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

with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

The significance and effect of today’s judgment, from which I respectfully dissent, turn on three things: the demand for campaign money in huge amounts from large contributors, whose power has produced a cynical electorate; the congressional recognition of the ensuing threat to democratic integrity as reflected in a century of legislation restricting the electoral leverage of concentrations of money in corporate and union treasuries; and McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), declaring the facial validity of the most recent Act of Congress in that tradition, a decision that is effectively, and unjustifiably, overruled today.1

I

The indispensable ingredient of a political candidacy is money for advertising. In the 2004 campaign, more than half of the combined expenditures by the two principal Presidential candidates (excluding fundraising) went for media time and space. See The Costliest Campaign, Washington Post, Dec. 30, 2004, p. A7.2 And in the 2005-2006 election *505cycle, the expenditure of more than $2 billion on television shattered the previous record, even without a Presidential contest. See Inside Media, MediaWeek, Nov. 20, 2006, p. 18. The portent is for still greater spending. By the end of March 2007, almost a year before the first primary and more than 18 months before the general election, Presidential can*506didates had already raised over $150 million. See Balz, Fundraising Totals Challenge Early Campaign Assumptions, Washington Post, Apr. 17,2007, p. A1 (citing figures and noting that “[t]he campaign is living up to its reputation as the most expensive in U. S. history”). To reach this total, the leading fundraisers collected over $250,000 per day in the first quarter of 2007, Mullins, Clinton Leads the Money Race, Wall Street Journal, Apr. 16, 2007, p. A8, and the eventual nominees are expected to raise $500 million apiece (about $680,000 per day over a 2-year election cycle), Kirkpatrick & Pilhofer, McCain Lags in Income But Excels in Spending, Report Shows, N. Y. Times, Apr. 15, 2007, p. 20.

The indispensability of these huge sums has two significant consequences for American government that are particularly on point here. The enormous demands, first, assign power to deep pockets. See Balz, supra, at A6 (“For all the interest in Internet fundraising, big donors still ruled in the first quarter, with roughly 80 percent of donations coming in amounts of $1,000 or more”). Candidates occasionally boast about the number of contributors they have, but the headlines speaking in dollars reflect political reality. See, e. g., Mullins, supra, at A8 (headlined “Clinton Leads the Money Race”).

Some major contributors get satisfaction from pitching in for their candidates, but political preference fails to account for the frequency of giving “substantial sums to both major national parties,” McConnell, supra, at 148, a practice driven “by stark political pragmatism, not by ideological support for either party or their candidates,” Brief for Committee for Economic Development et al. as Amici Curiae in McConnell, O. T. 2003, No. 02-1674, p. 3 (hereinafter CED Brief). What the high-dollar pragmatists of either variety get is special access to the officials they help elect, and with it a disproportionate influence on those in power. See McConnell, supra, at 130-131. As the erstwhile officer of a large American corporation put it, “‘[bjusiness leaders believe — based on *507experience and with good reason — that... access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties.’” CED Brief 9. At a critical level, contributions that underwrite elections are leverage for enormous political influence.

Voters know this. Hence, the second important consequence of the demand for big money to finance publicity: pervasive public cynicism. A 2002 poll found that 71 percent of Americans think Members of Congress cast votes based on the views of their big contributors, even when those views differ from the Member’s own beliefs about what is best for the country. Mellman & Wirthlin 267; see also id., at 266 (“In public opinion research it is uncommon to have 70 percent or more of the public see an issue the same way. When they do, it indicates an unusually strong agreement on that issue”). The same percentage believes that the will of contributors tempts Members to vote against the majority view of their constituents. Id., at 267. Almost half of Americans believe that Members often decide how to vote based on what big contributors to their party want, while only a quarter think Members often base their votes on perceptions of what is best for the country or their constituents. Ibid.

Devoting concentrations of money in self-interested hands to the support of political campaigning therefore threatens the capacity of this democracy to represent its constituents and the confidence of its citizens in their capacity to govern themselves. These are the elements summed up in the notion of political integrity, giving it a value second to none in a free society.

