OCTOBER TERM, 1995
Syllabus
COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE ET AL.
v.
FEDERAL ELECTION COMMISSION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 95-489. Argued April 15, 1996-Decided June 26, 1996
Before the Colorado Republican Party selected its 1986
senatorial candidate, its Federal Campaign Committee (Colorado
Party), a petitioner here, bought radio advertisements attacking
the Democratic Party's likely candidate. The Federal Election
Commission (FE C) brought suit charging that the Colorado Party had
violated the "Party Expenditure Provision" of the Federal Election
Campaign Act of 1971 (FECA), 2 U. S. C. § 441a(d)(3), which imposes
dollar limits upon political party "expenditure[s] in connection
with the general election campaign of a [congressional] candidate."
The Colorado Party defended in part by claiming that the
expenditure limitations violated the First Amendment as applied to
its advertisements, and filed a counterclaim seeking to raise a
facial challenge to the provision as a whole. The District Court
interpreted the "in connection with" language narrowly and held
that the provision did not cover the expenditure at issue. It
therefore entered summary judgment for the Colorado Party,
dismissing the counterclaim as moot. In ordering judgment for the
FEC, the Court of Appeals adopted a somewhat broader interpretation
of the provision, which, it said, both covered this expenditure and
satisfied the Constitution.
Held: The judgment is vacated, and the case is remanded.
59 F.3d
1015, vacated and remanded.
JUSTICE BREYER, joined by JUSTICE O'CONNOR and JUSTICE SOUTER,
concluded that the First Amendment prohibits application of the
Party Expenditure Provision to the kind of expenditure at issue
here-an expenditure that the political party has made
independently, without coordination with any candidate. Pp.
613-623.
(a) The outcome is controlled by this Court's FECA case law.
After weighing the First Amendment interest in permitting
candidates (and their supporters) to spend money to advance their
political views, against a "compelling" governmental interest in
protecting the electoral system from the appearance and reality of
corruption, see,
e. g., Buckley v.
Valeo, 424 U. S. 1, 14-23
(per
curiam), the Court has ruled unconstitutional FECA provisions
that,
inter alia, limited the right of individuals,
605
id., at 39-51, and political committees,
Federal
Election Comm'n v.
National Conservative Political Action
Comm., 470 U. S.
480, 497, to make "independent" expenditures not coordinated
with a candidate or a candidate's campaign, but has permitted other
FECA provisions that imposed
contribution limits both when
an individual or political committee contributed money directly to
a candidate, and when they contributed indirectly by making
expenditures that they coordinated with the candidate, see
Buckley, supra, at 23-36, 46-48. The summary judgment record
indicates that the expenditure here at issue must be treated, for
constitutional purposes, as an "independent" expenditure entitled
to First Amendment protection, not as an indirect campaign
contribution subject to regulation. There is uncontroverted direct
evidence that the Colorado Party developed its advertising campaign
independently and not pursuant to any understanding with a
candidate. Since the Government does not point to evidence or
legislative findings suggesting any special corruption problem in
respect to political parties' independent expenditures, the Court's
prior cases forbid regulation of such expenditures. Pp.
613-619.
(b) The Government's argument that this expenditure is not
"independent," but is rather a "coordinated expenditure," which
this Court has treated as a "contribution" that Congress may
constitutionally regulate, is rejected. The summary judgment record
shows no actual coordination with candidates as a matter of fact.
The Government's claim for deference to FEC interpretations
rendering
all party expenditures "coordinated" is
unpersuasive.
Federal Election Comm'n v.
Democratic
Senatorial Campaign Comm., 454 U. S. 27, 28-29, n. 1,
distinguished. These regulations and advisory opinions do not
represent an empirical judgment by the FEC that all party
expenditures are coordinated with candidates or that party
independent and coordinated expenditures cannot be distinguished in
practice. Also unconvincing are the Government's contentions that
the Colorado Party has conceded that the expenditure here is
"coordinated," and that such coordination exists because a party
and its candidate are, in some sense, identical. Pp. 619-623.
(c) Because this expenditure is "independent," the Court need
not reach the broader question argued by the Colorado Party:
whether, in the special case of political parties, the First
Amendment also forbids congressional efforts to limit coordinated
expenditures. While the Court is not deprived of jurisdiction to
consider this facial challenge by the failure of the parties and
the lower courts to focus specifically on the complex issues
involved in determining the constitutionality of political parties'
coordinated expenditures, that lack of focus provides a prudential
reason for the Court not to decide the broader question. This
is
606
Syllabus
the first case to raise the question, and the Court should defer
action until the lower courts have considered it in light of this
decision. Pp. 623-626.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE SCALIA,
concluded that, on its face, FECA violates the First Amendment when
it restricts as a "contribution" a political party's spending "in
cooperation, consultation, or concert, with ... a candidate." 2 U.
S. C. § 441a(a)(7)(B)(i). The Court in
Buckley v.
Valeo, 424 U. S.
1 (per curiam), had no occasion to consider limitations
on political parties' expenditures,
id., at 58, n. 66, and
its reasoning upholding ordinary contribution limitations should
not be extended to a case that does.
Buckley's central
holding is that spending money on one's own speech must be
permitted,
id., at 44-58, and that is what political parties
do when they make the expenditures that § 441a(a)(7)(B)(i)
restricts as "contribution[s]." Party spending "in cooperation,
consultation, or concer[t] with" a candidate is indistinguishable
in substance from expenditures by the candidate or his campaign
committee. The First Amendment does not permit regulation of the
latter, see
id., at 54-59, and it should not permit this
regulation of the former. Pp. 626-631.
JUSTICE THOMAS, joined by THE CHIEF JUSTICE and JUSTICE SCALIA,
concluded in Parts I and III that 2 U. S. C. § 441a(d)(3) is
unconstitutional not only as applied to petitioners, but also on
its face. Pp. 631-634, 644-648.
(a) The Court should decide the Colorado Party's facial
challenge to § 441a(d)(3), addressing the constitutionality of
limits on coordinated expenditures by political parties. That
question is squarely before the Court, and the principal opinion's
reasons for not reaching it are unpersuasive. In addition, concerns
for the chilling of First Amendment expression counsel in favor of
resolving the question. Reaching the facial challenge will make
clear the circumstances under which political parties may engage in
political speech without running afoul of § 441a(d)(3). Pp.
631-634.
(b) Section 441a(d)(3) cannot withstand a facial challenge under
the framework established by
Buckley v.
Valeo,
424 U. S. 1 (per
curiam). The anticorruption rationale that the Court has relied
on is inapplicable in the specific context of campaign funding by
political parties, since there is only a minimal threat of
corruption when a party spends to support its candidate or to
oppose his competitor, whether or not that expenditure is made in
concert with the candidate. Parties and candidates have
traditionally worked together to achieve their common goals, and
when they engage in that work, there is no risk to the Republic. To
the contrary, the danger lies in Government suppression of such
activity. Pp. 644-648.
607
JUSTICE THOMAS also concluded in Part II that, in resolving the
facial challenge, the
Buckley framework should be rejected
because there is no constitutionally significant difference between
campaign contributions and expenditures: Both involve core
expression and basic as sociational rights that are central to the
First Amendment. Curbs on such speech must be strictly scrutinized.
See,
e. g., Federal Election Comm'n v.
National
Conservative Political Action Comm., 470 U. S. 480, 501.
Section 441a(d)(3)'s limits on independent and coordinated
expenditures fail strict scrutiny because the statute is not
narrowly tailored to serve the compelling governmental interest in
preventing the fact or appearance of "corruption," which this Court
has narrowly defined as a "financial
quid pro quo: dollars
for political favors,"
id., at 497. Contrary to the Court's
ruling in
Buckley, supra, at 28, bribery laws and disclosure
requirements present less restrictive means of preventing
corruption than does § 441a(d)(3), which indiscriminately covers
many conceivable instances in which a party committee could exceed
spending limits without any intent to extract an unlawful
commitment from a candidate. Pp. 640-644.
BREYER, J., announced the judgment of the Court and delivered an
opinion, in which O'CONNOR and SOUTER, JJ., joined. KENNEDY, J.,
filed an opinion concurring in the judgment and dissenting in part,
in which REHNQUIST, C. J., and SCALIA, J., joined,
post, p.
626. THOMAS, J., filed an opinion concurring in the judgment and
dissenting in part, in which REHNQUIST, C. J., and SCALIA, J.,
joined as to Parts I and III,
post, p. 631. STEVENS, J.,
filed a dissenting opinion, in which GINSBURG, J., joined,
post, p. 648.
Jan Witold Baran argued the cause for petitioners. With him on
the briefs were Thomas W Kirby, Carol A. Laham, and Michael E.
Toner.
Solicitor General Days argued the cause for
respondent.
With him on the brief were Deputy Solicitor General Bender,
Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader, and Rita
A. Reimer.*
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union et al. by
David H. Remes,
David H. Miller, Arthur B. Spitzer, Steven R. Shapiro, Joel M.
Gora, and
Arthur N. Eisenberg; for the Democratic
National Committee et al. by
Joseph E. Sandler and
Robert F.
Bauer; for the National Right to Life
Committee, Inc., by
James Bopp, Jr., and
Richard E.
Coleson; and for the Washington Legal
608
Opinion of BREYER, J.
JUSTICE BREYER announced the judgment of the Court and delivered
an opinion, in which JUSTICE O'CONNOR and JUSTICE SOUTER join.
In April 1986, before the Colorado Republican Party had selected
its senatorial candidate for the fall's election, that party's
Federal Campaign Committee bought radio advertisements attacking
Timothy Wirth, the Democratic Party's likely candidate. The Federal
Election Commission (FEC) charged that this "expenditure" exceeded
the dollar limits that a provision of the Federal Election Campaign
Act of 1971 (FECA or Act) imposes upon political party
"expenditure[s] in connection with" a "general election campaign"
for congressional office. 90 Stat. 486, as amended, 2 U. S. C. §
441a(d)(3). This case focuses upon the constitutionality of those
limits as applied to this case. We conclude that the First
Amendment prohibits the application of this provision to the kind
of expenditure at issue here-an expenditure that the political
party has made independently, without coordination with any
candidate.
Foundation et al. by Benjamin L. Ginsberg, Daniel
J.
Popeo, and Paul
Briefs of
amici curiae urging affirmance were filed for
the Brennan Center for Justice by
Burt Neuborne; and for
Common Cause et al. by
Roger M. Witten, Donald J.
