NRSC v. FEC
U.S. Court of Appeals for the Sixth Circuit
NRSC v. FEC
Opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0212p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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NATIONAL REPUBLICAN SENATORIAL COMMITTEE;
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NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE;
│
JAMES D. VANCE, Senator; STEVE CHABOT, former
│
Representative, > No. 24-3051
Plaintiffs-Appellants, │
│
│
v. │
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FEDERAL ELECTION COMMISSION, et al., │
Defendants-Appellees. │
┘
On Certified Question of Constitutional Law
Transmitted by the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:22-cv-00639—Douglas Russell Cole, District Judge.
Argued En Banc: June 12, 2024
Decided and Filed: September 5, 2024
Before: SUTTON, Chief Judge; MOORE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE,
STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER,
MURPHY, DAVIS, MATHIS, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Noel J. Francisco, JONES DAY, Washington, D.C., for Appellants. Jason X.
Hamilton, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellees. ON
BRIEF: Noel J. Francisco, John M. Gore, E. Stewart Crosland, Brinton Lucas, JONES DAY,
Washington, D.C., Sarah Welch, JONES DAY, Cleveland, Ohio, for Appellants. Jason X.
Hamilton, Shaina Ward, Blake L. Weiman, FEDERAL ELECTION COMMISSION,
Washington, D.C., for Appellees. Charles J. Cooper, Peter A. Patterson, John D. Ohlendorf,
COOPER & KIRK, PLLC, Washington, D.C., T. Elliot Gaiser, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, Brett R. Nolan, INSTITUTE FOR FREE SPEECH,
Washington, D.C., Tara Malloy, CAMPAIGN LEGAL CENTER, Washington, D.C., for Amici
Curiae.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 2
SUTTON, C.J., delivered the opinion of the court in which GIBBONS, GRIFFIN,
KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, MURPHY, and MATHIS, JJ.,
joined. THAPAR, J. (pp. 13–24), delivered a separate concurring opinion in which
KETHLEDGE, MURPHY, and NALBANDIAN, JJ., concurred. BUSH, J. (pp. 25–44),
delivered a separate concurring dubitante opinion. STRANCH, J. (pp. 45–75), delivered a
separate opinion concurring in the judgment, in which MOORE and CLAY, JJ., concurred in
full, and DAVIS and BLOOMEKATZ, JJ., concurred in Parts I and II. BLOOMEKATZ, J. (pg.
76), delivered a separate opinion concurring in the judgment. READLER, J. (pp. 77–103),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
SUTTON, Chief Judge. At issue is whether the Federal Election Campaign Act’s limits
on coordinated campaign expenditures, which restrict political parties from spending money on
campaign advertising with input from the party’s candidate for office, violate the First
Amendment. In 2001, the Supreme Court held that they do not. FEC v. Colo. Republican Fed.
Campaign Comm., 533 U.S. 431, 465. In this action, the plaintiffs argue that the law and facts have changed since 2001, making the Colorado decision no longer binding on lower courts. The Supreme Court, they point out, has tightened the free-speech restrictions on campaign finance regulations in the last two decades. See, e.g., McCutcheon v. FEC,572 U.S. 185, 227
(2014) (plurality opinion);id.
at 231–32 (Thomas, J., concurring in the judgment); FEC v. Ted Cruz for Senate,596 U.S. 289
, 313 (2022). And since then, they add, the terrain of political fundraising
and spending has changed, most notably with 2014 amendments to the Act and with the rise of
unlimited spending by political action committees. These are fair points. But none of them
gives us authority to overlook or for that matter override the Supreme Court’s decision in this
case. The key reality is that the Supreme Court has not overruled the 2001 Colorado decision or
the deferential review it applied to these provisions of the Act. In a hierarchical legal system, we
must follow that decision and thus must deny the plaintiffs’ First Amendment facial and as-
applied challenges.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 3
I.
The plaintiffs in today’s case are the national senatorial and congressional committees of
the Republican Party, Senator J.D. Vance, and former Representative Steve Chabot. Invoking
the First Amendment to the United States Constitution, they challenge the validity of the current
limits on political parties’ coordinated expenditures. See 52 U.S.C. § 30116(d). They seek
declaratory and injunctive relief that bars the defendants—the Federal Election Commission and
its six commissioners—from enforcing these limits against them.
The political party committees, more specifically, wish to obtain input about their
campaign advertisements from the candidates they support in order to unify their political
message, something the Act’s limits on coordinated party expenditures restrict. The no-
coordination requirements also increase their costs, create redundancies, and discourage them
from communicating effectively with their candidates and spending money efficiently to support
them. The Federal Election Commission regularly updates the limits on coordinated party
expenditures with which the plaintiffs are required to comply for any given election cycle.
Under then-existing limits in the 2021–2022 election cycle, the National Republican Senatorial
Committee spent roughly $15.5 million on coordinated party expenditures with Republican
Senate nominees, and the National Republican Congressional Committee spent roughly $8.3
million on coordinated party expenditures with Republican House nominees. These coordinated
party expenditures primarily fund political advertising.
The two individual plaintiffs support these requests. Senator Vance seeks the freedom to
accept the party’s funds and to give input about how they should be used in his political
campaigns. Former Representative Chabot joins in that request.
Consistent with the Act, the plaintiffs asked the district court to certify the constitutional
question to our en banc Court. 52 U.S.C. § 30110. The parties engaged in discovery for three months. After establishing a factual record and concluding that the plaintiffs raised a non- frivolous question, the district court certified this question to our full Court: “Do the limits on coordinated party expenditures in § 315 of the Federal Election Campaign Act of 1971, as amended,52 U.S.C. § 30116
, violate the First Amendment, either on their face or as applied to No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 4 party spending in connection with ‘party coordinated communications’ as defined in11 C.F.R. § 109.37
?” R.49 at 41.
II.
Before turning to the merits, one procedural wrinkle deserves mention. Representative
Chabot no longer serves in Congress, and he currently does not intend to run for office. That
raises the possibility that his claim is moot. But that possibility makes no difference to our
jurisdiction over this case. The claims of the party committees and Senator Vance remain live,
which is all that matters when it comes to our authority to address the shared constitutional
claims presented in this case. See T.M. ex rel. H.C. v. DeWine, 49 F.4th 1082, 1087 n.3 (6th Cir.
2022).
III.
Facial challenge. The first question is whether the Federal Election Campaign Act’s
limits on coordinated party expenditures facially violate the First Amendment.
A.
In 1972, Congress enacted the Federal Election Campaign Act to regulate fundraising and
spending in federal political campaigns. Pub. L. No. 92-225, 86Stat. 3 (codified as amended at52 U.S.C. § 30101
et seq.). As amended in 1974, the Act limits the amount of money an individual or group may contribute to or spend on a political candidate. See Federal Election Campaign Act Amendments of 1974,Pub. L. No. 93-443,
tit. I, sec. 101(a), § 608(b), (e),88 Stat. 1263
, 1263–65. It imposes similar restrictions on political parties.Id.
§ 608(f), 88 Stat. at 1265–66 (corresponds to current52 U.S.C. § 30116
(d)). The Federal Election Commission administers the Act and may promulgate regulations under it.52 U.S.C. §§ 30106
(b)(1),
30111(a)(8).
Since 1976, the Supreme Court has grappled with the relationship between the
imperatives of the Act and the imperatives of the First Amendment. In Buckley v. Valeo, 424
U.S. 1(1976) (per curiam), the Supreme Court held that the ceilings on individual campaign contributions do not violate the free-speech guarantees of the First Amendment because they No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 5 safeguard the electoral process from corruption and its appearance.Id. at 58
. At the same time, the Court ruled that, when individuals and organizations spend money to voice their own political opinions, the First Amendment protects that right, prompting the Court to invalidate the Act’s limits on independent expenditures.Id.
Buckley did not end debates over the intersection of the Act and the First Amendment.
Over the years, the Court has addressed the validity of several of the Act’s provisions, attempting
to balance the free-speech interest of using one’s resources to voice a political opinion against
“[t]he governmental interest in preventing both actual corruption and the appearance of
corruption.” FEC v. Nat’l Right to Work Comm., 459 U.S. 197, 210(1982). For the most part, this formulation has led the Court to uphold contribution limits and to invalidate expenditure limits. Compare Cal. Med. Ass’n v. FEC,453 U.S. 182, 201
(1981) (upholding contribution limit with respect to multi-candidate political committees), with FEC v. Mass. Citizens for Life, Inc.,479 U.S. 238, 241
(1986) (invalidating expenditure limit with respect to the use of a company’s treasury funds), and FEC v. Nat’l Conservative Pol. Action Comm.,470 U.S. 480, 501
(1985) (invalidating expenditure limit with respect to independent political committees).
A pair of decisions arising from Colorado refined this approach with respect to the Act’s
spending limits on political parties. In the first decision, the Court addressed the Act’s limits on
a political party’s own expenditures in favor of an electoral candidate. See 2 U.S.C. § 441a(d)(3)
(transferred to 52 U.S.C. § 30116(d)(3)). In the context of a political party’s “independent” expenditures—those spent without input from the candidate—the Court invalidated the limits under the “exacting scrutiny” standard, Buckley,424 U.S. at 44
, that applies to political expenditures, Colo. Republican Fed. Campaign Comm. v. FEC (Colorado I),518 U.S. 604, 616
(1996) (opinion of Breyer, J.);id.
at 627–29 (opinion of Kennedy, J.). Such campaign activity, the Court reasoned, amounted to “core” political speech, and the government had not shown that the limits were “necessary to combat a substantial danger of corruption of the electoral system.”Id.
at 616–18 (opinion of Breyer, J.).
In the sequel to that decision, the Supreme Court addressed the Act’s application to
“coordinated” political party expenditures—those made with input from the candidate the party
supports. In this setting, the Court applied a more deferential level of review—the “scrutiny
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 6
appropriate for a contribution limit”—requiring the restriction only to be “‘closely drawn’ to
match . . . the ‘sufficiently important’ government interest in combating political corruption.”
FEC v. Colo. Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 431, 456(2001) (quoting Nixon v. Shrink Missouri Gov’t PAC,528 U.S. 377
, 387–88 (2000)). The Court acknowledged that political parties play a unique role in American politics as “dominant players, second only to the candidates themselves, in federal elections.”Id. at 450
(quotation omitted). Still, the Court explained, coordinated party expenditures permit “donations” to a party to be “passed through to [the candidate] for spending on virtually identical items as his own campaign funds.”Id. at 460
. In that way, the Court worried, donors and candidates may sidestep the contribution limits that Buckley allowed, prompting the Court to hold that “a party’s coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits.”Id. at 465
. For these reasons and others, the Court
rejected a facial challenge to the spending limits.
B.
That brings us to today’s dispute and today’s question: Do the Act’s limits on
coordinated party expenditures facially violate the First Amendment?
The Supreme Court, as just shown, asked and answered that same question in Colorado
II. When faced with a question that the Supreme Court has answered, our choices generally end.
“[L]ower courts must follow Supreme Court precedent.” Thompson v. Marietta Educ. Ass’n,
972 F.3d 809, 813 (6th Cir. 2020). Even if a holding of the Supreme Court “appears to rest on reasons rejected in some other line of decisions,” we must nonetheless follow it, “leaving to [the Supreme Court] the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,490 U.S. 477, 484
(1989). We have long recognized, and long adhered to, this principle. See United States v. Gibson,881 F.2d 318
, 323 & n.2 (6th Cir. 1989); Thompson, 972 F.3d at 813; Taylor v. Buchanan,4 F.4th 406
, 408 (6th Cir. 2021).
The plaintiffs at one level agree. They accept that, “if Colorado II directly controls” this
case, we “should follow it.” See First Br. 41 (quotation omitted). But they challenge the “if.” In
their view, Colorado II no longer binds the lower courts because later decisions by the Supreme
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 7
Court have undermined its reasoning and because recent campaign finance developments have
undermined several aspects of the decision.
Changed doctrine. Start with the plaintiffs’ reliance on the Supreme Court’s more recent
campaign finance decisions. Since Colorado II, the plaintiffs maintain, the Supreme Court has
“made clear that preventing quid pro quo corruption or its appearance is the only interest” that
allows Congress to impose campaign finance restrictions and “that such restrictions must be
narrowly tailored to that interest.” See id. at 22. This change in reasoning, they say, leaves
lower courts free to reassess Colorado II.
We accept the premise but not the conclusion. As to the premise, the plaintiffs point to
several ways in which the Court’s recent decisions create tension with Colorado II’s reasoning.
First, since 2001, the Court “has recognized only one permissible ground for restricting political
speech: the prevention of ‘quid pro quo’ corruption or its appearance.” Cruz, 596 U.S. at 305;
see First Br. 41–42. While the First Amendment allows “restrictions on direct contributions,” it
does not allow Congress to “layer[] on top” additional restrictions, “ostensibly to prevent
circumvention of the base limits.” McCutcheon, 572 U.S. at 221. This kind of “prophylaxis- upon-prophylaxis approach,” the Court has recently explained, is disfavored.Id.
(quotation omitted). By contrast, when earlier cases like Colorado II discussed corruption, they did “not always sp[eak] about corruption in a clear or consistent voice,” dimming “[t]he line between quid pro quo corruption and general influence.”Id.
at 208–09 (quotation omitted); see alsoid.
at
239–40 (Breyer, J., dissenting) (explaining that Colorado II relied on the “undue influence”
rationale, which is “considerably broader” than quid pro quo corruption).
Second, the Court’s recent campaign finance decisions say that the government must
show that a given campaign finance restriction will have a tangible effect on corruption. See
First Br. 29. The later decisions demand “actual evidence” that a spending restriction will reduce
“quid pro quo corruption or its appearance.” Cruz, 596 U.S. at 310. Yet in this case, the
plaintiffs argue, the government did not present sufficient evidence of corruption or its
perception. See First Br. 34–35, 42.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 8
Third, since Colorado II, the Court has strengthened the “closely drawn” test,
emphasizing that this “rigorous” test demands “narrow[] tailor[ing].” McCutcheon, 572 U.S. at
197, 199, 218(quotations omitted); see First Br. 42. Colorado II, however, made no mention of narrow tailoring and seemed to disavow it, saying it would not invalidate the coordinated spending limits based on “unskillful tailoring.”533 U.S. at 463
n.26.
All in all, the plaintiffs identify several ways in which tension has emerged between the
reasoning of Colorado II and the reasoning of later decisions of the Court. If all we had were
Cruz and McCutcheon to guide us, there would be much for us to analyze and much for us to
independently determine about the validity of these coordinated expenditure limits.
But that is not all we have. Colorado II remains standing. Any shifts in reasoning do not
shift the precedential terrain from our vantage point. The Supreme Court has never overruled the
decision. Even when the Supreme Court embraces a new line of reasoning in a given area and
even when that reasoning allegedly undercuts the foundation of a decision, it remains the Court’s
job, not ours, to overrule it. Rodriguez de Quijas, 490 U.S. at 484; see also Agostini v. Felton,521 U.S. 203
, 237–38 (1997). “[V]ertical stare decisis is absolute, as it must be in a hierarchical system.” Ramos v. Louisiana,590 U.S. 83
, 124 n.5 (2020) (Kavanaugh, J., concurring in part). The Supreme Court might choose to knock down a “legal last-man-standing,” or it might choose to prop it up. Kimble v. Marvel Ent., LLC,576 U.S. 446, 458
(2015). Either way, the option is theirs, not ours. Cf. Flood v. Kuhn,407 U.S. 258, 282, 284
(1972) (keeping in place an
“aberration” in caselaw). The key function of a high court—providing the last word in resolving
cases and controversies—would not work if lower courts could revisit the final resolution of a
dispute every time tension emerges between that decision and a later one.
Changed statute and changed facts. It is not just the legal doctrine that has changed since
2001, the plaintiffs add. See First Br. 43. Congress itself altered the campaign finance laws in
2014. It exempted “segregated account[s] of a national committee of a political party” from the
coordinated party expenditure limits if those accounts are used to “defray expenses incurred with
respect to a presidential nominating convention,” the “headquarters buildings of the party,” or
“the preparation for and the conduct of election recounts and contests and other legal
proceedings.” 52 U.S.C. § 30116(a)(9), (d)(5). The new exemptions, the plaintiffs maintain, No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 9 “radically altered [the Act’s] nature and structure,” see First Br. 44 (quoting Libertarian Nat’l Comm. v. FEC,924 F.3d 533, 546
(D.C. Cir. 2019)), and showed that the other limits on coordinated party expenditures are not “narrowly tailored” to prevent quid pro quo corruption, seeid.
at 39–40.
Were we faced with a clear playing field, we could appreciate how these new exemptions
might affect the analysis. In McCutcheon, for example, the Court reviewed the campaign
finance regulations at issue for “narrow[] tailor[ing].” 572 U.S. at 218(quotation omitted). If that test applied here, an increase in the Act’s exemptions might show that the limit on coordinated party expenditures does too little for First Amendment purposes—that it addresses its policy target in underinclusive ways. The problem is, Colorado II applied a deferential form of review in upholding these precise provisions, refusing to invalidate the limits due to “unskillful tailoring.”533 U.S. at 456
, 463 n.26. That Congress added three new exemptions—
for party conventions, party headquarters, and election recounts—does not suffice to invalidate
the Act’s limits on coordinated party expenditures under the more deferential form of review that
applies to contribution limits. These changes to the Act simply do not suffice to alter the verdict
of Colorado II.
In a variation on this theme, the plaintiffs separately argue that a changed “factual
backdrop” makes Colorado II inapplicable. See First Br. 45. From the rise of super “PACs”
(political action committees) to the fall of political parties’ power to the advent of social media,
the plaintiffs argue that political campaigns and political spending have materially changed in the
last two decades. See id.at 45–47. So they have. And so it may be that Colorado II’s assumption that “political parties are dominant players . . . in federal elections,”533 U.S. at 450
(quotation omitted), has a quaint ring to it. But, again, these changed circumstances do not
change the deferential review that Colorado II applied to the same provisions. Even if Colorado
II, like many Supreme Court precedents, did not fully anticipate the future, that does not
empower the lower courts to look the other way every time a social change or new norm casts
doubt on an earlier decision, particularly one that applied deferential review to the issue.
The plaintiffs point out that “at least 28 states largely give parties free rein to make
coordinated expenditures on behalf of their state-level nominees,” and that no evidence of
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 10
corruption has materialized. See First Br. 34–35. State practices can be telling, to be sure. See
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). And, yes,
these practices could bear on whether coordinated expenditures run the risk of corruption. See
First Br. 34–35. But, again, any changes in understanding about the impact of coordinated
political party expenditures on the risk of corruption raise a question for the Court, not for us,
under the level of review that Colorado II applied.
All of this makes it unnecessary for us to decide precisely when, if ever, changes to a
statute or the underlying facts could permit a lower court to reach a different outcome from an
earlier Supreme Court decision about the validity of the same statute. That’s because each of the
claimed changes would not alter Colorado II even on its own terms. Under these circumstances,
any new assessment of the validity of the limits on coordinated party expenditures remains where
it customarily does in a hierarchical legal system: the Supreme Court’s province, not ours.
We are not the first court of appeals to confront arguments that Colorado II no longer
controls facial challenges to the Act’s limits on coordinated party expenditures. An en banc
decision by the Fifth Circuit unanimously agreed that Colorado II would control facial
challenges to these provisions. In re Cao, 619 F.3d 410, 431–32, 435 (5th Cir. 2010) (en banc);id. at 435
(Jolly, J., concurring in the result);id.
at 437 n.3, 443 (Jones, C.J., concurring in part
and dissenting in part).
IV.
As-applied challenge. The second question is whether the Act’s limits on coordinated
party expenditures violate the First Amendment as applied to the plaintiffs’ coordinated
expenditures.
Even if Colorado II requires us to reject this facial challenge to the Act’s limits on
coordinated party expenditures, the plaintiffs argue that the same is not true of their as-applied
challenge. See First Br. 48–49. That is because Colorado II left open the possibility that future
litigants could bring an “as-applied challenge focused on application of the limit to specific
expenditures.” 533 U.S. at 456n.17. In sorting out what types of as-applied challenges Colorado II left open, it is useful to recall what Colorado I decided. Hewing to the No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 11 contribution/expenditure dichotomy, it deployed exacting scrutiny in invalidating the Act’s limits on a political party’s “independent” expenditures. 518 U.S. at 618–19. Thus, when Colorado II held that limits on “coordinated” party expenditures should be treated as a type of contribution that triggers less rigorous scrutiny, it raised the salience of what amounts to a “coordinated” expenditure. One type of expenditure that readily counted as coordinated, the Court in Colorado II explained, is the “payment of the candidate’s bills.”533 U.S. at 456
n.17. But it did not say
anything more about what counts as coordination. The upshot is that Colorado II left open the
possibility that a future claimant could argue that an expenditure did not involve coordination,
meaning that Colorado I would control and would prohibit any monetary limit on that
advertisement or expenditure.
This reservation of authority—to treat future as-applied challenges as coming under the
Colorado I rubric rather than the Colorado II rubric—does not apply to today’s case, however, in
view of the breadth of the plaintiffs’ as-applied challenge. They do not target the Act’s
application to a specific type of non-coordination or to a specific advertising expenditure. They
broadly challenge the coordinated expenditure limits “as applied to the political advertising
addressed in 11 C.F.R. § 109.37.” See First Br. 5. That regulation is not modest in scope. It defines a “party coordinated communication” to include a “communication . . . paid for by a political party committee or its agent” that (i) “disseminates, distributes, or republishes . . . campaign materials prepared by a candidate”; (ii) “expressly advocates the election or defeat of a clearly identified candidate for Federal office”; or (iii) “refers to a clearly identified” candidate for Congress, the presidency, or the vice-presidency.11 C.F.R. § 109.37
(a). Nothing in their complaint or briefs limits this challenge to specific settings that do
not involve coordination or to a specific type of advertisement.
If we accepted the plaintiffs’ invitation to grant as-applied relief in this setting, it is
difficult to see what would be left of Colorado II. The record shows that roughly 97% of the
committees’ expenditures relate to the “political advertising” they wish to use. No less
importantly, the only way to accept this as-applied challenge would be to reject the reasoning of
Colorado II. While the rejection of a facial challenge does not eliminate all as-applied attacks to
the same statute, it does eliminate as-applied challenges that rest on the same theory of
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 12
invalidation.
Today’s circumstances, notably, differ from the as-applied challenge raised in the Fifth
Circuit case. There, the plaintiffs targeted the Act’s application to shared input about the timing
of a single advertising expenditure. In re Cao, 619 F.3d at 424–26. Had the plaintiffs in our
case challenged a single advertising expenditure with respect to one aspect of alleged
coordination—timing—we would have to address the same complexities that the Fifth Circuit
faced in handling such a narrow as-applied challenge. Compare id.at 428–35, withid.
at 436– 40, 443–49 (Jones, C.J., concurring in part and dissenting in part), andid.
at 451–53 (Clement,
J., concurring in part and dissenting in part). But that’s not the kind of as-applied challenge the
plaintiffs filed here. They wish to be freed of all of the limits on coordinated party expenditures
with respect to all “political advertising” covered by the regulation. To honor that request would
necessarily slight the reasoning of Colorado II and would leave little if any coordinated
expenditures for that decision to cover. That simply is not the kind of as-applied challenge the
Court left open for future litigants to bring.
For these reasons, we answer the certified question in the negative. The limits on
coordinated party expenditures in § 315 of the Federal Election Campaign Act of 1971, as
amended, 52 U.S.C. § 30116, do not violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in11 C.F.R. § 109.37
.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 13
_________________
CONCURRENCE
_________________
THAPAR Circuit Judge, concurring. I agree with the majority opinion that FEC v.
Colorado Republican Federal Campaign Committee (Colorado II) controls here. 533 U.S. 431
(2001); see Majority Op. at 2. Colorado II, however, is an outlier in our First Amendment
jurisprudence generally and in campaign-finance doctrine specifically. Indeed, even under
Buckley’s ahistorical, tiers-of-scrutiny approach, coordinated-party spending limits pose grave
constitutional concerns.
I.
The First Amendment reads: “Congress shall make no law . . . abridging the freedom of
speech, or of the press.” U.S. Const. amend. I. When the founding generation appended these
words to the Constitution, they weren’t creating a rule “subject to future judges’ assessments of
its usefulness.” District of Columbia v. Heller, 554 U.S. 570, 634(2008). Rather, the First Amendment “codified a pre-existing right,” the bounds of which are defined by “the scope [it was] understood to have when the people adopted [it].”Id. at 592
, 634–35. For that reason, judges have long looked to practices “deeply embedded in the history and tradition of this country”—particularly those around the time of ratification—when defining the contours of the First Amendment. Marsh v. Chambers,463 U.S. 783, 786
(1983). That makes sense. If the
Free Speech and Press Clauses constitutionalized a historically defined right, then history is vital
to correctly interpreting these Clauses.
History should therefore guide our First Amendment jurisprudence. Specifically, courts
should engage in the two-step inquiry that our Second Amendment jurisprudence uses. See N.Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 31–70 (2022). First, courts should ask “whether [an] Amendment’s text covers an individual’s conduct.” Oakland Tactical Supply, LLC v. Howell Twp.,103 F.4th 1186
, 1203 (6th Cir. 2024) (Kethledge, J., dissenting); see Bruen,
597 U.S. at 31–33. If so, courts should move to a second step, in which “the government must
justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition.”
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 14
Oakland Tactical Supply, 103 F.4th at 1203 (Kethledge, J., dissenting); see Bruen, 597 U.S. at
33–70.
Applying this approach to the First Amendment, courts should first determine whether
the challenger’s “proposed course of conduct” falls within the Free Speech and Press Clauses’
protections. Bruen, 597 U.S. at 32. Specifically, a litigant challenging a law on First
Amendment grounds must show that his proscribed conduct has some speech or press element.
And he must show that his speech doesn’t fall into one of the “historic and traditional categories”
of expression—like obscenity or defamation—that are outside “the freedom of speech” as the
founding generation understood it. United States v. Stevens, 559 U.S. 460, 468–69 (2010) (citing Chaplinsky v. New Hampshire,315 U.S. 568
, 571–72 (1942)). If a challenger can’t locate his
conduct in the First Amendment’s scope, then his challenge fails.
But if a regulation does infringe on First Amendment-protected activity, courts would
proceed to the second step. At this point, the burden would shift to the government to show that
the challenged regulation is consistent with the historical understanding of the First Amendment.
Cf. Bruen, 597 U.S. at 33–34. In this respect, history both defines the First Amendment’s scope
and sheds light on the kinds of regulations that comply with it. See United States v. Rahimi, 144
S. Ct. 1889, 1925 (2024) (Barrett, J., concurring) (noting that original history can inform both the
meaning of a constitutional right and the kinds of regulations that are compatible with it).
