OCTOBER TERM, 2000
Syllabus
FEDERAL ELECTION COMMISSION
v. COLORADO REPUBLICAN
FEDERAL CAMPAIGN COMMITTEE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No.00-191. Argued February 28, 200l-Decided June 25, 2001
In
Buckley v.
Valeo, 424 U. S. 1, 12-59, this
Court held that the limitations on political campaign contributions
in the Federal Election Campaign Act of 1971 were generally
constitutional, but that the Act's limitations on election
expenditures infringed political expression in violation of the
First Amendment. Later cases have respected this line between
contributing and spending. The distinction's simplicity is
qualified, however, by the Act's provision for a functional, not
formal, definition of "contribution," which includes "expenditures
made by any person in cooperation, consultation, or concert, with
... a candidate," 2 U. S. C. § 441a(a)(7)(B)(i). Thus, expenditures
coordinated with a candidate are contributions under the Act. The
Federal Election Commission (FE C) originally took the position
that any expenditure by a political party in connection with a
federal election was presumed to be coordinated with the party's
candidate. See,
e. g., Federal Election Comm'n v.
Democratic Senatorial Campaign Comm., 454 U. S. 27, 2829, n. 1.
The FEC thus assumed that all expenditure limits imposed on
political parties were, in essence, contribution limits and
therefore constitutional. Such limits include § 441a(d)(3), which
imposes spending limits on national and state political parties
with respect to United States Senate elections. In
Colorado
Republican Federal Campaign Comm. v.
Federal Election
Comm'n, 518 U. S.
604 (Colorado I), the spending limits in § 441a(d)(3)
(referred to as the Party Expenditure Provision), were held
unconstitutional as applied to the independent expenditures of the
Colorado Republican Federal Campaign Committee (Party) in
connection with a senatorial campaign. The principal opinion ruled
the payments "independent," rather than coordinated, expenditures
under this Court's cases because the Party spent the money before
selecting its own senatorial candidate and without any arrangement
with potential nominees.
Id., at 613-614. The principal
opinion remanded the Party's broader claim that all limits on a
party's congressional campaign expenditures are facially
unconstitutional and thus un-
432
Syllabus
enforceable even as to spending coordinated with a candidate.
Id., at 623-626. On remand, the District Court held for the
Party on that claim, and a divided Tenth Circuit panel
affirmed.
Held: Because a party's coordinated expenditures, unlike
expenditures truly independent, may be restricted to minimize
circumvention of the Act's contribution limits, the Party's facial
challenge is rejected. Pp.440-465.
(a) Political expenditure limits deserve closer scrutiny than
contribution restrictions,
e. g.,
Buckley, 424 U. S.,
at 14-23, because expenditure restraints generally curb more
expressive and associational activity than contribution limits,
e. g., id., at 19-23, and because unlimited contributions
are more clearly linked to political corruption than other kinds of
unlimited political spending, at least where the spending is not
coordinated with a candidate or his campaign,
e. g., id., at
47. Although the First Amendment line is easy to draw when it falls
between independent expenditures by individuals or political action
committees (PACs) without any candidate's approval and
contributions in the form of cash gifts to candidates, see,
e. g., id., at 19-23, facts speak less clearly once the
independence of the spending cannot be taken for granted.
Congress's functional treatment of coordinated expenditures by
individuals and nonparty groups like contributions prevents
attempts to circumvent the Act through coordinated expenditures
amounting to disguised contributions.
Id., at 47.
Buckley, in fact, enhanced the significance of this
functional treatment by striking down independent expenditure
limits on First Amendment grounds while upholding limitations on
contributions (by individuals and nonparty groups), as defined to
include coordinated expenditures.
Id., at 23-59.
Colorado
I addressed the FEC's effort to stretch the functional
treatment one step further. Because
Buckley had treated some
coordinated expenditures like contributions and upheld their
limitation, the FEC's argument went, the Party Expenditure
Provision should stand as applied to all party election spending,
see,
e. g., 518 U. S., at 619-623. Holding otherwise, the
principal opinion found that, because "independent" party
expenditures are no more likely to serve corruption than
independent expenditures by anyone else, there was no justification
for subjecting party election spending across the board to the
kinds of limits previously invalidated when applied to individuals
and nonparty groups. See id., at 616. But that still left the
question whether the First Amendment allows coordinated election
expenditures by parties to be treated functionally as
contributions, the way coordinated expenditures by other entities
are treated. The issue in this case is, accordingly, whether a
party is in a different position from other political speakers,
giving it a claim to de-
433
mand a higher standard of scrutiny before its coordinated
spending can be limited. Pp. 440-445.
(b) The Party's argument that its coordinated spending, like its
independent spending, should be left free from restriction under
the
Buckley line of cases boils down to this: because a
party's most important speech is aimed at electing candidates and
is itself expressed through those candidates, any limit on party
support for a candidate imposes a unique First Amendment burden.
Limitation of any party expenditure coordinated with a candidate,
the Party contends, is therefore a serious, rather than incidental,
imposition on the party's speech and associative purpose, which
justifies a stricter level of scrutiny than has been applied to
analogous limits on individuals and nonparty groups. But whatever
level of scrutiny is applied to such a limit, the Party argues, the
burden on a party reflects a fatal mismatch between the effects of
limiting coordinated party expenditures and the prevention of
corruption or its appearance. In contrast, the Government's
argument for characterizing coordinated spending like contributions
goes back to
Buckley, which, in effect, subjected limits on
coordinated expenditures by individuals and nonparty groups to the
same scrutiny it applied to limits on their cash contributions. The
standard of scrutiny requires the limit to be closely drawn to
match a sufficiently important interest, though the limit's dollar
amount need not be fine tuned. See,
e. g., Buckley, supra,
at 25, 30. The Government develops this rationale a step further
here, arguing that a party's coordinated spending should be limited
not only because it is like a party contribution, but because
giving a party the right to make unlimited coordinated expenditures
would induce those wishing to support a nominee to contribute to
the party in order to finance coordinated spending for that
candidate, thereby increasing circumvention and bypassing the
limits
Buckley upheld. Pp. 445-447.