Simon, and
Alan Morrison.
Briefs of
amici curiae were filed for the State of
Kentucky et al. by
A.
B. Chandler III, Attorney General of Kentucky,
Pamela J. Murphy, Deputy Attorney General,
Morgan G.
Ransdell, Assistant Attorney General,
Sheryl G.
Snyder, Richard Blumenthal, Attorney
General of Connecticut,
Hubert H. Humphrey III, Attorney
General of Minnesota,
Tom Udall, Attorney General of New
Mexico,
W A. Drew Edmondson, Attorney General of Oklahoma,
and
Darrell V. McGraw, Jr., Attorney General of West
Virginia; for the Committee for Party Renewal et al. by
E. Mark
Braden and
Stephen E. Gottlieb; and for the Republican
National Committee by
George J. Terwilliger III,
John P. Connors, E. Duncan Getchell, Jr., Robert L. Hodges, and
Darryl S.
Lew.
609
I
To understand the issues and our holding, one must begin with
FECA as it emerged from Congress in 1974. That Act sought both to
remedy the appearance of a "corrupt" political process (one in
which large contributions seem to buy legislative votes) and to
level the electoral playing field by reducing campaign costs. See
Buckley v.
Valeo, 424 U. S. 1, 25-27
(1976) (per curiam). It consequently imposed limits
upon the amounts that individuals, corporations, "political
committees" (such as political action committees, or PAC's), and
political parties could
contribute to candidates for federal
office, and it also imposed limits upon the amounts that
candidates, corporations, labor unions, political committees, and
political parties could
spend, even on their own, to help a
candidate win election. See 18 U. S. C. §§ 608, 610 (1970 ed.,
Supp. IV).
This Court subsequently examined several of the Act's provisions
in light of the First Amendment's free speech and association
protections. See
Federal Election Comm'n v.
Massachusetts
Citizens for Life, Inc., 479 U. S. 238 (1986);
Federal Election Comm'n v.
National Conservative
Political Action Comm., 470 U. S. 480 (1985)
(NCPAC); California Medical Assn. v.
Federal Election
Comm'n, 453 U. S.
182 (1981); Buckley, supra. In these cases, the
Court essentially weighed the First Amendment interest in
permitting candidates (and their supporters) to spend money to
advance their political views against a "compelling" governmental
interest in assuring the electoral system's legitimacy, protecting
it from the appearance and reality of corruption. See
Massachusetts Citizens for Life, supra, at 256-263;
NCPAC, supra, at 493-501;
California Medical Assn.,
supra, at 193
199; Buckley, 424 U. S., at 14-23.
After doing so, the Court found that the First Amendment prohibited
some of FECA's provisions, but permitted others.
610
Opinion of BREYER, J.
Most of the provisions this Court found unconstitutional imposed
expenditure limits. Those provisions limited candidates'
rights to spend their own money,
id., at 51-54, limited a
candidate's campaign expenditures,
id., at 54-58, limited
the right of individuals to make "independent" expenditures (not
coordinated with the candidate or candidate's campaign),
id., at 39-51, and similarly limited the right of political
committees to make "independent" expenditures,
NCPAC, supra,
at 497. The provisions that the Court found constitutional mostly
imposed
contribution limits-limits that apply both when an
individual or political committee contributes money directly to a
candidate and also when they indirectly contribute by making
expenditures that they coordinate with the candidate, §
441a(a)(7)(B)(i). See
Buckley, supra, at 2336. See also 424
U. S., at 46-48;
California Medical Assn., supra, at 193-199
(limits on contributions to political committees). Consequently,
for present purposes, the Act now prohibits individuals and
political committees from making direct, or indirect, contributions
that exceed the following limits:
(a) For any "person": $1,000 to a candidate "with respect to any
election"; $5,000 to any political committee in any year; $20,000
to the national committees of a political party in any year; but
all within an overall limit (for any individual in any year) of
$25,000. 2 U. S. C. §§ 441a(a)(1), (3).
(b) For any "multicandidate political committee": $5,000 to a
candidate "with respect to any election"; $5,000 to any political
committee in any year; and $15,000 to the national committees of a
political party in any year. § 441a(a)(2).
FECA also has a special provision, directly at issue in this
case, that governs contributions and expenditures by political
parties. § 441a(d). This special provision creates, in part, an
exception to the above contribution limits. That
611
is, without special treatment, political parties ordinarily
would be subject to the general limitation on contributions by a
"multicandidate political committee" just described. See
§441a(a)(4). That provision, as we said in subsection (b) above,
limits annual contributions by a "multicandidate political
committee" to no more than $5,000 to any candidate. And as also
mentioned above, this contribution limit governs not only direct
contributions but also indirect contributions that take the form of
coordinated expenditures, defined as "expenditures made ... in
cooperation, consultation, or concert, with, or at the request or
suggestion of, a candidate, his authorized political committees, or
their agents." § 441a(a)(7)(B)(i). Thus, ordinarily, a party's
coordinated expenditures would be subject to the $5,000
limitation.
However, FECA's special provision, which we shall call the
"Party Expenditure Provision," creates a
general exception
from this contribution limitation, and from any other limitation on
expenditures. It says:
"Notwithstanding any other provision of law with respect to
limitations on expenditures or limitations on contributions,
... political party [committees] ... may make
expenditures in connection with the general election
campaign of candidates for Federal office .... " § 441a(d)(1)
(emphasis added).
After exempting political parties from the general contribution
and expenditure limitations of the statute, the Party Expenditure
Provision then imposes a
substitute limitation upon party
"expenditures" in a senatorial campaign equal to the greater of
$20,000 or "2 cents multiplied by the voting age population of the
State," § 441a(d)(3)(A)(i), adjusted for inflation since 1974,
§441a(c). The provision permitted a political party in Colorado in
1986 to spend about $103,000 in connection with the general
election campaign of a candidate for the United States Senate. See
FEC Record, vol. 12, no. 4, p. 1 (Apr. 1986). (A different
provision, not at issue
612
Opinion of BREYER, J.
in this case, § 441a(d)(2), limits party expenditures in
connection with Presidential campaigns. Since this case involves
only the provision concerning congressional races, we do not
address issues that might grow out of the public funding of
Presidential campaigns.)
In January 1986, Timothy Wirth, then a Democratic Congressman,
announced that he would run for an open Senate seat in November. In
April, before either the Democratic primary or the Republican
convention, the Colorado Republican Federal Campaign Committee
(Colorado Party or Party), a petitioner here, bought radio
advertisements attacking Congressman Wirth. The State Democratic
Party complained to the FEC. It pointed out that the Colorado Party
had previously assigned its $103,000 general election allotment to
the National Republican Senatorial Committee, leaving it without
any permissible spending balance. See
Federal Election
Comm'n v.
Democratic Senatorial Campaign Comm., 454 U. S. 27 (1981) (state
party may appoint national senatorial campaign committee as agent
to spend its Party Expenditure Provision allotment). It argued that
the purchase of radio time was an "expenditure in connection with
the general election campaign of a candidate for Federal office," §
441a(d)(3), which, consequently, exceeded the Party Expenditure
Provision limits.
The FEC agreed with the Democratic Party. It brought a complaint
against the Colorado Party, charging a violation. The Colorado
Party defended in part by claiming that the Party Expenditure
Provision's expenditure limitations violated the First Amendment-a
charge that it repeated in a counterclaim that said the Colorado
Party intended to make other "expenditures directly in connection
with" senatorial elections, App. 68, , 48, and attacked the
constitutionality of the entire Party Expenditure Provision. The
Federal District Court interpreted the provision's words "'in
connection with' the general election campaign of a candidate"
narrowly, as meaning only expenditures for advertis-
613
ing using" 'express words of advocacy of election or defeat.'"
839 F. Supp. 1448, 1455 (Colo. 1993) (quoting
Buckley, 424
U. S., at 46, n. 52). See also
Massachusetts Citizens for
Life, 479 U. S., at 249. As so interpreted, the court held, the
provision did not cover the expenditures here. The court entered
summary judgment for the Colorado Party and dismissed its
counterclaim as moot.
Both sides appealed. The Government, for the FEC, argued for a
somewhat broader interpretation of the statuteapplying the limits
to advertisements containing an "electioneering message" about a
"clearly identified candidate," FEC Advisory Op. 1985-14,2 CCH Fed.
Election Camp. Fin. Guide , 5819, p. 11,185 (May 30, 1985)-which,
it said, both covered the expenditure and satisfied the
Constitution. The Court of Appeals agreed. It found the Party
Expenditure Provision applicable, held it constitutional, and
ordered judgment in the FEC's favor.
59 F.3d
1015, 1023-1024 (CAlO 1995).
We granted certiorari primarily to consider the Colorado Party's
argument that the Party Expenditure Provision violates the First
Amendment "either facially or as applied." Pet. for Cert. i. For
reasons we shall discuss in Part IV,
infra, we consider only
the latter question-whether the Party Expenditure Provision as
applied here violates the First Amendment. We conclude that it
does.
II
The summary judgment record indicates that the expenditure in
question is what this Court in
Buckley called an
"independent" expenditure, not a "coordinated" expenditure that
other provisions of FECA treat as a kind of campaign
"contribution." See
Buckley, supra, at 36-37, 46-47, 78;
NCPAC, 470 U. S., at 498. The record describes how the
expenditure was made. In a deposition, the Colorado Party's
Chairman, Howard Callaway, pointed out that, at the time of the
expenditure, the Party had not yet selected a
614
Opinion of BREYER, J.
senatorial nominee from among the three individuals vying for
the nomination. App. 195-196. He added that he arranged for the
development of the script at his own initiative,
id., at
200, that he, and no one else, approved it,
id., at 199,
that the only other politically relevant individuals who might have
read it were the Party's executive director and political director,
ibid., and that all relevant discussions took place at
meetings attended only by Party staff,
id., at 204.
Notwithstanding the above testimony, the Government argued in
District Court-and reiterates in passing in its brief to this
Court, Brief for Respondent 27, n. 20-that the deposition showed
that the Party had coordinated the advertisement with its
candidates. It pointed to Callaway's statement that it was the
practice of the Party to "coordinat[e] with the candidate"
"campaign strategy," App. 195, and for Callaway to be "as involved
as [he] could be" with the individuals seeking the Republican
nomination,
ibid., by making available to them "all of the
assets of the party,"
id., at 195196. These latter
statements, however, are general descriptions of Party practice.