Thus, if our court had to resolve a coordinated-spending case in the first instance, the
plaintiffs would first need to show that a party’s coordinated spending is within the Free Speech
and Press Clauses’ historical scope. Cf. McConnell v. FEC, 540 U.S. 93, 250–55 (2003) (Scalia,
J., concurring in part) (collecting cases supporting the principle that “an attack upon the funding
of speech is an attack upon speech itself”). Assuming that coordinated party spending is within-
scope, the government would then need to show that the limits at issue here are nonetheless
constitutional. To evaluate this second prong, litigants and courts might look to founding-era
restrictions on political activity, such as anti-bribery laws. And we’d want to look at what kinds
of prophylactic measures (if any) early Congresses took to reduce corruption. These examples
would guide our assessment of whether coordinated-party-spending limits are compatible with
the First Amendment.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 15
When it comes to campaign-related speech, however, we “do not paint on a blank
canvas.” Gunn v. Minton, 568 U.S. 251, 258(2013). For the past five decades, our campaign- finance doctrine has followed a two-tiered scrutiny approach that the Supreme Court set forth in Buckley v. Valeo.464 U.S. 1
(1976) (per curiam). See, e.g., McCutcheon v. FEC,572 U.S. 185, 197
(2014) (plurality op.). When the government tries to limit how much someone may spend on election-related speech, strict scrutiny applies.Id.
And when the government tries to limit how much money someone may give to another, a form of intermediate scrutiny applies.Id.
For good reason, there’s a growing chorus of voices casting doubt on a tiers-of-scrutiny
approach to constitutional law. Bruen, 597 U.S. at 17–19 (rejecting a two-tiered approach to the
Keep and Bear Arms Clause). As others have noted, courts invented this doctrine by accident,
and tiered scrutiny lacks any basis in our Constitution’s text, history, and tradition. See Rahimi,
144 S. Ct. at 1921 (Kavanaugh, J., concurring) (citing Simon & Schuster, Inc. v. Members of N.Y.
State Crime Victims Bd., 502 U.S. 105, 125(1991) (Kennedy, J., concurring in the judgment)); J. Alicea & J. Ohlendorf, Against the Tiers of Constitutional Scrutiny, National Affairs 72, 73 (2019). Indeed, by giving judges free rein to weigh a statute’s means and ends, tiered scrutiny sits in tension with the historically derived nature of our constitutional rights. Bruen, 597 U.S. at 25; see also United States v. Virginia,518 U.S. 515, 568
(1996) (Scalia, J., dissenting) (arguing
that tiers of scrutiny “cannot supersede . . . those constant and unbroken national traditions that
embody the people’s understanding of ambiguous constitutional texts”).
What’s more, a tiers-of-scrutiny approach strains courts’ institutional competence.
Courts, after all, are creatures of precedent and legal history. We discern legal rules from the
“famous old cases” of our past, be they judicial precedents or political episodes like King
Charles II’s efforts to control the British press. Antonin Scalia, A Matter of Interpretation 6
(1997); see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–16 (1931). And then we apply those rules to the facts before us. See, e.g., United States v. Watson,423 U.S. 411
, 418–19 (1976) (applying “ancient common-law” rules to a Fourth Amendment claim); Crawford v. Washington,541 U.S. 36
, 44–45 (2004) (using the takeaways from Sir Walter Raleigh’s treason
trial to guide Confrontation Clause jurisprudence).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 16
By contrast, the tiers of scrutiny force courts to perform tasks for which we’re “not
institutionally suited.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 380–81 (2023) (plurality op.) (quoting Dep’t of Revenue of Ky. v. Davis,553 U.S. 328, 353
(2008)). Federal judges lack the econometric training (and democratic legitimacy) to make free-wheeling policy judgments. Simply put, judges are not equipped to evaluate whether campaign-finance regulations adequately reduce corruption. Seeid. at 382
; see also Bruen, 597 U.S. at 22 (criticizing the tiers of scrutiny as a “judge-empowering interest-balancing inquiry”). Indeed, the Supreme Court has squarely rejected such a cost-benefit balancing approach to the First Amendment. See Stevens,559 U.S. at 470
(calling such an approach “startling and dangerous”).
Nevertheless, even where means-ends scrutiny reigns supreme, courts “still often rel[y]
directly on history” to resolve cases. Rahimi, 144 S. Ct. at 1921 n.7 (Kavanaugh, J., concurring).
After all, history can tell us “how and why” a government could regulate otherwise-protected
activity. Bruen, 597 U.S. at 29. And that maps nicely onto the two things that courts evaluate
under the tiers of scrutiny: the purpose a regulation serves, and the way in which it advances that
purpose. See id. at 111–12 (Breyer, J., dissenting) (observing that history and tiered-scrutiny
analyses both consider these aspects of a regulation). Perhaps for this reason, history has been
dispositive for several recent First Amendment decisions. See Vidal v. Elster, 144 S. Ct. 1507, 1515–16 (2024) (declining to apply tiered scrutiny when a law has support in constitutional history and tradition); Houston Cmty. Coll. Sys. v. Wilson,595 U.S. 468
, 477 (2022) (“What
history suggests, we believe our contemporary doctrine confirms.”).
Judge Stranch argues that turning to regulatory history and tradition to make sense of the
First Amendment disserves democratic values because founding-era speech regulations were
passed by white, property-owning men. Stranch Concurring Op. at 69. As judges, we cannot
change the anti-democratic sins of the past, but we can avoid repeating them today. Our job is to
interpret the Constitution. We need objective criteria to guide our interpretation if we are to
avoid usurping the people’s democratic authority to amend the Constitution as they see fit. By
enforcing the law as it is, we stay in our lane and leave space for the people to change it as they
please. “History, not policy,” is therefore our “proper guide,” because history is “less
subjective” than open-ended policy considerations. Rahimi, 144 S. Ct. at 1912 (Kavanaugh, J.,
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 17
concurring). Looking to history rather than policy to steer our constitutional interpretation
ensures that we do only our jobs, so the people remain free to do theirs.
In any event, lower courts have an obligation to follow Supreme Court doctrine,
ahistorical or otherwise. And that means the tiers of scrutiny apply here. But even under that
framework, Colorado II’s holding is questionable. Indeed, limits on party-coordinated speech
fail even intermediate scrutiny. Contra Colorado II, 533 U.S. at 446, 465.
II.
Under Buckley’s version of intermediate scrutiny, campaign-finance limits must
(A) advance a “sufficiently important” government interest and (B) be “closely drawn” to that
interest. McCutcheon, 572 U.S. at 197(plurality op.) (quoting Buckley,424 U.S. at 25
). While
Colorado II purported to apply this scrutiny to coordinated-party-spending limits, its analysis is
inconsistent with modern campaign-finance doctrine. Under modern doctrine, these limits fail
both prongs of intermediate scrutiny.1
A. Important Government Interest
The Supreme Court has made clear that the government has only one legitimate interest
in limiting spending on campaign speech: the prevention of quid-pro-quo corruption (i.e.,
bribery) and its appearance. FEC v. Cruz, 596 U.S. 289, 305 (2022). Even on this basic starting point, however, Colorado II is out of step with modern doctrine. Colorado II held that the government has important interests in limiting “not only . . . quid pro quo agreements, but also . . . undue influence on an officeholder’s judgment, and the appearance of such influence.”533 U.S. at 441
. As the majority opinion correctly explains, however, the Supreme Court has
since narrowed the universe of permissible purposes. See Majority Op. at 7. Under current
doctrine, preventing corruption and its appearance are the only valid goals for campaign-finance
1
To be sure, not all forms of coordinated-party spending directly involve speech. The spending limits here,
however, apply broadly to any money spent “for the purpose of influencing any election for Federal office.” 52
U.S.C. § 30101(9)(A); see alsoid.
§ 30101(9)(B) (carveouts). And as a practical matter, nearly all coordinated-
party spending is on speech- and press-related activities. See Majority Op. at 11–12. Thus, if the limits are
unconstitutional as applied to campaign-related speech, they’d likely be overbroad under the Supreme Court’s First
Amendment doctrine.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 18
restrictions. See McCutcheon, 572 at 206–08 (plurality op.) (holding the government may not
limit “mere influence or access”).
With that in mind, supporters of coordinated-spending limits must articulate a theory for
how these limits prevent corruption. Over the years, courts and litigants have offered two. First,
these limits prevent a party from corrupting its own candidates. Second, they prevent donors
from circumventing donor-to-candidate contribution limits, which are themselves anti-corruption
mechanisms. Consider each in turn.
Preventing Party-Candidate Corruption. Supporters of coordinated-spending limits have
argued that a party’s coordinated expenditures are functionally equivalent to direct contributions
to a candidate. See, e.g., Colorado II, 533 U.S. at 464. If that comparison holds true, then perhaps influential party members could dangle the promise of coordinated spending to “induc[e]” candidates into doing the party’s bidding.Id.
at 460 n.23. For example, a party could make a large, coordinated expenditure in a candidate’s race in exchange for his vote on a piece of upcoming legislation.Id.
Such arrangements, the argument goes, are a form of quid-pro-quo
corruption.
The FEC doesn’t rely heavily on this theory, and for good reason: it doesn’t make any
sense to think of a party as “corrupting” its candidates. After all, “[t]he very aim of a political
party is to influence its candidate’s stance on issues and, if the candidate takes office or is
reelected, his votes.” Colorado Republican Fed. Campaign Comm. v. FEC (Colorado I), 518
U.S. 604, 646(1996) (Thomas, J., concurring in the judgment and dissenting in part). Thus, “[w]hen political parties achieve that aim, that achievement does not . . . constitute a subversion of the political process.”Id.
(internal quotation omitted). Moreover, parties tend to have numerous members with wide views and interests, meaning it’s unlikely for any one “corrupting” interest to predominate.Id.
at 646–47.
Additionally, this anti-corruption argument relies on a dubious premise: that coordinated
spending is functionally the same as a direct contribution. Indeed, Colorado II openly admitted
this isn’t always the case. 533 U.S. at 456n.17. For instance, imagine a party simply wanted to coordinate the timing of a $25,000 ad campaign with a candidate. Cf. In re Cao,619 F.3d 410
, No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 19 437–38 (5th Cir. 2010) (en banc) (Jones, C.J., concurring in part and dissenting in part). Under FEC regulations, that counts as coordinated spending. See11 C.F.R. § 109.21
(d)(2)(v). Yet it strains credulity to argue that such coordination is the same as writing the candidate a $25,000 check. Coordination comes in all shapes and sizes, and not all of it is equivalent to a direct contribution. See Colorado II,533 U.S. at 468
& n.2 (Thomas, J., dissenting).
Simply put, a supposed interest in preventing party-candidate “corruption” can’t sustain
coordinated-party-spending limits.
Preventing Corruption-by-Circumvention. Before this court, the FEC primarily argues
that coordinated-party-spending limits advance anti-corruption efforts by preventing donors from
circumventing donor-to-candidate contribution limits. See also Colorado II, 533 U.S. at 457.
And because those limits work to prevent bribery, the government has an interest in making sure
would-be bribers can’t circumvent them. See Buckley, 424 U.S. at 46–47. According to the
FEC, this justifies coordinated-spending limits. If parties could make unlimited coordinated
expenditures, a donor who’s maxed-out his candidate-contribution limit could circumvent these
limits by channeling additional dollars through the candidate’s party. The party could then spend
those dollars in coordination with the candidate. As a result, the candidate receives more money
from a donor than direct contribution limits permit, increasing the chances of corruption.
At least in the abstract, this “anti-circumvention” interest is sufficiently “important” to
pass intermediate scrutiny. Cf. id. at 35–36 (“[P]reventing individuals from evading the
applicable contribution limitations” is a “permissible purpose.”). The government may limit
large-dollar contributions to a candidate to reduce corruption; it follows that the government may
limit contributions funneled to a candidate through an intermediary, like a political party.
Nevertheless, courts must “greet the assertion of an anti[circumvention] interest with a
measure of skepticism.” Cruz, 596 U.S. at 306. That’s because coordinated-party-spending
limits reflect a “prophylaxis-upon-prophylaxis approach to regulating campaign finance.” Id.
(internal quotation omitted). Recall that the only permissible goal of campaign-finance
regulations is preventing bribery and its appearance. In service of that goal, the Federal Election
Campaign Act imposes five prophylaxes. First, the donor-to-candidate contribution limits: most
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 20
contributions to a candidate aren’t bribes, but the government may limit all contributions as a
prophylactic measure. Id.; 52 U.S.C. § 30116(a)(1)(A). Second, the donor-to-party limits: to prevent donors from circumventing donor-to-candidate limits, the government also limits how much donors may contribute to parties. Cf. California Med. Ass’n v. FEC,453 U.S. 182
, 193– 200 (1981) (plurality op.);id.
at 201–03 (Blackmun, J., concurring in part); McConnell, 540 U.S. at 144–46;52 U.S.C. § 30116
(a)(1)(B). Third, the earmarking rule: to further prevent circumvention, the Act treats “earmarked” party contributions as direct contributions to the earmarked candidate. See52 U.S.C. § 30116
(a)(8). Fourth, disclosure requirements: to shine sunlight on any potential bribery, a party must publicly report its own spending, as well as its donors’ names and donation amounts. Seeid.
§ 30104(b). And fifth—in the event (1) a donor
wants to bribe a candidate, (2) the donor-to-party limits are large enough to facilitate bribe-sized
contributions, (3) the donor has evaded FEC earmarking enforcement, and (4) a donor isn’t
discouraged by the fact his bribe will be reported publicly—the Act sets another safeguard. It
limits how much a party may spend in coordination with its candidates. See id. § 30116(d).
“Such a prophylaxis-upon-prophylaxis[-upon-prophylaxis-upon-prophylaxis-upon-prophylaxis]
approach . . . is a significant indicator that the regulation may not be necessary for the interest it
seeks to protect.” Cruz, 596 U.S. at 306.
The Act’s exceptions for certain kinds of coordinated-party spending only reinforce my
doubts. In general, the government can’t prove a compelling interest when a policy has
exceptions that cut against its proffered goal. See, e.g., Fulton v. City of Philadelphia, 593 U.S.
522, 542 (2021); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,508 U.S. 520
, 546–47 (1993). And here, the Act creates an exception for coordinated-party spending on election- recount lawsuits.52 U.S.C. § 30116
(a)(9)(C), (d)(5). This flatly undermines the government’s
anti-circumvention arguments. If the government is worried donors will launder bribes to
candidates through parties, why permit such bribery for recount lawsuits? Does funneling
money to a candidate’s election-night recount really pose less of a bribery risk than funneling
money to his advertisements? Of course not. Yet the Act permits the former expenditure while
forbidding the latter. If strict scrutiny applied to coordinated-spending limits, these exceptions
would be fatal. But even under intermediate scrutiny, these exceptions provide one more reason
to reject the FEC’s anti-circumvention rationale.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 21
Putting these weighty concerns aside, the FEC faces a lofty challenge to prove an anti-
circumvention interest. Under Cruz, the FEC must provide “record evidence or legislative
findings demonstrating” that coordinated-party-expenditure limits “further[] a permissible anti-
corruption goal.” 596 U.S. at 307, 313. Specifically, the FEC needs to identify an instance of
“quid pro quo corruption in this context”—an instance in which (1) a donor gave money to a
political party, (2) the party coordinated the spending of that money with a candidate, (3) in
furtherance of a bribery scheme between the donor and the candidate. Id. at 307.
Despite having decades to look for such examples, the FEC identifies only one case that
comes close to meeting these criteria.2 Specifically, it points to an incident in which an Ohio
school-board member allegedly helped a construction company secure a $96,000 government
contract. See Plea Agreement 40, United States v. Pumper, No. 09-CR-00317 (SL), (N.D. Ohio
Dec. 4, 2013). In exchange, the construction company made a $6,000 earmarked contribution to
the county-level Democratic Party. Id. The party then allegedly—this fact is notably absent
from the plea agreement—used $4,850 of that money to pay for the board member’s campaign
ads. Compare id., with Information 26–27, United States v. Pumper, No. 09-CR-00317 (SL),
(N.D. Ohio July 8, 2009). To be sure, this example fits the bill: a donor used coordinated-party
spending to facilitate a quid pro quo. At the same time, this lone example is a rather thin reed on
which to hinge a nationwide limit on parties’ core political speech. After all, federal anti-bribery
laws addressed the corruption in that case. See generally Plea Agreement, Pumper, No. 09-CR-
00317 (SL).
In short, the FEC’s anti-circumvention case is rather paltry. We’re left with a quintuple-
prophylactic statutory scheme, nonsensical exceptions to the spending limits, and a lone
supporting example.
2
The FEC’s other examples aren’t up to spec for numerous reasons. Some allege only campaign-finance
law violations, not quid-pro-quo corruption. Others don’t include any specific allegations that the parties in question
coordinated expenditures with the allegedly corrupt candidate. And other examples are simply instances of
“influence” or “access” that fall short of quid-pro-quo corruption.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 22
B. Closely Drawn
Things look even worse for the FEC on the “closely drawn” prong. To prevail at this
step, the FEC needs to show that party-coordinated-spending limits “avoid unnecessary
abridgment of associational freedoms,” Buckley, 424 U.S. at 25, and are “narrowly tailored to achieve the desired objective,” McCutcheon,572 U.S. at 218
(plurality op.). Again, Colorado II shows its age here. As the majority opinion points out, Colorado II’s closely drawn analysis afforded Congress significant deference. See Majority Op. at 9. The Court held that Congress was “entitled to its choice” among different approaches to regulating campaign finance, and that “unskillful tailoring” isn’t enough to invalidate a restriction. Colorado II,533 U.S. at 463
n.26, 465. Since then, however, the Court has likened the “closely drawn” analysis to the “narrowly tailored” prong of heightened scrutiny. See McCutcheon,572 U.S. at 218, 221
(striking down
limits when “there [were] multiple alternatives available to Congress that would serve the
Government’s anti-circumvention interest, while avoiding unnecessary abridgment of First
Amendment rights” (internal quotation omitted)). And the Court has openly rejected arguments
that it should simply “defer to Congress’s legislative judgment” about which campaign-finance
limits to enact. Cruz, 596 U.S. at 312–13. When subjected to this more rigorous form of closely
drawn scrutiny, coordinated-party-spending limits fail to pass muster.
Why does the FEC think coordinated-spending limits are necessary to prevent
circumvention? Its argument boils down to this: without such limits, “[a]n individual
maximizing contributions to a candidate ($3,300) and maximizing contributions to a party
committee such as the NRSC ($41,300) . . . [could] functionally raise[] the base limit for what
the donor can directly contribute for the candidate’s use by more than 12 times.” Second Br. 32
(emphasis deleted). But this logic runs into an immediate problem: to the extent donors could
legally do this,3 it’s because the government set party-contribution limits twelve times higher
than candidate-contribution limits. Compare 52 U.S.C. § 30116(a)(1)(A), withid.
§ 30116(a)(1)(B); see also Buckley,424 U.S. at 58
n.66 (noting that similar disparities allegedly
give national parties and their candidates a financial advantage over independents and regional
third parties). Having created this fundraising disparity, the government can’t use it as an excuse
3
They couldn’t, as it would flagrantly violate the Act’s earmarking rules. See 52 U.S.C. § 30116(a)(8). No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 23 to curtail parties’ speech. Cf. Republican Party of Minnesota v. White,536 U.S. 765, 788
(2002).
If the government’s worried about the disparity between party- and candidate-contribution limits,
the solution is simple: just lower the party-contribution limits.
Moreover, coordinated-party-spending limits target the wrong actor. The FEC’s anti-
corruption argument focuses primarily on donors corrupting candidates. Yet the spending limits
here restrict the parties. In other words, there’s a “substantial mismatch” between these limits’
application and the supposed corruption they target. McCutcheon, 572 U.S. at 199 (plurality
op.). By contrast, if the government simply lowered the amount donors could give to parties, the
limits would more closely track the government’s anti-corruption interest.
For its part, the FEC never argues that lowering donor-to-party limits would be less
effective in preventing circumvention. Instead, the FEC simply contends that lowering donor-to-
party limits would “harm[] parties much more dramatically than [coordinated-spending limits],
that is, by drastically limiting what they may raise in the first instance.” Second Br. 55. In
making that argument, the FEC contravenes five decades of Supreme Court precedent. Since
Buckley, the Court has made clear that spending limits “impose far greater restraints on the
freedom of speech and association than . . . contribution limits.” 424 U.S. at 44. Lowering
donor-to-party limits would therefore pose a smaller First Amendment burden than the spending
limits challenged here. And in the campaign-finance realm, the government is usually required
to avoid unnecessarily burdening speech.
At base, coordinated-party-spending limits (1) punish parties for a government-created
fundraising disparity, (2) target the wrong actor for anti-corruption purposes, and (3) pose a
greater First Amendment burden than comparable contribution limits would. Thus, these limits
are not “closely drawn” and fail intermediate scrutiny.
III.
Under Buckley’s tiers-of-scrutiny approach, coordinated-party-spending limits do not fare
well. But as the majority opinion thoughtfully explains, vertical stare decisis precludes us from
disturbing Colorado II’s holding here. See Majority Op. at 8–10. Notwithstanding changes in
Supreme Court jurisprudence, it’s the Court’s job to overrule its precedents, not ours.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 24
Truesdell v. Friedlander, 80 F.4th 762, 782 (6th Cir. 2023) (collecting cases). And while the Court has held that changes in statutes or facts can justify its departure from past precedents, it hasn’t granted us similar license. Cf. South Dakota v. Wayfair, Inc.,585 U.S. 162
, 184 (2018)
(changes in “real world” facts permitted the Supreme Court to overrule its precedents);
McCutcheon, 572 U.S. at 200–203 (plurality op.) (changes in the applicable statutory regime
permitted the Court to depart from Buckley).
To be sure, Colorado II left the door open for as-applied challenges. See 533 U.S. at 456n.17; see also Wisconsin Right to Life, Inc. v. FEC,546 U.S. 410
, 411–12 (2006) (per curiam) (“In upholding [a campaign-finance regulation] against a facial challenge, we did not purport to resolve future as-applied challenges.”). And here, plaintiffs challenge spending limits as applied to party-coordinated communications. See11 C.F.R. § 109.37
. As the majority opinion notes, however, these communications constitute ninety-plus percent of parties’ coordinated spending. See Majority Op. at 11. Thus, a judgment invalidating the limits as applied to communications “would cover such a substantial number” of coordinated expenditures that the limits “would be rendered substantially overbroad.” FEC v. Wisconsin Right to Life, Inc.,551 U.S. 449, 498
(2007) (Scalia, J, concurring in part and concurring in the judgment). Such a holding would
effectively nullify Colorado II—and that’s not our prerogative.
* * *
Colorado II allows us to dodge the grave constitutional issues posed by coordinated-
party-spending limits. These limits run afoul of modern campaign-finance doctrine and burden
parties’ and candidates’ core political rights. For the plaintiffs, however, our court is not the
proper audience for these concerns.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 25
__________________________________
CONCURRENCE / DUBITANTE
__________________________________
JOHN K. BUSH, Circuit Judge, concurring dubitante. I agree with the majority that we
are bound to uphold the limits on coordinated party expenditures in § 315 of the Federal Election
Campaign Act of 1971 (FECA), as amended, 52 U.S.C. § 30116, based on the reasoning of FEC v. Colorado Republican Federal Campaign Commission,533 U.S. 431
(2001) (Colorado II). I
write separately, however, to consider the historical record not addressed by the majority.
In recent years, the Supreme Court has applied history and tradition to review the
constitutionality of laws under many federal constitutional provisions, including the First
Amendment. See, e.g., Vidal v. Elster, 602 U.S. 286, 301(2024) (First Amendment speech rights); Kennedy v. Bremerton Sch. Dist.,597 U.S. 507
, 536 (2022) (First Amendment Establishment Clause rights); United States v. Rahimi,144 S. Ct. 1889
, 1897 (2024) (Second Amendment rights); New York State Rifle & Pistol Ass’n, Inc. v. Bruen,597 U.S. 1
, 24 (2022) (same); District of Columbia v. Heller,554 U.S. 570, 595
(2008) (same); City of Grants Pass v. Johnson,144 S. Ct. 2202
, 2215–16 (2024) (the Eighth Amendment’s Cruel and Unusual Punishments Clause); Dep’t of State v. Munoz,144 S. Ct. 1812
, 1822 (2024) (substantive due process rights); Dobbs v. Jackson Women’s Health Org.,597 U.S. 215
, 250 (2022) (same); United States v. Texas,599 U.S. 670, 676
(2023) (Article III justiciability); Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd.,601 U.S. 416
, 426 (2024) (the Appropriations Clause). Yet in most cases involving campaign finance regulations, beginning with Buckley v. Valeo,424 U.S. 1
(1976), and also in Colorado II, the Court has not fully engaged with—and
sometimes, has not even mentioned—evidence of history or tradition.
To its credit, the Federal Election Commission (FEC) sought to address such proof in this
case. See Second Br. at 49–50; Defs.’ Proposed Findings of Facts at 3–23, R. 43, PageID 5118–
38. In doing so, the FEC argued that historical precedent aligns with the holding of Colorado II.
See Second Br. at 48–50. But, in fact, the pertinent history and tradition appear to cut against,
not support, the FEC’s position.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 26
The Supreme Court should consider revisiting Colorado II for two reasons. First, it
conflicts with recent decisions of the Court, as explained in Judge Thapar’s concurrence and
Judge Readler’s dissent. Second, as explained below, Colorado II does not address history and
tradition that also calls its holding into question.
I.
Before addressing evidence of the past, though, one asks: why should this type of proof
even matter here? In Buckley, for example, the Supreme Court considered some history from the
Founding era and subsequent years in the part of its opinion that reviewed the constitutionality of
the FEC under the Appointments Clause and separation-of-powers principles, see 424 U.S. at
1204–34, but otherwise the Court made no use of historical research to address constitutional
challenges to FECA provisions. Likewise, in Colorado II, the Court did not mention examples
from the past apart from case law.
The dearth of historical analysis in Colorado II contrasts with many recent decisions of
the Court that emphasize history and tradition together with case law as necessary for
constitutional interpretation. Although the Justices differ on the degree of emphasis depending
on the constitutional issue, they all appear to agree that evidence of the past may be relevant in a
wide variety of constitutional cases. See generally Vidal, 602 U.S. 286; United States v. Rahimi,144 S. Ct. 1889
. Indeed, Justice Sotomayor recently observed that “history proves a lot to me and to my colleagues generally.” Transcript of Oral Argument at 10, Trump v. Anderson,601 U.S. 100
(2024) (No. 23-719).1
History proves a lot for many reasons. Three immediately come to mind.
1
The emphasis on history is not, as Judge Stranch’s concurrence implies, a “great experiment.” Stranch
Concurring Op. at 75. Rather, it is a return to the traditional method of interpreting the Constitution according to its
reasonable meaning when created. See, e.g., 1 Joseph Story, Commentaries on the Constitution of the United States
§ 405, 387–88 (1833) (noting that “[w]hen [the Constitution’s] words are plain, clear, and determinate, they require
no interpretation,” though contemporary history and interpretation may help interpret less-than-clear text). The
great experiment in constitutional jurisprudence was the theory of a “Living Constitution,” first hypothesized in the
20th century, that purported to allow for meanings of constitutional provisions to change through means other than
the amendment process of Article V of the Constitution. See, e.g., Jack M. Balkin, Framework Originalism and the
Living Constitution, 103 Nw. U. L. Rev. 549, 590 (2009).