II

If the threat to this value flowing from concentrations of money in politics has reached an unprecedented enormity, it has been gathering force for generations. Before the turn of the last century, as now, it was obvious that the purchase of influence and the cynicism of voters threaten the integrity *508and stability of democratic government, each derived from the responsiveness of its law to the interests of citizens and their confidence in that focus. The danger has traditionally seemed at its apex when no reasonable limits constrain the campaign activities of organizations whose “unique legal and economic characteristics” are tailored to “facilitat[e] the amassing of large treasuries,” Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 658, 660 (1990). Corporations were the earliest subjects of concern; the same characteristics that have made them engines of the Nation’s extraordinary prosperity have given them the financial muscle to gain “advantage in the political marketplace” when they turn from core corporate activity to electioneering, Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 257-258 (1986) (MCFL), and in “Congress’ judgment” the same concern extends to labor unions as to corporations, Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982); see also Austin, supra, at 661.

A

In the wake of the industrial expansion after the Civil War there developed a momentum for civic reform that led to the enactment of the Pendleton Civil Service Act of 1883, ch. 27, 22 Stat. 403, which stopped political parties from raising money through compulsory assessments on federal employees. Not unnaturally, corporations filled the vacuum, see R. Mutch, Campaigns, Congress, and Courts xvi-xvii (1988) (hereinafter Mutch), and in due course demonstrated what concentrated capital could do. The resulting political leverage disturbed “the confidence of the plain people of small means in our political institutions,” E. Root, The Political Use of Money (delivered Sept. 3,1894), in Addresses on Government and Citizenship 141, 143-144 (R. Bacon & J. Scott eds. 1916) (cited in United States v. Automobile Workers, 352 U. S. 567, 571 (1957)), and the 1904 Presidential campaign *509eventually “crystallized popular sentiment” on the subject of money and politics, id., at 572. In his next message to Congress, President Theodore Roosevelt invoked the power “to protect the integrity of the elections of its own officials [as] inherent” in government, and called for “vigorous measures to eradicate” perceived political corruption, for he found “no enemy of free government more dangerous and none so insidious.”3 39 Cong. Rec. 17 (1904).

The following year, the President urged that “[a]ll contributions by corporations to any political committee or for any political purpose should be forbidden by law.” 40 Cong. Rec. 96 (1905). His call was seconded by the Senate sponsor of the eventual legislation, whose “sad thought [was] that the Senate is discredited by the people of the United States as being a body more or less corruptible or corrupted.” Id., at 229. The President persisted in his 1906 message to Congress with another call for “a law prohibiting all corporations from contributing to the campaign expenses of any party,” 41 Cong. Rec. 22, and the next year Congress passed the Tillman Act of 1907:

“it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any *510State legislature of a United States Senator.” Ch. 420, 34 Stat. 864-865.4

The aim was “not merely to prevent the subversion of the integrity of the electoral process,” but “to sustain the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government.” Automobile Workers, supra, at 575.

B

Thirty years later, new questions about the electoral influence of accumulated wealth surfaced as organized labor expanded during the New Deal. In the 1936 election, labor unions contributed “unprecedented” sums, S. Rep. No. 151, 75th Cong., 1st Sess., 127 (1937), the greater part of them by the United Mine Workers, see Campaign Finance Source-book 17. And in due course reaction began to build: “[w]artime strikes gave rise to fears of the new concentration of power represented by the gains of trade unionism. And so the belief grew that, just as the great corporations had made huge political contributions to influence governmental action . . . , the powerful unions were pursuing a similar course, and with the same untoward consequences for the democratic process.” Automobile Workers, supra, at 578. Congress responded with the War Labor Disputes Act of 1943, which extended the ban on corporate donations to labor organizations, ch. 144, § 9,57 Stat. 167-168, an extension that was made permanent in the Labor Management Relations Act, 1947, better known as Taft-Hartley, §304, 61 Stat. 159-160.

