McConnell v. Federal Election Comm'n, 540 U.S. 93, 265 (2003)

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364

McCONNELL v. FEDERAL ELECTION COMM'N

Stevens, J., dissenting

tage of this regulatory gap and adopt pricing schemes that discriminate between the kind of ads that Senator McConnell has run in the past and those that strictly comply with § 305. It is also possible, however, that instead of incurring the transaction costs of policing candidates' compliance with § 305, stations will continue to charge the same rates for attack ads as for all other campaign ads. In the absence of any record evidence that stations will uniformly choose to charge Senator McConnell higher rates for the attack ads he proposes to run in 2008, it is at least arguable that his alleged injury is not traceable to BCRA § 305.

Nevertheless, I would entertain plaintiffs' challenge to § 305 on the merits and uphold the section. Like BCRA §§ 201, 212, and 311, § 305 serves an important—and constitutionally sufficient—informational purpose. Moreover, § 305's disclosure requirements largely overlap those of § 311, and plaintiffs identify no reason why any candidate already in compliance with § 311 will be harmed by the marginal additional burden of complying with § 305. Indeed, I am convinced that "the important governmental interest of 'shed[ding] the light of publicity' on campaign financing," invoked above in connection with § 311, ante, at 231 (opinion of Rehnquist, C. J.), would suffice to support a legislative provision expressly requiring all sponsors of attack ads to identify themselves in their ads. That § 305 seeks to achieve the same purpose indirectly, by withdrawing a statutory benefit, does not render the provision any less sound.

Finally, I do not regard § 305 as a constitutionally suspect "viewpoint-based regulation." Brief for Appellant/Cross-Appellee Sen. Mitch McConnell et al. in No. 02-1674 et al., p. 67. Like BCRA's other disclosure requirements, § 305 evenhandedly regulates speech based on its electioneering content. Although the section reaches only ads that mention opposing candidates, it applies equally to all such ads. Disagreement with one's opponent obviously expresses a

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