They do not refer to the advertising campaign at issue here or to
its preparation. Nor do they conflict with, or cast significant
doubt upon, the uncontroverted direct evidence that this
advertising campaign was developed by the Colorado Party
independently and not pursuant to any general or particular
understanding with a candidate. We can find no "genuine" issue of
fact in this respect. Fed. Rule Civ. Proc. 56(e);
Matsushita
Elec. Industrial Co. v.
Zenith Radio Corp., 475 U. S. 574, 586-587
(1986). And we therefore treat the expenditure, for constitutional
purposes, as an "independent" expenditure, not an indirect campaign
contribution.
So treated, the expenditure falls within the scope of the
Court's precedents that extend First Amendment protection to
independent expenditures. Beginning with
Buckley, the
Court's cases have found a "fundamental constitutional difference
between money spent to advertise one's views
615
independently of the candidate's campaign and money contributed
to the candidate to be spent on his campaign."
NCPAC, supra,
at 497. This difference has been grounded in the observation that
restrictions on contributions impose "only a marginal restriction
upon the contributor's ability to engage in free communication,"
Buckley, supra, at 20-21, because the symbolic communicative
value of a contribution bears little relation to its size, 424 U.
S., at 21, and because such limits leave "persons free to engage in
independent political expression, to associate actively through
volunteering their services, and to assist to a limited but
nonetheless substantial extent in supporting candidates and
committees with financial resources,"
id., at 28. At the
same time, reasonable contribution limits directly and materially
advance the Government's interest in preventing exchanges of large
financial contributions for political favors.
Id., at
26-27.
In contrast, the Court has said that restrictions on independent
expenditures significantly impair the ability of individuals and
groups to engage in direct political advocacy and "represent
substantial ... restraints on the quantity and diversity of
political speech."
Id., at 19. And at the same time, the
Court has concluded that limitations on independent expenditures
are less directly related to preventing corruption, since "[t]he
absence of prearrangement and coordination of an expenditure with
the candidate ... not only undermines the value of the expenditure
to the candidate, but also alleviates the danger that expenditures
will be given as a
quid pro quo for improper commitments
from the candidate."
Id., at 47.
Given these established principles, we do not see how a
provision that limits a political party's independent expenditures
can escape their controlling effect. A political party's
independent expression not only reflects its members' views about
the philosophical and governmental matters that bind them together,
it also seeks to convince others to join those members in a
practical democratic task, the task of creating
616
Opinion of BREYER, J.
a government that voters can instruct and hold responsible for
subsequent success or failure. 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. See,
e. g., Eu v.
San Francisco County Democratic Central Comm., 489 U. S. 214
(1989).
We are not aware of any special dangers of corruption associated
with political parties that tip the constitutional balance in a
different direction. When this Court considered, and held
unconstitutional, limits that FECA had set on certain independent
expenditures by PAC's, it reiterated
Buckley's observation
that "the absence of prearrangement and coordination" does not
eliminate, but it does help to "alleviate," any "danger" that a
candidate will understand the expenditure as an effort to obtain a
"quid pro quo." See
NCPAC, 470 U. S., at 498. The
same is true of independent party expenditures.
We recognize that FECA permits individuals to contribute more
money ($20,000) to a party than to a candidate ($1,000) or to other
political committees ($5,000). 2 U. S. C. § 441a(a). We also
recognize that FECA permits unregulated "soft money" contributions
to a party for certain activities, such as electing candidates for
state office, see § 431(8)(A)(i), or for voter registration and
"get out the vote" drives, see § 431(8)(B)(xii). But the
opportunity for corruption posed by these greater opportunities for
contributions is, at best, attenuated. Unregulated "soft money"
contributions may not be used to influence a federal campaign,
except when used in the limited, party-building activities
specifically designated in the statute. See § 431(8)(B). Any
contribution to a party that is earmarked for a particular campaign
is considered a contribution to the candidate and is subject to the
contribution limitations. § 441a(a)(8). A party may not simply
channel unlimited amounts of even undesignated contributions to a
candidate, since such direct transfers are
617
also considered contributions and are subject to the
contribution limits on a "multicandidate political committee." §
441a(a)(2). The greatest danger of corruption, therefore, appears
to be from the ability of donors to give sums up to $20,000 to a
party which may be used for independent party expenditures for the
benefit of a particular candidate. We could understand how
Congress, were it to conclude that the potential for evasion of the
individual contribution limits was a serious matter, might decide
to change the statute's limitations on contributions to political
parties. Cf.
California Medical Assn., 453 U. S., at 197-199
(plurality opinion) (danger of evasion of limits on contribution to
candidates justified prophylactic limitation on
contributions to PAC's). But we do not believe that the risk
of corruption present here could justify the "markedly greater
burden on basic freedoms caused by" the statute's limitations on
expenditures. Buckley, 424 U. S., at 44. See also
id., at 46-47, 51;
NCPAC, supra, at 498. Contributors
seeking to avoid the effect of the $1,000 contribution limit
indirectly by donations to the national party could spend that same
amount of money (or more) themselves more directly by making their
own independent expenditures promoting the candidate. See
Buckley, supra, at 44-48 (risk of corruption by individuals'
independent expenditures is insufficient to justify limits on such
spending). If anything, an independent expenditure made possible by
a $20,000 donation, but controlled and directed by a party rather
than the donor, would seem less likely to corrupt than the same (or
a much larger) independent expenditure made directly by that donor.
In any case, the constitutionally significant fact, present equally
in both instances, is the lack of coordination between the
candidate and the source of the expenditure. See
Buckley,
supra, at
45-46; NCPAC, supra, at 498. This fact
prevents us from assuming, absent convincing evidence to the
contrary, that a limitation on political parties' independent
expenditures is
618
Opinion of BREYER, J.
necessary to combat a substantial danger of corruption of the
electoral system.
The Government does not point to record evidence or legislative
findings suggesting any special corruption problem in respect to
independent party expenditures. See
Turner Broadcasting System,
Inc. v.
FCC, 512 U. S. 622, 664 (1994)
("When the Government defends a regulation on speech as a means to
... prevent anticipated harms, it must do more than simply posit
the existence of the disease sought to be cured" (citation and
internal quotation marks omitted));
NCPAC, supra, at 498. To
the contrary, this Court's opinions suggest that Congress wrote the
Party Expenditure Provision not so much because of a special
concern about the potentially "corrupting" effect of party
expenditures, but rather for the constitutionally insufficient
purpose of reducing what it saw as wasteful and excessive campaign
spending. See
Buckley, supra, at 57. In fact, rather than
indicating a special fear of the corruptive influence of political
parties, the legislative history demonstrates Congress' general
desire to enhance what was seen as an important and legitimate role
for political parties in American elections. See
Federal
Election Comm'n v.
Democratic Senatorial Campaign Comm.,
454 U. S., at 41 (Party Expenditure Provision was intended to
"assur[e] that political parties will continue to have an important
role in federal elections"); S. Rep. No. 93-689, p. 7 (1974) ("[A]
vigorous party system is vital to American politics .... [P]ooling
resources from many small contributors is a legitimate function and
an integral part of party politics");
id., at 7-8, 15.
We therefore believe that this Court's prior case law controls
the outcome here. We do not see how a Constitution that grants to
individuals, candidates, and ordinary political committees the
right to make unlimited independent expenditures could deny the
same right to political parties. Having concluded this, we need not
consider the Party's further claim that the statute's "in
connection with" language, and
619
the FEC's interpretation of that language, are
unconstitutionally vague. Cf.
Buckley, supra, at 40-44.
III
The Government does not deny the force of the precedent we have
discussed. Rather, it argued below, and the lower courts accepted,
that the expenditure in this case should be treated under those
precedents, not as an "independent expenditure," but rather as a
"coordinated expenditure," which those cases have treated as
"contributions," and which those cases have held Congress may
constitutionally regulate. See,
e. g., Buckley, supra, at
23-38.
While the District Court found that the expenditure in this case
was "coordinated," 839 F. Supp., at 1453, it did not do so based on
any factual finding that the Party had consulted with any candidate
in the making or planning of the advertising campaign in question.
Instead, the District Court accepted the Government's argument that
all party expenditures should be treated as if they had been
coordinated
as a matter of law, "[b]ased on Supreme Court
precedent and the Commission's interpretation of the statute,"
ibid. The Court of Appeals agreed with this legal
conclusion. 59 F. 3d, at 1024. Thus, the lower courts' "finding" of
coordination does not conflict with our conclusion,
supra,
at 613-614, that the summary judgment record shows no actual
coordination as a matter of fact. The question, instead, is whether
the Court of Appeals erred as a legal matter in accepting the
Government's conclusive presumption that all party expenditures are
"coordinated." We believe it did.
In support of its argument, the Government points to a set of
legal materials, based on FEC interpretations, that seem to say or
imply that
all party expenditures are "coordinated." These
include: (1) an FEC regulation that forbids political parties to
make any "independent expenditures ... in connection with" a
"general election campaign," 11 CFR § 110.7(b)(4) (1995); (2) FEC
Advisory Opinions that use the
620
Opinion of BREYER, J.
word "coordinated" to describe the Party Expenditure Provision's
limitations, see,
e. g., FEC Advisory Op. 1984-15, 1
CCH Fed. Election Camp. Fin. Guide, 5766, p. 11,069 (May 31, 1984)
(AO 1984-15); FEC Advisory Op. 1988-22,2 CCH Fed. Election Camp.
Fin. Guide, 5932, p. 11,471, n. 4 (July 5, 1988) (AO 1988-22); (3)
one FEC Advisory Opinion that says explicitly in a footnote that
"coordination with candidates is presumed and 'independence'
precluded,"
ibid.; and (4) a statement by this Court that
"[p]arty committees are considered incapable of making
'independent' expenditures,"
Democratic Senatorial Campaign
Comm., supra, at 28-29, n.lo
The Government argues, on the basis of these materials, that the
FEC has made an "empirical judgment that party officials will as a
matter of course consult with the party's candidates before funding
communications intended to influence the outcome of a federal
election." Brief for Respondent 27. The FEC materials, however, do
not make this empirical judgment. For the most part those materials
use the word "coordinated" as a description that does not
necessarily deny the possibility that a party could
also
make independent expenditures. See,
e. g., AO
1984-15, , 5766, at 11,069. We concede that one Advisory Opinion
says, in a footnote, that "coordination with candidates is
presumed." AO 1988-22, , 5932, at 11,471, n. 4. But this statement,
like the others, appears without any internal or external evidence
that the FEC means it to embody an
empirical judgment (say,
that parties, in fact, hardly ever spend money independently) or to
represent the outcome of an empirical investigation. Indeed, the
statute does not require any such investigation, for it applies
both to coordinated and to independent expenditures alike.