*511c

At the same time, Congress had another worry that foreshadows our cases today. It was concerned that the statutory prohibition on corporate “contribution[s]’’ was being so narrowly construed as to open a “loophole whereby corporations, national banks, and labor organizations are enabled to avoid the obviously intended restrictive policy of the statute by garbing their financial assistance in the form of an ‘expenditure’ rather than a contribution.” S. Rep. No. 1, 80th Cong., 1st Sess., 38-39 (1947); see also H. R. Rep. No. 2739, 79th Cong., 2d Sess., 40 (1947) (“The intent and purpose of the provision of the act prohibiting any corporation or labor organization making any contribution in connection with any election would be wholly defeated if it were assumed that the term ‘making any contribution’ related only to the donating of money directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to prohibit the contributing direct to a candidate and yet permit the expenditure of large sums in his behalf?”). Taft-Hartley therefore extended the prohibition to any “contribution or expenditure” by a corporation or a union “in connection with” a federal election. § 304, 61 Stat. 159.5

D

The new law left open, however, the right of a union to spend money on electioneering from a segregated fund raised specifically for that purpose from members, but not drawn from the general treasury. Segregated funding enti*512ties, the now-familiar political action committees, or PACs, had been established prior to Taft-Hartley, and we concluded in Pipefitters v. United States, 407 U. S. 385, 409 (1972), that Taft-Hartley did not prohibit “union contributions and expenditures from political funds financed in some sense by the voluntary donations of employees.”

This balance of authorized and restricted financing methods for corporate and union electioneering was made explicit in the Federal Election Campaign Act of 1971 (FECA). See §205,86 Stat. 10 (“[T]he phrase ‘contribution or expenditure’ . . . shall not include . . . the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization”). “[T]he underlying theory [of the statute was] that substantial general purpose treasuries should not be diverted to political purposes, both because of the effect on the political process of such aggregated wealth and out of concern for the dissenting member or stockholder.” 117 Cong. Rec. 43381 (1971) (statement of Rep. Hansen). But the PAC exception maintained “‘the proper balance in regulating corporate and union political activity required by sound policy and the Constitution.’ ” Pipefitters, supra, at 431 (quoting 117 Cong. Rec. 43381 (statement of Rep. Hansen)).6

*513E

In 1986, in MCFL, we reexamined the longstanding ban on spending corporate and union treasury funds “in connection with” federal elections, 2 U. S. C. §441b, and drew two conclusions implicated in the present cases. First, we construed the “in connection with” phrase in much the same way we had interpreted comparable FECA language challenged in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). We held that to avoid vagueness, the product of prohibited corporate and union expenditures “must constitute ‘express advocacy* in order to be subject to the prohibition.” MCFL, 479 U. S., at 249.

We thus held that the prohibition applied “only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” Buckley, 424 U. S., at 44. “[E]xpress terms,” in turn, meant what had already become known as “magic words,” such as “ ‘yote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Id., at 44, n. 52. The consequence of this construction was obvious: it pulled the teeth out of the statute, as we had understood when we announced it in its earlier application in Buckley:

“The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness... undermines the limitation’s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign.” Id., at 45.

Nor was the statute, even as thus narrowed, enforceable against the particular advocacy corporation challenging the *514limit in MCFL. This was the second holding of MCFL relevant here; we explained that the congressional effort to limit the political influence of corporate money “has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes,” 479 U. S., at 259. We held that this “legitimate]” concern could not reasonably extend to electioneering expenditures by the corporation at issue in MCFL, which neither “engage[d] in business activities” nor accepted donations from business corporations and unions (and thus could not serve as a “condui[t]” for political spending by those entities). Id., at 263-264.7

As was expectable, narrowing the corporate-union electioneering limitation to magic words soon reduced it to futility. “[Pjolitical money... is a moving target,” Issacharoff & Karlan, The Hydraulics of Campaign Finance Reform, 77 Texas L. Rev. 1705, 1707 (1999), and the “ingenuity and resourcefulness” of political financiers revealed the massive regulatory gap left by the “magic words” test, Buckley, supra, at 45. It proved to be the door through which so-called “issue ads” of current practice entered American politics..