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First, history allows us to understand linguistical meaning at the time of ratification. All
interpretation of the Constitution “begin[s] with its text.” City of Boerne v. Flores, 521 U.S. 507,
519(1997). Historical evidence reveals word usage then, which may differ from what it is today. Heller,554 U.S. at 576
. As explained by Justice Barrett, “[o]riginal history” serves to
“elucidate[] how contemporaries” in the ratification generation “understood the text—for
example, the meaning of the phrase ‘bear Arms’” in the Second Amendment. Rahimi, 144 S. Ct.
at 1925 (Barrett, J., concurring).2
Second, history allows us, at least with respect to some constitutional provisions, to
determine categories of private conduct that were typically subject to regulation by government
when the relevant constitutional text was ratified. As Justice Kavanaugh observed, this pre-
ratification history is particularly relevant for “vague constitutional text.” Id. at 1912
(Kavanaugh, J., concurring). If government never or seldom regulated a type of conduct during
the pre-ratification era, then that may suggest that such conduct is constitutionally protected. But
if government did typically regulate the conduct pre-ratification, then that may support an
inference that the constitutional text does not bar government intervention. From an individual’s
perspective, such history helps “determin[e] the affirmative scope or contours of . . . [the]
constitutional right” that the person holds. Id. at 1912 n.1. From the government’s perspective,
such history helps “determine[e] the exceptions to a constitutional right,” id., thus defining those
areas in which the government is empowered to regulate the individual.
Third, evidence of how Americans ordered their lives after ratifying a particular
constitutional text—what we call tradition—also may help reveal that text’s original meaning. If
there was no regulation of a particular type of private conduct for a long and uninterrupted
period, then this post-ratification evidence may show that government was not understood to
have the constitutional authority to regulate that conduct. And, conversely, if over the post-
2
Finding the original linguistical meaning, or fixed communicative content, of words should not be a matter
for controversy, as Judge Stranch seems to imply it is. See Stranch Concurring Op. at 72–73. As Professor
Lawrence Solum has explained, even some non-originalist jurisprudential methods value the original linguistical
meaning of constitutional text. Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original
Meaning, 91 Notre Dame L. Rev. 1, 9 (2015). The issue is not whether there is an original meaning, but rather
whether a judge should be constrained by it. And no one seriously questions that, in analyzing words used in the
Constitution, linguistical history from the era of constitutional ratification is probative of that original meaning. See,
e.g., Story, supra note 1, at § 405, 387.
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ratification period there is evidence of regulation, then that proof may be relevant to show that
constitutional power to regulate was understood to exist. As Justice Kavanaugh explained,
“[p]ost-ratification interpretations and applications by government actors—at least when
reasonably consistent and longstanding—can be probative of the meaning of vague constitutional
text” and “[t]he collective understanding of Americans who, over time, have interpreted and
applied the broadly worded constitutional text can provide good guidance for a judge who is
trying to interpret that same text decades or centuries later.” Id. at 1916. Such evidence of
historical tradition “becomes especially important” if the only alternative to its use is “the judge
simply default[ing] to his or her own policy preferences.” Id.3
The usefulness of history and tradition, however, is tempered by the fact that the world in
which we live is not the same world as when the Constitution was ratified or the worlds of the
post-ratification generations who came before us. Whether because of progress in how we live
(think technological advancements), how we treat each other (think social transformation such as
the abolition of slavery), or some other reason, today’s America is not your Founding Fathers’
America. Perhaps because of the differences, the Supreme Court in Rahimi observed that its
emphasis on history and tradition is “not meant to suggest a law trapped in amber.” Id. at 1897
(majority opinion); see also id. at 1925 (Barrett, J., concurring) (“21st-century regulations” need
not “follow late 18th-century policy choices.”). But, except as it has been amended, the
Constitution remains the same for us as it existed for those before us. See id. at 1908 (Gorsuch,
J., concurring) (“Developments in the world may change, facts on the ground may evolve, and
new laws may invite new challenges, but the Constitution the people adopted remains our
enduring guide.”). Unless amended, original guarantees of liberty in the Constitution remain
undiminished over time. Thus, Rahimi reaffirmed that the Second Amendment should be
applied today based on the full scope of its original meaning.4
3
Judge Stranch argues that even though a private activity may not have been regulated in the pre-
ratification and early post-ratification eras, such history and tradition do not necessarily mean that government
lacked the power to regulate. See Stranch Concurring Op. at 73–74. Judge Stranch’s point is valid in the abstract
but, under the Rahimi framework, the FEC bears the burden of justifying the regulation with historical analogues.
144 S. Ct. at 1897. To explain how the FEC fails that burden, I offer historical examples below.
4
As Judge Stranch recognizes, the Constitution has been amended to extend its original guarantees of
freedom to all Americans without regard to race or sex. See Stranch Concurring Op. at 69. But that is not a reason
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 29
In doing so, we find guidance from general, not identical, historical analogues. For
Second Amendment jurisprudence, the Court does not search for “a ‘dead ringer’ or a ‘historical
twin’” as the standard for historical relevance. Id. (majority opinion). Rather, to determine
original meaning, “[a] court must ascertain whether the new law is ‘relevantly similar’ to laws
that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the
founding generation to modern circumstances.’” Id. (quoting Bruen, 597 U.S. at 29 & n.7). By
“relevantly similar” the Court means historical analogues that reveal conceptual, not necessarily
exact, parallels. As Justice Barrett put it, “[h]istorical regulations reveal a principle, not a mold.”
Id. at 1925 (Barrett, J., concurring).
The principle to be drawn, however, must not be at too high a level of abstraction. So,
for example, the Court rejected “the Government’s contention that Rahimi may be disarmed
simply because he is not ‘responsible.’” Id. at 1903 (majority opinion). The Court noted:
“‘Responsible’ is a vague term” and “[i]t is unclear what . . . a rule would entail” if it based the
government’s power to disarm on whether someone is “responsible” or not. Id. Instead, the
Court upheld the disarmament law at issue because it did “not broadly restrict arms use by the
public generally” and because the burden and penalty of the law “fit[] within the regulatory
tradition” of historical examples—namely, surety and going armed laws. Id. at 1901.
Having just rendered its decision in Rahimi, the Court has yet to consider how that case
applies beyond the Second Amendment. But many of the concurring opinions in Rahimi suggest
that it will have broader constitutional importance. Justice Gorsuch, for example, conveyed in
his concurrence that consideration of historical evidence is appropriate in every constitutional
case: “Come to this court with arguments from text and history, and we are bound to reason
through them as best we can.” Id. at 1909 (Gorsuch, J., concurring). And Justice Barrett, while
disclaiming “freewheeling reliance on historical practice from the mid-to-late 19th century to
establish the original meaning of the Bill of Rights,” nonetheless invoked generally a theory of
constitutional interpretation “built on two core principles: that the meaning of constitutional text
to deny to all Americans today the full scope of liberty enjoyed by those who adopted and ratified the Constitution.
The Constitution has been amended to extend its rights protections, not to reduce the scope of those protections. As
explained below, my concern about Colorado II is that it appears to countenance an America in which we have less
liberty under the First Amendment than the Founders enjoyed.
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is fixed at the time of its ratification and that the ‘discoverable historical meaning . . . has legal
significance and is authoritative in most circumstances.’” Id. at 1924 (Barrett, J., concurring)
(quoting Keith E. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378
(2013)). Justice Kavanaugh likewise wrote broadly of reliance on not only text and precedent
but also history and tradition, and he repeatedly cited the First Amendment in particular as
appropriate for historical analysis: “When performing that Article III duty, the court does not
implement its own policy judgments about, for example, free speech or gun regulation. Rather,
the Court interprets and applies the Constitution by examining text, pre-ratification and post-
ratification history, and precedent.” Id. at 1910 (Kavanaugh, J., concurring) (emphasis added);
see id. at 1911, 1915 (citing the First Amendment).
With these directions in mind, it appears that many, and perhaps a majority, of Justices
would consider evidence of history and tradition as relevant to analyze the constitutionality of
the regulation at issue here. It is to the FEC’s arguments based on such proof that I now turn.
II.
The FEC does not make any argument about the linguistics history of the First
Amendment in support of its position. Instead, the FEC makes three points about historical
practice generally. First, it relies on pre-ratification history to argue that “concerns about
political party corruption animated the Founding.” Defs.’ Proposed Findings of Fact 3, R. 43,
PageID 5118 (capitalization and bolding omitted). Second, it assesses “text of the Constitution”
that “addresses corruption and faction.” Id., PageID 5124 (capitalization and bolding omitted).
And third, the FEC argues based on a combination of pre- and post-ratification history:
“Founding-era thinkers viewed legislative efforts to promote the public good as valid, including
through laws impacting speech rights.” Id., PageID 5133 (capitalization and bolding omitted).
In support of its arguments, however, the FEC fails to meet the Rahimi standard. The
FEC advances no fairly drawn principle from history or text showing that the restriction at issue
“is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully
the balance struck by the founding generation to modern circumstances.’” Rahimi, 2024 WL
3074728, at 1898 (quoting Bruen, 597 U.S. at 29 & 29 n.7). In fact, pre- and post-ratification
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 31
history confirms the plain meaning of the constitutional language: when the people ratified the
guarantee of First Amendment that “Congress shall make no law . . . abridging the freedom of
speech,” U.S. Const. amend I, there was no exception relevantly similar to the restriction at issue
here that was understood to permit Congress to abridge citizens’ freedom to coordinate their
speech.
A. Evidence of Founders’ Concerns About Political Parties and Government Corruption
The FEC begins with evidence from the Constitutional Convention that the Founders
were concerned about government corruption. See Defs.’ Proposed Findings of Fact 3–5, R. 43,
PageID 5118–20. No one disputes that. Indeed, American disgust with corrupt British officials
was a principal reason for the War of Independence.5 But the FEC’s high-level definition of
government corruption finds no support in the historical record when it gets down into the
weeds: it categorizes a wide swath of coordinated private conduct related to speech as potential
sources of “corruption” even though such conduct was never regulated in the Founding era or
early American Republic. In those years there were never any per se limitations on the ability of
individuals or groups to contribute and coordinate political expenditures.
Tellingly, while the FEC argues that the Framers opposed government corruption, it does
not point to a single piece of historical evidence that anyone in the Founding generation
considered the amount or degree of coordination for political contributions to be sanctionable.
The FEC cites no pre-First Amendment or early American law that provides historical support
for congressional authority to generally regulate in the manner challenged here.
Perhaps to divert attention from this absence of proof, the FEC instead cites evidence that
“the Framers identified ‘faction’-related corruption as dangerous to the nation, including to
elections.” Defs.’ Proposed Findings of Fact 5, R. 43, PageID 5120 (capitalization and bolding
omitted). The FEC’s logic appears to be that the Founders considered “factions” to be causes of
5
Gouverneur Morris colorfully captured the American attitude to perceived British corruption: “Trust
Crocodiles, trust the hungry Wolk in your Flock, or a Rattle Snake in your Bosom, you may yet be something Wise.
But trust the King, his Ministers, his Commissioners, ’tis Madness in the Extreme.” Gouverneur Morris, Oration on
the Necessity for Declaring Independence from Britain (1776), in To Secure the Blessings of Liberty: Selected
Writings of Gouverneur Morris 24 (J. Jackson Barlow ed., 2012).
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government corruption, that political parties were labelled as factions, and therefore the First
Amendment permits the regulation of how political parties coordinate their speech. What is
missing from the FEC’s syllogism, however, is any evidence linking the Framers’ general
concerns about factions and corruption to any specific law that regulated the coordination of
expenditures and spending for political speech. The FEC’s argument is similar to the
government’s proposed test based on “responsible” citizens that was rejected in Rahimi.
Unmoored from any historical example of a government restriction to define its application, the
FEC’s “faction” and “corruption” test is similarly vague and overinclusive.
The FEC is correct about one thing: political parties did not exist at the Founding, at least
in their modern sense. But even before ratification, and in the early days of the Republic, there
were competing ideological groups in America. Like-minded groups sought to advance their
political causes through coordination of messaging, candidates, and supporters.
These groups campaigned vigorously against one another, as political parties do today.
The political group divisions included the Patriots versus the Loyalists in the runup to and during
the American Revolution;6 the Federalists versus the Antifederalists during the debates over the
adoption and ratification of the Constitution;7 and the Federal (or Anti-Republican) Party versus
the Anti-Administration Party (or Jeffersonian Republicans, later Democratic-Republicans) in
the early Republic.8 James Madison may have derided political groups as motivated by “the
spirit of party and faction,” The Federalist No. 10 (James Madison), but he—and indeed every
6
See, e.g., Robert G. Parkinson, Print, the Press, and the American Revolution (Sept. 3, 2015),
https://doi.org/10.1093/acrefore/9780199329175.013.9 (describing the political division between, on the one hand,
the Patriots and those printers with whom they coordinated, and on the other hand, those persons who remained
loyal to the Crown and the printers who “made their newspapers available for loyalists to submit essays that
criticized patriot resistance efforts”).
7
See, e.g., Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 8 (2016)
(noting that the “contest” between Federalists and Antifederalists “over ratification was, perhaps to a surprising
degree, fought largely with the weapons of ordinary politics”).
8
See, e.g., Jon Meacham, Thomas Jefferson: The Art of Power 295 (2012) (Jefferson describing the “two
parties” that existed in the United States as of 1795 as “The Republican part of our Union” and the “Anti-
republicans”).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 33
prominent Founder, including purportedly neutral George Washington9—aligned with at least
one of these competing groups at one time or another. And throughout this history of American
political contests, speech by political groups and candidates inevitably included combined
political contribution and spending on each side of the political spectrum.
For example, in the period leading to the American Revolution, coordination of speech
was necessary to rally the American colonies, later states, in their fight for independence. In the
1760s the Sons of Liberty and other aligned groups used committees of correspondence, which
had long existed “as a way for colonial legislature to communicate with their agents in London,”
“to organize resistance between cities.”10 Similarly, in the 1770s “there were three consecutive
systems of committees of correspondence: the Boston-Massachusetts system, the inter-colonial
system, and the post-Coercive Acts system,” all employed throughout the colonies to effect
fundamental political change.11
Along with coordinated correspondence came coordinated funding for Patriot politicians.
One example: Boston merchant John Hancock joined with other benefactors to anonymously
fund Samuel Adams, a leader of the Sons of Liberty who represented Massachusetts in the
Continental Congress.12
Also, “Patriot leaders from the mid-1760s through the Treaty of Paris spent a great deal
of time and, more illuminating, money supporting all kinds of print: subsidizing printers, aiding
in paper supplies, contributing private correspondence to newspapers, ordering the publication of
certain documents, treating printing presses as military contraband, sending pamphlets in
9
See, e.g., Williard Sterne Randall, The Founders’ Fortunes: How Money Shaped the Birth of America 275
(2022) (noting that Washington eventually sided with Federalists over Jeffersonian Republicans in relation to
revolutionary France).
10
Catherine Treese, Committees of Correspondence, Digital Encyclopedia of George Washington,
https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/committees-of-correspondence/#:~:
text=Committees% 2 0 o f % 2 0 c o r r e s p o n d e n c e % 2 0 h a d % 2 0 e x i s t e d , t o % 2 0 o r g a n i z e % 2 0 r e s i s t a n c e % 2
0between%20cities.
11
Id.
12
See Stacy Schiff, The Revolutionary: Samuel Adams 61, 219 (2022).
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diplomatic packets, arranging for illustrations for a child’s book of British atrocities.”13 Another
example: Robert Morris, the Superintendent of Finance for the Office of Finance of the
Continental Congress, joined with his assistant Gouverneur Morris, future stylist of the
Constitution—along with George Washington and New York politician Robert R. Livingston—
to provide a stipend of “$800 a year (about $10,000 today)” to political-tract author Thomas
Paine “to write articles ‘informing the people and rousing them into action.’”14 The payments to
Paine were kept “secret, as ‘a Salary publicly and avowedly given . . . would injure the Effect of
Mr. Paine’s Publications, and subject him to injurious personal Reflections.’”15
Paine’s chief benefactor, Philadelphia trader Robert Morris, was called “the Financier of
the Revolution” for good reason. He, along with Haym Salomon, another Philadelphia
businessman, were among a small group who personally contributed large sums to the American
Confederation to help finance the war effort.16 General Washington himself was part of that
funding group: he spent around $160,000 (around $5 million today) of his wealth to pay for war-
related expenses of the Continental Army.17
Coordinated political money thus not only talked; it fought for our nation’s
independence. In 1781, the year of Yorktown, Alexander Hamilton observed: “Tis by
introducing order into our financing—by restoring public credit, not by gaining battles, that we
are finally to gain our object.”18 The public credit of which Hamilton wrote found restoration
13
Parkinson, supra note 6.
14
Richard Brookhiser, Gentleman Revolutionary: Gouverneur Morris—The Rake Who Wrote the
Constitution 70 (2003) (quoting John Keane, Tom Paine 218 (1995)); see also Melanie R. Miller, Envoy to the
Terror: Gouverneur Morris & the French Revolution 106 (2005).
15
Charles Rappleye, Robert Morris: Financier of the American Revolution 296 (2010) (quoting Agreement
with Robert Livingston and George Washington (Feb. 10, 1782), in 4 The Papers of Robert Morris, 1781–1784, at
201 (E.J. Ferguson ed., 1973)).
16
Id. at 245.
17
Revolution and the New Nation (1754-1820s), Nat’l Archives and Recs. Admin.,
http://www.archives.gov/exhibits/american_originals/acctbk.html (last updated July 1, 1998).
18
Letter From Alexander Hamilton to Robert Morris (Apr. 30, 1781), in 2 The Papers of Alexander
Hamilton 1779-1781, 604 (Harold C. Syrett ed., 1961) https://founders.archives.gov/documents/Hamilton/01-02-02-
1167.
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from funding provided by three foreign nations (France, Spain, and the Netherlands)19 and a
handful of affluent Americans.20
The Confederation Congress accepted money with no limit imposed by that Congress or
the newly formed state governments on the amount that anyone could contribute to the public
fisc or on the degree of cooperation between private citizens to raise and spend such funds. The
Founders addressed government corruption not through restrictions on political spending levels
or coordination, but through measures against bribery and similar activity.
In that regard, there are several episodes from the Founding Era and early American
Republic when charges of corruption were raised against government officials for allegedly
accepting improper payments. Among these examples are the “Silas Deane affair” in 1778,
when Deane, an American diplomat in France, was accused of receiving inappropriate
compensation related to his mission, and the “Fauchet scandal” in 1795, when then-Secretary of
State Edmund Randolph resigned from Washington’s cabinet after being accused, like Deane, of
taking a French bribe.21 Benjamin Franklin also came under scrutiny when Louis XVI gave him
an incredibly valuable gift at the end of his time in France.22
Investigations of such charges centered on whether the government official was paid to
do something to directly benefit a private interest—the essence of bribery.23 And this quid pro
19
Office of the Historian, Milestones in the History of U.S. Foreign Relations: U.S. Debt and Foreign
Loans, 1775–1795, United States Department of State, https://history.state.gov/milestones/1784-
1800/loans#:~:text=During%20the%20Revolution%2C%20the%20French,from%20Dutch%20bankers%20in%2017
82 (describing financial support from the French, Dutch, and Spanish during the American Revolution).
20
See Thomas Shachtman, The Founding Fortunes: How the Wealthy Paid for and Profited from America’s
Revolution 109 (2019) (noting that war funding came from “some of the wealthy” who had “dug into their
pockets”). One example: On June 8, 1780, Robert Morris “and several score ‘men of property’ gathered at the
London Coffee House [in Philadelphia] to raise a fund ‘to be given in bounties to promote the recruiting service of
the United States.’ Before the week was out, Philadelphia’s merchants and traders had raised four hundred pounds in
hard money and more than one hundred thousand dollars in Continental paper.” Rappleye, supra note 15, at 215.
21
See Brookhiser, supra note 14, at 56 (“Historians sometimes treat the fight over Deane as the seed time
of American political parties, the conservative revolutionaries defending Deane, the radical ones attacking him.”);
John J. Reardon, Edmund Randolph: A Biography 306–13 (1974) (describing the Fauchet scandal).
22
See Randall, supra note 9, at 252.
23
Bribery today is defined much the same as it was at the Founding. Compare Snyder v. United States,
144 S. Ct. 1947, 1951 (2024) (“As a general matter, bribes are payments made or agreed to before an official act in
order to influence the official with respect to that future official act.” (emphasis omitted)), with Giles Jacob, New-
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 36
quo corruption was what the Founding generation recognized as outside the scope of state
constitutional, statutory, or common law protection for free speech. Bribery was investigated
and prosecuted if warranted. Coordinated political contributions and spending were not.
After the war, this condition of affairs continued, including during the state debates over
ratification of the Constitution. In New York, for example, “Federalists dominated the
newspapers in the state,” but “Antifederalists were more successful in getting their views
publicly circulated than were their counterparts in most other states. Both parties established
county committees to supervise the nomination of candidates for the ratifying convention and to
coordinate with allies across the state.”24 “The Federalists’ shrewd strategizing illustrates how
the ratifying contest was a political campaign not very different from ordinary politics, much
more than it was an abstract debate between proponents of competing political philosophies.”25
It has been argued that the Antifederalists lost the constitutional ratification debate, in
large part, because their message was scattershot—“immense and heterogeneous, encompassing
speeches, pamphlets, essays, and letters.”26 Federalists, in contrast, directed much of their
messaging at least in New York through a singular channel controlled by just three people—
Alexander Hamilton, John Jay, and James Madison.27 They wrote under the singular pseudonym
of “Publius” to produce The Federalist Papers, which they disseminated through combined
efforts.28 Their political advocacy—what one historian called a “Triumvirate”—thus serves as
Law Dictionary: Containing the Interpretation and Definition of Words and Terms Used in the Law (10th ed. 1782)
(defining bribery: “taken largely it signifies the receiving, or offering, any undue reward, to or by any person
concerned in the administration of public justice whether judge, officer &c to act contrary to his duty, and
sometimes it signifies the taking or giving a reward for a public office”).
24
Klarman, supra note 7, at 485.
25
Id. at 612; see also Pauline Maier, Ratification: The People Debate the Constitution 1787–1788, at 328
(2010) (“The contest for delegates in New York was distinctive. More than in any other state, the fight was between
two organized parties.”).
26
The Essential Antifederalist, at xii (W. B. Allen et al. eds., 2d ed. 2002).
27
Maier, supra note 25, at 84.
28
Id.
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an early example where coordination of privately produced and financed speech was perhaps as
important as its content to achieve political victory.29
Federalists did their messaging through news media paid for, at least in part, by Federalist
politicians and their supporters. “[A]lmost all newspapers were published in cities,” where most
people supported the Constitution, unlike rural areas, where most Antifederalists lived.30
“[T]hose rare newspaper editors” who printed pieces opposing ratification faced “economic
boycotts launched by their overwhelmingly Federalist advertisers and readers.”31 “Federalists
also tended to control printing offices and taverns, the latter of which served as unofficial post
offices and thus could block circulation of Antifederalist pamphlets.”32
And just after the Constitution was ratified, coordinated political fundraising and
spending continued through nascent political parties and their newspaper affiliates. During
President Washington’s administration, cabinet sniping between Secretary of Treasury
Alexander Hamilton (a leader of the Federal Party) and then-Secretary of State Thomas Jefferson
(the leader of the emerging Jeffersonian Republican Party) drove a partisan newspaper war,
financed through private subscriptions as well as secret payments coordinated by Federalists on
the one hand and Jeffersonian Republicans on the other.33
“To build his political party, Jefferson needed financial backers, a publicity machine, and
a large constituency of loyal voters.”34 “Always quicker than Jefferson, Hamilton already had
29
See Bruce Chadwick, Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and
United the Nation 27 (2009) (“There was no known formal written note between them [i.e., Jefferson, Madison, and
Jay] acknowledging the formation of the Triumvirate, but any study of their activities leaves no doubt that they not
only put one together, but planned one of the great lobbying campaigns in American history to get the Constitution
ratified.”).
30
Klarman, supra note 7, at 408.
31
Id.
32
Id.
33
See H.W. Brands, Founding Partisans: Hamilton, Madison, Jefferson, Adams, and the Brawling Birth of
American Politics 188–89 (2023); David Stephen Heidler & Jeanne T. Heidler, Washington’s Circle: The Creation
of the President 251 (2016); Brookhiser, supra note 14, at 159.
34
Harlow Giles Unger, “Mr. President”: George Washington and the Making of the Nation’s Highest
Office 129 (2013).
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all three, tapping wealthy New York bankers for financial support and votes and corralling
political workers from the nearly five hundred customs officials, tax collectors, and Treasury
Department employees who depended on him for employment.”35
So, in 1791, Jefferson and Madison made a trip together to New York City to start
building their political party. No longer closely aligned with Hamilton’s politics, Madison now
allied more with Jefferson. The two met with Robert R. Livingston, Aaron Burr, and “Philip
Freneau, a writer they hoped to recruit to start a newspaper to compete with the pro-Hamilton
Gazette of the United States.”36 Freneau “was to be subsidized by the Department of State,
where Jefferson employed him as a translator.”37 “The Freneau appointment was a critical step
for the emerging [Jeffersonian] Republican Party.”38
Historian H.W. Brands made the point that the FEC emphasizes—that “[p]arties had been
something the framers identified with corrupt monarchies; most would have been horrified at the
thought parties would spring up in republican America.”39 But Brands added that “parties did
spring up, and with each year after the midpoint of Washington’s president, they grew
stronger.”40
Indeed, as evidenced by the activities of Jefferson, Madison and others, the parties had
their genesis even earlier than Brands suggests—in 1791, the year when the First Amendment
was ratified. And it was no secret to the Americans who ratified the Amendment that political
parties were being formed. In 1792, U.S. Senator Rufus King (a future Federal Party presidential
nominee) wrote another Federalist, Gouverneur Morris (who then was the U.S. minister
plenipotentiary in revolutionary France), that American newspapers allowed a reader to “form a
pretty good opinion of the State of parties here. The gazette of the U.S. published at Philadelphia
35
Id.
36
Meacham, supra note 8, at 256.
37
Id.
38
Id.
39
Brands, supra note 33, at 299.
40
Id. at 299–300.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 39
by [John] Fenno is one side”—the Federal Party—“and the national Gazette published at the
same place by [Jeffersonian Republican Philip] Freneau, a clerk in Jefferson’s Office, is on the
other.”41
King explained to Morris that the division between American political parties “proceeds
from that Rivalry which always has & will prevail in a free country.”42 Morris could understand
King’s point from his vantage point in France. In the early days of the French Revolution—the
time of “the Reign of Terror”—political competition had disappeared in France, thanks to the
Jacobins’ guillotine-enforced censor of dissent from any opposing party.43 When Morris sent
Jefferson some French gazettes in 1792, he cautioned that they were “written not only in the
Spirit of a Party but under the Eye of a Party. The first must influence the most honest Printer in
the Coloring of some Facts and the second will restrain the boldest Printer in the publishing of
other Facts.”44
But in America, with its emerging rival-party system, things were very different, and
freedom of political speech flourished. In October 1795, Jefferson wrote in his notes: “Two
parties then do exist within the US.”45 The parties competed throughout the nation during the
election of 1796. As historian John Ferling wrote, “[s]ome degree of party organization,
however primitive, existed in almost every state. What is more, each party was identified with a
core set of ideas. Those who followed politics knew what the parties stood for, understood the
stakes in this election, and—as has largely been true throughout America’s political history—
41
Letter from Rufus King to Gouverneur Morris (Sept. 1, 1792), in 2 A Diary of the French Revolution by
Gouverneur Morris 566 (Beatrix Cary Davenport ed., 1939).
42
Id. at 567.