See § 441a(d)(3) (a "political party ... may not make
any
expenditure" in excess of the limits (emphasis added)). In any
event, language in other FEC Advisory Opinions suggests the
opposite, namely, that sometimes, in fact, parties do make
independent expendi-
621
tures. See,
e. g., AO 1984-15, , 5766, at 11,069
("Although consultation or coordination with the candidate is
permissible, it is not required"). In these circumstances, we
cannot take the cited materials as an empirical, or
experience-based, determination that, as a factual matter, all
party expenditures are coordinated with a candidate. That being so,
we need not hold, on the basis of these materials, that the
expenditures here were "coordinated."
The Government does not advance any other legal reason that
would require us to accept the FEC's characterization. The FEC has
not claimed, for example, that, administratively speaking, it is
more difficult to separate a political party's "independent," from
its "coordinated," expenditures than, say, those of a PAC. Cf. 11
CFR § 109.1 (1995) (distinguishing between independent and
coordinated expenditures by other political groups). Nor can the
FEC draw significant legal support from the footnote in
Democratic Senatorial Campaign Comm., 454 U. S., at 28-29,
n. 1, given that this statement was dicta that purported to
describe the regulatory regime as the FEC had described it in a
brief.
Nor does the fact that the Party Expenditure Provision fails to
distinguish between coordinated and independent expenditures
indicate a congressional judgment that such a distinction is
impossible or untenable in the context of political party spending.
Instead, the use of the unmodified term "expenditure" is explained
by Congress' desire to limit
all party expenditures when it
passed the 1974 amendments, just as it had limited all expenditures
by individuals, corporations, and other political groups. See 18 U.
S. C. §§ 608(e), 610 (1970 ed., Supp. IV);
Buckley, 424 U.
S., at 39.
Finally, we recognize that the FEC may have characterized the
expenditures as "coordinated" in light of this Court's
constitutional decisions prohibiting regulation of most independent
expenditures. But, if so, the characterization cannot help the
Government prove its case. An agency's simply calling an
independent expenditure a "coordinated expendi-
622
Opinion of BREYER, J.
ture" cannot (for constitutional purposes) make it one. See,
e. g., NAACP v.
Button, 371 U. S. 415, 429 (1963)
(the government "cannot foreclose the exercise of constitutional
rights by mere labels");
Edwards v.
South Carolina,
372 U. S. 229, 235-238 (1963) (State may not avoid First
Amendment's strictures by applying the label "breach of the peace"
to peaceful demonstrations).
The Government also argues that the Colorado Party has conceded
that the expenditures are "coordinated." But there is no such
concession in respect to the underlying facts. To the contrary, the
Party's "Questions Presented" in its petition for certiorari
describes the expenditure as one "the party has not coordinated
with its candidate." See Pet. for Cert. i. In the lower courts the
Party did accept the FEC's terminology, but it did so in the
context of legal arguments that did not focus upon the
constitutional distinction that we now consider. See Reply Brief
for Petitioners 9-10, n. 8 (denying that the FEC's labels can
control constitutional analysis). The Government has not referred
us to any place where the Party conceded away or abandoned its
legal claim that Congress may not limit the uncoordinated
expenditure at issue here. And, in any event, we are not bound to
decide a matter of constitutional law based on a concession by the
particular party before the Court as to the proper legal
characterization of the facts. Cf.
United States Nat. Bank of
Ore. v.
Independent Ins. Agents of America, Inc.,
508 U. S. 439,
447 (1993);
Massachusetts v.
United States, 333 U. S. 611, 623-628
(1948);
Young v.
United States, 315 U. S. 257, 259 (1942)
(recognizing that "our judgments are precedents" and that the
proper understanding of matters of law "cannot be left merely to
the stipulation of parties").
Finally, the Government and supporting
amici argue that
the expenditure is "coordinated" because a party and its candidate
are identical, i.
e., the party, in a sense, "is" its
candidates. We cannot assume, however, that this is so. See,
e. g., W. Keefe, Parties, Politics, and Public Policy
in America
623
59-74 (5th ed. 1988) (describing parties as "coalitions" of
differing interests). Congress chose to treat candidates and their
parties quite differently under the Act, for example, by regulating
contributions from one to the other. See § 441a(a)(2)(B). See also
11 CFR §§ 110.2, 110.3(b) (1995). And we are not certain whether a
metaphysical identity would help the Government, for in that case
one might argue that the absolute identity of views and interests
eliminates any potential for corruption, as would seem to be the
case in the relationship between candidates and their campaign
committees. Cf.
Buckley, supra, at 54-59 (Congress may not
limit expenditures by candidate/campaign committee);
First Nat.
Bank of Boston v.
Bellotti, 435 U. S. 765, 790 (1978)
(where there is no risk of "corruption" of a candidate, the
Government may not limit even contributions).
IV
The Colorado Party and supporting
amici have argued a
broader question than we have decided, for they have claimed that,
in the special case of political parties, the First Amendment
forbids congressional efforts to limit coordinated expenditures as
well as independent expenditures. Because the expenditure before us
is an independent expenditure we have not reached this broader
question in deciding the Party's "as applied" challenge.
We recognize that the Party filed a counterclaim in which it
sought to raise a facial challenge to the Party Expenditure
Provision as a whole. But that counterclaim did not focus
specifically upon coordinated expenditures. See App. 68-69. Nor did
its summary judgment affidavits specifically allege that the Party
intended to make coordinated expenditures exceeding the statute's
limits. See
id., at 159, , 4. While this lack of focus does
not deprive this Court of jurisdiction to consider a facial
challenge to the Party Expenditure Provision as overbroad or as
unconstitutional in all applications, it does provide a prudential
reason for this Court not to
624
Opinion of BREYER, J.
decide the broader question, especially since it may not be
necessary to resolve the entire current dispute. If, in fact, the
Party wants to make only independent expenditures like those before
us, its counterclaim is mooted by our resolution of its "as
applied" challenge. Cf.
Renne v.
Geary, 501 U. S.
312, 323-324 (1991) (facial challenge should generally not be
entertained when an "as-applied" challenge could resolve the case);
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 503-504
(1985).
More importantly, the opinions of the lower courts, and the
parties' briefs in this case, did not squarely isolate, and
address, party expenditures that
in fact are coordinated,
nor did they examine, in that context, relevant similarities or
differences with similar expenditures made by individuals or other
political groups. Indeed, to our knowledge, this is the first case
in the 20-year history of the Party Expenditure Provision to
suggest that in-fact coordinated expenditures by political parties
are protected from congressional regulation by the First Amendment,
even though this Court's prior cases have permitted regulation of
similarly coordinated expenditures by individuals and other
political groups. See
Buckley, 424 U. S., at 46-47. This
issue is complex. As JUSTICE KENNEDY points out,
post, at
629-630, party coordinated expenditures do share some of the
constitutionally relevant features of independent expenditures. But
many such expenditures are also virtually indistinguishable from
simple contributions (compare, for example, a donation of money
with direct payment of a candidate's media bills, see
Buckley,
supra, at 46). Moreover, political parties also share relevant
features with many PAC's, both having an interest in, and devoting
resources to, the goal of electing candidates who will "work to
further" a particular "political agenda," which activity would
benefit from coordination with those candidates.
Post, at
630. See,
e. g., NCPAC, 470 U. S., at 490 (describing the
purpose and activities of the National Conservative PAC);
id., at 492 (coordinated expenditures by PAC's are
625
subject to FECA contribution limitations). Thus, a holding on
in-fact coordinated party expenditures necessarily implicates a
broader range of issues than may first appear, including the
constitutionality of party contribution limits.
But the focus of this litigation, and of the lower court
opinions, has not been on such issues, but rather on whether the
Government may conclusively deem independent party expenditures to
be coordinated. This lack of focus may reflect, in part, the
litigation strategy of the parties. The Government has denied that
any distinction can be made between a party's independent and its
coordinated expenditures. The Colorado Party, for its part, did not
challenge a different provision of the statute-a provision that
imposes a $5,000 limit on any contribution by a "multicandidate
political committee" (including a coordinated expenditure) and
which would apply to party coordinated expenditures if the entire
Party Expenditure Provision were struck from the statute as
unconstitutional. See §§ 441a(a)(2), (4), (7)(B)(i). Rather than
challenging the constitutionality of this provision as well,
thereby making clear that it was challenging Congress' authority to
regulate in-fact coordinated party expenditures, the Party has made
an obscure severability argument that would leave party coordinated
expenditures exempt from that provision. See Reply Brief for
Petitioners 11, n. 9. While these strategies do not deprive the
parties of a right to adjudicate the counterclaim, they do provide
a reason for this Court to defer consideration of the broader
issues until the lower courts have reconsidered the question in
light of our current opinion.
Finally, we note that neither the parties nor the lower courts
have considered whether or not Congress would have wanted the Party
Expenditure Provision's limitations to stand were they to apply
only to coordinated, and not to independent, expenditures. See
Buckley, supra, at 108;
NCPAC, supra, at 498. This
nonconstitutional ground for exempting party coordinated
expenditures from FECA limitations
626
Opinion of KENNEDY, J.
should be briefed and considered before addressing the
constitutionality of such regulation. See
United States v.
Locke, 471 U.
S. 84, 92, and n. 9 (1985).
JUSTICE THOMAS disagrees and would reach the broader
constitutional question notwithstanding the above prudential
considerations. In fact, he would reach a great number of issues
neither addressed below, nor presented by the facts of this case,
nor raised by the parties, for he believes it appropriate here to
overrule
sua sponte this Court's entire campaign finance
jurisprudence, developed in numerous cases over the last 20 years.
See
post, at 635-644. Doing so seems inconsistent with this
Court's view that it is ordinarily "inappropriate for us to
reexamine" prior precedent "without the benefit of the parties'
briefing," since the "principles that animate our policy of
stare decisis caution against overruling a longstanding
precedent on a theory not argued by the parties."
United
States v.
International Business Machines Corp.,
517 U. S. 843,
855, 856 (1996). In our view, given the important competing
interests involved in campaign finance issues, we should proceed
cautiously, consistent with this precedent, and remand for further
proceedings.
For these reasons, the judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings.
It is so ordered.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, concurring in the judgment and dissenting in part.