An issue ad is an advertisement on a political subject urging the reader or listener to let a politician know what he thinks, but containing no magic words telling the recipient to vote for or against anyone. By the 1996 election cycle, between $135 and $150 million was being devoted to these ads, see McConnell, 540 U. S., at 127, n. 20, and because they had no magic words, they failed to trigger the limitation on union or corporate expenditures for electioneering. Experience showed, however, just what we foresaw in Buckley, that the line between “issue” broadcasts and outright electioneering was a patent fiction, as in the example of a television “issue ad” that ran during a Montana congressional race between Republican Rick Hill and Democrat Bill Yellowtail in 1996:

*516““‘Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail’s response? He only slapped her. But ‘her nose was not broken.’ He talks law and order . . . but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments — then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.’”” McConnell, supra, at 193-194, n. 78.8

There are no “magic words” of “express advocacy” in that statement, but no one could deny with a straight face that the message called for defeating Yellowtail.

There was nothing unusual about the Yellowtail issue ad in 1996, and an enquiry into campaign practices by the Senate Committee on Governmental Affairs found as a general matter that “the distinction between issue and express advocacy . . . appeared to be meaningless in the 1996 elections.” S. Rep. No. 105-167, p. 3994 (1998). “‘“What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day.” ’ ” McConnell, supra, at 126, n. 169 (quoting the former director of an advocacy organization’s PAC). Indeed, the president of the AFL-CIO stated that *517“‘the bulk of’” its ads were targeted for broadcast in districts represented by “‘first-term, freshmen Republicans who . . . may be defeatable,’ ” S. Rep. No. 105-167, at 3997, 3998, and n. 23, and the Senate Committee found that the union used a “$.15 per member, per month assessment” to finance “issue ads that were clearly designed to influence the outcome of the election,” id., at 3999, 4000. Not surprisingly, “ostensibly independent” ads “were often actually coordinated with, and controlled by, the campaigns.” McConnell, supra, at 131.

Nor was it surprising that the Senate Committee heard testimony that “‘[without taming’” the vast sums flowing into issue ads, “‘campaign finance reform — no matter how thoroughly it addresses . . . perceived problems — will come to naught.’” S. Rep. No. 105-167, at 4480 (quoting testimony of Professor Daniel R. Ortiz). The Committee predicted that “if the course of non-action is followed, . . . Congress would be encouraging further growth of union, corporate nonprofit and individual independent expenditures.” Id., at 4481.10 The next two elections validated the *518prediction: during the 1998 cycle, spending on issue ads doubled to between $270 and $340 million, and the figure climbed to $500 million in the 2000 cycle. McConnell, 540 U. S., at 127, n. 20. A report from the Annenberg Public Policy Center concluded that “[t]he type of issue ad that dominated depended greatly on how close we were to the general election. . . . Though candidate-centered issue ads always made up a majority of issue ads, as the election approached the percent [of] candidate-centered spots increased ... such that by the last two months before the election almost all televised issue spots made a case for or against a candidate.” Issue Advertising in the 1999-2000 Election Cycle 14 (2001).

They were worth the money of those , who ultimately paid for them. According to one former Senator, “ ‘Members will . . . be favorably disposed to those who finance’” interest groups that run “ ‘issue ads’ ” when those financiers “ ‘later seek access to discuss pending legislation.’” McConnell v. Federal Election Comm'n, 251 F. Supp. 2d 176, 556 (DC 2003) (Kollar-Kotelly, J.) (quoting the declaration of Dale Bumpers).

*519The congressional response was §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 91, which redefined prohibited “expenditure” so as to restrict corporations and unions from funding “electioneering communication[s]” out of their general treasuries. 2 U. S. C. §441b(b)(2) (2000 ed., Supp. IV). The new phrase “electioneering communication” was narrowly defined in BCRA’s §201 as “any broadcast, cable, or satellite communication” that

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

“(II) is made within—

“(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or

“(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and

“(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.” § 434(f )(3)(A)(i).

