the officers are in
“
Accordingly, we reject the plaintiffs’ First Amendment challenge to new FECA §323(a).
In constructing a coherent scheme of campaign finance regulation, Congress recognized that, given the close ties between federal candidates and state party committees, BCRA’s restrictions on national committee activity would rapidly become ineffective if state and local committees remained available as a conduit for soft-money donations.53 Section 323(b) is designed to foreclose wholesale evasion of §323(a)’s anticorruption measures by sharply curbing state committees’ ability to use large soft-money contributions to influence federal elections. The core of §323(b) is a straightforward contribution regulation: It prevents donors from contributing nonfederal funds to state and local party committees to help finance “Federal election activity.” 2 U.S. C A. §441i(b)(1) (Supp. 2003). The term “Federal election activity” encompasses four distinct categories of electioneering: (1) voter registration activity during the 120 days preceding a regularly scheduled federal election; (2) voter identification, get-out-the-vote (GOTV), and generic campaign activity54 that is “conducted in connection with an election in which a candidate for Federal office appears on the ballot”; (3) any “public communication”55 that “refers to a clearly identified candidate for Federal office” and “promotes,” “supports,” “attacks,” or “opposes” a candidate for that office; and (4) the services provided by a state committee employee who dedicates more than 25% of his or her time to “activities in connection with a Federal election.” §§431(20)(A)(i)—(iv). The Act explicitly excludes several categories of activity from this definition: public communications that refer solely to nonfederal candidates;56 contributions to nonfederal candidates;57 state and local political conventions; and the cost of grassroots campaign materials like bumper stickers that refer only to state candidates. §431(20)(B). All activities that fall within the statutory definition must be funded with hard money. §441i(b)(1).
Section 323(b)(2), the so-called Levin Amendment, carves out an exception to this general rule. A refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix of federal and nonfederal funds, the Levin Amendment allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and “Levin funds”–that is, funds raised within an annual limit of $10,000 per person. 2 U.S.C. A. §441i(b)(2). Except for the $10,000 cap and certain related restrictions to prevent circumvention of that limit, §323(b)(2) leaves regulation of such contributions to the States.58
The scope of the Levin Amendment is limited in two ways. First, state and local parties can use Levin money to fund only activities that fall within categories (1) and (2) of the statute’s definition of federal election activity–namely, voter registration activity, voter identification drives, GOTV drives, and generic campaign activities. 2 U.S.C. A. §441i(b)(2)(A). And not all of these activities qualify: Levin funds cannot be used to pay for any activities that refer to “a clearly identified candidate for Federal office”; they likewise cannot be used to fund broadcast communications unless they refer “solely to a clearly identified candidate for State or local office.” §§441i(b)(2)(B)(i)—(ii).
Second, both the Levin funds and
the allocated portion of hard money used to pay for such
activities must be raised entirely by the state or local
committee that spends them. §441i(b)(2)(B)(iv). This
means that a state party committee cannot use Levin funds
transferred from other party committees to cover the Levin
funds portion of a Levin Amendment expenditure. It also means
that a state party committee cannot use hard money transferred
from other party committees to cover the hard-money portion of
a Levin Amendment expenditure. Furthermore, national
committees, federal candidates, and federal officeholders
generally may not solicit Levin funds on behalf of
state
committees, and state committees may not team up to raise Levin
funds. §441i(b)(2)(C). They can, however, jointly raise
the hard money used to make Levin expenditures.
§323(b)
We begin by noting that, in addressing the problem of soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. Its conclusion, based on the evidence before it, was that the corrupting influence of soft money does not insinuate itself into the political process solely through national party committees. Rather, state committees function as an alternate avenue for precisely the same corrupting forces.59 Indeed, both candidates and parties already ask donors who have reached the limit on their direct contributions to donate to state committees.60 There is at least as much evidence as there was in Buckley that such donations have been made with the intent–and in at least some cases the effect–of gaining influence over federal officeholders.61 Section 323(b) thus promotes an important governmental interest by confronting the corrupting influence that soft-money donations to political parties already have.
Congress also made a prediction. Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to §323(a) by scrambling to find another way to purchase influence. It was “neither novel nor implausible,” Shrink Missouri, 528 U.S., at 391, for Congress to conclude that political parties would react to §323(a) by directing soft-money contributors to the state committees, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. We “must accord substantial deference to the predictive judgments of Congress,” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665 (1994), particularly when, as here, those predictions are so firmly rooted in relevant history and common sense. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest.