(c) Although each of the competing positions is plausible at
first blush, evaluation of the arguments prompts rejection of the
Party's claim to suffer a burden unique in any way that should make
a categorical difference under the First Amendment. And the
Government's contentions are ultimately borne out by evidence,
entitling it to prevail in its characterization of party
coordinated spending as the functional equivalent of contributions.
pp.447-460.
(1) The Party's argument that unrestricted coordinated spending
is essential to a party's nature because of its unique relationship
with candidates has been rendered implausible by nearly 30 years'
history under the Act. Since 1974, a party's coordinated spending
in a given race has been limited by the provision challenged here
(or its predecessor). It was not until the 1996
Colorado I
decision that any spending was allowed above that amount, and since
then only independent
434
Syllabus
spending has been unlimited. Thus, the Party's claim that
coordinated spending beyond the Act's limit is essential to its
very function as a party amounts implicitly to saying that for
almost three decades political parties have not been quite
functional or have been functioning in systematic violation of the
law. The Court cannot accept either implication. Pp. 449-450.
(2) There is a different weakness in the seemingly
unexceptionable premise that parties are organized for the purpose
of electing candidates, so that imposing on the way parties serve
that function is uniquely burdensome. The fault here is a refusal
to see how the power of money actually works in the political
structure. Looking directly at a party's function in getting and
spending money, it would ignore reality to think that the party
role is adequately described by speaking generally of electing
particular candidates. Parties are necessarily the instruments of
some contributors, such as PACs, whose object is not to support the
party's message or to elect party candidates, but rather to support
a specific candidate for the sake of a position on one, narrow
issue, or even to support any candidate who will be obliged to
contributors. Parties thus perform functions more complex than
simply electing their candidates: they act as agents for spending
on behalf of those who seek to produce obligated officeholders. It
is this party role, which functionally unites parties with other
self-interested political actors, that the Party Expenditure
Provision targets. Pp. 450-452.
(3) The Court agrees insofar as the Party suggests that its
strong working relationship with candidates and its unique ability
to speak in coordination with them should be taken into account in
the First Amendment analysis. It is the accepted understanding that
a party combines its members' power to speak by aggregating their
contributions and broadcasting its messages more widely than its
individual contributors generally could afford to do, and it
marshals this power with greater sophistication than individuals
generally could, using such mechanisms as speech coordinated with a
candidate. Cf.
Colorado I, 518 U. S., at 637. It does not,
however, follow from a party's efficiency in getting large sums and
spending intelligently that limits on a party's coordinated
spending should be scrutinized under an unusually high standard. In
fact, any argument from sophistication and power would cut both
ways. On the one hand, one can seek the benefit of stricter
scrutiny of a law capping party coordinated spending by emphasizing
the heavy burden imposed by limiting the most effective mechanism
of sophisticated spending. And yet it is exactly this efficiency
culminating in coordinated spending that (on the Government's view)
places a party in a position to be used to circumvent contribution
limits that apply to individuals and PACs, and thereby to
exacerbate the threat of
435
corruption and apparent corruption that those contribution
limits are aimed at reducing. Pp. 453-454.
(4) The preceding question assumes that parties enjoy a power
and experience that sets them apart from other political spenders.
But in fact the assumption is too crude. Like a party, rich
individual donors, media executives, and PACs have the means to
speak loudly and the capacity to work in tandem with a candidate.
Yet all of them are subject to the coordinated spending limits
upheld in
Buckley, 424 U. S., at 46-47. A party is also like
some of these political actors in its right under
Colorado I
to spend money in support of a candidate without legal limit so
long as it spends independently. A party is not, therefore, in a
unique position, but is in the same position as some individuals
and PACs. Pp.454-455.
(5) Because the Party's arguments do not pan out, the Court
applies to a party's coordinated spending limitation the same
scrutiny it has applied to the other political actors, that is,
scrutiny appropriate for a contribution limit, enquiring whether
the restriction is "closely drawn" to match the "sufficiently
important" government interest in combating political corruption.
E. g.,
Nixon v.
Shrink Missouri Government
PAC, 528 U. S.
377, 387-388. Pp.455-456.
(6) Under that standard, adequate evidentiary grounds exist to
sustain the coordinated spending limit for parties. Substantial
evidence demonstrates how candidates, donors, and parties test the
current law's limits, and it shows beyond serious doubt how those
contribution limits would be eroded if inducement to circumvent
them were enhanced by declaring parties' coordinated spending wide
open. Under the Act, a donor is limited to $2,000 in contributions
to one candidate in a given election cycle. The same donor may give
as much as another $20,000 each year to a national party committee
supporting the candidate. The evidence shows that what a realist
would expect to occur has occurred. Donors give to the party with
the tacit understanding that the favored candidate will benefit.
Testimony shows that, although the understanding between donor and
party may involve no definite commitment and may be tacit on the
donor's part, the frequency of the practice and the volume of money
involved has required parties to adopt tallying procedures to
connect donors to candidates. If suddenly every dollar of spending
could be coordinated with the candidate, the inducement to
circumvent would almost certainly intensify. Pp. 457-460.