Ill

In McConnell, we found this definition to be “easily understood and objectivje],” raising “none of the vagueness concerns that drove our analysis” of the statutory language at issue in Buckley and MCFL, 540 U. S., at 194, and we held that the resulting fine separating regulated election speech from general political discourse does not, on its face, violate the First Amendment. We rejected any suggestion “that Buckley drew a constitutionally mandated line between express advocacy [with magic words] and so-called issue advocacy [without them], and that speakers possess an inviolable First Amendment right to engage in the latter category of speech.” Id., at 190. To the contrary, we held that “our *520decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech.” Id., at 192-193. “[T]he presence or absence of magic words cannot meaningfully distinguish electioneering speech,” which is prohibitable, “from a true issue ad,” we said, since ads that “esehe[w] the use of magic words ... are no less clearly intended to influence the election.” Id., at 193. We thus found “[l]ittle difference . . . 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.’ ” Id., at 126-127.

We understood that Congress had a compelling interest in limiting this sort of electioneering by corporations and unions, for §203. exemplified a tradition of “repeatedly sustained legislation aimed at ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or. no correlation to the public’s support for the corporation’s political ideas.’ ” Id., at 205 (quoting Austin, 494 U. S., at 660). Nor did we see any plausible claim of substantial over-. breadth from incidentally prohibiting ads genuinely focused on issues rather than elections, given the limitation of “electioneering communication” by time, geographical coverage, and clear reference to candidate. “Far from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.” 540 U. S., at 207. Finally, we underscored the reasonableness of the §203 line by emphasizing that it defined a category of limited, but not prohibited, corporate and union speech: “Because corporations can still fund electioneering communications with PAC money, it is ‘simply wrong’ to view [§203] as a ‘complete ban’ on expression rather than a regulation.” Id., at 204 (quoting Federal Election Comm’n v. Beaumont, 539 U. S. 146, 162 (2003)). *521Thus “corporations and unions may finance genuine issue ads [in the runup period] by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated [PAC] fund.” 540 U. S., at 206.

We may add that a nonprofit corporation, no matter what its source of funding, is free to pelt a federal candidate like Jane Doe with criticism or shower her with praise, by name and within days of an election, if it speaks through a newspaper ad or on a Web site, rather than a “broadcast, cable, or satellite communication,” 2 U. S. C. § 434(f)(3)(A)(i) (2000 ed., Supp. IV). And a nonprofit may use its general treasury to pay for clearly “electioneering communication[s]” so long as it declines to serve as a conduit for money from business corporations and unions (and thus qualifies for the MCFL exception).11

* * *

In sum, Congress in 1907 prohibited corporate contributions to candidates and in 1948 applied the same ban to unions. In 1947, Congress extended the complete ban from contributions to expenditures “in connection with” an election, a phrase so vague that in 1986 we held it must be confined to instances of express advocacy using magic words. Congress determined, in 2002, that corporate and union expenditures for fake issue ads devoid of magic words should be regulated using a narrow definition of “electioneering communication” to reach only broadcast ads that were the practical equivalents of express advocacy. In 2003, this Court found the provision free from vagueness and justified by the concern that drove its enactment.

This century-long tradition of legislation and judicial precedent rests on facing undeniable facts and testifies to an *522equally undeniable value. Campaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries, with no redolence of “grassroots” about them. Neither Congress’s decisions nor our own have understood the corrupting influence of money in politics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consistently focused on the more pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions. From early in the 20th century through the decision in McConnell, we have acknowledged that the value of democratic integrity justifies a realistic response when corporations and labor organizations commit the concentrated moneys in their treasuries to electioneering.