Plaintiffs argue that even if some legitimate interest might be served by §323(b), the provision’s restrictions are unjustifiably burdensome and therefore cannot be considered “closely drawn” to match the Government’s objectives. They advance three main contentions in support of this proposition. First, they argue that the provision is substantially overbroad because it federalizes activities that pose no conceivable risk of corrupting or appearing to corrupt federal officeholders. Second, they argue that the Levin Amendment imposes an unconstitutional burden on the associational rights of political parties. Finally, they argue that the provision prevents them from amassing the resources they need to engage in effective advocacy. We address these points in turn.
Plaintiffs assert that §323(b) represents a new brand of pervasive federal regulation of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes well beyond Congress’ concerns about the corruption of the federal electoral process. We disagree.
It is true that §323(b) captures some activities that affect state campaigns for nonfederal offices. But these are the same sorts of activities that already were covered by the FEC’s pre-BCRA allocation rules, and thus had to be funded in part by hard money, because they affect federal as well as state elections. See 11 CFR § 106.5 (2002). As a practical matter, BCRA merely codifies the principles of the FEC’s allocation regime while at the same time justifiably adjusting the formulas applicable to these activities in order to restore the efficacy of FECA’s longtime statutory restriction–approved by the Court and eroded by the FEC’s allocation regime–on contributions to state and local party committees for the purpose of influencing federal elections. See 2 U.S.C. § 431(8)(A), 441a(a)(1)(C); see also Buckley, 424 U.S., at 38 (upholding FECA’s $25,000 limit on aggregate contributions to candidates and political committees); cf. California Medical Assn. v. Federal Election Comm’n, 453 U.S. 182 (1981) (upholding FECA’s $5,000 limit on contributions to multicandidate political committees).
Like the rest of Title I, §323(b) is premised on Congress’ judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption. As we explain below, §323(b) is narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal candidates directly. Further, these regulations all are reasonably tailored, with various temporal and substantive limitations designed to focus the regulations on the important anti-corruption interests to be served. We conclude that §323(b) is a closely-drawn means of countering both corruption and the appearance of corruption.
The first two categories of
“Federal election activity,” voter registration
efforts, §301(20)(A)(i), and voter identification, GOTV,
and generic campaign activities conducted in connection with a
federal election, §301(20)(A)(ii), clearly capture
activity that benefits federal candidates. Common sense
dictates, and it was “undisputed” below, that a
party’s efforts to register voters sympathetic to that
party directly assist the party’s candidates for federal
office. 251 F. Supp. 2d, at 460 (Kollar-Kotelly, J.). It
is equally clear that federal candidates reap substantial
rewards from any efforts that increase the number of
like-minded registered voters who actually go to the polls.62 See,
e.g., id., at 459 (“
omitted).
The record also makes quite clear
that federal officeholders are grateful for contributions to
state and local parties that can be converted into GOTV-type
efforts. See id., at 459 (quoting a letter thanking a
California Democratic Party donor and noting that CDP’s
voter registration and GOTV efforts would help “
Because voter registration, voter
identification, GOTV, and generic campaign activity all confer
substantial benefits on federal candidates, the funding of such
activities creates a significant risk of actual and apparent
corruption. Section 323(b) is a reasonable response to that
risk. Its contribution limitations are focused on the subset
of voter registration activity that is most likely to affect
the election prospects of federal candidates: activity that
occurs within 120 days before a federal election. And if the
voter registration drive does not specifically
mention a
federal candidate, state committees can take advantage of the
Levin Amendment’s higher contribution limits and relaxed
source restrictions. 2 U.S.C. A.
§§441i(b)(2)(B)(i)—(ii) (Supp. 2003).
Similarly, the contribution limits applicable to
§301(20)(A)(ii) activities target only those voter
identification, GOTV, and generic campaign efforts that occur
“in connection with an election in which a candidate for a
Federal office appears on the ballot.” 2 U.S.C. A.
§431(20)(A)(ii). Appropriately, in implementing this
subsection, the FEC has categorically excluded all activity
that takes place during the run-up to elections when no federal
office is at stake.63 Furthermore, state committees can take
advantage of the Levin Amendment’s higher contribution
limits to fund any §301(A)(20)(i) and §301(A)(20)(ii)
activities that do not specifically mention a federal
candidate. 2 U.S.C. A.