In agreement with JUSTICE THOMAS,
post, at 631-634, I
would hold that the Colorado Republican Party (Party), in its
pleadings in the District Court and throughout this litigation, has
preserved its claim that the constraints imposed by the Federal
Election Campaign Act of 1971 (FECA), both on its face and as
interpreted by the Federal Elections Commission (FEC), violate the
First Amendment.
627
In the principal opinion's view, the FEC's conclusive
presumption that all political party spending relating to
identified candidates is "coordinated" cannot be squared with the
First Amendment.
Ante, at 619-623. The principal opinion
finds the presumption invalid, and I agree with much of the
reasoning behind that conclusion. The quarrel over the FEC's
presumption is beside the point, however, for under the statute it
is both burdensome and quite unrealistic for a political party to
attempt the expenditure of funds on a candidate's behalf (or
against other candidates) without running afoul of FECA's spending
limitations.
Indeed, the principal opinion's reasoning with respect to the
presumption illuminates the deficiencies in the statutory provision
as a whole as it constrains the speech and political activities of
political parties. The presumption is a logical, though invalid,
implementation of the statute, which restricts as a "contribution"
a political party's spending "in cooperation, consultation, or
concert, with, or at the request or suggestion of, a candidate, his
authorized political committees, or their agents." 2 U. s. C. §
441a(a)(7)(B)(i). While the statutory provision applies to any
"person," its obvious purpose and effect when applied to political
parties, as the FEC's presumption reflects, is to restrict any
party's spending in a specific campaign for or against a candidate
and so to burden a party in expending its own money for its own
speech.
The central holding in
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam), is that spending money on one's own speech must be
permitted,
id., at 44-58, and this is what political parties
do when they make the expenditures FECA restricts. FECA calls
spending of this nature a "contribution," § 441a(a)(7)(B)(i), and
it is true that contributions can be restricted consistent with
Buckley, supra, at 23-38. As the principal opinion
acknowledges, however, and as our cases hold, we cannot allow the
Government's suggested labels to control our First Amendment
analysis.
Ante, at
628
Opinion of KENNEDY, J.
621-622. See also,
e. g., Landmark Communications, Inc.
v.
Virginia, 435 U. S. 829, 843 (1978)
("Deference to a legislative finding cannot limit judicial inquiry
when First Amendment rights are at stake"). In
Buckley, we
concluded that contribution limitations imposed only "marginal
restriction[sJ" on the contributor's First Amendment rights, 424 U.
S., at 20, because certain attributes of contributions make them
less like "speech" for First Amendment purposes:
"A contribution serves as a general expression of support for
the candidate and his views, but does not communicate the
underlying basis for the support. The quantity of communication by
the contributor does not increase perceptibly with the size of his
contribution, since the expression rests solely on the
undifferentiated, symbolic act of contributing. At most, the size
of the contribution provides a very rough index of the intensity of
the contributor's support for the candidate. A limitation on the
amount of money a person may give to a candidate or campaign
organization thus involves little direct restraint on his political
communication, for it permits the symbolic expression of support
evidenced by a contribution but does not in any way infringe the
contributor's freedom to discuss candidates and issues. While
contributions may result in political expression if spent by a
candidate or an association to present views to the voters, the
transformation of contributions into political debate involves
speech by someone other than the contributor." Id., at 21
(footnote omitted).
We had no occasion in
Buckley to consider possible First
Amendment objections to limitations on spending by parties.
Id., at 58, n. 66. While our cases uphold contribution
limitations on individuals and associations, see
id., at
23-38;
California Medical Assn. v.
Federal Election
Comm'n, 453 U. S.
182, 193-199 (1981) (plurality opinion), political party
spending "in cooperation, consultation, or concert with" a
candi-
629
date does not fit within our description of "contributions" in
Buckley. In my view, we should not transplant the reasoning
of cases upholding ordinary contribution limitations to a case
involving FECA's restrictions on political party spending.
The First Amendment embodies a "profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide-open."
New York Times Co. v.
Sullivan, 376
U. S. 254, 270 (1964). Political parties have a unique role in
serving this principle; they exist to advance their members' shared
political beliefs. See,
e. g., Eu v.
San
Francisco County Democratic Central Comm., 489 U. S. 214 (1989);
Sweezy v.
New Hampshire, 354 U. S. 234, 250
(1957). Cf.
Morse v.
Republican Party of Va.,
517 U. S.
186,250-251 (1996) (KENNEDY, J., dissenting). A party performs
this function, in part, by "identify[ing] the people who constitute
the association, and ... limit[ing] the association to those people
only."
Democratic Party of United States v.
Wisconsin ex
rel. La Follette, 450 U. S. 107, 122
(1981). Having identified its members, however, a party can give
effect to their views only by selecting and supporting candidates.
A political party has its own traditions and principles that
transcend the interests of individual candidates and campaigns; but
in the context of particular elections, candidates are necessary to
make the party's message known and effective, and vice versa.
It makes no sense, therefore, to ask, as FECA does, whether a
party's spending is made "in cooperation, consultation, or concert
with" its candidate. The answer in most cases will be yes, but that
provides more, not less, justification for holding unconstitutional
the statute's attempt to control this type of party spending, which
bears little resemblance to the contributions discussed in
Buckley. Supra, at 627-628 and this page. Party spending "in
cooperation, consultation, or concert with" its candidates of
necessity "communicate[s] the underlying basis for the support,"
424 U. S., at 21, i.
e., the hope
630
Opinion of KENNEDY, J.
that he or she will be elected and will work to further the
party's political agenda.
The problem is not just the absence of a basis in our First
Amendment cases for treating the party's spending as contributions.
The greater difficulty posed by the statute is its stifling effect
on the ability of the party to do what it exists to do. It is
fanciful to suppose that limiting party spending of the type at
issue here "does not in any way infringe the contributor's freedom
to discuss candidates and issues,"
ibid., since it would be
impractical and imprudent, to say the least, for a party to support
its own candidates without some form of "cooperation" or
"consultation." The party's speech, legitimate on its own behalf,
cannot be separated from speech on the candidate's behalf without
constraining the party in advocating its most essential positions
and pursuing its most basic goals. The party's form of organization
and the fact that its fate in an election is inextricably
intertwined with that of its candidates cannot provide a basis for
the restrictions imposed here. See
Federal Election Comm'n
v.
National Conservative Political Action Comm., 470 U. S. 480, 494-495
(1985).
We have a constitutional tradition of political parties and
their candidates engaging in joint First Amendment activity; we
also have a practical identity of interests between the two
entities during an election. Party spending "in cooperation,
consultation, or concert with" a candidate therefore is
indistinguishable in substance from expenditures by the candidate
or his campaign committee. We held in
Buckley that the First
Amendment does not permit regulation of the latter, see 424 U. S.,
at 54-59, and it should not permit this regulation of the former.
Congress may have authority, consistent with the First Amendment,
to restrict undifferentiated political party contributions which
satisfy the constitutional criteria we discussed in
Buckley,
but that type of regulation is not at issue here.
631
I would resolve the Party's First Amendment claim in accord with
these principles rather than remit the Party to further protracted
proceedings. Because the principal opinion would do otherwise, I
concur only in the judgment.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join as to Parts I and III, concurring in the judgment and
dissenting in part.
I agree that petitioners' rights under the First Amendment have
been violated, but I think we should reach the facial challenge in
this case in order to make clear the circumstances under which
political parties may engage in political speech without running
afoul of 2 U. S. C. § 441a(d)(3). In resolving that challenge, I
would reject the framework established by
Buckley v.
Valeo, 424 U. S.
1 (1976)
(per curiam), for analyzing the
constitutionality of campaign finance laws and hold that §
441a(d)(3)'s limits on independent and coordinated expenditures
fail strict scrutiny. But even under
Buckley, § 441a(d)(3)
cannot stand, because the anticorruption rationale that we have
relied upon in sustaining other campaign finance laws is
inapplicable where political parties are the subject of such
regulation.
I
As an initial matter, I write to make clear that we should
decide the Colorado Republican Party's (Party's) facial challenge
to § 441a(d)(3) and thus address the constitutionality of limits on
coordinated expenditures by political parties. JusTICE BREYER'S
reasons for not reaching the facial constitutionality of the
statute are unpersuasive. In addition, concerns for the chilling of
First Amendment expression counsel in favor of resolving that
question.
After the Federal Election Commission (FEC) brought this action
against the Party, the Party counterclaimed that "the limits on its
expenditures in connection with the general
632
Opinion of THOMAS, J.
election campaign for the Office of United States Senator from
the State of Colorado imposed by 2 U. S. C. § 441a(d) are
unconstitutional, both facially and as applied." App. 68. Though
JUSTICE BREYER faults the Party for not "focus[ing] specifically
upon coordinated expenditures,"
ante, at 623, the term
"expenditures" certainly includes both coordinated as well as
independent expenditures.1 See 2 U. S. C. § 431(9)(A) ("The term
'expenditure' includes ...
any purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything
of value, made by any person for the purpose of influencing any
election for Federal office" (emphasis added)). Moreover, at the
time the Party filed its counterclaim, all party expenditures were
treated by law as coordinated, see
Federal Election Comm'n
v.
Democratic Senatorial Campaign Comm., 454 U. S. 27, 28-29, n. 1
(1981), so a reference to expenditures by a party was tantamount to
a reference to coordinated expenditures.
Given the liberal nature of the rules governing civil pleading,
see Fed. Rule Civ. Proc. 8, the Party's straightforward allegation
of the unconstitutionality of § 441a(d)(3)'s expenditure limits
clearly suffices to raise the claim that neither independent nor
coordinated expenditures may be regulated consistently with the
First Amendment. Indeed, that is precisely how the Court of Appeals
appears to have read the counterclaim. The court expressly said
that it was "analyzing the constitutionality of limits on
coordinated expenditures by political committees,"
59 F.3d
1015, 1024 (CAlO 1995), under § 441a(d)(3).
For the same reasons, the fact that the Party's summary judgment
affidavits did not "specifically allege,"
ante, at 623, that
the Party intended to make coordinated expenditures is also
immaterial. The affidavits made clear that, but for
IJUSTICE BREYER acknowledges as much when he asserts earlier in
his opinion that "the unmodified term 'expenditure'" reflects a
congressional intent "to limit
all party expenditures."
Ante, at 621 (emphasis in original).
633
§ 441a(d)(3), the Party would spend in excess of the limits
imposed by that statute, see App. 159 ("[T]he State Party intends
to pay for communications within the spending limits of [§441] ....