IV

The corporate appellee in these cases, Wisconsin Right to Life (WRTL), is a nonprofit corporation funded to a significant extent by contributions from other corporations.12 In 2004, WRTL accepted over $315,000 in corporate donations, App. 40, and of its six general fluid contributions of $50,000 or more between 2002 and 2005, three, including the largest (for $140,000), came from corporate donors, id., at 118-121.

WRTL also runs a PAC, funded by individual donations, which has been active over the years in making independent campaign expenditures, as in the previous two elections involving Senator Feingold. Id., at 15. During the 1998 campaign, for example, WRTL’s PAC spent $60,000 to oppose *523him. Ibid. In 2004, however, despite a sharp nationwide increase in PAC receipts, WRTL focused its fundraising on its corporate treasury, not the PAC, id., at 41-43, and took in only $17,000 in PAC contributions, as against over $150,000 during 2000, id., at 41-42.

Throughout the 2004 senatorial campaign, WRTL made no secret of its views about who should win the election and explicitly tied its position to the filibuster issue. Its PAC issued at least two press releases saying that its “Top Election Priorities” were to “Re-elect George W. Bush” and “Send Feingold Packing!” Id., at 78-80, 82-84. In one of these, the Chair of WRTL’s PAC was quoted as saying, “ ‘We do not want Russ Feingold to continue to have the ability to thwart President Bush’s judicial nominees.’” Id., at 82-83. The Spring 2004 issue of the WRTL PAC’s quarterly magazine ran an article headlined “Radically Pro-Abortion Feingold Must Go!,” which reported that “Feingold has been active in his opposition to Bush’s judicial nominees” and said that “the defeat of Feingold must be uppermost in the minds of Wisconsin’s pro-life community in the 2004 elections.” Id., at 101-103.

It was under these circumstances that WRTL ran the three television and radio ads in question. The bills for them were not paid by WRTL’s PAC, but out of the general treasury with its substantial proportion of corporate contributions; in fact, corporations earmarked more than $50,000 specifically to pay for the ads, id., at 41. Each one criticized an unnamed “group of Senators” for “using the filibuster delay tactic to block federal judicial nominees from a simple ‘yes’ or ‘no’ vote,” and described the Senators’ actions as “politics at work, causing gridlock and backing up some of our courts to a state of emergency.”13 They exhorted viewers and listeners to “[cjontaet Senators Feingold and Kohl *524and tell them to oppose the filibuster,” but instead of providing a phone number or e-mail address, they told the audience to go to BeFair.org, a Web site set up by WRTL. A visit to this Web site would erase any doubt a listener or viewer might have as to whether Senators Feingold and Kohl were part of the “group” condemned in the ads: it displayed a document that criticized the two Senators for voting to filibuster “16 out of 16 times” and accused them of “putting politics into the court system, creating gridlock, and costing taxpayers money.” Id., at 86.

WRTL’s planned airing of the ads had no apparent relation to any Senate filibuster vote but was keyed to the timing of the senatorial election. WRTL began broadcasting the ads on July 26, 2004, four days after the Senate recessed for the summer, and although the filibuster controversy raged on through 2005, WRTL did not resume running the ads after the election. Id., at 29, 32. During the campaign period that the ads did cover, Senator Feingold’s support of the filibusters was a prominent issue. His position was well known,14 and his Republican opponents, who vocally opposed the filibusters, made the issue a major talking point in their campaigns against him.15

In sum, any Wisconsin voter who paid attention would have known that Democratic Senator Feingold supported filibusters against Republican presidential judicial nominees, that the propriety of the filibusters was a major issue in the senatorial campaign, and that WRTL along with the Senator’s Republican challengers opposed his reelection because *525of his position on filibusters. Any alert voters who heard or saw WRTL’s ads would have understood that WRTL was telling them that the Senator’s position on the filibusters should be grounds to vote against him.

Given these facts, it is beyond all reasonable debate that the ads are constitutionally subject to regulation under McConnell. There, we noted that BCRA was meant to remedy the problem of “[s]o-ealled issue ads” being used “to advocate the election or defeat of clearly identified federal candidates.” 540 U. S., at 126. We then gave a paradigmatic example of these electioneering ads subject to regulation, saying that “[l]ittle difference existed . . . 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.’” Id., at 126-127.