43
In 1793 Morris wrote Washington from Paris: “The revolutionary Tribunal establish’d here to judge on
general Principles give unlimited Scope to Will. It is an emphatical Phrase in Fashion among the Patriots that Terror
is the order of the Day.” Letter from Gouverneur Morris to George Washington (Oct. 18, 1793), in 14 The Papers of
George Washington, 1 September–31 December 1793, at 229 (David R. Hoth ed., 2008),
https://founders.archives.gov/documents/Washington/05-14-02-0162; see also Randall, supra note 9, at 275 (noting
“the mass guillotining of the Reign of Terror”).
44
Letter from Gouverneur Morris to Thomas Jefferson (Aug. 16, 1792), in 24 The Papers of Thomas
Jefferson 1 June-31 December 1792, at 301 (John Catanzariti ed., 1990)
https://founders.archives.gov/documents/Jefferson/01-24-02-0287.
45
Meacham, supra note 8, at 295.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 40
believed that the election of a candidate who was affiliated with a party afforded a general
expectation of how that candidate could be expected to act once in office.”46 And government
imposed no restrictions on how the emerging political parties communicated to the public who
their candidates were and where they stood on the issues. To be sure, Congress passed the
constitutionally questionable Sedition Act of 1798, 1 Stat. 596, but not even that legislation
attempted to limit, as does the law at issue here, contributions and spending on political speech
or the coordination of such.47
Left unregulated, political parties became even more intertwined with their respective
candidates in the bitterly contested election of 1800. Shortly afterward, Jefferson met with John
Adams, the Federalist he had defeated in that election:
Mr. Adams, said I, this is no personal contest between you [and] me. [T]wo
systems of principles on the subject of government divide our fellow-citizens into
two parties. [W]ith one of these you concur, [and] I with the other. [A]s we have
been longer on the public stage than most of those now living, our names happen
to be more generally known. [O]ne of these parties therefore has put your name at
its head, the other mine. [W]ere we both to die today, tomorrow two other names
would be in the place of ours, without any change in the motion of the machine.
[Its] motion is from [its] principle, not from you or myself.48
46
John Ferling, Adams vs. Jefferson: The Tumultuous Election of 1800, at 87 (2004).
47
The Sedition Act was one of several statutes now collectively known as the Alien and Sedition Acts.
Ludecke v. Watkins, 335 U.S. 160, 172 n.18 (1948). The Sedition Act prohibited any person from writing, printing, or uttering criticism of the federal government. Sedition Act of 1798,1 Stat. 596
; see New York Times Co. v. Sullivan,376 U.S. 254
, 273–74 (1964) (summarizing the Act). The Supreme Court has indicated that the Sedition Act does not reflect the Founding generation’s consensus view of the First Amendment: it was “vigorously and contemporaneously attacked as unconstitutional.” Ludecke,335 U.S. at 172
n.18. Jefferson and Madison ghostwrote the initial drafts of the Virginia and Kentucky Resolutions, the final versions of which openly challenged the constitutionality of the Sedition Act, among other statutes within the Alien and Sedition Acts. See generally Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from the Virginia and Kentucky Resolutions,11 Const. Comment. 315
(1994) (providing historical background to the Resolutions). But the Supreme Court did not review the Sedition Act before President Jefferson allowed it to expire in 1801. Sullivan,376 U.S. at 276
& 276 n.16 (1964). Ultimately, Congress repaid the fines levied against those prosecuted under the Sedition Act “on the ground that it was unconstitutional,” and President Jefferson “pardoned those who had been convicted and sentenced under the Act and remitted their fines.”Id.
(summarizing this history, related legislation, and later assessments by
Supreme Court justices as “reflect[ing] a broad consensus that the [Sedition] Act, because of the restraint it imposed
upon criticism of government and public officials, was inconsistent with the First Amendment”).
48
Letter from Thomas Jefferson to Benjamin Rush (Jan. 26, 1811), in 3 The Papers of Thomas Jefferson,
Retirement Series, 12 August 1810 to 17 June 1811, at 304 (J. Jefferson Looney ed., 2006)
https://founders.archives.gov/documents/Jefferson/03-03-02-0231.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 41
As Jefferson’s words reveal, candidates were known by their political parties, and vice
versa, in the early Republic. No law restricted the coordination of their speech. Delegates to the
Constitutional Convention may have condemned factions as a talking point, but political parties
were not condemned in practice through any restriction on their activities in support of
candidates under the Constitution. That history and tradition stand in bold contrast to the FEC’s
historically unsupported attempt to justify its restriction of First Amendment liberty here.
B. The Constitutional Text
To bolster its shaky First Amendment historical evidence, the FEC turns to other
provisions of the Constitution besides the First Amendment. The FEC cites a number of
provisions that it contends “address[] corruption and faction”: the Foreign Emoluments Clause;
the Domestic Emoluments Clause; the Ineligibility Clause; the provision regarding size of the
legislature in Article I, Section 2; the provision regarding the president’s veto power in Article I,
Section 7, Clause 2; the Elections Clause of Article I, Section 4; and various constitutional
amendments. Defs.’ Proposed Findings of Fact 9–18, R. 43, PageID 5124–33. But none of these
constitutional provisions cited by the FEC contain any language creating an exception to the First
Amendment supporting the FEC’s regulation of speech in this case.
Besides the constitutional text cited by the FEC, the People’s representatives in the
Constitutional Convention, the state ratifying conventions, and the early Congresses combatted
government corruption at the national level in at least three other ways. First, the Constitution
delineated a structure of government to protect against tyranny—the separation of powers,
checks and balances between branches of the national government, and division of powers
between the national and state governments.49 Second, the nation’s charter listed “Bribery” as a
ground for impeachment of “the President, Vice President, and all civil Officers of the United
States.” See U.S. Const. art. II, § 4 (“The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.” (emphasis added)). Third, through statutes,
Congress criminalized bribery and similar misconduct—what the Supreme Court has since called
49
See Maier, supra note 25, at 463 (“The division of power between the states and the nation, like that
among the branches of the federal government, provided a structural check on potentially oppressive power.”).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 42
prohibitions of “quid pro quo corruption.”50 McCutcheon v. Fed. Election Comm’n, 572 U.S.
185, 197(2014) (plurality opinion); see, e.g., the Crimes Act of 1790 § 29,1 Stat. 112
(criminalizing federal judge bribery); Act of July 31, 1789, ch. 5, § 35,1 Stat. 29
(criminalizing customs officials bribery); Act of Mar. 3, 1791, ch. 15, § 47,1 Stat. 199
(criminalizing tax
official bribery).51 Again, none of these laws at the Founding and in the early Republic
prohibited coordinated political contributions and spending.
Judged by this early legal landscape, the FECA restriction here is far afield from those
methods of regulation recognized by relevant history and tradition to be within the national
government’s power.
C. Regulation of Speech for the Public Good
Finally, the FEC argues that “Founding-era thinkers viewed legislative efforts to promote
the public good as valid, including through laws impacting speech rights.” Defs.’ Proposed
Findings of Fact 18, R. 43, PageID 5133 (capitalization and bolding omitted). This argument
rests on two premises: first, that “political theorists in the Framers’ time viewed speech as
subject to regulation for the public good,” and second, that “Founding-era courts generally did
not overturn important regulations of speech.” Id., PageID 5133–35 (capitalization and bolding
omitted). Again, the FEC offers no evidence in support of those general propositions that bears
upon the specific type of political speech regulation here. As noted, not even the most egregious
50
Congress did not legislate on a blank slate. William Blackstone, “whose works constituted the
preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U.S. 706, 715(1999), described the “the infamous practice of bribery and corruption” within Parliament. 1 William Blackstone, Commentaries *179. English law was primarily concerned with candidates from giving bribes to electors to secure office.Id.
As punishment, both the bribed elector and bribing officer were fined and “forever disabled from voting and holding any office in any corporation.”Id.
51
Some uncertainty existed in that period as to how to punish bribery, though. In United States v. Worrall,
a panel addressed whether a prosecutor could indict a defendant in federal court for bribery when Congress did not
punish that offense. 2 U.S. 384(C.C.D. Pa. 1798). Justice Chase—riding circuit—concluded that the Constitution limited federal courts to punish only crimes defined by Congress, and federal criminal common law did not exist, so the defendant there could not be indicted for attempting to bribe a tax official.Id.
at 394–95. Justice Chase’s panel colleague, Judge Peters, determined that the power to punish an offense is inherent to governing, so the defendant could be indicted for bribery absent a congressional statute punishing that crime.Id. at 395
. That position found support in English common law. See Blackstone, supra note 50, at *179 n.51 (noting that “bribery [was] a crime at common law”). The divided panel in Worrell ultimately split the difference: it mitigated the defendant’s sentence to three months in prison and a $200 fine. Worrall,2 U.S. at 396
. No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 43 regulation of speech in the early Republic, the Sedition Act, abridged speech in the way that the law at issue does here. The FEC thus points to no “[h]istorical regulation” that “reveal[s] a principle” of government authority to regulate in the manner the FEC seeks to justify. Rahimi,2024 WL 3074728
, at 1925 (Barrett, J., concurring).
III.
The FEC attempts to get around its failure of proof by trying to shoehorn the challenged
rule into the category of laws that it claims may be justified as indirect means to combat quid pro
quo corruption. Essentially, the FEC’s reasoning is that (1) the larger a campaign contribution is,
the more likely there is to be a quid pro quo, and (2) it is therefore reasonable to place limits on
coordinated contributions and spending because donors otherwise could increase their
contributions to a candidate by coordinating funds given to a political party with funds donated
directly to a candidate from that party. Second Br. at 31.
But as explained above, the historical record, in fact, shows that the Founding generation
did not view coordinated political contributions and spending as sanctionable in and of
themselves. In fact, individuals who combined sizable resources to support the American
Revolution and the Constitution were met with applause, not opprobrium. And substantial
coordination of activities for political parties and their respective candidates soon took root in the
early American Republic. The FEC offers no evidence of any legislated limits on coordinated
political contributions and spending in this era.
IV.
This case is not the first time that our en banc court has held that we are bound by
Supreme Court constitutional precedent, though many of us disagree with the logic or historical
underpinnings of that precedent and some of us even offer a dissent that argues the precedent can
be distinguished. See, e.g., Turner v. United States, 885 F.3d 949, 953(6th Cir. 2018);id. at 955
(Bush, J., concurring dubitante);id. at 966
(Clay, J., concurring in the judgment only);id.
at 976–77 (White, J., concurring);id.
at 977–78 (Stranch, J. dissenting). So I am not concerned, as
Judge Stranch appears to be, by the majority opinion’s reasoning that outlines relevant issues or
the separate writings of judges who concur or dissent in this case.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 44
None of us is vested with Supreme Court authority. In this case, all that we can do as
lower court judges is essentially make suggestions for that Court to consider. This is a legitimate
function for our court, especially where, has here, the case is a strong candidate for certiorari.
I, therefore, concur with the Court’s opinion, but respectfully submit this opinion to
explain my doubts about the precedent that binds us. The dearth of historical examples
supporting the FEC’s position calls for the Supreme Court to reexamine its First Amendment
jurisprudence that applies here. I respectfully submit that it is time to read some American
history, which suggests that coordinated party expenditure limits violate the First Amendment.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 45
_____________________________________
CONCURRING IN THE JUDGMENT
_____________________________________
JANE B. STRANCH, Circuit Judge, concurring in the judgment. The plaintiffs filed this
lawsuit to ask the Supreme Court to overrule its decision in FEC v. Colorado Republican
Federal Campaign Committee, 533 U.S. 431(2001), a case now known as “Colorado II,” and urge us to rule against them “promptly” to facilitate the higher court’s review. See First Br. 49- 54. That posture should have made this an easy case, one we could unanimously resolve in a handful of pages. It instead produces handfuls of opinions encouraging the Supreme Court to rework campaign finance, First Amendment, and constitutional law in new and audacious ways. The en banc majority tells the Justices that Colorado II is “a ‘legal last-man-standing’” primed for the Court to “knock down.” Maj. Op. at 8 (quoting Kimble v. Marvel Ent., LLC,576 U.S. 446, 458
(2015)). The dissent seizes the prerogative of overturning Supreme Court precedent for itself and would do that work now. The concurrences go further still, urging the Court to import the history and tradition test it devised in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,597 U.S. 1
(2022) to the First Amendment and substantive constitutional law more broadly. I, too,
must therefore write to explain why each is wrong.
I.
Enacted in 1971 and amended in 1974 to become the pantheon of campaign finance law
it is today, the Federal Election Campaign Act, “FECA,” set out to regulate federal elections in
four main ways: disclosure requirements, campaign contribution limits, campaign expenditure
limits, and public campaign financing. Its canonical regulation is the base contribution limit,
which limits the amount an individual may donate directly to a candidate. Set at $3,300 in 2024,
the base limit has checked actual and apparent “quid pro quo” corruption in U.S. federal
elections for the last fifty years. Buckley v. Valeo, 424 U.S. 1, 26-29 (1976) (per curiam).
The base limit is no mere figurehead. It is fortified by a series of regulations that prevent
circumvention by donors masking de facto contributions under more creative labels. These
companion regulations ensure that the Act limits not only contributions in name, but also those
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 46
employing other aliases. They prohibit individual donors and outside political committees from
evading the base limit by routing contributions through a corporation or labor union, 52 U.S.C.
§ 30118; by supplying goods or services for pennies on the dollar,11 C.F.R. § 100.52
; or by simply paying the candidate’s bills or purchasing advertisements at the candidate’s direction,id.
§ 109.21. For what has now been decades, the Supreme Court has upheld FECA’s contribution limits in both name and substance. See, e.g., Buckley,424 U.S. at 29
; Colorado II,533 U.S. at 465
; FEC v. Beaumont,539 U.S. 146, 155
(2003).
Among these anti-circumvention measures is the so-called “party coordinated
expenditure limit,” a regulation that moderates the extent to which a political party may
coordinate its spending with a candidate. 52 U.S.C. § 30116(d). When individual donors and outside committees spend in coordination with candidates, they are subject to the usual base contribution limits, but party committees are authorized to engage in additional coordinated spending beyond the base limits, even though that spending may be tantamount to a contribution.Id.
FECA extends this unique privilege to political parties subject to a state-by-state cap: in
Ohio, from which this case hails, a national party committee may coordinate expenditures with a
candidate up to $61,800 in the House and $1,138,000 in the Senate, orders of magnitude above
the $5,000 the same committee could contribute to the candidate directly.1
The plaintiffs—the National Republican Senatorial Committee (NRSC), the National
Republican Congressional Committee (NRCC), Ohio Senator James D. Vance, and former Ohio
Representative Steve Chabot—claim that the party privilege to engage in coordinated
expenditures must go even further, arguing that any limit on such spending violates the First
Amendment. And they are not the first to challenge FECA’s party spending limits. As
originally drafted, the party expenditure limits applied not only to party coordinated spending but
to all party spending, including independent expenditures. The Supreme Court considered an as-
applied challenge to the original provision in Colorado Republican Federal Campaign
Committee v. FEC, 518 U.S. 604 (1996), now called “Colorado I,” and a facial challenge to the
provision in Colorado II. Colorado I held the provision unconstitutional as applied to purely
1
See Contribution limits for 2023-2024 federal elections, FEC, https://perma.cc/UM3X-XKTQ;
Coordinated party expenditure limits, FEC, https://perma.cc/BA9L-UE4V.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 47
independent expenditures. Colorado I, 518 U.S. at 618 (opinion of Breyer, J.). Colorado II held
the limits were facially valid regulations of “coordinated expenditures.” Colorado II, 533 U.S. at
465. The “constitutionally significant fact” distinguishing the decisions was the Court’s distinction between “coordinated expenditures” and “expenditures truly independent.”Id.
at
464-65 (quoting Colorado I, 518 U.S. at 617 (opinion of Breyer, J.)).
The plaintiffs take up again the constitutional challenge to the party coordination limits in
this suit. They moved to certify the constitutional question under a FECA provision that directs
district courts confronting challenges to the Act’s constitutionality to certify such questions to
the en banc court of appeals. See 52 U.S.C. § 30110. The district court concluded that Senator
Vance and NRSC have standing and that the constitutional question was non-frivolous. It also
entered findings of adjudicative fact on the plaintiffs’ coordinated spending and other campaign
finance activities. It then certified the question to the en banc court.
II.
All recognize that “our work” here is, at most, “a warm-up for eventual Supreme Court
review.” Dissenting Op. at 78. The plaintiffs spend the warm-up trying out their Supreme Court
strategy, testing their stare decisis arguments for why Colorado II can be overruled and their
merits arguments for why it should be. The en banc majority rightly concludes that we lack
authority to reach the merits of the plaintiffs’ claims, but along the way it wrongly and
unnecessarily validates the plaintiffs’ stare decisis theories. Maj. Op. at 6-10. The dissent
recruits those inapt theories to reach the conclusion that our court may overrule Supreme Court
precedent. I begin by addressing these errors.
A.
The Supreme Court “asked and answered” the constitutional question raised here in
Colorado II, holding that the party coordinated expenditure limits are facially valid corollaries to
the base contribution limit. Id. at 6. Intending to ask the Supreme Court to revisit that decision,
the plaintiffs revive the question here in its identical form. Still, for purposes of this stop on the
road to the certiorari pool, the plaintiffs argue that Colorado II does not control their facial
challenge by contending that the decision is inconsistent with the Court’s more recent campaign
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 48
finance doctrine. They also add a challenge, styled “as-applied,” to the party coordinated
communication limits, asserting that because Colorado II addressed no such challenge, we are
free to do so here.
As a lower federal court operating under “one supreme Court,” our court has a
“constitutional obligation to follow” Supreme Court precedent “unless and until it is overruled
by” the Supreme Court. Ramos v. Louisiana, 590 U.S. 83, 124 n.5 (2020) (Kavanaugh, J., concurring) (quoting U.S. Const., art. III, § 1). When Supreme Court precedent “has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to” the Supreme Court “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,490 U.S. 477, 484
(1989). It is “for the Supreme Court to tell the courts of appeals when the Court has overruled one of its decisions, not for the courts of appeals to tell the Court when it has done so implicitly.” Taylor v. Buchanan,4 F.4th 406
, 409 (6th Cir. 2021). All this holds true even when a plaintiff offers a theory “technically distinguishable” from the theory considered in the applicable Supreme Court decision but that would, if accepted, “functionally overrule the decision.” Thompson v. Marietta Educ. Ass’n,972 F.3d 809
, 814 (6th Cir. 2020).
The plaintiffs’ facial claim is not even “technically distinguishable” from Colorado II—it
is the claim presented in Colorado II. Id.They challenge the same regulation (the party coordinated expenditure limits) on the same grounds (that the limits violate the First Amendment) under the same theory (the one articulated in Justice Thomas’s dissent and rejected by the majority) seeking the same relief (a declaration that the limits are unconstitutional and an injunction barring the FEC from enforcing them). Colorado II “directly controls” that challenge and deprives this court of the authority to overrule it. Rodriguez de Quijas,490 U.S. at 484
. The purportedly “as-applied” challenge, meanwhile, is directed at the limits’ application to party coordinated communications. See11 C.F.R. § 109.37
. The plaintiffs concede, however, that “virtually all” party independent expenditures are party coordinated communications. See First Br. 27. For that reason, the as-applied challenge could succeed only if we rejected the “principle of law” on which Colorado II rests, In re Cao,619 F.3d 410, 430
(5th Cir. 2010) (quoting Penry v. Lynaugh,492 U.S. 302, 354
(1989) (Scalia, J., dissenting)), and granting the challenge would No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 49 “functionally overrule” Colorado II, Thompson, 972 F.3d at 814. We are “preclude[d]” from taking that leap. In re Cao,619 F.3d at 430
(quoting Penry,492 U.S. at 354
(Scalia, J.,
dissenting)).
For these simple reasons, the plaintiffs’ facial and as-applied challenges are equally
controlled by Colorado II and the majority rightly answers the certified question “in the
negative.” Maj. Op. at 12.
B.
The en banc majority could have left things there and would likely have reached near
consensus on our court. It instead reaches out to “accept the premise” of the plaintiffs’ claim that
post-Colorado II developments have fatally undermined the decision, even as it ultimately
rejects “the conclusion” that those changes empower us to overrule Colorado II ourselves. Id. at
7. The dissent likewise parrots the plaintiffs’ premise as an excuse to reach the merits. I cannot
accept either the premise or the conclusion.
1.
The plaintiffs start with changed doctrine. They argue that the Supreme Court has
tightened the parameters of the “closely drawn” test since Colorado II to the point of nullifying
the framework that decision applied. As Buckley explained it, the test asks whether a regulation
serves an “important interest” using “means closely drawn to avoid unnecessary abridgment of”
First Amendment freedoms. See Buckley, 424 U.S. at 25. The plaintiffs assert that post- Colorado II cases have filled out the test’s details, clarifying that the “only” government interest that can justify campaign finance regulation is preventing quid pro quo corruption or its appearance and suggesting that such regulations must be “narrowly tailored” to their objectives, a “rigorous” level of review. McCutcheon v. FEC,572 U.S. 185, 199, 206-07, 218
(2014) (plurality opinion) (first quoting Bd. of Trs. of State Univ. of N.Y. v. Fox,492 U.S. 469, 480
(1989); and then quoting Buckley,424 U.S. at 29
). They contend that Colorado II is inconsistent
with this framework because it accepted a theory of corruption broader than quid pro quo
corruption and applied a level of scrutiny more forgiving than narrow tailoring. The majority
endorses this argument; the dissent hangs its hat on it.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 50
As for corruption, Colorado II made clear that the core “danger” addressed by the party
coordination limits was “quid pro quo” corruption. Colorado II, 533 U.S. at 464(italics omitted) (quoting Buckley,424 U.S. at 47
). That understanding follows directly from the recognition that limiting coordinated spending serves an “identical” function to limiting direct contributions, see id. at 460, themselves long understood as targeting “quid pro quo” corruption, Buckley,424 U.S. at 26
. Colorado II did, to be sure, reference in a single parenthetical the premise generally accepted at the time that regulable corruption included “not only . . . quid pro quo agreements, but also . . . undue influence.” Colorado II,533 U.S. at 441
(italics omitted). But the Court’s brief observation that undue influence might be regulable generally did not drive its conclusion that coordinated expenditures could be limited specifically. Its actual discussion of party coordinated spending focused explicitly on quid pro quo corruption. Seeid. at 441, 464-65
. This
analysis is consistent with current doctrine.2
As for tailoring, Colorado II engaged in just the kind of analysis assessing a contribution
limit calls for. It applied the traditional Buckley test, as more recent cases have, asking whether
the party coordination limits were “‘closely drawn’ to match what we have recognized as the
‘sufficiently important’ government interest in combating political corruption.” Id.at 456 (quoting Nixon v. Shrink Missouri Gov’t PAC,528 U.S. 377, 387-88
(2000)); see McCutcheon,572 U.S. at 199
(applying the same test). Cases have defined the demands of that test with different language: Buckley described it as weeding out “unnecessary abridgment of associational freedoms,”424 U.S. at 25
; Colorado II referred to it as requiring skillful tailoring, see533 U.S. at 463
n.26; McCutcheon characterized it as looking for “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective,”572 U.S. at 218
(ellipses omitted) (quoting Fox,492 U.S. at 480
). Whatever the adjectives employed, the test has always been understood as a “rigorous standard of review.” Buckley,424 U.S. at 29
. And Colorado II
2
The majority claims that Justice Breyer’s dissenting opinion in McCutcheon made clear that “Colorado II
relied on the ‘undue influence’ rationale.” Maj. Op. at 7 (quoting McCutcheon, 572 U.S. at 239-40(Breyer, J., dissenting)). What Justice Breyer in fact explained, however, was that the Court’s conception of the term corruption had until Citizens United “includ[ed] ‘undue influence.’” McCutcheon,572 U.S. at 239-40
(Breyer, J., dissenting). His dissent never asserted that Colorado II turned on the broader understanding. No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 51 undertook that review faithfully, considering each of the posited alternatives to the coordination limits and explaining why they were inadequate substitutes. See Colorado II,533 U.S. at 461
- 65; accord McCutcheon,572 U.S. at 221-23
(applying the same framework).
The majority also invokes a third purported change in doctrine not advanced in the
plaintiffs’ briefing, claiming that the Supreme Court’s more recent campaign finance cases
“demand,” for the first time, “‘actual evidence’ that a spending restriction will” achieve its
objectives. Maj. Op. at 7 (quoting FEC v. Cruz, 596 U.S. 289, 310 (2022)). Again, however, the substance of this argument is nothing new—the Court has long looked to “record evidence,” “legislative findings,” and experience as justification for campaign finance regulations. See Colorado I, 518 U.S. at 618, 621 (opinion of Breyer, J.). Colorado II continued this tradition, identifying “substantial evidence” that placed “beyond serious doubt” that “contribution limits would be eroded” absent limits on party coordinated spending. Colorado II,533 U.S. at 457
.
All told, I do not perceive “tension” between Colorado II’s reasoning and the reasoning
of more recent Supreme Court decisions. Maj. Op. at 7-8. Like its progeny, Colorado II
evaluated the party coordinated spending limits against a quid pro quo corruption rubric,
identified evidence that the limits in fact serve their anti-corruption goal, and conducted a
rigorous tailoring analysis checking the law’s fit with its objectives.
2.
The plaintiffs turn from perceived changes in doctrine to a perceptible change in FECA’s
text. They contend that the Consolidated Appropriations Act of 2014, popularly known as the
“Cromnibus” amendments, created a “distinct legal backdrop” that now renders the coordination
limits “fatally underinclusive.” First Br. 43. The majority cosigns this argument, “appreciat[ing]
how these new exceptions might affect the analysis” were we writing on a blank slate, and
positing that the “increase in the Act’s exemptions might show that the limit on coordinated
party expenditures does too little for First Amendment purposes—that it addresses its policy
target in underinclusive ways.” Maj. Op. at 9. The dissent claims we “owe it to the parties
before us to address the constitutional significance of these statutory changes head on.”
Dissenting Op. at 89.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 52
The First Amendment, to be clear, “imposes no freestanding ‘underinclusiveness
limitation’”—we would not say “that a law violates the First Amendment by abridging too little
speech.” See Williams-Yulee v. Fla. Bar, 575 U.S. 433, 448-49 (2015) (quoting R.A.V. v. St. Paul,505 U.S. 377, 387
(1992)). There is thus “no constitutional basis for attacking contribution limits on the ground that they are too high.” Davis v. FEC,554 U.S. 724, 737
(2008). The significance of underinclusiveness is instead that it “can raise ‘doubts about whether the government is in fact pursuing the interest it invokes’” or “reveal that a law does not actually advance a compelling interest.” Williams-Yulee, 575 U.S. at 448-49 (quoting Brown v. Ent. Merchs. Ass’n,564 U.S. 786, 802
(2011)).
The Cromnibus amendments increased individual contribution limits for funding of three
special-purpose categories of party spending—presidential nominating conventions; party
headquarters; and election recounts and legal proceedings—and exempted spending through
those accounts from the party coordinated expenditure limits. See 52 U.S.C. § 30116(a)(9). These special-purpose categories create a new allowance for spending largely targeted at general party-building activities while leaving in place limits on funds designed “to benefit federal candidates directly.” See McConnell v. FEC,540 U.S. 93, 167
(2003) (opinion of Stevens & O’Connor, JJ.), overruled in part on other grounds by Citizens United v. FEC,558 U.S. 310
(2010). The result relaxes limits on contributions that carry a lighter risk of quid pro quo corruption while maintaining existing limits on “contributions that pose the greatest risk.”Id.