(d) The Party's attempts to minimize the threat of corruption by
circumvention are unavailing. Its claim that most contributions to
parties are small, with negligible corrupting momentum to be
carried through the party conduit, is unpersuasive given the
evidence that, even under present law, substantial donations turn
the parties into matchmakers
436
Syllabus
whose special meetings and receptions give donors the chance to
get their points across to the candidates. The fact that incumbent
candidates give more excess campaign funds to parties than parties
spend on coordinated expenditures does not defuse concern over
circumvention; if party contributions were not used as a funnel
from donors to candidates, there would be no reason for the
tallying system described by the witnesses. Finally, the Court
rejects the Party's claim that, even if there is a circumvention
threat, the First Amendment demands a response better tailored to
that threat than a limitation on coordinated spending. First, the
Party's suggestion that better crafted safeguards are already in
place in § 441a(a)(8)-which provides that contributions that are
earmarked or otherwise directed through an intermediary to a
candidate are treated as contributions to the candidate-ignores the
practical difficulty of identifying and directly combating
circumvention when contributions go into a general party treasury
and candidatefundraisers are rewarded with something less obvious
than dollar-fordollar pass-throughs. Second, although the Party's
call for replacing limits on parties' coordinated expenditures with
limits on contributions to parties is based in part on reasoning in
Buckley, supra, at 44, and
Colorado I, supra, at 617,
those cases ultimately turned on the understanding that the
expenditures at issue were independent and therefore functionally
true expenditures, whereas, here, just the opposite is true.
Pp.461-465.
213 F.3d
1221, reversed.
SOUTER, J., delivered the OpInIOn of the Court, in which
STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which SCALIA and KENNEDY, JJ.,
joined, and in which REHNQUIST, C. J., joined as to Part II,
post, p. 465.
Acting Solicitor General Underwood argued the cause for
petitioner. With her on the briefs were former Solicitor General
Waxman, Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader,
and David Kolker.
Jan Witold Baran argued the cause for respondent. With
him on the brief were
Thomas W Kirby and
Carol A.
Laham. *
*Briefs of
amici curiae urging reversal were filed for
the State of Missouri et al. by
Jeremiah W (Jay) Nixon,
Attorney General of Missouri, and
James R. Layton, State
Solicitor, joined by the Attorneys General for their respective
States as follows:
Ken Salazar of Colorado,
Earl I.
Anzai
437
JUSTICE SOUTER delivered the opinion of the Court.
In
Colorado Republican Federal Campaign Comm. v.
Federal Election Comm'n, 518 U. S. 604 (1996)
(Colorado I), we held that spending limits set by the
Federal Election Campaign Act were unconstitutional as applied to
the Colorado Republican Party's independent expenditures in
connection with a senatorial campaign. We remanded for
consideration of the party's claim that all limits on expenditures
by a political party in connection with congressional campaigns are
facially unconstitutional and thus unenforceable even as to
spending coordinated with a candidate. Today we reject that facial
challenge to the limits on parties' coordinated expenditures.
I
We first examined the Federal Election Campaign Act of 1971 in
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam), where we held that the Act's limitations on
contributions to a candidate's election campaign were generally
constitutional, but that limitations on election expenditures were
not.
Id., at 12-59. Later cases have respected this line
between contributing and spending. See,
e. g., Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 386-388
(2000);
Colorado I, supra, at 610, 614-615;
Federal
Election
of Hawaii, Joseph P. Mazurek of Montana, Eliot Spitzer of New
York, W A. Drew Edmondson of Oklahoma, and William H. Sorrell of
Vermont; for Common Cause et al. by Roger M. Witten, Daniel H.
Squire, Donald J. Simon, and Fred Wertheimer; for the National
Voting Rights Institute by David A. Wilson, John C. Bonifaz, Brenda
Wright, and Gregory G. Luke; for Senator John F. Reed et al. by
Donald B. Verrilli, Jr., and Deanne E. Maynard; and for Paul Allen
Beck et al. by Burt Neuborne.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Mark J.
Lopez, Steven R. Shapiro, and
Joel M. Gora; for the
California Republican Party by
Charles H. Bell, Jr.; for the
Missouri Republican Party by
D. Bruce La Pierre and
W
Bevis Schock; and for the National Republican Congressional
Committee by
Benjamin L. Ginsberg.
438
Comm'n v. Massachusetts Citizens for Life, Inc.,
479 U. S. 238, 259-260
(1986).
The simplicity of the distinction is qualified, however, by the
Act's provision for a functional, not formal, definition of
"contribution," which includes "expenditures 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," 2 U. S. C. § 441a(a) (7)(B)(i).1 Expenditures
coordinated with a candidate, that is, are contributions under the
Act.
The Federal Election Commission (FEC or Commission) originally
took the position that any expenditure by a political party in
connection with a particular election for federal office was
presumed to be coordinated with the party's candidate. See
Federal Election Comm'n v.
Democratic Senatorial Campaign
Comm., 454 U. S.
27, 28-29, n. 1 (1981); Brief for Petitioner 6-7. The
Commission thus operated on the assumption that all expenditure
limits imposed on political parties were, in essence, contribution
limits and therefore constitutional. Brief for Respondent in
Colorado I, O. T. 1995, No. 95-489, pp. 28-30. Such limits
include 2 U. S. C. § 441a(d)(3), which provides that in elections
for the United States Senate, each national or state party
committee 2 is
1 "Contribution" is otherwise defined as "any gift,
subscription, loan, advance, or deposit of money or anything of
value made by any person for the purpose of influencing any
election for Federal office"; or "the payment by any person of
compensation for the personal services of another person which are
rendered to a political committee without charge for any purpose."
2 U. S. C. §431(8).
The Act defines "expenditure" as "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." § 431(9)(A)(i). A "written contract,
promise, or agreement to make an expenditure" also counts as an
expenditure. § 431(9)(A)(ii).