The WRTL ads were indistinguishable from the Jane Doe ad; they “condemned [Senator Feingold’s] record on a particular issue” and exhorted the public to contact him and “tell [him] what you think.”16 And just as anyone who heard the Jane Doe ad would understand that the point was to defeat Doe, anyone who heard the Feingold ads (let alone anyone who went to the Web site they named) would know that WRTL’s message was to vote against Feingold. If it is now unconstitutional to restrict WRTL’s Feingold ads, then it follows that §203 can no longer be applied constitutionally to McConnell’s Jane Doe paradigm.

McConnell’s holding that §203 is facially constitutional is overruled. By what steps does the principal opinion reach this unacknowledged result less than four years after McConnell was decided?

*526A

First, it lays down a new test to identify a severely limited class of ads that may constitutionally be regulated as electioneering communications, a test that is flatly contrary to McConnell. An ad is the equivalent of express advocacy and subject to regulation, the opinion says, only if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Ante, at 470. Since the Feingold ads could, in isolation, be read as at least including calls to communicate views on filibusters to the two Senators, those ads cannot be treated as the functional equivalent of express advocacy to elect or defeat anyone, and therefore may not constitutionally be regulated at all.

But the same could have been said of the hypothetical Jane Doe ad. Its spoken message ended with the instruction to tell Doe what the voter thinks. The same could also have been said of the actual Yellowtail ad. Yet in McConnell, we gave the Jane Doe ad as the paradigm of a broadcast message that could be constitutionally regulated as election conduct, and we explicitly described the Yellowtail ad as a “striking example” of one that was “clearly intended to influence the election,” 540 U. S., at 193, and n. 78.

The principal opinion, in other words, simply inverts what we said in McConnell. While we left open the possibility of a “genuine” or “pure” issue ad that might not be open to regulation under § 203, id., at 206-207, and n. 88, we meant that an issue ad without campaign advocacy could escape the restriction. The implication of the adjectives “genuine” ánd “pure” is unmistakable: if an ad is reasonably understood as going beyond a discussion of issues (that is, if it can be understood as electoral advocacy), then by definition it is not “genuine” or “pure.” But the principal opinion inexplicably wrings the opposite conclusion from those words: if an ad is susceptible to any “reasonable interpretation other than as an appeal to vote for or against a specific candidate,” then it must be a “pure” or “genuine” issue ad. Ante, at 470. This *527stands McConnell on its head, and on this reasoning it is possible that even some ads with magic words could not be regulated.

B

Second, the principal opinion seems to defend this inversion of McConnell as a necessary alternative to an unadministrable subjective test for the equivalence of express (and regulable) electioneering advocacy. The principal opinion acknowledges, of course, that in McConnell we said that “[t]he justifications for the regulation of express advocacy apply equally to ads aired during [the period shortly before an election] if the ads are intended to influence the voters’ decisions and have that effect.” 540 U. S., at 206. But The Chief Justice says that statement in McConnell cannot be accepted at face value because we could not, consistent with precedent, have focused our First Amendment'enquiry on whether “the speaker actually intended to affect an election.” Ante, at 468.17 The Chief Justice suggests it is *528more likely that the McConnell opinion inadvertently borrowed the language of “intended .. . effectfs],” 540 U. S., at 206, from academic studies in the record of viewers’ perceptions of the ads’ purposes, ante, at 466-467.18

*529If The Chief Justice were correct that McConnell made the constitutional application of §208 contingent on whether a corporation’s “motives were pure,” or its issue advocacy “subjective[ly] sincer[e],” ante, at 468 (internal quotation marks omitted), then I, too, might be inclined to reconsider McConnell's language. But McConnell did not do that. It did not purport to draw constitutional lines based on the subjective motivations of corporations (or their principals) sponsoring political ads, but merely described our test for equivalence to express advocacy as resting on the ads’ “electioneering purpose,” whi