Far from raising doubts about the purpose the party coordinated spending limits serve, the
Cromnibus amendments instead tighten the limits’ fit with their anti-corruption goals. That only
bolsters Colorado II’s conclusion.
3.
The plaintiffs round out their facial challenge by positing factual developments. They
say three factual changes undermine Colorado II’s premise that political parties are dominant
players in federal elections and the corresponding corruption risks that attended that assumption.
One, Super PAC spending injected billions of dollars in undisclosed campaign outlays to the
2020 presidential election from a source that did not exist until 2010, “stripp[ing] parties of any
former ‘dominance’ in the electoral sphere.” First Br. 47 (brackets omitted) (quoting Colorado
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 53
II, 533 U.S. at 450); see R. 49-1, PageID 5535. Two, soft money produced nearly $500 million in campaign funding in 2000 and is now off the table.3 Three, the internet today provides “significant information about political candidates and issues.” Citizens United,558 U.S. at 364
.
The majority accepts the plaintiffs’ characterization of these changes, agreeing, without citing
the record, that the notion of political party import in federal elections “has a quaint ring to it.”
Maj. Op. at 9. The dissent does too, finding “authority” for the proposition in a footnote to a
district court opinion penned in 2010. Dissenting Op. at 89.
The record says otherwise. The data show that the major political parties raised over $2.5
billion during the 2020 presidential election cycle, more than double their haul in the 2000
campaign. R. 49-1, PageID 5531-34. This lawsuit itself reveals how valuable party spending
remains to federal candidates—precisely because, the plaintiffs tell us, parties may coordinate
spending with candidates. See R. 49-1, PageID 5515. At the same time, none of the factual
changes on which the plaintiffs and majority fixate displace Colorado II’s fundamental concern
with coordinated spending, “the constitutionally significant fact” in its analysis and a tool that
remains alive and well for party actors. Colorado II, 533 U.S. at 464(quoting Colorado I, 518 U.S. at 617 (opinion of Breyer, J.)). Super PAC spending has of course skyrocketed, but it is, by definition, “not coordinated with a candidate,” reducing its value to candidates and mitigating the “danger” that it “will be given as a quid pro quo.” Citizens United,558 U.S. at 357, 360
(emphasis omitted) (quoting Buckley,424 U.S. at 47
). The same was true of soft money. See McConnell,540 U.S. at 123
. And no one explains how technological advances reduce the danger that parties will be used as conduits for quid pro quo exchanges. What the record ultimately shows is parties continuing to spend vast amounts in federal elections while maintaining a unique privilege to coordinate spending with candidates, funding that is “as useful to the candidate as cash” and particularly susceptible to being “given ‘as a quid pro quo for improper commitments from the candidate.’” Colorado II,533 U.S. at 446
(italics omitted) (quoting Buckley,424 U.S. at 47
). The corruptive risk of that spending remains as real and acute
today as it was in Colorado II.
3
Nathaniel Persily, Robert F. Bauer & Benjamin L. Ginsberg, Campaign Finance in the United States:
Assessing an Era of Fundamental Change at 15 tbl. 1 (2018), https://bipartisanpolicy.org/download/?file=/wp-
content/uploads/2019/03/BPC-Democracy-Campaign-Finance-in-the-United-States.pdf.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 54
4.
The plaintiffs end with a fallback position, contending that even if Colorado II forecloses
their facial challenge, it leaves their as-applied challenge open to plenary review. The majority
here sees through this argument, but the dissent sees what the fifteen remaining members of the
en banc court have purportedly missed: that it is “abundantly clear” the as-applied challenge “is
fairly before us for resolution.” Dissenting Op. at 91-92.
Colorado II left open the possibility that certain coordinated expenditures might be
susceptible to an as-applied challenge. The majority there acknowledged that “specific”
coordinated expenditures might not be tantamount to contributions. See Colorado II, 533 U.S. at
456n.17. Justice Thomas’s dissent fleshed the idea out, explaining that the coordination limits cover “a broad array of conduct” that runs the spectrum from de facto contributions on one end to outlays that “largely resemble” ordinary independent expenditures on the other.Id. at 467
(Thomas, J., dissenting). The dissent hypothesized that a party paying “a candidate’s media bills” would be “virtually indistinguishable” from a party contributing to that candidate directly, but that a party-developed “advertising campaign” aired after simply consulting the candidate “on which time slot the advertisement should run” would be constitutionally indistinguishable from a purely independent expenditure.Id. at 467-68
(Thomas, J., dissenting) (quoting Colorado I, 518 U.S. at 624 (opinion of Breyer, J.)). An as-applied challenge under Colorado II, then, must carve out a distinction based on “the degree of coordination with the candidate.” See In re Cao,619 F.3d at 430
.
The plaintiffs ask us to invalidate the party coordinated expenditure limits as they apply
to party coordinated communications. The phrase “party coordinated communication” is a term
of art covering “public political advertising” that “is coordinated with a candidate” and “paid for
by a political party committee.” 11 C.F.R. §§ 109.37(a), 100.26. Like the facial challenge in Colorado II, party coordinated communications span “a broad array of conduct.” See Colorado II,533 U.S. at 467
(Thomas, J., dissenting). On the one hand, such communications cover expenditures with which a candidate is heavily involved, such as political advertisements prepared by the candidate and disseminated at the candidate’s request on the party’s dime. See11 C.F.R. §§ 109.37
(a), 109.21(d)(1), 100.26. On the other, such communications also cover No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 55 expenditures where a candidate may be less involved, like party-developed advertisements run with material input from the candidate on the “timing or frequency of the communication.”11 C.F.R. § 109.21
(d)(2)(v); seeid.
§§ 109.37(a), 100.26. In total, party coordinated
communications amount to “between 96.5% and 100%” of the plaintiffs’ independent
expenditures. R. 49-1, PageID 5513-14. The plaintiffs seek to invalidate the limits as they apply
to all party coordinated communications, drawing no distinction based on degree of coordination.
The en banc Fifth Circuit addressed a similar challenge in In re Cao. The Republican
National Committee in that case challenged the party coordinated spending limits as applied to
its “own speech.” In re Cao, 619 F.3d at 425. It argued that its “own speech,” defined as speech “attributable” to the Committee, could not be regulated regardless of whether and to what extent it was coordinated with a candidate.Id.
Under that position, a communication created by a candidate and passed along to a party for dissemination could not be limited as a party coordinated expenditure so long as the party adopted the message.Id. at 429
. The Fifth Circuit explained that this “exceedingly broad argument,” agnostic to “the degree of coordination,” would “effectually overrule all restrictions on coordinated expenditures” and “eviscerate” the holding of Colorado II.Id. at 428-30
. Recognizing that a plaintiff may not “successfully bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the Supreme Court expressly considered when rejecting a facial challenge to that provision,” that en banc court turned away the plaintiffs’ suit.Id.
at 430 (quoting RNC v. FEC,698 F. Supp. 2d 150, 157
(D.D.C. 2010), summ. aff’d,561 U.S. 1040
(2010)).4
The plaintiffs’ challenge here is a variation of the suit the Fifth Circuit addressed in In re
Cao. The plaintiffs seek to invalidate the party coordinated communication limits writ large,
foregoing any distinctions based on “degree of coordination.” Id. at 429. They readily admit
4
The majority recasts the challenge in In re Cao as narrowly addressing FECA’s “application to shared
input about the timing of a single advertising expenditure.” Maj. Op. at 12. The en banc Fifth Circuit went out of its
way to prevent that mischaracterization, using italics to emphasize that the plaintiffs’ “only” argument was the
“exceedingly broad” one that Congress may not regulate any speech attributable to the Committee “regardless of the
extent of coordination with the candidate.” In re Cao, 619 F.3d at 425, 428. It even explained that in “response to friendly questions from the en banc bench,” the plaintiffs’ counsel “refused to adopt the position that the level of coordination should affect whether an expenditure may be regulated.”Id. at 425
. The argument transcript reflects the insistence of counsel for the Committee that “the degree of coordination does not affect whose speech it is at all. . . . There is no degree of being pregnant. You’re either or not.”Id. at 425-26
. All this makes clear that In re Cao concerned far more than “input about the timing of a single advertising expenditure.” Maj. Op. at 12. No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 56 that “virtually all” party independent expenditures fall into this category. See First Br. 27. The challenge sweeps in candidate-developed advertisements when the parties pick up the tab, even if it also covers ads for which the candidate just consults on timing, taking on conduct all nine justices in Colorado II considered “indistinguishable” from contributions. See Colorado II,533 U.S. at 444
, 456 n.17;id. at 467
(Thomas, J., dissenting). As even the dissent acknowledges, granting the plaintiffs’ relief would permit a candidate to “create and produce an advertisement before handing it off to a party committee for publication and payment.” Dissenting Op. at 91. The as-applied challenge could thus succeed only if we rejected the “principle of law” set forth in Colorado II, In re Cao,619 F.3d at 430
(quoting Penry,492 U.S. at 354
(Scalia, J., dissenting)), and accepting it would “functionally overrule” the Colorado II decision. Thompson, 972 F.3d at 814. That “broad position . . . must fail.” In re Cao,619 F.3d at 430
.
* * *
Colorado II answers the certified question here, and that is all we needed to say. The en
banc majority nonetheless reaches out to endorse the plaintiffs’ view that doctrinal, statutory, and
factual changes undermine Colorado II, paving the way for the stare decisis analysis it
apparently believes the Supreme Court will soon conduct. The dissent does not just endorse the
plaintiffs’ view, it ratifies it, seizing the Supreme Court’s authority for itself. I would not have
opined on these issues, but because my colleagues do, I must respectfully disagree.
III.
The dissent, and several of my concurring colleagues, conduct a plenary review of the
plaintiffs’ facial challenge on the merits, assessing whether the party coordinated spending limits
are constitutional on their face. So, I must do the same.
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under which
the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745(1987). That means the plaintiffs cannot succeed merely by showing that the modest forms of communication the statute limits are unconstitutional (e.g., consulting a candidate on media buy timing), they must also “shoulder the[] heavy burden” of showing that spending involving near-total coordination (e.g., No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 57 paying a candidate’s media bills) violates the First Amendment as well. Seeid.
As do the parties, I assess whether the plaintiffs have met that burden applying closely drawn scrutiny to ask whether the limits serve a “sufficiently important interest” using “means closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley,424 U.S. at 25
; see Colorado II,533 U.S. at 456
; McCutcheon,572 U.S. at 218
.5
A.
The Supreme Court “has recognized only one permissible ground for restricting political
speech: the prevention of ‘quid pro quo’ corruption or its appearance.” Cruz, 596 U.S. at 305
(emphasis omitted) (quoting McCutcheon, 572 U.S. at 207). Quid pro quo corruption is the “direct exchange of an official act for money,” at its worst, “dollars for political favors.” McCutcheon,572 U.S. at 192
(quoting FEC v. Nat’l Conservative Pol. Action Comm.,470 U.S. 480, 497
(1985)); see Shrink Missouri,528 U.S. at 389
. The government’s interest in preventing quid pro quo corruption is “compelling,” McCutcheon,572 U.S. at 199
(quoting Nat’l Conservative Pol. Action Comm.,470 U.S. at 496
), and stemming the appearance of such corruption is of “almost equal concern,” Shrink Missouri,528 U.S. at 388
(quoting Buckley,424 U.S. at 27
).6
5
A different standard, facial overbreadth, applies in some cases “when a facial suit is based on the First
Amendment.” Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024). That standard asks whether “a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”Id.
(brackets omitted) (quoting Ams. for Prosperity Found. v. Bonta,594 U.S. 595
, 615 (2021)). “The overbreadth claimant,” however, “bears the burden of demonstrating, ‘from the text of the law and from actual fact,’ that substantial overbreadth exists.” Virginia v. Hicks,539 U.S. 113, 122
(2003) (brackets omitted) (quoting N.Y. State Club Ass’n., Inc. v. City of New York,487 U.S. 1, 14
(1988)). But the plaintiffs have not even attempted to “lay the groundwork for [a] facial overbreadth claim” here. Colorado II,533 U.S. at 456
n.17. We must therefore conduct
an ordinary facial analysis.
6
Grafting a statutory definition of bribery from criminal law cases onto the definition of quid pro quo
corruption in campaign finance cases, the dissent invents a new meaning of that term: “campaign finance
regulations must narrowly target the exchange of money for an official’s formal exercise of the powers of her
office.” Dissenting Op. at 86. That circumscribed definition ignores McCutcheon’s characterization of the
“hallmark of corruption” as “the financial quid pro quo: dollars for political favors.” McCutcheon, 572 U.S. at 192(second emphasis added) (quoting Nat’l Conservative Pol. Action Comm.,470 U.S. at 497
). It ignores too Buckley’s explanation that federal bribery laws “deal with only the most blatant and specific” forms of quid pro quo corruption. Buckley,424 U.S. at 639
. And finally, that definition ignores that the cases it relies on involved interpretation of defined terms in specific federal statutes, interpretation that was informed by concern with “overzealous prosecutions,” statutory vagueness, and “federalism.” McDonnell v. United States,579 U.S. 550
, 576
(2016). None of those concerns are relevant here. Indeed, an expansive definition of quid pro quo corruption is
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 58
When the Government defends a campaign finance regulation, it “bears the burden of
proving” that the regulation in fact addresses quid pro quos. McCutcheon, 572 U.S. at 210(quoting United States v. Playboy Ent. Grp., Inc.,529 U.S. 803, 816
(2000)). That proof can come from record evidence, legislative findings, or experience under the law. See Cruz, 596 U.S. at 307; McCutcheon,572 U.S. at 219
. It is considered with an eye to context, minding the “difficulty of mustering evidence to support long-enforced statutes,” Colorado II,533 U.S. at 457
, and recognizing “that no data can be marshaled to capture perfectly the counterfactual world in which” the regulation does “not exist,” McCutcheon,572 U.S. at 219
. For these reasons, the “quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” McConnell,540 U.S. at 144
(quoting Shrink Missouri,528 U.S. at 391
).
Under this framework, the Supreme Court has repeatedly “held that Congress may
regulate campaign contributions to protect against corruption or the appearance of corruption.”
McCutcheon, 572 U.S. at 191. It has also confirmed that “circumvention is a valid theory of corruption.” McConnell,540 U.S. at 144
(quoting Colorado II,533 U.S. at 456
); see McCutcheon,572 U.S. at 218
; Beaumont,539 U.S. at 155
. The question here, then, is whether limits on party coordinated spending in fact “prevent circumvention of the base limits.” McCutcheon,572 U.S. at 210
.
The theory for coordination as circumvention is straightforward: coordinated spending,
at least, as relevant to this facial challenge, in its strongest forms, is “virtually indistinguishable
from simple contributions.” Colorado I, 518 U.S. at 624 (opinion of Breyer, J.); see Colorado II,
533 U.S. at 444-45;id. at 467
(Thomas, J., dissenting). The reason is self-evident. A supporter who underwrites a candidate’s media bills is as valuable to the candidate as the supporter who contributes to the candidate directly. Colorado I, 518 U.S. at 624 (opinion of Breyer, J.); see Colorado II,533 U.S. at 444-45
;id. at 467
(Thomas, J., dissenting). The base limit would have little meaning if candidates could simply forward their media bills on to maxed-out donors. Coordination limits prevent that possibility. With such a straightforward theory of corruption called for in this context, especially to address the risk of “the appearance of corruption,” which is of “almost equal concern as the danger of actual quid pro quo arrangements.” Buckley,424 U.S. at 27
. No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 59 under a law so long on the books, the empirical support needed to validate it is modest. See McConnell,540 U.S. at 144
.
Experience confirms that, absent regulation, political actors will in fact pursue
circumvention via party conduits. Colorado II identified a circumvention strategy popular with
the Democratic Party known as “tallying.” The scheme enabled donors to “give to the party with
the tacit understanding that the favored candidate [would] benefit.” Colorado II, 533 U.S. at
458-59. Candidates encouraged donors who had maximized their contributions to the candidate’s campaign to continue giving to the party on the understanding that the party would allocate the contributions to spending on the candidate. Seeid. at 459
. Candidates understood that the support they received from the party would be a function of the amount they raised for it; contributors understood that the amount they contributed to the party would be credited to their preferred candidate.Id.
The party maintained this system by tallying contributions “to connect donors to candidates.”Id.
The scheme is direct evidence that coordination limits target circumvention of the base contribution limits and that opening “the floodgates” on coordinated spending would close the door on meaningful base limits.Id.
at 459 n.22.
A decade after Colorado II, the en banc Fifth Circuit concluded in In re Cao that the risks
identified in Colorado II persisted. The plaintiffs in that case, including the RNC, admitted they
had “taken steps to circumvent the Act’s individual donor contribution limits.” In re Cao, 619
F.3d at 429. “The district court found that ‘the RNC encourages its candidates to tell their “maxed out” donors to contribute to the RNC.’”Id.
(brackets omitted) (quoting Cao v. FEC,688 F. Supp. 2d 498, 526
(E.D. La. 2010)). The candidate in that case, Representative Cao, confirmed the practice, testifying in his deposition that he had “personally suggested to donors who had given the maximum amount to his campaign that they could also contribute to the party.”Id.
(quoting Cao,688 F. Supp. 2d at 526
). The RNC later exchanged donor lists with its candidates so the party could see who had contributed to a campaign and vice versa.Id.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 60
These practices confirm that the circumvention risk identified in Colorado II still lurks beneath
the coordination limits’ surface.7
The FEC also goes a step beyond showing that the coordination limits are in fact anti-
circumvention measures by identifying a storied tradition of quid pro quo corruption capitalizing
on party conduits. It starts with examples as infamous as Teapot Dome, recounting how two oil
industry executives relieved the Republican Party of a $1.5 million debt in apparent exchange for
executive action granting them a favorable lease on Teapot Dome’s oil reserves. The scandal
helped motivate Congress’s early campaign finance laws. Those laws, however, did not remove
political parties from the funneling business. The dairy industry in the 1970’s channeled
millions of dollars to President Nixon through the Republican Party and its various committees,
milking a $100 million subsidy from President Nixon in exchange. See Buckley v. Valeo, 519
F.2d 821, 839 & n.36 (D.C. Cir. 1975). President Nixon’s misconduct, in turn, motivated the 1974 FECA amendments that form the heartland of the law today. See Wagner v. FEC,793 F.3d 1, 12-13
(D.C. Cir. 2015). But parties have nonetheless continued serving as conduits for quid pro quo exchanges. Representative Bob Ney, as just one example, pleaded guilty in 2006 “to a series of quid pro quos with the lobbyist Jack Abramoff” that included contributions to the NRCC that Ney solicited as quids in return for legislative quos. Seeid. at 15
.
States tell the same story. Wisconsin Senate Majority Leader Charles Chvala pleaded
guilty to felony corruption charges in response to a criminal complaint alleging that he
distributed political favors in exchange for contributions to the state’s Democratic committees.
See generally R. 38-38. Ohio business executive Steven Pumper pleaded guilty to contributing
funds to the Cuyahoga County Democratic Party that he knew would be earmarked for a school
board member’s campaign in exchange for the board member using his position to help award
construction contracts to Pumper’s company. See Construction Executive Steven Pumper
Sentenced To Eight Years In Prison For Paying Bribes To Public Officials, U.S. Att’ys Off. N.D.
7
This dynamic operates in other contexts as well. McConnell explained how in the lead up to BCRA,
parties worked with donors and candidates to use the soft money loophole to circumvent the base contribution
limits. See McConnell, 540 U.S. at 146. A similar dynamic exists under the so-called “internet exemption.” Campaign Legal Ctr. v. FEC, No. 22-5336, --- F.4th ---,2024 WL 3335909
, at *1 (D.C. Cir. July 9, 2024). This is
all the more evidence that donors capitalize on circumvention opportunities wherever they are presented.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 61
Ohio (Dec. 4, 2013), https://perma.cc/M87Z-P9P7. Another Ohio business executive, Karen L.
Finley, pleaded guilty to charges of conspiracy to commit bribery for her role in funneling
campaign funds to Columbus elected officials through contributions to the Franklin County
Democratic Party and the Ohio Democratic Party in exchange for local government contracts.
See Information, United States v. Finley, No. 2:15-CR-148, ECF No. 3, PageID 6-11 (S.D. Ohio
2015).
All this evidence demonstrates that contributions to parties are in fact used to circumvent
the base contribution limits and that parties are indeed vulnerable conduits for quid pro quos.
Coordinated expenditures offer “special value” to a candidate, leaving it “beyond serious doubt”
that “contribution limits would be eroded” and the “inducement to circumvent” the base
limit “enhanced” were party coordinated spending declared “wide open.” Colorado II, 533 U.S.
at 457, 464-65.8
The plaintiffs resist this conclusion in three ways. They argue first that Congress enacted
the coordinated spending limits not to combat quid pro quo corruption but for the forbidden goal
of reducing “what it saw as wasteful and excessive campaign spending.” Colorado I, 518 U.S. at
618 (opinion of Breyer, J.). They draw that conclusion from Colorado I and Buckley, which
speculated that “limitations on overall campaign expenditures” may have been calculated to
serve that end. Buckley, 424 U.S. at 54(emphasis added); see Colorado I, 518 U.S. at 618 (opinion of Breyer, J.). But those cases nowhere suggested that coordinated expenditure limits served such a function. To the contrary, FECA defined coordinated expenditures as a form of contribution under its “functional” conception of that term, and there can be no doubt that FECA’s contribution limits were imposed to combat quid pro quo corruption and its appearance. Colorado II,533 U.S. at 438, 440-41
; see Buckley,424 U.S. at 26
. Colorado II therefore
8
To put the scale of the new enticement in concrete terms, unleashing coordinated spending would
immediately multiply donor contribution power by 13.5 times in House races and 38.5 times in Senate races. That is
because absent coordinated spending limits, an individual donor could contribute to her preferred candidate not only
the $3,300 base contribution amount per election, but, acting through the party, the additional $41,300 annual party
contribution amount. Over the course of a two-year House election cycle, that enables the donor to increase the
$6,600 she could have contributed to the candidate directly (assuming maximum contributions to both the primary
and general elections) to $89,200 (assuming maximum annual contributions). Over a six-year Senate cycle,
contributing through a party enables a donor to increase the $6,600 she could have contributed to the candidate
directly to $254,400 (making the same assumptions).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 62
concluded that the party coordinated spending limits were in fact valid anti-corruption measures,
and the plaintiffs have provided no independent evidence undermining that conclusion.
Colorado II, 533 U.S. at 456-57 & n.19.
The plaintiffs, joined now by my concurring and dissenting colleagues, next contend that
the FEC’s evidence of quid pro quo corruption, a sampling of which is discussed above, does not
show that the limits in fact target corruption. They claim the FEC can satisfy its evidentiary
burden only by identifying specific instances of a donor funding party coordinated spending in
exchange for an official act, and that it has failed to do so. But the Supreme Court sees things
differently: the Commission need only show that the coordination rules “prevent circumvention
of the base limits.” McCutcheon, 572 U.S. at 210. And despite the “difficulty of mustering evidence to support long-enforced statutes,” Colorado II,533 U.S. at 457
, the FEC has adduced
that evidence here and more, showing not only that the limits serve their anti-circumvention goal,
but also that party spending remains a conduit for quid pro quo corruption, with coordinated
spending the most “efficient and effective” form that spending takes, R. 49-1, PageID 5515.
That evidence discharges the Commission’s burden.
The plaintiffs’ final rejoinder, again echoed by my colleagues, is that the limits are too
underinclusive to be characterized as anti-corruption measures. They observe that FECA permits
unlimited coordinated spending on get-out-the-vote activities and licenses coordinated spending
on party infrastructure at many times the base limit, exceptions they say cannot be squared with
the proposition that the more general limits combat corruption.
As explained, however, the First Amendment “imposes no freestanding
‘underinclusiveness limitation,’”—its significance, again, is in rooting out “whether the
government is in fact pursuing the interest it invokes’”—and lawmakers may “focus on their
most pressing concerns” without addressing “all aspects of a problem in one fell swoop.” See
Williams-Yulee, 575 U.S. at 448-49 (first quoting R.A.V., 505 U.S. at 387; and then quoting Brown,564 U.S. at 802
). Laws “that conceivably could have restricted even greater amounts of
speech in service of their stated interests” may therefore pass even strict scrutiny. Id. at 449.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 63
The first exception the plaintiffs invoke—get-out-the-vote activity—comes from the
Bipartisan Campaign Reform Act, or “BCRA.” The “prime motivating force” behind BCRA
was closing the soft money loophole for sham issue advertising that Congress concluded had
“virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal
rubble.” McConnell, 540 U.S. at 169-70 (quoting S. Rep. No. 105-167, pt. 3, at 4535 (1998)
(additional views of Senator Collins)). Congress was entitled to address those “pressing
concerns” without restricting ancillary forms of speech that had not proven so corrosive, see
Williams-Yulee, 575 U.S. at 449—indeed, had it restricted financing of volunteer-distributed
yard signs without evidence of corruption, BCRA would surely have met with accusations of
over-inclusiveness. The law does not betray an improper government interest motivating the
party coordinated expenditure limits.
The second exception the plaintiffs identify—special-purpose accounts—comes from the
Cromnibus amendments. As discussed, the Cromnibus amendments increased contribution and
coordinated spending allowances for three categories of party-building activities. These special-
purpose categories involve relatively “benign” spending, most of which does not benefit any one
candidate directly, that Congress could reasonably have concluded poses a less acute risk of
corruption than contributions like those that fund television advertisements for a specific race.
Libertarian Nat’l Comm., Inc. v. FEC, 924 F.3d 533, 550 (D.C. Cir. 2019). The special-purpose
accounts are thus entirely consistent with the anti-corruption goal of the party coordinated
expenditure limits. In fact, taken together, the increased allowances for get-out-the-vote and
party-building activities reflect limits precisely tailored to Congress’s “most pressing
concerns”—not evidence of improper motivation. See Williams-Yulee, 575 U.S. at 449.
All in all, the Commission’s evidence and experience show both that the party
coordinated spending limits prevent circumvention of the base limits and that parties have
throughout history been used as conduits in quid pro quo corruption schemes. Congress limits
coordinated spending for precisely these reasons, and it has over the years calibrated the limits in
connection with the corruptive risk of various campaign activities. Even despite the “difficulty
of mustering evidence to support long-enforced statutes,” the FEC has demonstrated that the
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 64
party coordination limits combat quid pro corruption and its appearance. Colorado II, 533 U.S.
at 457.
B.
A contribution limit that addresses quid pro quo corruption must also be “closely drawn
to avoid unnecessary abridgment of associational freedoms.” McCutcheon, 572 U.S. at 218(quoting Buckley,424 U.S. at 25
). Closely drawn tailoring is less stringent than strict scrutiny.Id.
It requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.”Id.
(ellipses omitted) (quoting Fox,492 U.S. at 480
).
The party contribution limit reflects Congress’s careful balancing of two competing
interests: preventing quid pro quo corruption on the one hand and promoting strong political
parties on the other. FECA strengthens political parties by licensing them to receive larger
individual contributions than candidates may accept and to engage in coordinated spending other
groups may not conduct. It checks that power through moderate limits on coordinated spending,
without which the base contribution limit—a valid anti-corruption measure, all agree—would
become a nullity. These coordination limits are themselves neatly tailored. The limits vary by
candidate depending on the office sought and voting age population served, increasing parties’
capacity for speech in states where each contribution’s value is diluted. The limits exempt
spending on volunteer get-out-the-vote activities, which pose a less urgent risk of corruption.