2 A political party's "national committee" is the "organization
which, by virtue of the bylaws of a political party, is responsible
for the day-to-day operation of such political party at the
national level, as determined by
439
limited to spending the greater of $20,000 (adjusted for
inflation, § 441a(c)) or two cents multiplied by the voting age
population of the State in which the election is held, §
441a(d)(3)(A).3
Colorado I was an as-applied challenge to § 441a(d)(3)
(which we spoke of as the Party Expenditure Provision), occasioned
by the Commission's enforcement action against the Colorado
Republican Federal Campaign Committee (Party) for exceeding the
campaign spending limit through its payments for radio
advertisements attacking Democratic Congressman and senatorial
candidate Timothy Wirth. 518 U. S., at 612-613. The Party defended
in part with the claim that the party expenditure limitations
violated the First Amendment, and the principal opinion in
Colorado I agreed that the limitations were unconstitutional
as applied to the advertising expenditures at issue. Unlike the
Commission, the Members of the Court who joined the principal
opinion thought the payments were "independent expenditures" as
that term had been used in our prior cases, owing to the facts that
the Party spent the money before selecting its own senatorial
candidate and without any arrangement with potential nominees.
Id., at 613-614 (opinion of BREYER, J.).
The Party's broader claim remained: that although prior
decisions of this Court had upheld the constitutionality of limits
on coordinated expenditures by political speakers
the [Federal Election] Commission." § 431(14). A "state
committee" fills the same role at the state level. § 431(15).
3 The same limits apply to campaigns for House of
Representatives from States entitled to only one Representative. §
441a(d)(3)(A). For other States, the limit on party expenditures in
connection with House campaigns is $10,000 preadjustment. §
441a(d)(3)(B). As adjusted for inflation, the 2000 Senate limits
ranged from $67,560 to $1,636,438; House limits ranged from $33,780
to $67,560. 26 FEC Record 14-15 (Mar. 2000).
The FEC reads the Act to permit parties to make campaign
contributions within the otherwise-applicable contribution limits,
in addition to the expenditures permitted by § 441a(d). See n. 16,
infra.
440
other than parties, the congressional campaign expenditure
limitations on parties themselves are facially unconstitutional,
and so are incapable of reaching party spending even when
coordinated with a candidate.
Id., at 623-626.4 We remanded
that facial challenge, which had not been fully briefed or
considered below.
Ibid. On remand the District Court held
for the Party, 41 F. Supp. 2d 1197 (1999), and a divided panel of
the Court of Appeals for the Tenth Circuit affirmed,
213 F.3d
1221 (2000).5 We granted certiorari to resolve the question
left open by
Colorado I, see 531 U. S. 923 (2000), and we
now reverse.
II
Spending for political ends and contributing to political
candidates both fall within the First Amendment's protection of
speech and political association.
Buckley, 424 U. S., at
14-23. But ever since we first reviewed the 1971 Act, we have
understood that limits on political expenditures deserve closer
scrutiny than restrictions on political contributions.
Ibid.; see also,
e. g., Shrink Missouri, 528 U. S.,
at 386-388;
Colorado I, supra, at 610, 614-615;
Massachusetts Citizens for Life, supra, at 259-260.
Restraints on expenditures generally curb more expressive and
associational activity than limits on contributions do.
Shrink
Missouri, supra, at 386-388;
Colorado I, supra, at 615;
Buckley, supra, at 19-23. A further reason for the
distinction is that limits on contribu-
4 The limits applicable to Presidential campaigns were not at
issue in
Colorado I, 518 U. S. 604, 610-611
(1996), and are not at issue here, Brief for Respondent 49, n.
30.
5 Along with its constitutional claim, the Party argued to the
District Court that the Party Expenditure Provision's application
to independent expenditures was not severable from the other
possible applications of the provision, a nonconstitutional basis
for resolving the case that the
Colorado I principal opinion
suggested should be explored on remand.
Colorado I, supra,
at 625-626. The District Court rejected the nonseverability
argument, 41 F. Supp. 2d, at 1207, and the Party did not renew it
on appeal, 213 F. 3d, at 1225, n. 3.
441
tions are more clearly justified by a link to political
corruption than limits on other kinds of unlimited political
spending are (corruption being understood not only as
quid pro
quo agreements, but also as undue influence on an
officeholder's judgment, and the appearance of such influence,
Shrink Missouri, supra, at 388-389). At least this is so
where the spending is not coordinated with a candidate or his
campaign.
Colorado I, supra, at 615;
Buckley, 424 U.
S., at 47. In
Buckley we said that:
"[u]nlike contributions, ... independent expenditures may well
provide little assistance to the candidate's campaign and indeed
may prove counterproductive. The absence of prearrangement and
coordination of an expenditure with the candidate or his agent 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."
Ibid.
Given these differences, we have routinely struck down
limitations on independent expenditures by candidates, other
individuals, and groups, see
Federal Election Comm'n v.
National Conservative Political Action Comm., 470 U. S. 480, 490-501
(1985) (political action committees);
Buckley, supra, at
39-58 (individuals, groups, candidates, and campaigns),6 while
repeatedly upholding contribution limits, see
Shrink Missouri,
supra (contributions by political action
6 The expenditure limits invalidated in
Buckley applied
to candidates and their campaigns, and to "persons." See 424 U. S.,
at 39-40, 51, 54, 58. "Person" was defined as "an individual,
partnership, committee, association, corporation, or any other
organization or group of persons." 18 U. S. C. § 591(g) (1970 ed.,
Supp. IV); see also
Buckley, 424 U. S., at 144235 (appendix
reprinting then-current Act). Although this language is broad
enough to cover political parties, id., at 19, and n. 19, 39,
parties with a candidate on the ballot were covered instead by the
special Party Expenditure Provision, which was not challenged on
First Amendment grounds, id., at 58, n. 66.
442
committees);
California Medical Assn. v.