§§441i(b)(2)(B)(i)—(ii). The prohibition on the
use of soft money in connection with these activities is
therefore closely drawn to meet the sufficiently important
governmental interests of avoiding corruption and its
appearance.
“Public communications” that promote or attack a candidate for federal office–the third category of “Federal election activity,” §301(20)(A)(iii)–also undoubtedly have a dramatic effect on federal elections. Such ads were a prime motivating force behind BCRA’s passage. See 3 1998 Senate Report 4535 (additional views of Sen. Collins) (“[T]he hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble”). As explained below, any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating. The record on this score could scarcely be more abundant. Given the overwhelming tendency of public communications, as carefully defined in §301(20)(A)(iii), to benefit directly federal candidates, we hold that application of §323(b)’s contribution caps to such communications is also closely drawn to the anticorruption interest it is intended to address.64
As for the final category of “Federal election activity,” §301(20)(A)(iv), we find that Congress’ interest in preventing circumvention of §323(b)’s other restrictions justifies the requirement that state and local parties spend federal funds to pay the salary of any employee spending more than 25% of his or her compensated time on activities in connection with a federal election. In the absence of this provision, a party might use soft money to pay for the equivalent of a full-time employee engaged in federal electioneering, by the simple expedient of dividing the federal workload among multiple employees. Plaintiffs have suggested no reason for us to strike down this provision. Accordingly, we give “deference to [the] congressional determination of the need for [this] prophylactic rule.” National Conservative Political Action Comm., 470 U.S., at 500.
Amendment
Plaintiffs also contend that §323(b) is unconstitutional because the Levin Amendment unjustifiably burdens association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e.g., California Democratic Party v. Jones, 530 U.S. 567 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989). But not every minor restriction on parties’ otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II, 533 U.S., at 450, n. 11.
As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committee’s Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of choice.65 The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize “all hands” fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. In that case, the purpose, if not the letter, of §323(b)(2)’s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal officeholders. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme.
Section 323(b)(2)(B)(iv)’s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committee’s Levin expenditures presents a closer question. 2 U.S.C. A. §441i(b)(2)(B)(iv) (Supp. 2003). The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committee’s Levin funds. This purported interest is weak, particularly given the fact that §323(a) already polices attempts by national parties to engage in such behavior. See 2 U.S.C. A. §441i(a)(2) (extending §323(a)’s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis. Party committees, including national party committees, remain free to transfer unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all “homegrown” hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticircumvention interest vindicated by §323(b)(2)(B)(iv)’s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement.
to
Engage in Effective Advocacy
Finally, plaintiffs contend that §323(b) is unconstitutional because its restrictions on soft-money contributions to state and local party committees will prevent them from engaging in effective advocacy. As Judge Kollar-Kotelly noted, the political parties’ evidence regarding the impact of BCRA on their revenues is “speculative and not based on any analysis.” 251 F. Supp. 2d, at 524. If the history of campaign finance regulation discussed above proves anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the relative amount of money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether §323(b) reduces the amount of funds available over previous election cycles, but whether it is “so radical in effect as to … drive the sound of [the recipient’s] voice below the level of notice.” Shrink Missouri, 528 U.S., at 397. If indeed state or local parties can make such a showing, as-applied challenges remain available.
We accordingly conclude that §323(b), on its face, is closely drawn to match the important governmental interests of preventing corruption and the appearance of corruption.
Section 323(d) prohibits national, state, and local party committees, and their agents or subsidiaries, from “solicit[ing] any funds for, or mak[ing] or direct[ing] any donations” to, any organization established under §501(c) of the Internal Revenue Code66 that makes expenditures in connection with an election for federal office, and any political organizations established under §527 “other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office.”67 2 U.S.C. A. §441i(d) (Supp. 2003). The District Court struck down the provision on its face. We reverse and uphold §323(d), narrowly construing the section’s ban on donations to apply only to the donation of funds not raised in compliance with FECA.
The Government defends §323(d)’s ban on solicitations to tax-exempt organizations engaged in political activity as preventing circumvention of Title I’s limits on contributions of soft money to national, state, and local party committees. That justification is entirely reasonable. The history of Congress’ efforts at campaign finance reform well demonstrates that “candidates, donors, and parties test the limits of the current law.” Colorado II, 533 U.S., at 457. Absent the solicitation provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates.68 All of the corruption and appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Donations made at the behest of party committees would almost certainly be regarded by party officials, donors, and federal officeholders alike as benefiting the party as well as its candidates. Yet, by soliciting the donations to third-party organizations, the parties would avoid FECA’s source-and-amount limitations, as well as its disclosure restrictions. See 251 F. Supp. 2d, at 348 (Henderson, J.) (citing various declarations demonstrating that, prior to BCRA, most tax-exempt organizations did not disclose the source or amount of contributions); id., at 521 (Kollar-Kotelly, J.) (same).