However, the State Party would also like to pay for communications
which costs
[sic] exceed the spending limits of [§ 441a(d)],
but will not do so due to the deterrent and chilling effect of the
statute"), as did the Party's brief in this Court, see Brief for
Petitioners 23-24 ("The Colorado Party is ready, willing and able
to make expenditures expressly advocating the election or defeat of
candidates for federal office that would exceed the limits imposed
by § 441a(d), but it has been deterred from doing so by the obvious
and credible threat of FEC enforcement actions").
Finally, though JUSTICE BREYER notes that this is the first
Federal Election Campaign Act of 1971 (FECA) case to raise the
constitutional validity of limits on coordinated expenditures, see
ante, at 624, that is, at best, an argument against granting
certiorari. It is too late for arguments like that now. The case is
here, and we needlessly protract this litigation by remanding this
important issue to the Court of Appeals. Nor is the fact that the
"issue is complex,"
ibid., a good reason for avoiding it. We
do not sit to decide only easy cases. And while it may be true that
no court has ever asked whether expenditures that are
"in
fact" coordinated may be regulated under the First Amendment,
see
ibid., I do not see how the existence of an "in fact"
coordinated expenditure would change our analysis of the facial
constitutionality of § 441a(d)(3), since courts in facial
challenges under the First Amendment routinely consider
applications of the relevant statute other than the application
before the court. See
Broadrick v.
Oklahoma, 413 U. S. 601, 612
(1973). Whether or not there are facts in the record to support the
finding that this particular expenditure was actually coordinated
with a candidate, we are not, contrary to the suggestion of JUSTICE
BREYER, incapable of considering the Government's interest in
regulating such expenditures
634
Opinion of THOMAS, J.
and testing the fit between that end and the means used to
achieve it.2
The validity of §441a(d)(3)'s controls on coordinated
expenditures is an open question that, if left unanswered, will
inhibit the exercise of legitimate First Amendment activity
nationwide. All JUSTICE BREYER resolves is that when a political
party spends money in support of a candidate (or against his
opponent) and the Government cannot thereafter prove any
coordination between the party and the candidate, the party cannot
be punished by the Government for that spending. This settles
little, if anything. Parties are left to wonder whether their
speech is protected by the First Amendment when the Government can
show-presumably with circumstantial evidence-a link between the
party and the candidate with respect to the speech in question. And
of course, one of the main purposes of a political party is to
support its candidates in elections.
The constitutionality of limits on coordinated expenditures by
political parties is squarely before us. We should address this
important question now, instead of leaving political parties in a
state of uncertainty about the types of First Amendment expression
in which they are free to engage.
2JUSTICE BREYER'S remaining arguments for avoiding the facial
challenge are straw men. See
ante, at 625 (if § 441a(d)(3)
were invalidated in its entirety, other FECA provisions that the
Party has not challenged might apply to coordinated party
expenditures);
ibid. (if § 441a(d)(3) were upheld as to
coordinated expenditures but invalidated as to independent
expenditures, issues of severability would be raised). That
resolution of the primary question in this case (the
constitutionality of § 441a(d)(3) with respect to all expenditures)
might generate issues not previously considered (such as
severability) is no reason for not deciding the question itself.
Without suggesting that remand is the only appropriate way to deal
with possible corollary matters in this case or that these
arguments have merit, I point out that we can, of course, decide
the central question without ruling on the issues that concern
JUSTICE BREYER.
635
II A
Critical to JUSTICE BREYER'S reasoning is the distinction
between contributions 3 and independent expenditures that we first
drew in
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam). Though we said in
Buckley that controls on
spending and giving "operate in an area of the most fundamental
First Amendment activities,"
id., at 14, we invalidated the
expenditure limits of FECA and upheld the Act's contribution
limits. The justification we gave for the differing results was
this: "The expenditure limitations ... represent substantial rather
than merely theoretical restraints on the quantity and diversity of
political speech,"
id., at 19, whereas "limitation[s] upon
the amount that anyone person or group may contribute to a
candidate or political committee entai[l] only a marginal
restriction upon the contributor's ability to engage in free
communication,"
id., at 20-21. This conclusion was supported
mainly by two assertions about the nature of contributions: First,
though contributions may result in speech, that speech is by the
candidate and not by the contributor; and second, contributions
express only general support for the candidate but do not
communicate the reasons for that support.
Id., at 21. Since
Buckley, our campaign finance jurisprudence has been based
in large part on this distinction between contributions and
expenditures. See,
e. g., Federal Election Comm'n v.
Massachusetts Citizens for Life, Inc. (MCFL), 479 U. S. 238, 259-260,
261-262
(1986); Federal Election Comm'n v.
National Conservative Political Action Comm. (NCPAC),
470 U. S. 480,
497 (1985);
3 Coordinated expenditures are by statute categorized as
contributions.
See 2 U. S. C. § 441a(a)(7)(B)(i) ("[E]xpenditures made by any
person in cooperation, consultation, or concert, with, or at the
request or suggestion of, a candidate, his authorized political
committees, or their agents, shall be considered to be a
contribution to such candidate").
636
Opinion of THOMAS, J.
California Medical Assn. v. Federal Election Comm'n,
453 U. S. 182, 196 (1981)
(plurality opinion).
In my view, the distinction lacks constitutional significance,
and I would not adhere to it. As Chief Justice Burger put it:
"[C]ontributions and expenditures are two sides of the same First
Amendment coin."
Buckley v.
Valeo, 424 U. S., at 241
(concurring in part and dissenting in part).4 Contributions and
expenditures both involve core First Amendment expression because
they further the "[d]iscussion of public issues and debate on the
qualifications of candidates ... integral to the operation of the
system of government established by our Constitution."
Id.,
at 14. When an individual donates money to a candidate or to a
partisan organization, he enhances the donee's ability to
communicate a message and thereby adds to political debate, just as
when that individual communicates the message himself. Indeed, the
individual may add more to political discourse by giving rather
than spending, if the donee is able to put the funds to more
productive use than can the individual. The contribution of funds
to a candidate or to a political group thus fosters the "free
discussion of governmental affairs,"
Mills v.
Alabama, 384
U. S. 214, 218 (1966), just as an expenditure does.5
4 Three Members of the
Buckley Court thought the
distinction untenable at the time, see 424 U. S., at 241 (Burger,
C. J., concurring in part and dissenting in part);
id., at
261 (White, J., concurring in part and dissenting in part);
id., at 290 (Blackmun, J., concurring in part and dissenting
in part), and another Member disavowed it subsequently, see
Federal Election Comm'n v.
NCPAC, 470 U. S. 480, 518-521
(1985) (Marshall, J., dissenting). Cf.
Austin v.
Michigan
Chamber of Commerce, 494 U. S. 652, 678 (1990)
(STEVENS, J., concurring) (stating that distinction "should have
little, if any, weight in reviewing corporate participation in
candidate elections").
5 See H. Alexander, Money in Politics 234 (1972): "The
constitutional arguments against limiting campaign spending also
apply against limiting contributions; specifically, it is the right
of an individual to spend his money to support a congenial
viewpoint .... Some views are heard only if interested individuals
are willing to support financially the candidate or committee
voicing the position. To be widely heard, mass communica-
637
Giving and spending in the electoral process also involve basic
associational rights under the First Amendment. See Be Vier, Money
and Politics: A Perspective on the First Amendment and Campaign
Finance Reform, 73 Calif. L. Rev. 1045, 1064 (1985) (hereinafter Be
Vier). As we acknowledged in
Buckley, "'[e]ffective advocacy
of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association.'"
424 U. S., at 15 (quoting
NAACP v.
Alabama ex rel.
Patterson, 357 U.
S. 449,460 (1958)). Political associations allow citizens to
pool their resources and make their advocacy more effective, and
such efforts are fully protected by the First Amendment.
Federal
Election Comm'n v.
NCPAC, supra, at 494. If an
individual is limited in the amount of resources he can contribute
to the pool, he is most certainly limited in his ability to
associate for purposes of effective advocacy. See
Citizens
Against Rent Control/Coalition for Fair Housing v.
Berkeley, 454
U. S. 290, 296 (1981) ("To place a ... limit ... on individuals
wishing to band together to advance their views ... is clearly a
restraint on the right of association"). And if an individual
cannot be subject to such limits, neither can political
associations be limited in their ability to give as a means of
furthering their members' viewpoints. As we have said, "[a]ny
interference with the freedom of a party is simultaneously an
interference with the freedom of its adherents."
Sweezy v.
New Hampshire, 354 U. S. 234, 250 (1957)
(plurality opinion).6
tions may be necessary, and they are costly. By extension, then,
the contribution of money is a contribution to freedom of political
debate."
6 To illustrate the point that giving and spending in the
political process implicate the same First Amendment values, I note
that virtually everything JUSTICE BREYER says about the importance
of free independent expenditures applies with equal force to
coordinated expenditures and contributions. For instance, JUSTICE
BREYER states that "[a] political party's independent expression
not only reflects its members' views about the philosophical and
governmental matters that bind them together, it also seeks to
convince others to join those members in a practical democratic
638
Opinion of THOMAS, J.
Turning from similarities to differences, I can discern only one
potentially meaningful distinction between contributions and
expenditures. In the former case, the funds pass through an
intermediary-some individual or entity responsible for organizing
and facilitating the dissemination of the message-whereas in the
latter case they may not necessarily do so. But the practical
judgment by a citizen that another person or an organization can
more effectively deploy funds for the good of a common cause than
he can ought not deprive that citizen of his First Amendment
rights. Whether an individual donates money to a candidate or group
who will use it to promote the candidate or whether the individual
spends the money to promote the candidate himself, the individual
seeks to engage in political expression and to associate with
like-minded persons. A contribution is simply an indirect
expenditure; though contributions and expenditures may thus differ
in form, they do not differ in substance. As one commentator
cautioned, "let us not lose sight of the speech." Powe, Mass Speech
and the Newer First Amendment, 1982 S. Ct. Rev. 243, 258.
Echoing the suggestion in
Buckley that contributions have
less First Amendment value than expenditures because they do not
involve speech by the donor, see 424 U. S., at 21, the Court has
sometimes rationalized limitations on contributions by referring to
contributions as "speech by proxy." See,
e. g.,
California Medical Assn. v.