Federal
Election Comm'n, 453 U. S. 182, 193-199
(1981) (contributions by individuals and associations);
Buckley,
supra, at 23-36 (contributions by individuals, groups, and
political committees).7
The First Amendment line between spending and donating is easy
to draw when it falls between independent expenditures by
individuals or political action committees (PACs) without any
candidate's approval (or wink or nod), and contributions in the
form of cash gifts to candidates. See,
e. g.,
Shrink
Missouri, supra, at 386-388;
Buckley, supra, at 1923.8
But facts speak less clearly once the independence of
7The contribution limits at issue in
Buckley applied to
"persons" ("person" again defined as "an individual, partnership,
committee, association, corporation or any other organization or
group of persons," id., at 23). Certain groups (referred to under
current law as "multi candidate political committees") that
registered with the FEC and met other qualifications, including
making contributions to five or more candidates for federal office,
were subject to a higher limit.
Id., at 35.
The current contribution limits appear in 2 U. S. C. § 441a(a).
They provide that "persons" (still broadly defined, see § 431(11))
may contribute no more than $1,000 to a candidate "with respect to
any election for Federal office," $5,000 to any political committee
in any year, and $20,000 to the national committees of a political
party in any year. § 441a(a)(1). Individuals are limited to a
yearly contribution total of $25,000. § 441a(a)(3).
"[M]ulticandidate political committees" are limited to a $5,000
contribution 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). Unlike
the party expenditure limits, these contribution limits are not
adjusted for inflation.
8 The Party does not challenge the constitutionality of limits
on cash contributions from parties to candidates, Brief for
Respondent 49, n. 31, which, on the FEC's reading of the Act, are
imposed on parties by the generally applicable contribution limits
of 2 U. S. C. § 441a(a), see n. 16,
infra. And the Party,
unlike JUSTICE THOMAS,
post, at 465 (dissenting opinion),
does not call for the overruling of
Buckley. Nor does the
FEC ask us to revisit
Buckley's general approach to
expenditure limits, although some have argued that such limits
could be justified in light of
post-Buckley developments in
campaign finance, see,
e. g., Blasi, Free Speech and the
Widening Gyre of Fundraising, 94 Colum. L. Rev. 1281 (1994); cf.
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377,409
443
the spending cannot be taken for granted, and money spent by an
individual or PAC according to an arrangement with a candidate is
therefore harder to classify. As already seen, Congress drew a
functional, not a formal, line between contributions and
expenditures when it provided that coordinated expenditures by
individuals and nonparty groups are subject to the Act's
contribution limits, 2 U. s. C. § 441a(a)(7)(B)(i);
Colorado
I, 518 U. S., at 611. In
Buckley, the Court acknowledged
Congress's functional classification, 424 U. S., at 46-47, and n.
53, and observed that treating coordinated expenditures as
contributions "prevent[s] attempts to circumvent the Act through
prearranged or coordinated expenditures amounting to disguised
contributions,"
id., at 47.
Buckley, in fact,
enhanced the significance of this functional treatment by striking
down independent expenditure limits on First Amendment grounds
while upholding limitations on contributions (by individuals and
nonparty groups), as defined to include coordinated expenditures,
id., at 23-59.9
Colorado I addressed the FEC's effort to stretch the
functional treatment of coordinated expenditures further than the
plain application of the statutory definition. As we said, the FEC
argued that parties and candidates are coupled so closely that all
of a party's expenditures on an election campaign are coordinated
with its candidate; because
Buckley had treated some
coordinated expenditures like contribu-
(2000) (KENNEDY, J., dissenting) ("I would leave open the
possibility that Congress, or a state legislature, might devise a
system in which there are some limits on both expenditures and
contributions, thus permitting officeholders to concentrate their
time and efforts on official duties rather than on fundraising");
id., at 405 (BREYER, J., concurring) ("Suppose
Buckley
denies the political branches sufficient leeway to enact
comprehensive solutions to the problems posed by campaign finance.
If so, like JUSTICE KENNEDY, I believe the Constitution would
require us to reconsider
Buckley").
9 As noted, n. 6,
supra, the Party Expenditure Provision
itself was not challenged on First Amendment grounds in
Buckley,
supra, at 58, n. 66.
444
tions and upheld their limitation, the argument went, the Party
Expenditure Provision should stand as applied to all party election
spending. See Brief for Respondent in
Colorado I, O. T.
1995, No. 95-489, at 28-30; see also
Colorado I,
supra, at 619-623.
Colorado I held otherwise,
however, the principal opinion's view being that some party
expenditures could be seen as "independent" for constitutional
purposes. 518 U. S., at 614. The principal opinion found no reason
to see these expenditures as more likely to serve or be seen as
instruments of corruption than independent expenditures by anyone
else. So there was no justification for subjecting party election
spending across the board to the kinds of limits previously
invalidated when applied to individuals and nonparty groups. The
principal opinion observed that "[t]he 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."
Id., at 616. Since the FEe did
not advance any other convincing reason for refusing to draw the
independent-coordinated line accepted since
Buck ley, see
National Conservative Political Action Comm., 470 U. S., at
497-498;
Buckley, supra, at 46-47, that was the end of the
case so far as it concerned independent spending.
Colorado
I,
supra, at 617-623.
But that still left the question whether the First Amendment
allows coordinated election expenditures by parties to be treated
functionally as contributions, the way coordinated expenditures by
other entities are treated.
Colorado I found no
justification for placing parties at a disadvantage when spending
independently; but was there a case for leaving them entirely free
to coordinate unlimited spending with candidates when others could
not? The principal opinion in
Colorado I noted that
coordinated expenditures "share some of the constitutionally
relevant features of independent expenditures." 518 U. S., at 624.