And they are relaxed for three special-purpose party-building functions that pose a similarly
moderate threat. All this has produced limits carefully tuned to the particular evils Congress
identified over years of investigation and experience.
The plaintiffs maintain that this tailoring is not enough, identifying three alternative
measures they contend would accomplish Congress’s anti-circumvention goals through less
restrictive means. My colleagues agree on each score. Tellingly, all do so only after omitting
most of the closely drawn standard laid out in McCutcheon, erasing its acceptance of a
“reasonable” fit, McCutcheon, 572 U.S. at 218(quoting Fox,492 U.S. at 480
), and reducing the No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 65 test to three words plucked from a 40-page opinion: a “rigorous” form of “narrow tailoring,” Maj. Op. at 8; see Thapar Concurring Op. at 22; Dissenting Op. at 93; First Br. 42; McCutcheon,572 U.S. at 197, 218
. The dissent acknowledges that the test does not call for “the least restrictive means” available, but nonetheless goes on to fault the FEC for settling on the coordination limits when “a less restrictive alternative” remained available. Dissenting Op. at 102 (quoting McCutcheon,572 U.S. at 218
). These views collapse the distinction between
expenditures and contributions that the Supreme Court has repeatedly upheld.
The plaintiffs’ alternatives are, in any event, unavailing. The first alternative the
plaintiffs propose is the base limit on individual contributions to parties. They argue that
reducing the limit on contributions a party may accept, $41,300 per year in 2024, would reduce
the power of any individual to channel a corrupting amount through a party committee while
preserving the ability of parties to coordinate freely with candidates. That solution, however,
ignores Congress’s competing interest in maintaining party strength. Reducing the limit on
contributions to parties would inevitably curtail party fundraising ability, taking party capacity
for independent spending—the category of political speech with the greatest constitutional
protection—down with it. That replaces a moderate First Amendment burden with a more
extreme one, a proposal at odds with constitutional tailoring. Given the choice between
“competing constitutional interests in” this area in which Congress “enjoys particular expertise,”
McConnell, 540 U.S. at 137, Congress was “entitled to its choice,” Colorado II,533 U.S. at 464
-
65.
The plaintiffs’ second alternative is FECA’s existing disclosure requirement. They
contend that disclosure is “a less restrictive alternative to flat bans on certain types or quantities
of speech” and is now “effective to a degree not possible at the time [of] Buckley.” McCutcheon,
572 U.S. at 223-24. But the Supreme Court has never suggested that disclosure is an adequate substitute for the base contribution limits, to which coordinated expenditures are the “functional equivalent.” Colorado II,533 U.S. at 447
. And disclosure seems a particularly poor deterrent
for party conduit quid pro quos. In a world of unlimited coordinated spending, disclosures
would continue to reveal only who made reportable contributions to a party and how much that
party spent in coordination with each candidate, failing to identify the tacit candidate-contributor
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 66
agreements that motivated specific pass-through contributions. The prospect of disclosing
coordinated spending should deter corruption even less effectively in the context of coordinated
spending than it does in the context of direct candidate contributions. Indeed, it is not hard to
imagine a wary donor eschewing direct contributions to a candidate altogether when presented
with the equally valuable, and more discreet, possibility of supplying uncapped party coordinated
expenditures. Just as Congress’s tools for preventing quid pro quo corruption are not confined to
disclose-on-the-front-end, prosecute-on-the-back-end in the world of contributions to candidates,
they are not so limited in the world of party coordinated expenditures.
The plaintiffs’ third alternative is earmarking. FECA’s earmarking provision treats
contributions “earmarked or otherwise directed through an intermediary or conduit to [a]
candidate” as contributions to that candidate. 52 U.S.C. § 30116(a)(8). FEC regulations define earmarking as any “designation, instruction, or encumbrance, whether direct or indirect, express or implied, oral or written, which results in all or any part of a contribution or expenditure being made to, or expended on behalf of, a clearly identified candidate.”11 C.F.R. § 110.6
(b)(1). The
plaintiffs contend that these earmarking provisions prohibit the collusion that party coordinated
spending limits are designed to capture, rendering the limits unnecessary. In other words, the
plaintiffs ask the FEC to count on illicit contributors exercising financial power over beholden
candidates so openly that they will have to self-report their transactions.
That is never how “actual political conditions” have played out. Colorado II, 533 U.S. at
462. In practice, candidates solicit donations from well-heeled supporters, supporters contribute to the party once they have hit their preferred candidate’s contribution limit, and the party spends to support their candidates in proportion to the amount each candidate has raised for the party. This well-oiled machine ensures that contributions will be effectively allocated without the agreements necessary to trigger earmarking, and these dynamics are at play in both major parties. Seeid. at 458-60
; In re Cao,619 F.3d at 429
. Common sense and this experience make clear that earmarking captures “only the most clumsy attempts to pass contributions through to candidates.” Colorado II,533 U.S. at 462
.
The potential for earmarking to neutralize party conduit corruption has, moreover, eroded
over time with the rise of joint fundraising committees. Joint fundraising committees enable a
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 67
single donor to consolidate their support in a joint committee that links federal party committees,
state party committees, and outside PACs aligned with the same party. Br. of Amici Curiae
Campaign Legal Ctr. & CREW at 22-27. Candidates and parties alike may solicit single checks
to a joint committee—often named after a candidate, e.g., John Doe’s Victory Fund—which is
then divided among the participating committees according to a predetermined allocation
formula and capped only by the applicable contribution limits. Id.With the aggregate limits on such contributions dissolved by McCutcheon, joint committee contributions can now approach $1 million per donor. Id. at 24-25. And joined party committees may transfer these funds to a single party committee, arming that committee with a war chest to unleash on the headlining candidate’s race. See52 U.S.C. § 30116
(a)(4);11 C.F.R. §§ 102.6
(a)(1)(ii), 110.3(c)(1). This
leaves the beneficiary candidate, well aware of who contributed what to the joint fundraising
committee and how the selected party committee intends to use the funds, with even more reason
to reward generous donors with political favors. No form of earmarking can check that risk.
* * *
The plaintiffs’ facial challenge must show that every application of the party coordinated
spending limits is unconstitutional. Yet the Supreme Court has recognized since Buckley that
coordinated expenditures, at least in some forms, “have virtually the same value to the candidate
as a contribution” and pose the same “dangers of abuse.” See Buckley, 424 U.S. at 46& n.53. Even the Colorado II dissenters recognized that the statute “covers a broad array of conduct” that includes spending, like “direct payment of a candidate’s media bills,” that is “virtually indistinguishable from simple contributions.” Colorado II,533 U.S. at 462
(Thomas, J., dissenting) (quoting Colorado I, 518 U.S. at 624 (opinion of Breyer, J.)). And the dissent here does too, acknowledging that a “candidate could create and produce an advertisement before handing it off to a party committee for publication and payment, leaving the committee in essence to foot the candidate’s bill.” Dissenting Op. at 91. My colleagues would nevertheless invalidate the limits because “coordination between a party and its candidate may well occur in more mundane ways” as well. Id.; see Thapar Concurring Op. at 18-19. But the focus must be on “circumstances in which” the limits are “most likely to be constitutional,” not “hypothetical scenarios where” the limits “might raise constitutional concerns.” United States v. Rahimi, No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 68144 S. Ct. 1889
, 1903 (2024). Confronted with this constitutional application of the coordination
limits, the plaintiffs’ facial challenge fails.
IV.
The concurrences, in many respects, would rework the law even more dramatically than
the dissent. My concurring colleagues respect the rule of vertical stare decisis but share no such
taste for horizontal stare decisis. Judge Thapar and Judge Bush explain in their separate but
related writings that were they vested with Supreme Court authority, they would jettison a
century of well-trodden First Amendment law and replace it with the nascent “history and
tradition” test installed two terms ago in Bruen. See Thapar Concurring Op. at 13-14; Bush
Concurring Op. at 26-28. As they see it, when parties raise a First Amendment question, we
should offer a two-step answer. First, ask whether the “Amendment’s text covers an individual’s
conduct.” Thapar Concurring Op. at 13 (quoting Oakland Tactical Supply, LLC v. Howell Twp.,
103 F.4th 1186, 1203 (6th Cir. 2024) (Kethledge, J., dissenting)); see Bush Concurring Op. at 27.
Second, assuming it does, ask whether the government has justified the “regulation by
demonstrating that it is consistent with the Nation’s historical tradition.” Thapar Concurring Op.
at 13-14 (quoting Oakland Tactical Supply, 103 F.4th at 1203 (Kethledge, J., dissenting)); see
Bush Concurring Op. at 27-28.
I would pause before grafting Bruen’s Second Amendment framework onto the First
Amendment and other areas of American constitutional law. The test is, as the concurrences
bring to the fore, plagued by theoretical and practical pitfalls. Its expansion risks undermining
the judiciary’s democratic legitimacy, straining its institutional competence, and doubling down
on the series of flawed and underdeveloped premises that support it. I close by explaining why I
would stick to “the well-trodden path.” Vidal v. Elster, 602 U.S. 286, 325 (2024) (Sotomayor, J.,
concurring).
A.
Judge Thapar calls for adopting Bruen’s “history and tradition” test to “guide our First
Amendment jurisprudence,” offering two principal justifications for expanding the standard’s
reach. Thapar Concurring Op. at 13. He asserts that the history and tradition approach frees
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 69
judges from making “free-wheeling policy judgments,” preserving the judiciary’s “democratic
legitimacy.” Id. at 16. He also maintains that by directing judges to plumb the reserves of “legal
history,” the test returns the judiciary to its core “institutional competence.” Id. at 15-16. These
objectives and hypotheses are, as theories, fair enough. But let’s be clear: Judge Thapar’s
proposal to make history and “tradition dispositive is itself a” policy judgment. Vidal, 602 U.S.
at 324 (Barrett, J., concurring). And it does not score well on his own rubric.
I begin with the appeal to democratic legitimacy. Judge Thapar would “defin[e] the
contours of the First Amendment” by looking to regulations that existed “around the time of
ratification.” See Thapar Concurring Op. at 13. Those regulations are, however, an odd place to
locate democratic values. When the First Amendment was ratified in 1791, the franchise was
generally limited to white and “property-owning men.” Gilda Daniels, Democracy’s Destiny,
109 Cal. L. Rev. 1067, 1099 (2021). And only they could “hold office.” Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,115 Harv. L. Rev. 947
, 976 (2002). It took generations to extend political participation to Black men;
generations more to relinquish it to women. See id. at 961, 1043. The history and tradition test
would nevertheless constrict constitutional meaning to the understandings endorsed only by the
most privileged white men of the founding generation, arrogating to that plutocratic minority
retroactive and everlasting authority to delimit the Constitution’s bounds today. Whatever merits
may attend stopping constitutional time in that era, democratic legitimacy cannot be among
them.
I turn next to institutional competence. Judge Thapar’s theory is that judges are
“creatures of precedent and legal history,” not policy and “econometric training.” Thapar
Concurring Op. at 15. So, the argument runs, blinkering considerations outside the historical
record keeps us in our rightful lane. But how we get from the premise that judges are creatures
of precedent to the conclusion that judges should shirk that precedent in favor of becoming
armchair historians is anyone’s guess. Far from connecting those dots, the Supreme Court’s
latest exploration of history and tradition in Rahimi generated seven conflicting writings, leaving
lower courts to guess, as Judge Bush’s concurrence does here, what “perhaps a majority” of the
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 70
Supreme Court “appears” to think about using “history and tradition” to assess “the
constitutionality of [a] regulation” in a particular case. Bush Concurring Op. at 30.
And if the test has thrown the high court into disagreement, it has hurled lower courts
into “chaos.” Rahimi, 144 S. Ct. at 1929 n.3 (Jackson, J., concurring); see id. at 1897 (majority
opinion) (lower “courts have misunderstood” the history and tradition test); id. at 1907
(Sotomayor, J., concurring) (“lower courts [are] struggling to apply” the history and tradition
test); id. at 1923 (Kavanaugh, J., concurring) (lower courts may have a “difficult” time
“[d]eciding constitutional cases” under the Court’s “still-developing” history and tradition test);
id. at 1925 (Barrett, J., concurring) (lower courts “have struggled with [the] use of history in”
applying the history and tradition test); id. at 1926 & 1927 n.1 (Jackson, J., concurring) (“lower
courts are struggling” to apply the history and tradition test); id. at 1930-47 (Thomas, J.
dissenting) (the Court itself misapplies the history and tradition test). Courts applying Bruen
have reached “conflicting conclusions on virtually every consequential Second Amendment issue
to come before them.” Rahimi, 144 S. Ct. at 1927 (Jackson, J., concurring) (quoting Brief for
Second Amendment Law Scholars as Amici Curiae 4-5). As one district court put it, trial judges
are not, it turns out, “experts in what white, wealthy, and male property owners thought about []
regulation in 1791.” United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2022 WL
16649175, at *1 (S.D. Miss. Oct. 27, 2022) (order).
Judge Bush’s concurrence well-exemplifies lower courts’ inability to apply the history
and tradition standard. That test, the Supreme Court explained in Rahimi, calls for “considering
whether the challenged regulation is consistent with the principles that underpin our regulatory
tradition.” Rahimi, 144 S. Ct. at 1898. Courts “must ascertain whether the new law is
‘relevantly similar’ to laws that our tradition is understood to permit, ‘applying faithfully the
balance struck by the founding generation to modern circumstances.’” Id. (brackets omitted)
(quoting Bruen, 597 U.S. at 29). “Why and how the regulation burdens the right are central to
this inquiry.” Id. “The law must comport with the principles underlying the” constitutional
provision, “but it need not be a ‘dead ringer’ or a ‘historical twin.’” Id. (quoting Bruen, 597 U.S.
at 30).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 71
Nevertheless, the history and tradition test results in the hunt for just such a long-lost
twin. Ignoring Rahimi’s focus on legal principles—the why and how of founding era
regulation—Judge Bush’s concurrence casts aside “the Framers’ general concerns about factions
and corruption” as the appropriate level of generality for the inquiry. Bush Concurring Op. at
32. His concurrence instead digs “into the weeds” of the historical record in search of “per se
limitations on the ability of individuals or groups to contribute and coordinate political
expenditures.” Id. at 31. The writing emphasizes its belief that this degree of specificity is
required, underscoring that the FEC failed to “point to a single piece of historical evidence that
anyone in the Founding generation considered the amount or degree of coordination for political
contributions to be sanctionable.” Id. It insists on a “specific law that regulated the coordination
of expenditures and spending for political speech.” Id. at 32. That is precisely the approach the
Court rejected in Rahimi. Rahimi, 144 S. Ct. at 1903. And though this search for a dead ringer
is dead wrong, the effort spent “slaying a straw man” captures perfectly the foibles of the history
and tradition test. Id.
In short, Judge Thapar’s democratic justifications for the history and tradition test would
not generate democratic legitimacy in our society, they would ensure a society “trapped in
amber,” petrified in the antidemocratic past. Rahimi, 144 S. Ct. at 1897. His institutional
competency justifications, meanwhile, are irreconcilable with the experience of Supreme Court
Justices, legions of lower courts, and our own colleague in this case, all of whom have struggled
to apply his test.
B.
Judge Bush starts from a premise similar to Judge Thapar’s, arguing that history and
tradition alone can ensure a “court does not implement its own policy judgments about, for
example, free speech or gun regulation.” Bush Concurring Op. at 30 (quoting Rahimi, 144 S. Ct.
at 1910 (Kavanaugh, J., concurring)). That is a sympathetic aim. But as already stressed,
“rendering tradition dispositive is itself a” policy judgment. Vidal, 602 U.S. at 324(Barrett, J., concurring). And the policy judgments do not end there. What is “the right level of generality” at which to interpret the historical record? Rahimi, 144 S. Ct. at 1926 (Barrett, J., concurring). “[H]ow many cases or laws would suffice” to show a tradition? Bruen, 597 U.S. at 112 (Breyer, No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 72 J., dissenting). “How long after ratification may subsequent practice illuminate original public meaning?” Id. at 82 (Barrett, J., concurring). Which individual rights should be frozen in 1791, which reimagined in 1868? See Rahimi, 144 S. Ct. at 1898 n.1. When is history and tradition “dispositive,” Vidal,602 U.S. at 324
(Barrett, J., concurring), when does it simply “confirm[]” evidence amassed from other inputs, Houston Cmty. Coll. Sys. v. Wilson,595 U.S. 468
, 477 (2022), and when must it yield to “competing considerations,” Trump v. United States,144 S. Ct. 2312
, 2331 (2024); see generally Trump v. Anderson,601 U.S. 100
(2024) (per curiam)? Policy
decisions all.
Judge Bush’s concurrence offers three features of the history and tradition test that he
says make it a valuable constitutional guide. His first claim is that “history allows us to
understand linguistical meaning at the time of ratification.” Bush Concurring Op. at 27. The
Constitution’s “‘original history’ serves to ‘elucidate how contemporaries’ in the ratification
generation ‘understood the text—for example, the meaning of the phrase “bear Arms”’ in the
Second Amendment.” Id. (brackets omitted) (quoting Rahimi, 144 S. Ct. at 1925 (Barrett, J.,
concurring)).
Judge Bush’s promise that constitutional text has a “discoverable historical meaning” that
“is fixed at the time of its ratification” and ascertainable now may have some theoretical appeal,
but the theory runs into unresolvable practical restraints. Rahimi, 144 S. Ct. at 1924 (Barrett, J.,
concurring) (quoting K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev.
375, 378 (2013)). At the outset, Judge Bush’s proposal that we confine ourselves to digging
through historical legal analogues to discern the fixed “original public meaning” of the
Constitution’s “communicative content,” see Randy E. Barnett, Lawrence B. Solum, Originalism
After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433,
436 (2023), is a dangerously skewed, and oddly myopic, way of going about the task. Why
leave other evidence of meaning off the table?
Beyond that, judges, as demonstrated, do not become “oracles” when asked to search “far
into the dimmy past.” See Conroy v. Aniskoff, 507 U.S. 511, 519(1993) (Scalia, J., concurring). And who can blame us? History tells a murky tale, and what some jurists will see as a historical record whose conclusions are “not debatable,” District of Columbia v. Heller,554 U.S. 570
, 636 No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 73 (2008), others will see as “provid[ing] a clear answer” in the other direction,id. at 637
(Stevens, J., dissenting), and still others will decry as rewritten in “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I’ve ever seen in my lifetime,” MacNeil/Lehrer NewsHour: Interview by Charlayne Hunter-Gault with Warren Burger (PBS television broadcast Dec. 16, 1991). This bug, it bears emphasizing, frustrates not only the exercise of judicial judgment in the “construction zone” of constitutional interpretation—where interpretive methods inexorably clash whatever the method—but at the antecedent stage of setting the terms of the debate. See Barnett & Solum, supra, at 436-38. And as the historical record grows more opaque, the risk grows more acute that judges will commit the historical “equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends”—the very evil history and tradition is supposed to guard against. Conroy,507 U.S. at 519
(Scalia, J., concurring). Neither Judge Bush nor Judge Thapar offers a solution to the problem that their proposed test licenses forays into “the dimmy past,” without objective criteria to cabin judicial cherry-picking.Id.
Judge Bush’s second claim is that pre-ratification history enables us “to determine
categories of private conduct that were typically subject to regulation by government when the
relevant constitutional text was ratified.” Bush Concurring Op. at 27. The inference is that if
conduct went unregulated, that “conduct is constitutionally protected,” and that if conduct was
regulated, “the constitutional text does not bar government intervention.” Id.
This argument rests on three unstated and untenable premises. The theory starts with the
assumption that pre-ratification lawmakers exercised the full universe of their regulatory powers.
It presumes, in other words, that if pre-ratification policymakers declined to prohibit the use of,
say, “muskets,” they did so not as matter of policy but because of some external constraint on
their authority. See Rahimi, 144 S. Ct. at 1897-98. The next premise is the converse inference—
that if a practice was proscribed in the pre-ratification era, that prohibition was consistent with
individual rights as they were understood at the time. Founding era regulations, the argument
runs, prevailed because they were legitimate, not because in an era that predated the constitution,
and the power of judicial review that followed it, no court had yet had “occasion” to address
them. See id. at 1923 (Kavanaugh, J., concurring). The last premise is that ratifying the
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 74
constitution did nothing to change our constitutional order. Regulations permissible pre-
ratification remained permissible post-ratification; laws impermissible pre-ratification remained
impermissible afterward.
I cannot accept this logic. To be sure, there is an element of truth to each premise as far
as each goes—pre-ratification legislatures may have acted with some measure of respect for
what they conceived as individual rights, and some of those rights may have been codified in the
Constitution. But just as surely, our forebears were as constrained by policy as much as power,
tested the limits of their authority as much as today’s lawmakers test theirs, and ratified the
Constitution to perfect the status quo, not to enshrine it wholesale. That reality is essential to
placing pre-ratification history in its proper context and underscores the folly of treating past as
providence.
Judge Bush’s third claim is that we can use post-ratification history to the same ends.
The absence of post-ratification regulation of certain conduct, he contends, shows “government
was not understood to have the constitutional authority to regulate that conduct”; the presence of
it shows “that constitutional power to regulate was understood to exist.” Bush Concurring Op. at
27-28.
The post-ratification theory, like the pre-ratification one, makes the same faulty
assumption that ratification-era legislatures exercised the full extent of their powers, but only the
full extent of their powers (the Alien and Sedition Acts would like a word).9 And it brings with
it a host of additional problems (many of which apply with similar force to the pre-ratification
conundrum). How “widespread” must “a historical practice [] have been” to carry constitutional
significance? Rahimi, 144 S. Ct. at 1916 n.4 (Kavanaugh, J., concurring). When must the
practice “have started?” Id. (Kavanaugh, J., concurring). How long must it “have endured?” Id.
(Kavanaugh, J., concurring). No one, on the Supreme Court or our court, quite knows. See id.
(Kavanaugh, J., concurring); Bruen, 597 U.S. at 81-83 (Barrett, J., concurring). Rest assured, we
9
See New York Times Co. v. Sullivan, 376 U.S. 254, 273, 276 (1964) (cataloging the “broad consensus” that
the Alien and Sedition Acts, which made it a crime to “write, print, utter or publish any false, scandalous and
malicious writing or writings against the government of the United States” and were “never tested in” the Supreme
Court, were “inconsistent with the First Amendment”).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 75
are told, the nation’s most “[r]espected scholars are” working on it. Rahimi, 144 S. Ct. at 1916
n.4 (Kavanaugh, J., concurring). But I am not assured by that suggestion, and I would not leave
our time-tested body of First Amendment jurisprudence to forge down such a fraught path.
* * *
The concurrences of Judges Thapar and Bush underscore the theoretical flaws and
practical limitations of the history and tradition test. Raising more questions than answers, they
uncurtain the paradigm as an exercise in judicial and academic experimentation.10 Our country
always has, to be sure, been a “great experiment.” Letter from George Washington to Catharine
Sawbridge Macaulay Graham (January 9, 1790). But I would exercise restraint before subjecting
it to more of this one.
V.
Though, respectfully, I would not have reached many of the issues my colleagues raise,
I concur in the en banc majority’s answer to the certified question. The “limits on coordinated
party expenditures in § 315 of the Federal Election Campaign Act of 1971, as amended,
52 U.S.C. § 30116,” do not “violate the First Amendment, either on their face or as applied to party spending in connection with party coordinated communications as defined in11 C.F.R. § 109.37
.” See R. 49, PageID 5494.
10
Judge Bush objects to this characterization and instead casts his vote for a different “great experiment.”
Bush Concurring Op. at 26 n.1. The fact remains, however, that until this year, the Supreme Court “ha[d] never
applied th[e] history-and-tradition test to a free-speech challenge.” Vidal, 602 U.S. at 327 (Sotomayor, J.,
concurring). The application of this nascent test to new areas of constitutional law is, in my view, the epitome of
judicial experimentation, as the notable struggle of judges to apply this test reveals.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 76
_____________________________________
CONCURRING IN THE JUDGMENT
_____________________________________
BLOOMEKATZ, Circuit Judge, concurring in the judgment. I agree that FEC v.
Colorado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (“Colorado II”)
remains binding precedent and the plaintiffs’ arguments for abandoning it are unpersuasive, as
articulated in Parts I and II of Judge Stranch’s concurrence. That is all that is needed to resolve
this case.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 77
_________________
DISSENT
_________________
CHAD A. READLER, Circuit Judge, dissenting. As a visit to any social media site
makes abundantly clear, political speech, in particular speech on electoral matters, holds a central
place in American life. That political opinions are so widely expressed, if not widely shared, has
a long pedigree, tracing back to the founding. As James Madison put the point while criticizing
the 1798 Sedition Act, which punished speech against Congress: “the essential difference
between the British government and the American constitutions” was that, on this side of the
Atlantic, the people possessed “absolute sovereignty.” 4 The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 569 (Jonathan Elliot ed., 1836)
(Madison’s Report on the Virginia Resolutions, House of Delegates, Session of 1799–1800).
Inherent in that sovereignty is the ability to speak openly against public officials as well as
candidates for office. “[T]he right of electing the members of the government,” Madison
explained, “constitutes more particularly the essence of a free and responsible government.” Id.
at 575. Exercising that right, in turn, requires “examining and discussing [the] merits and demerits of the candidates.”Id.
These principles are embodied by the First Amendment to the United States Constitution,
which prohibits the government from “abridging the freedom of speech.” U.S. Const. amend. I.
The Amendment protects a range of expressive activity. But it “has its fullest and most urgent
application precisely to the conduct of campaigns for political office.” FEC v. Cruz, 596 U.S.
289, 302 (2022) (quoting Monitor Patriot Co. v. Roy,401 U.S. 265, 272
(1971)). As judges, then, we are required “to err on the side of protecting political speech rather than suppressing it” when faced with a legal challenge to regulations restricting such conduct.Id.
at 308 (quoting McCutcheon v. FEC,572 U.S. 185, 209
(2014) (plurality opinion)).
With this understanding in mind, we confront a law limiting coordinated expressive
activity between political party committees and their candidates. The National Republican
Senatorial Committee, Republican Senator J.D. Vance, and former Republican Representative
Steve Chabot together challenge the limits imposed by § 315 of the Federal Election Campaign
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 78
Act of 1971 (FECA) on coordinated party committee expenditures. See 52 U.S.C. § 30116(d). Plaintiffs view those limits as at odds with the First Amendment, both facially and as applied to a subset of coordinated party expenses called “party coordinated communications,” in essence, campaign advertising. See11 C.F.R. §§ 109.37
(a)(1)–(2), 100.26.
The challenging nature of the task before us bears emphasis. As this case touches
election law, and as we find ourselves in the middle of an election season, we aimed to resolve
the matter as expeditiously as possible. But because the district court was required to certify
plaintiffs’ challenge “immediately” to this Court sitting en banc, 52 U.S.C. § 30110, we act
without the benefit of either a panel opinion or a decision on the merits by the district court.
Much of the district court’s efforts, rather, were directed to sifting through voluminous proposed
findings of fact to prepare a more confined record for appellate review. Equally true, by all
accounts our work is simply a warm-up for eventual Supreme Court review. See First Br. at 23
(preserving in the alternative the argument that the Supreme Court should revisit its earlier
campaign finance jurisprudence); Second Br. at 3 (suggesting that plaintiffs’ “challenge before
this Court is a necessary step in seeking Supreme Court relief”); see also Stranch Concurring Op.
at 47 (acknowledging the same).