Experience under the current law
demonstrates that Congress’ concerns about circumvention
are not merely hypothetical. Even without the added incentives
created by Title I, national, state, and local parties already
solicit unregulated soft-money donations to tax-exempt
organizations for the purpose of supporting federal
electioneering activity. See, e.g., 3 1998 Senate
Report 4013 (“In addition to direct contributions from the
RNC to nonprofit groups, the senior leadership of the RNC
helped to raise funds for many of the coalition’s
nonprofit organizations”); id., at 5983 (minority
views) (“Tax-exempt ‘issue advocacy’ groups and
other conduits were systematically used to circumvent federal
campaign finance laws”); 251 F. Supp. 2d, at 517
(Kollar-Kotelly, J.); id., at 848 (Leon, J.). Parties
and candidates have also begun to take advantage of so-called
“politician 527s,” which are little more than
soft-money fronts for the promotion of particular federal
officeholders and their interests. See id., at 519
(Kollar-Kotelly, J.) (“
Section 323(d)’s solicitation restriction is closely drawn to prevent political parties from using tax-exempt organizations as soft-money surrogates. Though phrased as an absolute prohibition, the restriction does nothing more than subject contributions solicited by parties to FECA’s regulatory regime, leaving open substantial opportunities for solicitation and other expressive activity in support of these organizations. First, and most obviously, §323(d) restricts solicitations only to those §501(c) groups “mak[ing] expenditures or disbursements in connection with an election for Federal office,” 2 U.S.C. A. §441i(d)(1) (Supp. 2003), and to §527 organizations, which by definition engage in partisan political activity, §441i(d)(2); 26 U.S.C. § 527(e). Second, parties remain free to solicit hard-money contributions to a §501(c)’s federal PAC, as well as to §527 organizations that already qualify as federal PACs.69 Third, §323(d) allows parties to endorse qualifying organizations in ways other than direct solicitations of unregulated donations. For example, with respect to §501(c) organizations that are prohibited from administering PACs, parties can solicit hard-money donations to themselves for the express purpose of donating to these organizations. See supra, at 72—73. Finally, as with §323(a), §323(d) in no way restricts solicitations by party officers acting in their individual capacities. 2 U.S.C. A. §441i(d) (extending restrictions to solicitations and donations made by “an officer or agent acting on behalf of any such party committee” (emphasis added)).
In challenging §323(d)’s ban on solicitations, plaintiffs renew the argument they made with respect to §323(a)’s solicitation restrictions: that it cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited donations of soft money to tax-exempt organizations that engage in federal election activities. Compare 2 U.S.C. A. §441i(d) with §441i(e)(4). But if §323(d)’s restrictions on solicitations are otherwise valid, they are not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work, 459 U.S., at 210; see also Katzenbach v. Morgan, 384 U.S. 641, 656—657 (1966). In any event, the difference between the two provisions is fully explained by the fact that national party officers, unlike federal candidates and officeholders, are able to solicit soft money on behalf of nonprofit organizations in their individual capacities. Section 323(e), which is designed to accommodate the individual associational and speech interests of candidates and officeholders in lending personal support to nonprofit organizations, also places tight content, source, and amount restrictions on solicitations of soft money by federal candidates and officeholders. Given those limits, as well as the less rigorous standard of review, the greater allowances of §323(e) do not render §323(d)’s solicitation restriction facially invalid.
Section 323(d) also prohibits
national, state, and local party committees from making or
directing “any donatio[n]” to qualifying §501(c)
or §527 organizations. 2 U.S.C. A. §441i(d)
(Supp. 2003). The Government again defends the restriction as
an anticircumvention measure. We agree insofar as it prohibits
the donation of soft money. Absent such a restriction, state
and local party committees could accomplish directly what the
antisolicitation restrictions prevent them from doing
indirectly–
namely, raising large sums of soft money to
launder through tax-exempt organizations engaging in federal
election activities. Because the party itself would be raising
and collecting the funds, the potential for corruption would be
that much greater. We will not disturb Congress’
reasonable decision to close that loophole, particularly given
a record demonstrating an already robust practice of
parties’ making such donatio