But it also observed that "many [party coordinated expenditures]
are ... virtually in-
445
distinguishable from simple contributions."
Ibid.
Coordinated spending by a party, in other words, covers a spectrum
of activity, as does coordinated spending by other political
actors. The issue in this case is, accordingly, whether a party is
otherwise in a different position from other political speakers,
giving it a claim to demand a generally higher standard of scrutiny
before its coordinated spending can be limited. The issue is posed
by two questions: does limiting coordinated spending impose a
unique burden on parties, and is there reason to think that
coordinated spending by a party would raise the risk of corruption
posed when others spend in coordination with a candidate? The issue
is best viewed through the positions developed by the Party and the
Government in this case.
III
The Party's argument that its coordinated spending, like its
independent spending, should be left free from restriction under
the
Buckley line of cases boils down to this: because a
party's most important speech is aimed at electing candidates and
is itself expressed through those candidates, any limit on party
support for a candidate imposes a unique First Amendment burden.
See Brief for Respondent 26-31. The point of organizing a party,
the argument goes, is to run a successful candidate who shares the
party's policy goals.
Id., at 26. Therefore, while a
campaign contribution is only one of several ways that individuals
and nonparty groups speak and associate politically, see
Shrink
Missouri, 528 U. S., at 386-387;
Buckley, supra, at
20-22, financial support of candidates is essential to the nature
of political parties as we know them. And coordination with a
candidate is a party's natural way of operating, not merely an
option that can easily be avoided. Brief for Respondent 26.
Limitation of any party expenditure coordinated with a candidate,
the Party contends, is therefore a serious, rather than incidental,
imposition on the party's speech and associative purpose, and that
justifies a stricter level of scrutiny than we have applied
446
to analogous limits on individuals and nonparty groups. But
whatever level of scrutiny is applied, the Party goes on to argue,
the burden on a party reflects a fatal mismatch between the effects
of limiting coordinated party expenditures and the prevention of
corruption or the appearance of it. Brief for Respondent 20-22,
25-32; see also 213 F. 3d, at 1227.
The Government's argument for treating coordinated spending like
contributions goes back to
Buckley. There, the rationale for
endorsing Congress's equation of coordinated expenditures and
contributions was that the equation "prevent[s] attempts to
circumvent the Act through prearranged or coordinated expenditures
amounting to disguised contributions." 424 U. S., at 47. The idea
was that coordinated expenditures are as useful to the candidate as
cash, and that such "disguised contributions" might be given "as a
quid pro quo for improper commitments from the candidate"
(in contrast to independent expenditures, which are poor sources of
leverage for a spender because they might be duplicative or
counterproductive from a candidate's point of view).
Ibid.
In effect, therefore,
Buckley subjected limits on
coordinated expenditures by individuals and nonparty groups to the
same scrutiny it applied to limits on their cash contributions. The
standard of scrutiny requires the limit to be "'closely drawn' to
match a 'sufficiently important interest,' ... though the dollar
amount of the limit need not be 'fine tun[ed],'"
Shrink
Missouri, supra, at 387-388 (quoting
Buckley, supra, at
25, 30).
The Government develops this rationale a step further in
applying it here. Coordinated spending by a party should be limited
not only because it is like a party contribution, but for a further
reason. A party's right to make unlimited expenditures coordinated
with a candidate would induce individual and other nonparty
contributors to give to the party in order to finance coordinated
spending for a favored candidate beyond the contribution limits
binding on them. The
447
Government points out that a degree of circumvention is
occurring under present law (which allows unlimited independent
spending and some coordinated spending). Individuals and nonparty
groups who have reached the limit of direct contributions to a
candidate give to a party with the understanding that the
contribution to the party will produce increased party spending for
the candidate's benefit. The Government argues that if coordinated
spending were unlimited, circumvention would increase: because
coordinated spending is as effective as direct contributions in
supporting a candidate, an increased opportunity for coordinated
spending would aggravate the use of a party to funnel money to a
candidate from individuals and nonparty groups, who would thus
bypass the contribution limits that
Buckley upheld.
IV
Each of the competing positions is plausible at first blush.
Our evaluation of the arguments, however, leads us to reject the
Party's claim to suffer a burden unique in any way that should make
a categorical difference under the First Amendment. On the other
side, the Government's contentions are ultimately borne out by
evidence, entitling it to prevail in its characterization of party
coordinated spending as the functional equivalent of
contributions.
A
In assessing the Party's argument, we start with a word about
what the Party is not saying. First, we do not understand the Party
to be arguing that the line between independent and coordinated
expenditures is conceptually unsound when applied to a political
party instead of an individual or other association. See,
e.
g., Brief for Respondent 29 (describing "independent party
speech"). Indeed, the good sense of recognizing the distinction
between independence and coordination was implicit in the principal
opinion in
Colorado I, which did not accept the notion of a
"metaphysi-
448
cal identity" between party and candidate, 518 U. S., at 622623,
but rather decided that some of a party's expenditures could be
understood as being independent and therefore immune to limitation
just as an individual's independent expenditure would be, id., at
619-623.
Second, we do not understand the Party to be arguing that
associations in general or political parties in particular may
claim a variety of First Amendment protection that is different in
kind from the speech and associational rights of their members.10
The Party's point, rather, is best understood as a factual one:
coordinated spending is essential to parties because "a party and
its candidate are joined at the hip," Brief for Respondent 31,
owing to the very conception of the party as an organization formed
to elect candidates. Parties, thus formed, have an especially
strong working relationship with their candidates, id., at 26, and
the speech this special relationship facilitates is much more
effective than independent speech, id., at 29.
lOWe have repeatedly held that political parties and other
associations derive rights from their members.
E. g.,
Norman v.
Reed, 502 U. S. 279, 288
(1992);
Tashjian v.