Federal Election Comm'n,
453 U. S., at 196 (Marshall, J.) (plurality opinion). The "speech
by proxy" label is, however, an ineffective tool for distinguishing
contributions from expenditures. Even in the case of a direct
expenditure, there is usually some go-
task, the task of creating a government that voters can instruct
and hold responsible for subsequent success or failure."
Ante, at 615-616. "Coordinated" expression by political
parties, of course, shares those precise attributes. The fact that
an expenditure is prearranged with the candidate-presumably to make
it more effective in the election-does not take away from its
fundamental democratic purposes.
639
between that facilitates the dissemination of the spender's
message-for instance, an advertising agency or a television
station. See Powe,
supra, at 258-259. To call a contribution
"speech by proxy" thus does little to differentiate it from an
expenditure. See
Buckley v.
Valeo, supra, at 243-244,
and n. 7 (Burger, C. J., concurring in part and dissenting in
part). The only possible difference is that contributions involve
an extra step in the proxy chain. But again, that is a difference
in form, not substance.
Moreover, we have recently recognized that where the "proxy"
speech is endorsed by those who give, that speech is a fully
protected exercise of the donors' associational rights. In
Federal Election Comm'n v.
NCPAC, we explained:
"[T]he 'proxy speech' approach is not useful ... [where] the
contributors obviously like the message they are hearing from [the]
organizatio[n] and want to add their voices to that message;
otherwise they would not part with their money. To say that their
collective action in pooling their resources to amplify their
voices is not entitled to full First Amendment protection would
subordinate the voices of those of modest means as opposed to those
sufficiently wealthy to be able to buy expensive media ads with
their own resources." 470 U. S., at 495.
The other justification in
Buckley for the proposition
that contribution caps only marginally restrict speech-that is,
that a contribution signals only general support for the candidate
but indicates nothing about the reasons for that support-is
similarly unsatisfying. Assuming the assertion is descriptively
accurate (which is certainly questionable), it still cannot mean
that giving is less important than spending in terms of the First
Amendment. A campaign poster that reads simply "We support
candidate Smith" does not seem to me any less deserving of
constitutional protection than one that reads "We support candidate
Smith because we like
640
Opinion of THOMAS, J.
his position on agriculture subsidies." Both express a political
opinion. Even a pure message of support, unadorned with reasons, is
valuable to the democratic process.
In sum, unlike the
Buckley Court, I believe that
contribution limits infringe as directly and as seriously upon
freedom of political expression and association as do expenditure
limits. The protections of the First Amendment do not depend upon
so fine a line as that between spending money to support a
candidate or group and giving money to the candidate or group to
spend for the same purpose. In principle, people and groups give
money to candidates and other groups for the same reason that they
spend money in support of those candidates and groups: because they
share social, economic, and political beliefs and seek to have
those beliefs affect governmental policy. I think that the
Buckley framework for analyzing the constitutionality of
campaign finance laws is deeply flawed. Accordingly, I would not
employ it, as JusTICE BREYER and JUSTICE KENNEDY do.
B
Instead, I begin with the premise that there is no
constitutionally significant difference between campaign
contributions and expenditures: Both forms of speech are central to
the First Amendment. Curbs on protected speech, we have repeatedly
said, must be strictly scrutinized. See
Federal Election
Comm'n v.
NCPAC, supra, at 501;
Citizens Against Rent
Control/Coalition for Fair Housing v.
Berkeley, 454 U.
S., at 294;
First Nat. Bank of Boston v.
Bellotti,
435 U. S. 765,
786 (1978).7 I am convinced that under tradi-
7 In
Buckley v.
Valeo, 424 U. S. 1 (1976), the
Court purported to scrutinize strictly the contribution provisions
as well as the expenditure rules. See
id., at 23 (FECA's
contribution and expenditures limits "both implicate fundamental
First Amendment interests");
id., at 25 (contribution
limits, like expenditure limits, are "'subject to the closest
scrutiny'" (citation omitted)). It has not gone unnoticed, however,
that we seemed more forgiving in our review of the contribution
provisions than of the expenditure rules. See,
e. g.,
California Medical Assn. v.
Federal Election
Comm'n,
641
tional strict scrutiny, broad prophylactic caps on both spending
and giving in the political process, like § 441a(d)(3), are
unconstitutional.
The formula for strict scrutiny is, of course, well established.
I t requires both a compelling governmental interest and
legislative means narrowly tailored to serve that interest. In the
context of campaign finance reform, the only governmental interest
that we have accepted as compelling is the prevention of corruption
or the appearance of corruption, see
Federal Election Comm'n
v.
NCPAC, 470 U. S., at 496-497, and we have narrowly
defined "corruption" as a "financial
quid pro quo: dollars
for political favors,"
id., at 497.8 As for the means-ends
fit under strict scrutiny, we have specified that "[w]here at all
possible, government must curtail speech only to the degree
necessary to meet the particular problem at hand, and must avoid
infringing on speech that does not pose the danger that has
prompted regulation."
Federal Election Comm'n v.
MCFL, 479 U. S., at 265.
In
Buckley, we expressly stated that the means adopted
must be "closely drawn to avoid unnecessary abridgment" of First
Amendment rights. 424 U. S., at 25. But the
Buckley Court
summarily rejected the argument that, because less restrictive
means of preventing corruption existed-for instance, bribery laws
and disclosure requirements-FECA's contribution provisions were
invalid. Bribery laws, the Court said, "deal with only the most
blatant and specific attempts of those with money to influence
governmental action,"
id., at 28, suggesting that those
means were inade-
453 U. S. 182,
196 (1981) (plurality opinion) (contributions are "not the sort of
political advocacy that this Court in
Buckley found entitled
to full First Amendment protection"). But see
id., at
201-202 (Blackmun, J., concurring in part and concurring in
judgment) (under
Buckley, there is no lesser standard of
review for contributions as opposed to expenditures).
8 As I explain in Part III,
infra, the interest in
preventing corruption is inapplicable when the subject of the
regulation is a political party. My analysis here is more general,
however, and applies to all individuals and entities subject to
campaign finance limits.
642
Opinion of THOMAS, J.
quate to serve the governmental interest. With respect to
disclosure rules, the Court admitted that they serve "many salutary
purposes" but said that Congress was "entitled to conclude that
disclosure was only a partial measure, and that contribution
ceilings were a necessary legislative concomitant."
Ibid.
Finally, the Court noted that contribution caps leave people free
to engage in independent political speech, to volunteer their
services, and to contribute money to a "limited but nonetheless
substantial extent."
Ibid.
In my opinion, FECA's monetary caps fail the narrow tailoring
test. Addressing the constitutionality of FECA's contribution caps,
the
Buckley appellants argued:
"If a small minority of political contributions are given to
secure appointments for the donors or some other quid pro
quo, that cannot serve to justify prohibiting all large
contributions, the vast majority of which are given not for any
such purpose but to further the expression of political views which
the candidate and donor share. Where First Amendment rights are
involved, a blunderbuss approach which prohibits mostly innocent
speech cannot be held a means narrowly and precisely directed to
the governmental interest in the small minority of contributions
that are not innocent." Brief for Appellants in Buckley v.
Valeo, O. T. 1975, Nos. 75-436 and 75-437, pp. 117-118.
The
Buckley appellants were, to my mind, correct. Broad
prophylactic bans on campaign expenditures and contributions are
not designed with the precision required by the First Amendment
because they sweep protected speech within their prohibitions.
Section 441a(d)(3), in particular, suffers from this
infirmity.
It flatly bans all expenditures by all national and state party
committees in excess of certain dollar limits, without any evidence
that covered committees who exceed those limits are in fact
engaging, or likely to engage, in bribery or any-
643
thing resembling it. See
Austin v.
Michigan Chamber of
Commerce, 494 U.
S. 652, 689 (1990) (SCALIA, J., dissenting) (where statute
"extends to speech that has the mere
potential for producing
social harm" it should not be held to satisfy the narrow tailoring
requirement (emphasis in original)). Thus, the statute
indiscriminately covers the many conceivable instances in which a
party committee could exceed the spending limits without any intent
to extract an unlawful commitment from a candidate. Cf.
Schaumburg v.
Citizens for a Better Environment,
444 U. S. 620,
637 (1980) (State may not, in effort to stop fraud in charitable
solicitations, "lump" truly charitable organizations "with those
that in fact are using the charitable label as a cloak for
profitmaking and refuse to employ more precise measures to separate
one kind from the other"). As one commentator has observed: "[I]t
must not be forgotten that a large number of contributions are made
without any hope of specific gain: for the promotion of a program,
because of enthusiasm for a candidate, or to promote what the giver
vaguely conceives to be the national interest." L. Overacker, Money
in Elections 192 (1974).
In contrast, federal bribery laws are designed to punish and
deter the corrupt conduct the Government seeks to prevent under
FECA, and disclosure laws work to make donors and donees
accountable to the public for any questionable financial dealings
in which they may engage. Cf.
Schaumburg v.
Citizens for
a Better Environment, supra, at 637-638 (explaining that "less
intrusive" means of preventing fraud in charitable solicitation are
"the penal laws [that can be] used to punish such conduct directly"
and "disclosure of the finances of charitable organizations"). In
light of these alternatives, wholesale limitations that cover
contributions having nothing to do with bribery-but with speech
central to the First Amendment-are not narrowly tailored.
Buckley's rationale for the contrary conclusion, see
supra, at 641-642, is faulty. That bribery laws are not
completely effective in stamping out corruption is no justification
for the
644
Opinion of THOMAS, J.
conclusion that prophylactic controls on funding activity are
narrowly tailored. The First Amendment limits Congress to
legislative measures that do not abridge the Amendment's guaranteed
freedoms, thereby constraining Congress' ability to accomplish
certain goals. Similarly, that other modes of expression remain
open to regulated individuals or groups does not mean that a
statute is the least restrictive means of addressing a particular
social problem. A statute could, of course, be more restrictive
than necessary while stillieaving open some avenues for
speech.9
III
Were I convinced that the
Buckley framework rested on a
principled distinction between contributions and expenditures,
which I am not, I would nevertheless conclude that § 441a(d)(3)'s
limits on political parties violate the First Amendment. Under
Buckley and its progeny, a substantial threat of corruption
must exist before a law purportedly
9 JUSTICE STEVENS submits that we should "accord special
deference to [Congress'] judgment on questions related to the
extent and nature of limits on campaign spending,"
post, at
650, a stance that the Court of Appeals also adopted, see
59 F.3d
1015, 1024 (CAW 1995). This position poses great risk to the
First Amendment, in that it amounts to letting the fox stand watch
over the henhouse. There is good reason to think that campaign
reform is an especially inappropriate area for judicial deference
to legislative judgment. See generally BeVier 1074-1081. What the
argument for deference fails to acknowledge is the potential for
legislators to set the rules of the electoral game so as to keep
themselves in power and to keep potential challengers out of it.