Even in this unusual posture, however, the weakness of the Federal Election
Commission’s position is apparent. The agency seeks to enforce a regulatory regime curtailing
free speech. See 52 U.S.C. § 30106(b)(1) (authorizing the FEC to enforce FECA). Not just any speech, but political speech. And not just any speaker, but political parties, whose primary mission is to promote candidates for office. To that end, FECA limits a national party committee’s coordinated expenditures, which the FEC defines as those expenditures “made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate [or] a candidate’s authorized committee.”11 C.F.R. § 109.20
. A party committee may not exceed certain coordinated expense thresholds based on a candidate’s state, the office sought, voting-age population, and inflation.52 U.S.C. § 30116
(d). In practice, this means that in 2024, party committee spending coordinated with Senate candidates has a limit ranging from $123,600 in the eight least-populated states to $3,772,100 in California. Seeid.
§ 30116(d)(3)(A)(i)–(ii).
Coordinated spending on House races is similarly constrained. See id. § 30116(d)(3)(A)(i)–(ii),
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 79
(d)(3)(B) (capping spending for House candidates in states with only one representative at
$123,600, and at $61,800 per candidate in all other states); see also Coordinated Party
Expenditure Limits, Fed. Election Comm’n, https://perma.cc/25VD-83D9. In a world where
overall campaign spending dwarfs these amounts, the FEC’s enforcement efforts handcuff
parties and their candidates alike. See, e.g., Raising: By the Numbers, Fed. Election Comm’n,
https://perma.cc/8Z5C-NJER (reporting $1,038,702,441 raised by all Senate candidates running
in 2024 as of August 28, 2024).
These realities help reveal FECA’s constitutional flaws. The Act’s spending limits
“operate in an area of the most fundamental First Amendment activities.” Buckley v. Valeo, 424
U.S. 1, 14(1976) (per curiam). They target political debate, an “integral” aspect “of the system of government established by our Constitution.”Id.
And they serve to “reduce[] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”Id. at 19
. Measured by the “rigorous standard of review” the Supreme Court requires, the coordinated expenditure limits fail to honor First Amendment guarantees. McCutcheon,572 U.S. at 197
(citation omitted) (describing the scrutiny applicable
to contribution limits).
Against all of this, the FEC points to a lone, largely obsolete precedent. Contrary to the
FEC’s suggestion, we may not turn back the jurisprudential clock some two decades to save an
undeniably infirm law. Accordingly, I would reach the merits of plaintiffs’ claims and find that
the coordination restrictions violate the First Amendment.
I.
A. Much of the FEC’s briefing is dedicated to the notion that we may not reach the
weighty legal questions before us as part of a facial challenge to FECA. To the FEC’s mind,
resolution of those issues is directly controlled by the Supreme Court’s decision in FEC v.
Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431(2001). Second Br. at 24–30. True, Colorado II rejected a facial challenge to coordinated party committee expenditure limits. Colorado II,533 U.S. at 465
. And all agree that “lower courts must follow Supreme Court precedent,” Thompson v. Marietta Educ. Ass’n,972 F.3d 809
, 813 No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 80 (6th Cir. 2020), even when a directly applicable decision “appears to rest on reasons rejected in some other line of decisions.” Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,490 U.S. 477, 484
(1989). As an “inferior Court[],” after all, we understandably take our lead from the
Supreme Court. See U.S. Const. art. III, § 1.
Yet even those commands have their limits. In the rare case where doctrinal
developments have entirely displaced an earlier Supreme Court decision, we must acknowledge
as much. See Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022) (criticizing lower courts for continuing to adhere to a dated precedent when it had become “apparent” that the Supreme Court had “long ago abandoned” the legal reasoning undergirding that precedent); Limbach v. Hooven & Allison Co.,466 U.S. 353, 361
(1984) (finding “error” in a lower court applying a precedent that, while not “expressly overruled,” failed to “retain[] current validity” in light of subsequent legal developments); Ceres Terminals, Inc. v. Indus. Comm’n,53 F.3d 183
, 184–85 (7th Cir. 1995) (Easterbrook, J.) (recognizing the possibility that “an inferior tribunal may disregard opinions that exist more as spectral apparitions than as living forces in the law”); see also Rowe v. Peyton,383 F.2d 709, 714
(4th Cir. 1967), aff’d391 U.S. 54
(1968) (“[T]here are occasional situations in which subsequent Supreme Court opinions have so eroded an older case . . . as to warrant a subordinate court in pursuing what it conceives to be a clearly defined new lead from the Supreme Court to a conclusion inconsistent with an older Supreme Court case.”). Said differently, we do not mechanically apply earlier Supreme Court doctrine when “events subsequent to the [Supreme Court’s] last decision . . . approving the doctrine—especially later decisions by that court, or statutory changes—make it almost certain that the [Supreme Court] would repudiate the doctrine if given a chance to do so.” Olson v. Paine, Webber, Jackson & Curtis, Inc.,806 F.2d 731, 734
(7th Cir. 1986) (Posner, J.); see also Hobbs v. Thompson,448 F.2d 456, 473
(5th Cir. 1971) (declining to apply Supreme Court doctrine that is “out of harmony with . . . a long line of cases decided subsequently”). As a lower court, remember, our concern is less with the precise outcome of a past case than it is with its reasoning and analysis. See Antonin Scalia, The Rule of Law as a Law of Rules,56 U. Chi. L. Rev. 1175
, 1177 (1989). And we do not apply that reasoning sightless to the context of the earlier decision or ensuing developments. As Justice Gorsuch recently reminded us, “[a] later court assessing a past decision must . . . appreciate the possibility that different facts and different legal arguments No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 81 may dictate a different outcome.” Loper Bright Enters. v. Raimondo,144 S. Ct. 2244
, 2281
(2024) (Gorsuch, J., concurring).
The Supreme Court, in other words, guides us with its reasoning, reasoning we follow
unless later repudiated. This approach to precedent is familiar. For instance, when the Supreme
Court overruled Lochner-era precedent invalidating minimum wage laws, there was no need for
lower courts to follow other Lochner-era precedent. See W. Coast Hotel v. Parrish, 300 U.S. 379(1937) (overruling Adkins v. Child.’s Hosp.,261 U.S. 525
(1923)). If a maximum hour law for bakers, see Lochner v. New York,198 U.S. 45
(1905), or a law regulating the weight of loaves of bread, see Jay Burns Baking Co. v. Bryan,264 U.S. 504
(1924), was challenged after West Coast Hotel, the latter case’s logic would control. This is because the Supreme Court, through its reasoning in West Coast Hotel, “signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation.” See Dobbs v. Jackson Women’s Health Org.,597 U.S. 215
, 265 (2022). And there is no shortage of other zombie precedents in the United States Reports—that is, cases technically still on the books, but whose logic has been discredited by the “court of history.” Trump v. Hawaii,585 U.S. 667
, 710 (2018); see also Lee Epstein et al., The Decision to Depart (or not) from Constitutional Precedent: An Empirical Study of the Roberts Court,90 N.Y.U. L. Rev. 1115
, 1126 (2015) (“The Justices have many techniques for undermining the vitality of their precedents: overruling them sub silentio, as well as limiting, questioning, criticizing, or distinguishing previous decisions.”). Courts that apply such cases without reflecting on their subsequent history do no more than treat them as “some ghoul . . . that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.,508 U.S. 384, 398
(1993) (Scalia, J., concurring).
For decades, the circuit courts have heeded this direction. For example, in responding to
the government’s citation to Wyandotte Transp. Co. v. United States, 389 U.S. 191(1967), and related argument that “statutory silence indicates congressional intent to create a cause of action by implication,” the Third Circuit noted that it “would be blind to subsequent developments in a dynamic area of the law . . . if [it] failed to recognize that in recent years the [Supreme] Court has been far more reluctant to infer rights of action for silent statutes.” United States v. City of No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 82 Philadelphia,644 F.2d 187, 192
(3d Cir. 1980) (Aldisert, J.). Likewise, in the context of Establishment Clause jurisprudence, it was the appellate courts that recognized the death of the three-prong test first announced in Lemon v. Kurtzman,403 U.S. 602
(1971), taking their lead from intervening decisions of the Supreme Court. See, e.g., Woodring v. Jackson County,986 F.3d 979
, 981 (7th Cir. 2021) (holding that intervening Supreme Court decisions required the abandonment of the Lemon test); Perrier-Bilbo v. United States,954 F.3d 413
, 425 (1st Cir. 2020) (same); Kondrat’yev v. City of Pensacola,949 F.3d 1319
, 1326 (11th Cir. 2020) (recognizing that “Lemon is dead”). The Supreme Court only later penned the doctrine’s formal obituary in Kennedy v. Bremerton School District,597 U.S. 507
(2022).
We too have been sensitive to changes in the legal landscape. Just last year in
considering a nondelegation challenge to the Occupational Safety and Health Act, we declined to
apply admittedly “binding” precedents—Panama Refining Co. v. Ryan, 293 U.S. 388(1935), and A.L.A. Schechter Poultry Co. v. United States,295 U.S. 495
(1935)—because doing so would be to read Supreme Court decisions “in isolation.” Allstates Refractory Contractors, LLC v. Su,79 F.4th 755
, 767 (6th Cir. 2023). The year before, in considering the scope of the exhaustion requirement for federal habeas petitions, we refused to follow Fay v. Noia,372 U.S. 391
(1963), understanding it to be an “opinion largely discarded to the dustbin of legal history.” Johnson v. Bauman,27 F.4th 384
, 392 (6th Cir. 2022). Three years earlier, we declined an invitation to extend the “inclination” in Bivens v. Six Unknown Fed. Narcotics Agents,403 U.S. 388
(1971), to create implied causes of action given subsequent Supreme Court precedent rejecting that approach. Callahan v. Fed. Bureau of Prisons,965 F.3d 520
, 523 (6th Cir. 2020). And we similarly refused to apply Bowers v. Hardwick,478 U.S. 186
(1986), where later Supreme Court precedent, which had not yet overruled Bowers, had nonetheless undermined its application beyond its specific facts. Stemler v. City of Florence,126 F.3d 856
, 873–74 (6th Cir. 1997). In
short, the inferior courts routinely read Supreme Court precedent with an eye to whether a
precedent’s vitality has been undermined by later jurisprudential developments. Indeed, it is our
duty to do so.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 83
Viewed in this light, we would be remiss not to account for the wave of intervening
precedent that leaves Colorado II essentially on no footing at all. Not only that, but both the
statutory and factual backdrops have evolved deeply in the ensuing decades.
1. Most significant is the evolution in the law governing campaign finance. A key aspect
of that evolution is the allowable grounds regulators may invoke under the First Amendment to
justify restrictions on political speech. Today, the Supreme Court “recognizes only one
permissible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or
its appearance.” Cruz, 596 U.S. at 305; see also McCutcheon, 572 U.S. at 207. In this context, quid pro quo corruption is “a direct exchange of an official act for money.” McCutcheon,572 U.S. at 192
.
To put these developments in perspective, look back at the legal landscape over the last
five decades. Ten years ago, the Supreme Court recapped the “series of cases over the [then]
past 40 years” that “have spelled out how to draw the constitutional line between the permissible
goal of avoiding corruption in the political process and the impermissible desire simply to limit
political speech.” Id. This long history begins with Buckley. There, the Supreme Court
considered a First Amendment challenge to FECA’s restrictions on individual contributions and
independent expenditures. 424 U.S. at 12–13. It treated the two differently. Applying “exacting
scrutiny,” the Supreme Court declared unconstitutional limits on expenditures “made totally
independently of the candidate and his campaign.” Id. at 44, 47, 51. It did so because
restrictions on independent spending represented “substantial rather than merely theoretical
restraints on the quantity and diversity of political speech.” Id. at 19.
On the other hand, Buckley upheld FECA’s contribution limits as a prophylactic measure
against “corruption and the appearance of corruption spawned by the real or imagined coercive
influence of large financial contributions on candidates’ positions and . . . actions.” Id. at 25. In
so doing, Buckley blessed on constitutional grounds contribution limits (and, it seems,
coordinated expenditure limits) so long as they are closely drawn means to achieve a sufficiently
important governmental interest. Buckley, 424 U.S. at 28–29; see also Colorado II, 533 U.S. at
440 (“Ever since we first reviewed the 1971 Act, we have understood that limits on political
expenditure deserve closer scrutiny than restrictions on political contributions.”).
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 84
Further doctrinal developments came about in a case involving the Colorado Republican
Party, one that would reach the Supreme Court twice. In Colorado I, the Supreme Court, citing
Buckley, held that limits on a party’s independent expenditures violated the First Amendment.
Colo. Republican Fed. Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 618(1996) (plurality opinion); see alsoid. at 616
(“The independent expression of a political party’s views is ‘core’ First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees.”). The case would return to the Supreme Court in Colorado II. The question presented there was whether all limits on political party spending, including those on coordinated party expenses, were facially unconstitutional.533 U.S. at 437
. The Supreme Court rejected the facial challenge, upholding limitations on coordination on the basis that they prevented circumvention of individual contribution limits and, thereby, potential corruption.Id. at 465
. At this point in its history, it bears emphasizing, the Supreme Court understood “corruption” in this context to reach any form of “undue influence on an officeholder’s judgement.”Id. at 441
. Along these lines, coordinated spending, the Supreme Court explained, could be as helpful to the candidate as direct contributions, which themselves raise the specter of corruption in this broad sense.Id.
at 464–65.
That governing standard has been repudiated by the Supreme Court. And not once, but
thrice. Begin with Citizens United v. FEC. There, the Supreme Court held that restrictions on
political speech could not be justified by “[t]he fact that speakers may have influence over or
access to elected officials.” 558 U.S. 310, 359(2010). This is because limits on speech that attempt to prevent “generic favoritism or influence” are “susceptible to no limiting principle.”Id.
(quoting McConnell v. FEC,540 U.S. 93, 296
(2003) (Kennedy, J., concurring)).
A few years later, the Supreme Court reinforced the idea that the potential for mere
influence alone does not justify restrictions on political speech. See McCutcheon, 572 U.S at
207. At issue in McCutcheon was a First Amendment challenge to FECA’s “aggregate limits”
on individual contributions, which capped the total amount a donor could contribute to all
candidates. Id.at 192–93. In siding with the challengers, the Supreme Court held that only the prevention of quid pro quo corruption or its appearance could justify limits on political speech.Id. at 207
. While “[t]he line between quid pro quo corruption and general influence may seem No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 85 vague at times,” the Supreme Court emphasized that “the distinction must be respected in order to safeguard basic First Amendment rights.”Id. at 209
. And aggregate contribution limits, the Supreme Court held, could not be justified on the basis of guarding against corruption, as that concept was properly understood.Id.
at 210–18. Justice Breyer confirmed these understandings in his dissenting opinion. Making a point our concurring colleague fails to acknowledge, Justice Breyer recognized that the definition of “corruption” adopted in McCutcheon was “inconsistent with the Court’s prior case law,” including Colorado II, which “upheld limits imposed upon coordinated expenditures among parties and candidates because it found they thwarted corruption and its appearance, again understood as including ‘undue influence’ by wealthy donors.”Id. at 235
, 240 (quoting Colorado II,533 U.S. at 441
)). But see Stranch Concurring
Op. at 50 n.2 (suggesting that Justice Breyer’s dissent “never asserted that Colorado II turned on
the broader understanding” of corruption).
Any ambiguity on this point was wiped away in Cruz. There, the Supreme Court struck
down a restriction on the amount candidates may raise after election day to repay loans they
made directly to their own campaigns. 596 U.S. at 313. In so doing, it reaffirmed that the
prevention of quid pro quo corruption or its appearance was the lone government interest
warranting a restriction on political speech. Id. at 305. What is more, in both McCutcheon and
Cruz, the Supreme Court went so far as to suggest that strict scrutiny may be the proper lens
through which such restrictions are analyzed. See McCutcheon, 572 U.S. at 199; Cruz, 596 U.S. at 305. And even in applying “closely drawn” scrutiny, in each instance the Supreme Court saw fit to strike down restrictions on political spending. See, e.g., McCutcheon,572 U.S. at 199
.
Having made clear that only fears of quid pro corruption may justify infringements on
political speech, the Supreme Court also refined what that manner of corruption entails under
federal law, further antiquating Colorado II. Borrowing from case law in the criminal context,
McCutcheon understood quid pro quo corruption narrowly as “a direct exchange of an official
act for money.” 572 U.S. at 192(citing McCormick v. United States,500 U.S. 257, 266
(1991)) (recognizing as a subset of such corruption “dollars” for official acts); see also id. at 239 (criticizing the plurality’s importation of “corruption” from federal criminal law as “flatly inconsistent” with Buckley) (Breyer, J., dissenting). Other jurisprudential developments have No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 86 narrowed what constitutes an “official act.” The leading example is McDonnell v. United States. There, the government prosecuted the former Governor of Virginia for arranging meetings, hosting events, and contacting officials allegedly in return for loans and gifts.579 U.S. 550
, 555–56 (2016). From that collection of activity, the government argued that “nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo,” that is, an official act by a public official. Id. at 575. The Supreme Court rejected that expansive view. It defined quid pro quo corruption as “the exchange of a thing of value for an ‘official act.’” Id. at 574. And “an ‘official act,’” the Supreme Court explained, “is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy,’” and “must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.” Id. A long line of other cases has similarly narrowed our understanding of public corruption as well as the ways in which lawmakers and law enforcers may regulate public conduct. See, e.g., Snyder v. United States,144 S. Ct. 1947
, 1954 (2024) (holding that a federal statute does not criminalize state and local officials “accept[ing] gratuities for their past official acts”); Percoco v. United States,598 U.S. 319
, 330–31 (2023) (declaring as impermissibly vague a standard that extended a duty of honest services to private citizens who “dominated and controlled any governmental business” or were relied on by “people working in the government”); Kelly v. United States,590 U.S. 391
, 404
(2020) (holding that a scheme to reduce a town’s access to the George Washington Bridge as
political payback did not violate federal fraud laws because it “did not aim to obtain money or
property”).
Importing this understanding of quid pro quo corruption into the present setting,
campaign finance regulations must narrowly target the exchange of money for an official’s
formal exercise of the powers of her office. See McDonnell, 579 U.S. at 574. Merely bestowing
titles, access to top officials, or convention box seats to a donor, as just some examples, are not a
“quo” that campaign finance laws can legitimately target in an effort to stamp out quid pro quo
corruption or its appearance. Cf. Br. for Campaign Legal Ctr. & Citizens for Resp. and Ethics in
Wash. as Amici Curiae Supporting Defendants at 24–25 (describing perks in the form of titles,
access to officials, and convention passes for big backers). The corruption targeted by
regulators, in other words, must be concrete, not ephemeral in the ways envisioned by Colorado
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 87
II. Again, Colorado II, embracing decisions that preceded it, recognized a notion of corruption
encompassing mere “undue influence on an officeholder’s judgment.” 533 U.S. at 441(citing Nixon v. Shrink Mo. Gov’t PAC,528 U.S. 377, 389
(2000)). That understanding reflected “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 Mo.,528 U.S. at 389
. But that far-reaching legal standard no longer governs. See McCutcheon,572 U.S. at 208
(“[T]he Government may not seek to limit the appearance of mere influence or access.”).
Judge Stranch views these developments in a different light. Her concurring opinion sees
this legal evolution more as a coronation of Colorado II rather than an abdication. Why?
Because Colorado II’s “discussion of party coordinated spending,” to her eye, “focused
explicitly on quid pro quo corruption.” Stranch Concurring Op. at 50. A fair reading of
Colorado II says otherwise. By and large, the Supreme Court spoke in broad conceptual points,
nebulously invoking a fear of potential corruption tied to coordinated spending, without further
explanation. See, e.g., Colorado II, 533 U.S. at 460(“If suddenly every dollar of spending could be coordinated with the candidate, the inducement to circumvent [contribution limits] would almost certainly intensify.”);id. at 464
(“Coordinated expenditures of money donated to a party are tailor-made to undermine contribution limits.”). When Colorado II spoke more concretely, it did not limit its focus to quid pro quo exchanges. See, e.g.,id. at 462
(worrying that candidates may give undue weight to “interests particular donors . . . seek[] to promote” (quotation omitted)). And when the decision identified specific examples of the harms the law was seeking to remedy, the list included things like increased donor influence at “special meetings and receptions” that political parties facilitate to afford “donors the chance to get their points across to the candidates” in the absence of coordinated expenditure limits.Id. at 461
. But see McConnell,540 U.S. at 297
(Kennedy, J., concurring) (“Favoritism and influence are not . . .
avoidable in representative politics.”). From every angle, in short, Colorado II turned on an
expansive notion of corruption, not merely the perceived risk of quid pro quo arrangements, as
our colleague’s concurring opinion would have the reader believe. If one is looking for a writing
that has veered into the forbidden territory of “seiz[ing] the prerogative of overturning Supreme
Court precedent,” Stranch Concurring Op. at 45, the concurring opinion’s rewriting of Colorado
II would be a good place to start.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 88
Adding all of this together, Colorado II is not a decision that merely “appears to rest on
reasons rejected in some other line of decisions”—its reasoning, rather, has been repeatedly and
expressly rejected in the same precedential line. See Rodriguez de Quijas, 490 U.S. at 484.
2. Next, consider the changed statutory regime. Congress has amended FECA since the
Supreme Court interpreted it in Colorado II. Today, FECA allows political parties to maintain
“separate, segregated account[s]” to cover expenses incurred for “a presidential nominating
convention”; “the construction, purchase, renovation, operation, and furnishing of one or more
headquarters buildings of the party”; or “the preparation for and the conduct of election recounts
and contests and other legal proceedings.” 52 U.S.C. § 30116(a)(9). Notably, party expenditures from these accounts are exempted from the otherwise applicable coordinated expenditure limits.52 U.S.C. § 30116
(d)(5). That Congress has amended the Act in these ways fairly justifies a legal challenge, even against the background of a judicial interpretation of an earlier version of the statute. See United States v. McNeil,362 F.3d 570, 574
(9th Cir. 2004) (“[W]hen Congress amends statutes, our decisions that rely on older versions of the statutes must be reevaluated in light of the amended statute.”); Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc.,331 F.3d 834, 840
(11th Cir. 2003) (“[A] clear change in the law by Congress could justify a panel of this court in not following an earlier panel’s decision, where the prior panel’s decision was based on legislation that had been changed or repealed.” (cleaned up)). Indeed, it likely goes without saying that “stare decisis doesn’t apply to statutory interpretation unless the statute being interpreted is the same one that was being interpreted in the earlier case.” See Bryan A. Garner et al., The Law of Judicial Precedent 343 (2016). Otherwise, statutory amendments would be shielded from review so long as the revised law retained some semblance to a prior version. The same logic extends to constitutional challenges to a revised statute. See Pollock v. Farmers’ Loan & Tr. Co.,157 U.S. 429, 579
(1895) (declining to resolve a constitutional challenge to a
tax statute under decisions considering a different law); Stranch Concurring Op. at 52
(reexamining the statutory changes anew with an eye toward whether they “carry a lighter risk of
quid pro quo corruption”).
What is more, the nature of the statutory changes here confirms the need for judicial
review. Congress exempted from the coordination limits expenses that, in many respects, have a
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 89
less direct connection with speech, for example, building party headquarters. The remaining
limits reveal Congress’s and the FEC’s target in a way not contemplated by Colorado II:
political advertising coordinated by a party committee and its candidates. See 11 C.F.R. §
109.37. In other words, bedrock First Amendment activity. We owe it to the parties before us to
address the constitutional significance of these statutory changes head on.
3. Nor can we overlook that the factual foundation underlying Colorado II hardly
resembles current realities. Colorado II rested on the premise that “political parties are dominant
players . . . in federal elections.” 533 U.S. at 450(citation omitted). However true that may have been at the turn of the century, it is far from true today. We have that on good authority. “The current mix of statutes, regulations, and court decisions has left a campaign finance system that reduces the power of political parties as compared to outside groups.” See Republican Nat’l Comm. v. FEC,698 F. Supp. 2d 150
, 160 n.5 (D.D.C. 2010) (Kavanaugh, J.). One reason for the decline in party power is the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA). Enacted just one year after Colorado II, BCRA prohibited national party committees from receiving and spending “soft money,” that is, money raised at the state and local levels that could nevertheless be used for “generic party advertising” to influence federal elections. McConnell,540 U.S. at 115, 123
; see also52 U.S.C. § 30125
(a). That ban, upheld by the Supreme Court in McConnell,540 U.S. at 161
, resulted in political contributions being directed away from parties and into Super PACs. See Sarah Isgur et al., Restoring the Guardrails of Democracy Project: Report by Team Conservative, Nat’l Const. Ctr. (July 2022), https://perma.cc/SV4C-ZPNM (“Instead of getting money out of politics, [BCRA] simply transferred power away from the political parties.”); Samuel Issacharoff, Outsourcing Politics: The Hostile Takeover of Our Hollowed-Out Political Parties,54 Hous. L. Rev. 845
, 866 (2017); Joseph Fishkin & Heather K. Gerken, The Party’s Over: McCutcheon, Shadow Parties, and the Future of the Party System,2014 Sup. Ct. Rev. 175
, 188 (2014) (“Money is the oxygen of campaign politics, and it is plainly
flowing toward the shadow parties, not the official ones.”).
These developments cannot be understated. As the record certified by the district court
reflects, Super PAC expenditures for federal elections now far exceed those of political parties.
R. 49-1 at 40 ¶ 171 PageID 5535. This reality is impacting all levels of the electoral system,
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 90
including the grassroots—aided, perhaps ironically, by the FEC. That agency recently issued an
advisory opinion instructing that FECA’s limits on coordinated communications do not apply to
door-to-door canvassing activities undertaken by Super PACs. FEC, Advisory Op. 2024-01
(2024). As a result, campaigns may now effectively delegate on-the-ground political
operations—once a staple of the political party apparatus—to Super PACs, leaving even less
room for party influence over the political process. See Theodore Schleifer, Trump Gambles on
Outside Groups to Finance Voter Outreach Efforts, N.Y. Times (Aug. 14, 2024),
https://www.nytimes.com/2024/08/14/us/politics/trump-voter-outreach-super-pacs.html; Scot J.
Zentner, Revisiting McConnell: Campaign Finance and the Problem of Democracy, 23 J. L. &
Pol. 475, 510 (2007) (noting that parties focus on raising and spending for “get-out-the-vote
efforts, precinct canvassing, and independent campaign advocacy”).
We cannot turn a closed eye to these drastic shifts in the landscape of electoral politics.
Yet that is the approach our concurring colleague, in “explain[ing] why” this opinion “is wrong,”
embraces. Stranch Concurring Op. at 45. She views Super PACs as confined to independent
expenditures only, see id. at 53, a notion that would no doubt come as a surprise to the FEC.
B. Even if one thought that a facial challenge to FECA was not in order, plaintiffs also
challenge FECA’s coordination limits as applied to party coordinated communications. First Br.
at 48–49. While Colorado II rejected a facial challenge to the coordination rule, that resolution
does not control later as-applied challenges. See, e.g., Wis. Right to Life, Inc. v. FEC, 546 U.S.