Republican Party of Conn.,
479 U. S. 208,
214-215
(1986); Roberts v.
United States Jaycees,
468 U. S. 609,
622-623 (1984);
NAACP v.
Alabama ex rel. Patterson,
357 U. S. 449,
459-460 (1958);
Sweezy v.
New Hampshire, 354 U. S. 234, 250
(1957). While some commentators have assumed that associations'
rights are also limited to the rights of the individuals who belong
to them,
e. g., Supreme Court, 1996 Term, Leading Cases,
Associational Rights of Political Parties, 111 Harv. L. Rev. 197,
315, n. 50 (1997), that view has been subject to debate, see,
e. g., Gottlieb, Fleshing Out the Right of Association, 49
Albany L. Rev. 825, 826, 836-837 (1985); see generally Issacharoff,
Private Parties with Public Purposes, 101 Colum. L. Rev. 274
(2001). There is some language in our cases supporting the position
that parties' rights are more than the sum of their members'
rights,
e. g., California Democratic Party v.
Jones,
530 U. S. 567,
575 (2000) (referring to the "special place" the First Amendment
reserves for the process by which a political party selects a
standard bearer);
Timmons v.
Twin Cities Area New
Party, 520 U. S.
351, 373 (1997) (STEVENS, J., dissenting), but we have never
settled upon the nature of any such difference and have no reason
to do so here.
449
There are two basic arguments here. The first turns on the
relationship of a party to a candidate: a coordinated relationship
between them so defines a party that it cannot function as such
without coordinated spending, the object of which is a candidate's
election. We think political history and political reality belie
this argument. The second argument turns on the nature of a party
as uniquely able to spend in ways that promote candidate success.
We think that this argument is a double-edged sword, and one hardly
limited to political parties.
1
The assertion that the party is so joined at the hip to
candidates that most of its spending must necessarily be
coordinated spending is a statement at odds with the history of
nearly 30 years under the Act. It is well to remember that ever
since the Act was amended in 1974, coordinated spending by a party
committee in a given race has been limited by the provision
challenged here (or its predecessor). See 18 U. S. C. § 608(f)
(1970 ed., Supp. IV); see also
Buckley, 424 U. S., at 194
(reprinting then-effective Party Expenditure Provision). It was not
until 1996 and the decision in
Colorado I that any spending
was allowed above that amount, and since then only independent
spending has been unlimited. As a consequence, the Party's claim
that coordinated spending beyond the limit imposed by the Act is
essential to its very function as a party amounts implicitly to
saying that for almost three decades political parties have not
been functional or have been functioning in systematic violation of
the law. The Party, of course, does not in terms make either
statement, and we cannot accept either implication. There is no
question about the closeness of candidates to parties and no doubt
that the Act affected parties' roles and their exercise of power.
But the political scientists who have weighed in on this litigation
observe that "there is little evidence to suggest that coordinated
party spending limits adopted by Congress have frustrated the
ability of political
450
parties to exercise their First Amendment rights to support
their candidates," and that "[i]n reality, political parties are
dominant players, second only to the candidates themselves, in
federal elections." Brief for Paul Allen Beck et al. as
Amici
Curiae 5-6. For the Party to claim after all these years of
strictly limited coordinated spending that unlimited coordinated
spending is essential to the nature and functioning of parties is
in reality to assert just that "metaphysical identity," 518 U. S.,
at 623, between free-spending party and candidate that we could not
accept in
Colorado 1.11
2
There is a different weakness in the seemingly unexceptionable
premise that parties are organized for the purpose of electing
candidates, Brief for Respondent 26 ("Parties exist precisely to
elect candidates that share the goals of their party"), so that
imposing on the way parties serve that function is uniquely
burdensome. The fault here is not so much metaphysics as myopia, a
refusal to see how the power of money actually works in the
political structure.
When we look directly at a party's function in getting and
spending money, it would ignore reality to think that the party
role is adequately described by speaking generally of
11 To say that history and common sense make us skeptical that
parties are uniquely incapacitated by the challenged limitations is
not to deny that limiting parties' coordinated expenditures while
permitting unlimited independent expenditures prompts parties to
structure their spending in a way that they would not otherwise
choose. See
post, at 470. And we acknowledge below,
infra, at 453-455, that limiting coordinated expenditures
imposes some burden on parties' associational efficiency. But the
very evidence cited by the dissent suggests that it is nonetheless
possible for parties, like individuals and nonparty groups, to
speak independently.
E. g., App. 218 (statement of Professor
Anthony Corrado) ("[I]t is likely that parties will allocate an
increasing amount of money to independent expenditure efforts in
the future"); id., at 159 (affidavit of Donald K. Bain, Chairman of
the Colorado Republican Federal Campaign Committee) (describing
ability to make independent expenditures as "welcome").
451
electing particular candidates. The money parties spend comes
from contributors with their own personal interests. PACs, for
example, are frequent party contributors who (according to one of
the Party's own experts) "do not pursue the same objectives in
electoral politics" that parties do. App. 180 (statement of
Professor Anthony Corrado). PACs "are most concerned with advancing
their narrow interest[s]" and therefore "provide support to
candidates who share their views, regardless of party affiliation."
Ibid. In fact, many P ACs naturally express their narrow
interests by contributing to both parties during the same electoral
cycle,12 and sometimes even directly to two competing candidates in
the same election, L. Sabato, PAC Power, Inside the World of
Political Action Committees 88 (1984).13 Parties
12 As former Senator Paul Simon explained, "I believe people
contribute to party committees on both sides of the aisle for the
same reason that Federal Express does, because they want favors.
There is an expectation that giving to party committees helps you
legislatively."
Id., at 270. See also id., at 269-270
(recounting debate over a bill favored by Federal Express during
which a colleague exclaimed "we've got to pay attention to who is
buttering our bread").