See
id., at 1075 (" 'Courts must police inhibitions on ...
political activity because we cannot trust elected officials to do
so'" (emphasis deleted)) (quoting J. Ely, Democracy and Distrust
106 (1980)). See also R. Winter, Political Financing and the
Constitution, 486 Annals Am. Acad. Pol. & Soc. Sci. 34, 40, 48
(1986). Indeed, history demonstrates that the most significant
effect of election reform has been not to purify public service,
but to protect incumbents and increase the influence of special
interest groups. See BeVier 1078-1080. When Congress seeks to
ration political expression in the electoral process, we ought not
simply acquiesce in its judgment.
645
aimed at the prevention of corruption will be sustained against
First Amendment attack.10 Just as some of the monetary limits in
the
Buckley line of cases were held to be invalid because
the Government interest in stemming corruption was inadequate under
the circumstances to justify the restrictions on speech, so too is
§ 441a(d)(3) invalid.ll
The Government asserts that the purpose of § 441a(d)(3) is to
prevent the corruption of candidates and elected representatives by
party officials. The Government does not explain precisely what it
means by "corruption," however; 12 the closest thing to an
explanation the Government offers is that "corruption" is "'the
real or imagined coercive influence of large financial
contributions on candidates' positions and on their actions if
elected to office.'" Brief for Respondent 35 (quoting
Buckley v.
Valeo, 424 U. S., at 25). We so
defined
10 See
Buckley v.
Valeo, 424 U. S., at 45-47
(striking down limits on independent expenditures because the
"advocacy restricted by the provision does not presently appear to
pose dangers of real or apparent corruption");
Federal Election
Comm'n v.
MCFL, 479 U. S. 238, 263 (1986)
(invalidating caps on campaign expenditures by incorporated
political associations because spending by such groups "does not
pose [any] threat" of corruption);
Federal Election Comm'n
v.
NCPAC, 470 U. S., at 498 (striking down limits on
independent expenditures by political action committees because "a
quid pro quo for improper commitments" in that context was a
"hypothetical possibility");
Citizens Against Rent
Control/Coalition for Fair Housing v.
Berkeley, 454 U. S. 290, 297 (1981)
(stating that
"Buckley does not support limitations on
contributions to committees formed to favor or oppose
ballot
measures" because anticorruption rationale is inapplicable);
First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 790 (1978)
(concluding that limits on referendum speech by corporations
violate First Amendment because "[t]he risk of corruption ...
simply is not present").
11 While JUSTICE BREYER chides me for taking the position that I
would not adhere to
Buckley, see
ante, at 626, and
suggests that my approach to this case is thus insufficiently
"cautiou[s],"
ibid., he ignores this Part of my opinion, in
which I explain why limits on coordinated expenditures are
unconstitutional
even under the Buckley
line of
precedent.
12 Nor, for that matter, does JUSTICE BREYER explain what sorts
of
quid pro quos a party could extract from a candidate. Cf.
ante, at 615.
646
Opinion of THOMAS, J.
corruption in
Buck ley for purposes of reviewing ceilings
on giving or spending by individuals, groups, political committees,
and candidates. See
id., at 23, 35, 39. But we did not in
that case consider the First Amendment status of FECA's provisions
dealing with political parties. See
id., at 58,
As applied in the specific context of campaign funding by
political parties, the anticorruption rationale loses its force.
See N ahra, Political Parties and the Campaign Finance Laws:
Dilemmas, Concerns and Opportunities, 56 Ford. L. Rev. 53, 105-106
(1987). What could it mean for a party to "corrupt" its candidate
or to exercise "coercive" influence over him? 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. When
political parties achieve that aim, that achievement does not, in
my view, constitute "a subversion of the political process."
Federal Election Comm'n v.
NCPAC, 470 U. S., at 497.
For instance, if the Democratic Party spends large sums of money in
support of a candidate who wins, takes office, and then implements
the Party's platform, that is not corruption; that is successful
advocacy of ideas in the political marketplace and representative
government in a party system. To borrow a phrase from
Federal
Election Comm'n v.
NCPAC: "The fact that candidates and
elected officials may alter or reaffirm their own positions on
issues in response to political messages paid for by [political
groups] can hardly be called corruption, for one of the essential
features of democracy is the presentation to the electorate of
varying points of view."
Id., at 498. Cf.
Federal
Election Comm'n v.
MCFL, 479 U. S., at 263 (suggesting
that "[v]oluntary political associations do not ... present the
specter of corruption").
The structure of political parties is such that the theoretical
danger of those groups actually engaging in
quid pro quos
with candidates is significantly less than the threat of
individuals or other groups doing so. See N ahra,
supra,
at
647
97-98 (citing F. Sorauf, Party Politics in America 15-18 (5th
ed. 1984)). American political parties, generally speaking, have
numerous members with a wide variety of interests, N ahra,
supra, at 98, features necessary for success in majoritarian
elections. Consequently, the influence of anyone person or the
importance of any single issue within a political party is
significantly diffused. For this reason, as the Party's
amici argue, see Brief for Committee for Party Renewal et
al. as
Amicus Curiae 16, campaign funds donated by parties
are considered to be some of "the cleanest money in politics." J.
Bibby, Campaign Finance Reform, 6 Commonsense 1, 10 (Dec. 1983).
And, as long as the Court continues to permit Congress to subject
individuals to limits on the amount they can give to parties, and
those limits are uniform as to all donors, see 2 U. S. C. §
441a(a)(1), there is little risk that an individual donor could use
a party as a conduit for bribing candidates.
In any event, the Government, which bears the burden of
"demonstrat[ing] that the recited harms are real, not merely
conjectural,"
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 664 (1994), has identified no more proof of the corrupting
dangers of coordinated expenditures than it has of independent
expenditures. Cf.
ante, at 618 ("The Government does not
point to record evidence or legislative findings suggesting any
special corruption problem in respect to independent party
expenditures"). And insofar as it appears that Congress did not
actually enact § 441a(d)(3) in order to stop corruption by
political parties "but rather for the constitutionally insufficient
purpose of reducing what it saw as wasteful and excessive campaign
spending,"
ibid. (citing
Buckley v.
Valeo,
supra, at 57), the statute's ceilings on coordinated
expenditures are as unwarranted as the caps on independent
expenditures.
In sum, there is only a minimal threat of "corruption," as we
have understood that term, when a political party spends to support
its candidate or to oppose his competitor, whether
648
STEVENS, J., dissenting
or not that expenditure is made in concert with the candidate.
Parties and candidates have traditionally worked together to
achieve their common goals, and when they engage in that work,
there is no risk to the Republic. To the contrary, the danger to
the Republic lies in Government suppression of such activity. Under
Buckley and our subsequent cases, § 441a(d)(3)'s heavy
burden on First Amendment rights is not justified by the threat of
corruption at which it is assertedly aimed.
***
To conclude, I would find § 441a(d)(3) unconstitutional not just
as applied to petitioners, but also on its face. Accordingly, I
concur only in the Court's judgment.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
In my opinion, all money spent by a political party to secure
the election of its candidate for the office of United States
Senator should be considered a "contribution" to his or her
campaign. I therefore disagree with the conclusion reached in Part
III of the principal opinion.
I am persuaded that three interests provide a constitutionally
sufficient predicate for federal limits on spending by political
parties. First, such limits serve the interest in avoiding both the
appearance and the reality of a corrupt political process. A party
shares a unique relationship with the candidate it sponsors because
their political fates are inextricably linked. That interdependency
creates a special danger that the party-or the persons who control
the party-will abuse the influence it has over the candidate by
virtue of its power to spend. The provisions at issue are
appropriately aimed at reducing that threat. The fact that the
party in this case had not yet chosen its nominee at the time it
broadcast the challenged advertisements is immaterial to the
analysis. Although the Democratic and Republican nominees
649
for the 1996 Presidential race will not be selected until this
summer, current advertising expenditures by the two national
parties are no less contributions to the campaigns of the
respective frontrunners than those that will be made in the
fall.
Second, these restrictions supplement other spending limitations
embodied in the Federal Election Campaign Act of 1971, which are
likewise designed to prevent corruption. Individuals and certain
organizations are permitted to contribute up to $1,000 to a
candidate. 2 U. S. C. § 441a(a)(1)(A). Since the same donors can
give up to $5,000 to party committees, § 441a(a)(1)(C), if there
were no limits on party spending, their contributions could be
spent to benefit the candidate and thereby circumvent the $1,000
cap. We have recognized the legitimate interest in blocking similar
attempts to undermine the policies of the Act. See
Gal iforn ia
Medical Assn. v.
Federal Election Gomm'n, 453 U. S. 182, 197-199
(1981) (plurality opinion) (approving ceiling on contributions to
political action committees to prevent circumvention of limitations
on individual contributions to candidates);
id., at 203
(Blackmun, J., concurring in part and concurring in judgment);
Buckley v.
Valeo, 424 U. S. 1, 38
(1976) (per curiam) (approving limitation on total
contributions by an individual in connection with an election on
same rationale).
Finally, I believe the Government has an important interest in
leveling the electoral playing field by constraining the cost of
federal campaigns. As Justice White pointed out in his opinion in
Buckley, "money is not always equivalent to or used for
speech, even in the context of political campaigns."
Id., at
263 (opinion concurring in part and dissenting in part). It is
quite wrong to assume that the net effect of limits on
contributions and expenditures-which tend to protect equal access
to the political arena, to free candidates and their staffs from
the interminable burden of fundraising,
650
STEVENS, J., dissenting
and to diminish the importance of repetitive 30-second
commercials-will be adverse to the interest in informed debate
protected by the First Amendment. See
id., at 262-266.
Congress surely has both wisdom and experience in these matters
that is far superior to ours. I would therefore accord special
deference to its judgment on questions related to the extent and
nature of limits on campaign spending. * Accordingly, I would
affirm the judgment of the Court of Appeals.
*One irony of the case is that both the Democratic National
Party and the Republican National Party have sided with petitioners
in challenging a law that Congress has the obvious power to change.
See Brief for Democratic National Committee as
Amicus
Curiae; Brief for Republican N ational Committee as
Amicus
Curiae.
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