410, 411–12 (2006) (per curiam) (“In upholding [the statute] against a facial challenge, we did not purport to resolve future as-applied challenges.”); United States v. Rahimi,144 S. Ct. 1889
, 1910 (2024) (Gorsuch, J., concurring) (warning that “future litigants and courts” should not “read any more into” a decision on a facial challenge than its limited holding that the law has some “lawful scope”). Colorado II, in fact, envisioned as much. It expressly left open whether a future as-applied challenge might succeed. See533 U.S. at 456
n.17 (“Whether a different characterization, and hence a different type of scrutiny, could be appropriate in the context of an as-applied challenge focused on application of the limit to specific expenditures is a question that . . . we need not reach in this facial challenge.”). Because we are “confronted with a . . . different No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 91 legal argument[]” today, nothing prevents us from taking up plaintiffs’ as-applied challenge. McCutcheon,572 U.S. at 203
.
Indeed, plaintiffs’ as-applied attack on the coordination limits leaves room for a narrower
resolution than in Colorado II. There, the Supreme Court upheld the facial challenge by pointing
to permissible limits on de facto “contributions” directly by a party committee to a candidate,
that is, instances where “political parties would simply foot the candidate’s bills.” In re Cao,
619 F.3d 410, 437(5th Cir. 2010) (en banc) (Jones, C.J., dissenting in part, joined by Smith, Clement, Elrod, and Haynes, JJ.) (describing the holding in Colorado II); see also Colorado II,533 U.S. at 464
(“There is no significant functional difference between a party’s coordinated expenditure and a direct party contribution to the candidate.”). But a party committee and its candidates may coordinate in ways that fall well short of that threshold. As then–Chief Judge Jones put the question in In re Cao, “[a]t what point does ‘coordination’ between a candidate and a political party transform the party’s communicative speech into a mere ‘contribution’ subject to strict dollar limits?”619 F.3d at 436
.
I agree that this question “was left open by the Supreme Court” in Colorado II, id.,which recognized the reality that “[c]oordinated spending by a party . . . covers a spectrum of activity.” Colorado II,533 U.S. at 445
; see alsoid. at 467
(observing that coordinated spending “covers a broad array of conduct, some of which is akin to an independent expenditure”) (Thomas, J., dissenting). To be sure, a candidate could create and produce an advertisement before handing it off to a party committee for publication and payment, leaving the committee in essence to foot the candidate’s bill. But coordination between a party and its candidate may well occur in more mundane ways. It seems equally likely that a party committee itself would produce, place, and fund ads supporting its candidates, with the candidate merely offering input as to matters like the advertisement’s content (national security or the economy?), tone (positive or negative?), or timing (early voting period or near election day?). And even when such input is sought, a candidate “cannot be certain that the party will heed his advice.” In re Cao,619 F.3d at 448
(Jones, C.J., dissenting). In the end, these modest efforts at coordination do not resemble the
party simply reimbursing its candidate for campaign expenses. At the very least, then, whether a
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 92
party committee can coordinate with a candidate in more limited respects is fairly before us for
resolution.
* * *
All things considered, it becomes abundantly clear that we may review the
constitutionality of FECA’s limitations on coordinated party expenditures. In McCutcheon, the
Supreme Court declined to follow Buckley’s conclusion that aggregate limits on contributions
were constitutional. 572 U.S. at 200–03. That was because McCutcheon “confronted” the
Supreme Court “with a different statute and different legal arguments, at a different point in the
development of campaign finance regulation.” Id. at 203. Here, those same markers, from
statutory changes to the declining influence of political parties to the Supreme Court’s evolving
campaign finance jurisprudence, together indicate that, in the words of the esteemed Judge
Friendly, this is the rare instance where “opinions already delivered [by the Supreme Court] have
created a near certainty that only the occasion is needed for the pronouncement of the doom” of
the outdated Colorado II decision. Salerno v. Am. League of Pro. Baseball Clubs, 429 F.2d
1003, 1005 (2d Cir. 1970) (Friendly, J.). Perhaps a change in either the controlling law, statutory regime, or factual foundation for an earlier decision would not justify revisiting the matter. But with all three factors calling Colorado II into deep question, we are remiss not to do so. In this instance, “it remains our role to decide whether a particular legislative choice is constitutional.” Cruz, 596 U.S. at 313. Failing to do so “is to apply the dead, not the living, law.” Norris v. United States,687 F.2d 899, 904
(7th Cir. 1982) (Posner, J.).
II.
Measured by the Supreme Court’s modern campaign finance jurisprudence, the FEC’s
coordination restrictions on party committees violate the First Amendment. Colorado II
examined coordination limits under the “closely drawn” standard. 533 U.S. at 456. More recently, the Supreme Court has invigorated that measure, even suggesting that the proper lens might be strict scrutiny. See McCutcheon,572 U.S. at 199
; Cruz, 596 U.S. at 305. Either way, the party coordination restrictions at issue here fail. Following McCutcheon, we ask two questions.572 U.S. at 197
. First, has the government identified a sufficiently important interest No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 93 served by the coordination limits?Id.
Today, that means only quid pro quo corruption or its appearance. See Cruz, 596 U.S. at 305; McCutcheon,572 U.S. at 207
. And quid pro quo corruption, in turn, “must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee,” not merely the ordinary acts of a politician in consulting, honoring, or representing their supporters. McDonnell, 579 U.S. at 574. Second, are the limits closely drawn means to achieve that interest? McCutcheon,572 U.S. at 197
. Recent decisions give teeth to that standard as well, examining restrictions on political speech under a “rigorous” standard of review that requires the limitations be “narrowly tailored” to the government’s professed interest. See McCutcheon,572 U.S. at 199, 218
(cleaned up). Otherwise, there is a “mismatch between the Government’s stated objective and the means selected to achieve it.”Id. at 199
.
A. The restraints at issue here come up short in each respect. Begin with the FEC’s
failure to demonstrate a sufficient governmental interest justifying restrictions on coordinated
speech between party committees and their candidates. There is no denying that the coordination
ban limits political speech. Above relatively low limits, party committees are forced to decide
how to support their candidates without input from the candidate herself, even when all involved
share the same goal. These rules are the equivalent of prohibiting communication between a
coach and quarterback late in a tied game. Not only that, but the restraints also seemingly raise
the cost of permissible party committee speech. See, e.g., R. 49-1 at 16–17 ¶ 75, PageID 5511–
12. Simply put, the prohibitions are significant. So too, then, must be the government’s
justification.
To set the regulatory stage, as it stands today, FECA imposes several contribution limits.
First, it caps direct individual contributions to federal candidates at $3,300 per election, indexed
to inflation. 52 U.S.C. § 30116(a)(1)(A), (c)(1)(B). Second, it restricts direct individual contributions to national party committees at $41,300 per year.Id.
§ 30116(a)(1)(B). Taking
these restrictions together in the context of Senate elections, an individual donor can donate just
a few thousand dollars to individual Senate candidates, and just over $40,000 to a party’s
senatorial committee.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 94
That donor limits are relatively higher when it comes to party committees does not soften
FECA’s bite. FECA limits direct party committee contributions to candidates at $5,000 per
election. 52 U.S.C. § 30116(a)(2)(A). So a party committee is limited in the direct help it can provide a candidate. Were there concern that a party committee’s coordination process might be co-opted by a committee donor, FECA prohibits a donor’s contributions from being “earmarked or otherwise directed through an intermediary or conduit to [a particular] candidate.”Id.
§ 30116(a)(8). The Act also includes public disclosure provisions requiring political committees
to file detailed reports of receipts and disbursements. See id. § 30104.
Yet the FEC demands more. On top of this mountain of regulation, the FEC seeks to
limit a party committee’s expenditures coordinated with its own candidates. It justifies these
speech restraints as a necessary means to combat the risk of quid pro quo corruption or its
appearance. Without the coordination limits, the FEC worries, parties could spend unlimited
funds in direct coordination with candidates, resulting in large expenditures “indistinguishable”
from direct contributions to party nominees.
1. At the outset, it is difficult to see how a party committee itself could corrupt its own
candidates. Parties, of course, have influence over their candidates, just as candidates have
influence over their parties. That is by design. Coordination, in fact, is the essence of the party
system in our representative democracy. See Colorado I, 518 U.S. at 630 (Kennedy, J.,
concurring in part) (“We have a constitutional tradition of political parties and their candidates
engaging in joint First Amendment activity . . . .”). Parties work with their candidates to pursue
favored policies. See id. at 646 (Thomas, J., concurring in part) (“The very aim of a political
party is to influence its candidate’s stance on issues and, if the candidate takes office or is
reelected, his votes.”). Candidates, in turn, sway their party, pushing it in one direction or the
other on issues of the day. Each, in other words, influences the other. But influence alone does
not risk corruption. Nor does coordination, the primary role parties seek to play in working with
their candidates. That desire arises from the “practical identity of interests between the two
entities during an election,” not a nefarious intent to instigate a wave of quid pro quo corruption.
Id. at 630 (Kennedy, J., concurring in part). Against this backdrop, it is difficult to see the
necessity of prohibiting a party committee from coordinating with players on its own team.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 95
Even were party committees prime vehicles for fueling such corruption, a committee
faces deep practical limits in directing their candidates and the political process more broadly.
As any political science student would recognize, parties desire to maximize their election
victories and achieve functioning legislative majorities. See Samuel Issacharoff, Private Parties
with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101
Colum. L. Rev. 274, 300 (2001) (describing “the conception of politics as a contested terrain in which political actors seek to devise a winning coalition strategy for electoral success”). In theory, that would mean promoting candidates with the best odds of winning an election.Id.
Yet parties are often unable to achieve that result. Today, the political process is increasingly dominated by candidates with more extreme views, both making those candidates’ election odds longer and often bringing consternation to their party. See generally Stephen Yang & Baozhong Yang, Endogenous Fracturing under Partisan Voting (October 23, 2023), https://perma.cc/857D-FDZB; see also Isgur et al., supra (noting that candidates are incentivized “to build support with the most extreme factions of voters”). Just ask former House Speaker Kevin McCarthy, among others. As his abbreviated tenure as speaker reflects, one major party could barely elect its own legislative leader, let alone retain him for a full term. See Aaron Zitner & Lindsay Wise, How Polarization Sent Washington to the Brink of a Shutdown, Wall St. J. (Sept. 30, 2023), https://www.wsj.com/politics/policy/how-polarization-sent-washington- hurtling-into-a-shutdown-83d806c?reflink=desktopwebshare. It is difficult to imagine that same party devising an intricate plan to corrupt the legislative process. In short, in an age where parties increasingly face frayed relationships with their candidates, it becomes even less likely that party committee support will “be given as a quid pro quo for improper commitments from the candidate.” McCutcheon,572 U.S. at 208
(citation omitted).
2. That leaves one final target for the FEC: individual donors. The FEC warns that a
party committee’s donors, absent limits on coordinated party expenditures, can act through the
committee to corrupt a party’s candidates. Without those limits, the FEC contends, individuals
will circumvent the base limit on individual candidate contributions by donating amounts above
that threshold to the candidate’s party committee. The committee, in turn, can coordinate its
expenditure of those funds with the candidate, making the donations, in the FEC’s mind,
“indistinguishable from contributions made directly to the candidate.”
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 96
Setting aside the fact that donors are prohibited from “earmarking” their party committee
contributions to a specified candidate, 52 U.S.C. § 30116(a)(8), the FEC’s argument likewise
sidesteps the obvious point that contributions to a party are not contributions to a candidate.
“When an individual contributes to . . . a party committee, . . . the individual must by law cede
control over the funds.” See McCutcheon, 572 U.S. at 210–11. Once received, the party controls
when, how, and where the money is spent, curtailing the risk of quid pro quo corruption. See id.
at 210. In McCutcheon, in fact, the FEC conceded that should a third party’s funds be
“subsequently re-routed to a particular candidate, such action occurs at the initial recipient’s
discretion—not the donor’s.” Id. at 211. That remains true today, with party committees
“retain[ing] final approval” over how its funds are spent. R. 49-1 at 10 ¶ 53 PageID 5505.
What is more, party committees, at day’s end, are rational actors. Above all else, they
value winning. See Kathleen Bawn et al., A Theory of Political Parties: Groups, Policy
Demands and Nominations in American Politics, 3 Perspectives on Pol. 571, 571–72 (2012). So
when it comes to spending critical campaign dollars, it is fair to expect that parties will use these
sums to help the candidates that will benefit most, regardless of perceived donor preference. As
even the FEC acknowledges, parties divert funds to candidates in close races rather than padding
campaign coffers in easily won contests. See Second Br. at 38 (noting that “[c]ampaign
spending has become highly concentrated in a limited number of decisive races”).
True, on the margins, a party committee might feel some pressure to honor a donor’s
assumed preferences. That is human nature. Donation recipients of all types, from politicians to
non-profits, would likely acknowledge as much. But recognizing a donor’s interests is not
illegal. Nor is taking them into consideration. See McCutcheon, 572 U.S. at 192 (“[A] central
feature of democracy” is “that constituents support candidates who share their beliefs and
interest, and candidates who are elected can be expected to be responsive to those concerns.”).
The touchstone, remember, is express quid pro quo corruption (or its appearance). And the
FEC’s theory falls well short of that high bar.
The FEC responds by invoking Colorado II and its warning about the corruptive
influence of donors who contribute to party committees. Two flaws in the FEC’s position are
readily apparent. One, the Supreme Court, it bears repeating, has wholly rejected the FEC’s
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 97
theory of corruption in the years since Colorado II. “Of course,” the Supreme Court more
recently observed, “a candidate would be pleased with a donor who contributed not only to the
candidate himself, but also to other candidates from the same party . . . [and] to party
committees.” Id. at 225. But that is far afield from contributions to the candidate herself, where the recipient might feel “obligated” in one sense or another to the donor.Id.
For donations to party committees and beyond, on the other hand, the candidate at most has a sense of “gratitude.”Id. at 226
. Characterizing that gratitude as tantamount to quid pro quo corruption stretches the notion beyond recognition. Remember, quid pro quo corruption as it is now understood requires a direct exchange of money for an official’s “formal exercise of governmental power.” McDonnell, 579 U.S. at 574. We should not accept the FEC’s invitation to relax those standards. Doing so would not only ignore the Supreme Court’s direction on what amounts to actionable corruption, but it would also be a vehicle for “dramatically expand[ing] government regulation of the political process.” McCutcheon,572 U.S. at 226
.
Two, the FEC’s theory is mismatched with Colorado II’s underpinnings. In Colorado II,
the government highlighted a concern about “tallying” used by the Democratic Senatorial
Campaign Committee. 533 U.S. at 459; see also Stranch Concurring Op. at 59. In effect, a donor would contribute money to a party committee at the direction of the party’s candidate, with an implicit understanding that the party would then direct that contribution back to the candidate through coordinated expenditures, leaving the committee as little more than a pass through.Id.
Yet that is not how the FEC justifies the coordination ban today. Instead, it argues
that the concentration of campaign spending in a small number of decisive contests risks “donors
seeking to extract official action from various candidates for party contributions supporting
candidates in competitive races that determine Congress’s balance of power.” Second Br. at 38.
The FEC seemingly fears that a candidate in a safe seat will direct a donor to contribute to the
candidate’s party committee, with the committee then funneling that contribution to a candidate
in a tight race, allowing the donor to curry favor with both potential officeholders. See id. at 39
(“[L]arge contributions will flow to candidates running in those decisive races enabling donors to
leverage contributions for quid pro quo exchanges with those candidates in addition to
candidates and officeholders unaffiliated with any close election, but who value winning those
races to cement a majority.”). But under this construct, a candidate’s theoretical quo (the official
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 98
action) is far more attenuated from a donor’s quid (the contribution) than before. Colorado II,
again, targeted a direct relationship, one where a candidate instructs a donor to contribute to a
party committee in anticipation of the donation’s direct return.
The FEC’s premise that most party committee contributions are spent in close races
places yet another hurdle in its way. If this assumption is correct, any chance that one
contributor (or even a group of contributors) will have a corrupting influence all but fades away.
Generally speaking, “the influence of any one person or the importance of any single issue
within a political party is significantly diffused.” Colorado I, 518 U.S. at 647 (Thomas, J.,
dissenting). That is particularly true the more contributions a candidate receives, as any single
contributor will be “significantly diluted by all the contributions from others.” McCutcheon, 572
U.S. at 212. The donor’s “salience as a . . . supporter” of the candidate in a tight race thus “has been diminished, and with it the potential for corruption.”Id.
This much the FEC all but concedes. See Fourth Br. at 13 (“[A] greater number of donors in a jurisdiction enables greater coordinated spending before rising to a level risking corruption.”). And that is all the more true when one remembers that contributors face a cap on the amount they can donate to a party committee.52 U.S.C. § 30116
(a)(1)(B). “[A]s long as . . . those limits are uniform as to all
donors, . . . there is little risk that an individual donor could use a party as a conduit for bribing
candidates.” Colorado I, 518 U.S. at 647 (Thomas, J., dissenting).
In practice, donors enjoy a far better vehicle for influencing a candidate: independent,
expenditure-only political action committees, or Super PACs. In large part creatures of judicial
decisions, “Super PACs were officially born when the FEC handed down a pair of advisory
opinions” in 2010. Richard Briffault, Super PACs, 96 Minn. L. Rev. 1644, 1645, 1665 (2012); see also FEC, Advisory Op. 2010-09 (2010); FEC, Advisory Op. 2010-11 (2010). A Super PAC’s defining feature is the ability to raise unlimited sums of money from individuals for independent expenditures. See SpeechNow.org v. FEC,599 F.3d 686, 690, 696
(D.C. Cir. 2010)
(en banc). The allowance of unlimited contributions to these entities means that motivated
donors can choose Super PACs as the “better vehicle for channeling campaign finances.”
Issacharoff, Outsourcing Politics, supra, at 861. And choose they have. In 2023, for example,
Super PACs far outpaced national party committees in receipts, with Super PACs raising roughly
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 99
$957,100,000 compared to parties’ $572,100,000 in contributions. See Statistical Summary of
12-Month Campaign Activity of the 2023-2024 Election Cycle, Fed. Election Comm’n (Apr. 2,
2024), https://perma.cc/SH37-DX6Z; R. 49-1 at 40 ¶ 171 (“[C]ontributions from political action
committees to federal campaigns ha[ve] consistently exceeded the contributions and
expenditures made by party-affiliated committees to federal campaigns.”). Oftentimes, Super
PAC donors let it be known who they are helping, and in what amounts. See Ryan Mac & Lisa
Lerer, The Right’s Would-Be Kingmaker, N.Y. Times, Feb. 14, 2022 (reporting that Peter Thiel
wrote “$10 million checks to PACs supporting [J.D.] Vance and [Blake] Masters”); Christopher
Cadelago et al., Bloomberg Pumps $10 Million More into House Campaigns as Red Wave
Looms, Politico, Oct. 26, 2022 (describing a donation of $10 million to the “House Majority
PAC”). If one is worried about the potential for quid pro quo corruption in politics, Super PACs
present an inviting target. Yet the FEC zeroes in on donations to party committees—capped at
$41,300 per year—which, it bears repeating, both may not be earmarked for particular candidates
and are subject to the party committee’s independent allocation decisions.
3. Given the FEC’s big swing, one would expect it to offer a wave of evidence justifying
the need to restrict party committee coordination. It is well understood that the government
“must point to record evidence or legislative findings demonstrating the need to address a special
problem.” Cruz, 596 U.S. at 307 (cleaned up). But the record here reveals very little in that
regard. At the FEC’s request, the district court allowed the parties to engage in discovery. Yet
what did the FEC’s efforts produce? It points to nothing in the certified record demonstrating
quid pro quo corruption tied to donations to party committees. At best, it gestures to newspaper
articles and items it submitted unsuccessfully to the district court for inclusion as record
evidence. See Second Br. at 40–43. And even as to those disallowed items, an expert for the
FEC acknowledged that evidence of quid pro quo corruption in this context is scant, admitting
that “scandals specifically involving coordinated federal expenditures have not been . . .
common.” R. 36-1, PageID# 411. For example, the FEC highlights tax cuts enacted by
Congress in 2017, which the agency posits followed from “Republican party donors conditioning
further party contributions on that legislation.” R. 43, ¶ 126, PageID# 5165; see Second Br. at
41. It likewise points to Sam Bankman-Fried’s donations to Democratic party committees,
contributions that purportedly “appeared to obtain a favorable regulatory environment.” R. 43, ¶
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 100
139, PageID# 5170; see Second Br. at 41. At most, these hazy illustrations reflect the
“appearance of mere influence or access,” well short of outright quid pro quo corruption.
McCutcheon, 572 U.S. at 208.
Nor, it bears adding, has the absence of coordination limits at the state level led to an
avalanche of quid pro quo corruption. Far from it, in fact. As summarized by the Institute for
Free Speech, most states do not bar coordination between political parties and their candidates.
Br. for Inst. for Free Speech as Amicus Curiae Supporting Plaintiffs at 5. Yet examples of quid
pro quo corruption involving parties’ coordinated expenses in those jurisdictions are all but
absent as well. Id. at 5–7. At day’s end, “mere conjecture” supported by “a handful of media
reports and anecdotes” is inadequate to meet the FEC’s evidentiary burden. Cruz, 596 at 307
(citation omitted).
All things considered, the FEC fails to show a sufficiently important government interest
justifying the coordinated party expenditure limits. With no evidence of genuine quid pro quo
corruption, the FEC cannot explain how “parties . . . would dramatically shift their priorities” if
the limits were removed. McCutcheon, 572 U.S. at 220. Either way, party committees will
spend money to elect their candidates. Were those committees and their candidates allowed to
coordinate their efforts, they could act in more informed, presumably mutually beneficial ways.
But otherwise, the process would go on as it has, with parties and candidates working to achieve
shared electoral goals. The First Amendment well tolerates those full-throated efforts.
B. Nor are the coordination limits “closely drawn to avoid unnecessary abridgment of
associational freedoms.” Id.at 197 (quoting Buckley,424 U.S. at 25
). Here, we require a fit
between means and ends “that represents not necessarily the single best disposition but one
whose scope is in proportion to the interest served, . . . that employs not necessarily the least
restrictive means but . . . a means narrowly tailored to achieve the desired objective.” Id. at 218
(cleaned up).
The FEC fails in this respect too. One, recall that FECA was amended in 2014 to allow
unlimited coordinated expenditures to cover expenses for presidential nominating conventions,
the construction of a party headquarters, and certain legal proceedings, such as election recounts.
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 101
See 52 U.S.C. § 30116(a)(9), (d)(5). These exemptions render the statute underinclusive for the government’s professed purpose of limiting quid pro quo corruption. If, as the FEC believes, a donor can corrupt a candidate through party committee contributions later spent on coordinated advertising supporting the candidate, it is unclear why these same concerns would not attend donations supporting the candidate’s party’s convention or a candidate’s legal fees. See Cruz, 596 at 306 (explaining the government’s argument that post-election contributions “raise a heightened risk of corruption” if the contributor has good reason to believe the recipient “will be in a position to do him some good”). For instance, the whole point of a political convention is to advertise party and candidate political messages to voters. See Aaron Johnson, Interning Dissent: The Law of Large Political Events, 9 Duke J. Const. L. & Pub. Pol’y 87, 89–90 (2013) (“Modern major political conventions are not debates—they are publicity extravaganzas, devoted to promoting the platform and candidate of a dominant political party.”). Why contributions supporting those coordinated advertising expenses would create less of an appearance of corruption goes largely unexplained. This manner of “[u]nderinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes.” Brown v. Ent. Merchs. Ass’n,564 U.S. 786, 802
(2011); see also Nat’l Inst. of Fam. & Life Advocs. v. Becerra,585 U.S. 755
, 773–75 (2018) (recognizing that a law’s exceptions can show the law is not “sufficiently
drawn to achieve” the purported governmental interest).
Two, that the FEC advances a “prophylaxis-upon-prophylaxis” approach “requires that
we be particularly diligent in scrutinizing the law’s fit.” McCutcheon, 572 U.S. at 222–23
(citation omitted). The vast realm of campaign finance regulations obviates the need for further
restrictions on party committee spending as a means for targeting quid pro quo corruption. The
base limits on individual contributions to both candidates and parties go a long way in curtailing
any fear of an individual donor’s corruptive influence over a candidate or a party. See
McCutcheon, 572 U.S. at 209(“[B]ase limits remain the primary means of regulating campaign contributions.”). As these limits themselves are “a prophylactic measure,” they undermine the need for further prophylactic measures “layered on top.”Id. at 221
.
Beyond the base limits on contributions, striking down the coordination restrictions
would not touch FECA’s earmarking rule. That rule, it bears repeating, subjects donations to an
No. 24-3051 Nat’l Republican Senatorial Comm., et al. v. FEC, et al. Page 102
intermediary earmarked for “a particular candidate” to the limits on individual contributions. See
52 U.S.C. § 30116(a)(8);11 C.F.R. § 110.6
(b)(1) (defining “earmarking” as “a designation,
instruction, or encumbrance, whether direct or indirect, express or implied, oral or written, which
results in all or any part of a contribution or expenditure being made to, or expended on behalf
of, a clearly identified candidate or a candidate’s authorized committee”). These limitations
seemingly already prohibit the hypothetical sketched out by the FEC of a donor attempting to
circumvent the base contribution limits through party committee contributions. See
McCutcheon, 572 U.S. at 222–23.
And then there are the disclosure provisions requiring political committees to file detailed
reports of receipts and disbursements. See 52 U.S.C. § 30104. Those requirements further deter corruption “by exposing large contributions and expenditures to the light of publicity.” McCutcheon,572 U.S. at 223
(citation omitted). Although they burden speech, “they do not impose a ceiling on” expressive conduct as do the coordination limits before us today.Id.
And
the disclosure rules, all of which would remain in place were coordination limits eased, represent
a less restrictive alternative to the coordination restrictions.
Finally, were Congress still concerned about donors using parties as conduits for quid pro
quo corruption despite these extensive regulations, it could resort to a much simpler measure:
reducing the base limits on individual contributions to party committees. That solution, it bears
noting, seemingly is one plaintiffs would prefer over the significant coordination restrictions they
now confront. See Third Br. at 18–19. Many donors may feel the same. A party’s influence
grows when its candidates hold a legislative majority. And so many donors may have more
interest in seeing their preferred party gain a majority in Congress than seeing any particular
candidate hold one of those seats. Such donors may contribute to party committees rather than
particular candidates, allowing the party to decide how best to allocate funds to win a majority.
Yet FECA’s limits on coordinated spending inhibit a party committee’s ability to disburse
money in the most efficient manner and, as a result, the party’s chances to secure a majority. See
R. 49-1 at 19–20 ¶¶ 85–86, PageID 5514–15 (noting the efficiencies of coordinated spending
compared to independent expenditures). In the end, the FEC’s enforcement efforts disfavor
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donors who trust party committees over individual candidates to best navigate the election
process.
* * * * *
Much more could be said on the poor fit between the FEC’s enforcement efforts and the
narrow goal of preventing quid pro quo corruption. See generally, e.g., Thapar Concurring Op.;
Bush Concurring Op. For today’s purposes, an amicus party may have summed up the matter
best. The coordinated party expenditure limits “fight against a harm that either does not exist, or
that is effectively managed by other more narrowly drawn rules.” Br. for Inst. for Free Speech as
Amicus Curiae Supporting Plaintiffs at 2. For all of these reasons, the challenged limits on
political speech fail the “closely drawn” standard. Were my colleagues to reach the merits of
that question, I suspect many would agree.
Reference
- Status
- Published