The FEC's public records confirm that Federal Express's PAC
(along with many others) contributed to both major parties in
recent elections. See,
e. g., FEC Disclosure Report, Search
Results for Federal Express Political Action Committee (June 20,
2001),
http://herndon1.sdrdc.com/
cgi-bin/com_supopp/C00068692; FEC Disclosure Report, Search Results
for Association of Trial Lawyers of America Political Action
Committee (June 20, 2001),
http://herndon1.sdrdc.com/cgi-bin/com_supopp/C00024521;
FEC Disclosure Report, Search Results for Philip Morris Companies,
Inc., Political Action Committee (June 20, 2001),
http://herndon1.sdrdc.com/
cgi-bin/com_supopp/C00089136; FEC Disclosure Report, Search Results
for American Medical Association Political Action Committee (June
20, 2001),
http://herndon1.sdrdc.com/cgi-bin/com_supopp/C00000422;
FEC Disclosure Report, Search Results for Letter Carriers Political
Action Fund (June 20, 2001),
http://herndon1.sdrdc.com/cgi-bin/com_supopp/
C00023580.
13 For example, the PACs associated with AOL Time Warner Inc.
and Philip Morris Companies, Inc., both made contributions to the
competing 2000 Senate campaigns of George Allen and Charles Robb.
See
452
are thus necessarily the instruments of some contributors whose
object is not to support the party's message or to elect party
candidates across the board, but rather to support a specific
candidate for the sake of a position on one narrow issue, or even
to support any candidate who will be obliged to the
contributors.14
Parties thus perform functions more complex than simply electing
candidates; whether they like it or not, they act as agents for
spending on behalf of those who seek to produce obligated
officeholders. It is this party role, which functionally unites
parties with other self-interested political actors, that the Party
Expenditure Provision targets. This party role, accordingly,
provides good reason to view limits on coordinated spending by
parties through the same lens applied to such spending by donors,
like PACs, that can use parties as conduits for contributions meant
to place candidates under obligation.
FEC Disclosure Report, Search Results for AOL Time Warner Inc.
Political Action Committee (June 20, 2001),
http://herndon1.sdrdc.com/cgi-binJ
com_supopp/C00339291; FEC Disclosure Report, Search Results for
Philip Morris Companies, Inc., Political Action Committee,
supra.
14 We have long recognized Congress's concern with this reality
of politicallife. For example, in
United States v.
Automobile Workers, 352 U. S. 567 (1957),
Justice Frankfurter recounted Senator Robinson's explanation for
the Federal Corrupt Practices Act's restriction of corporate
campaign contributions:
"'We all know ... that one of the great political evils of the
time is the apparent hold on political parties which business
interests and certain organizations seek and sometimes obtain by
reason of liberal campaign contributions. Many believe that when an
individual or association of individuals makes large contributions
for the purpose of aiding candidates of political parties in
winning the elections, they expect, and sometimes demand, and
occasionally, at least, receive, consideration by the beneficiaries
of their contributions which not infrequently is harmful to the
general public interest.'''
Id., at 576 (quoting 65 Congo
Rec. 9507-9508 (1924)).
453
3
Insofar as the Party suggests that its strong working
relationship with candidates and its unique ability to speak in
coordination with them should be taken into account in the First
Amendment analysis, we agree. It is the accepted understanding that
a party combines its members' power to speak by aggregating
contributions and broadcasting messages more widely than individual
contributors generally could afford to do, and the party marshals
this power with greater sophistication than individuals generally
could, using such mechanisms as speech coordinated with a
candidate. In other words, the party is efficient in generating
large sums to spend and in pinpointing effective ways to spend
them. Cf.
Colorado I, 518 U. S., at 637 (THOMAS, J.,
concurring in judgment and dissenting in part) ("Political
associations allow citizens to pool their resources and make their
advocacy more effective").
It does not, however, follow from a party's efficiency in
getting large sums and spending intelligently that limits on a
party's coordinated spending should be scrutinized under an
unusually high standard, and in fact any argument from
sophistication and power would cut both ways. On the one hand, one
can seek the benefit of stricter scrutiny of a law capping party
coordinated spending by emphasizing the heavy burden imposed by
limiting the most effective mechanism of sophisticated spending.
And yet it is exactly this efficiency culminating in coordinated
spending that (on the Government's view) places a party in a
position to be used to circumvent contribution limits that apply to
individuals and PACs, and thereby to exacerbate the threat of
corruption and apparent corruption that those contribution limits
are aimed at reducing. As a consequence, what the Party calls an
unusual burden imposed by regulating its spending is not a simple
premise for arguing for tighter scrutiny of limits on a party; it
is the premise for a question pointing in
454
the opposite direction. If the coordinated spending of other,
less efficient and perhaps less practiced political actors can be
limited consistently with the Constitution, why would the
Constitution forbid regulation aimed at a party whose very
efficiency in channeling benefits to candidates threatens to
undermine the contribution (and hence coordinated spending) limits
to which those others are unquestionably subject?
4
The preceding question assumes that parties enjoy a power and
experience that sets them apart from other political spenders. But
in fact the assumption is too crude. While parties command bigger
spending budgets than most individuals, some individuals could
easily rival party committees in spending. Rich political activists
crop up, and the United States has known its Citizens Kane. Their
money speaks loudly, too, and they are therefore burdened by
restrictions on its use just as parties are. And yet they are
validly subject to coordinated spending limits,
Buckley, 424
U. S., at 46-47, and so are PACs, id., at 35-36, 46-47, which may
amass bigger treasuries than most party members can spare for
politics.15
Just as rich donors, media executives, and PACs have the means
to speak as loudly as parties do, they would also have the capacity
to work effectively in tandem with a candidate, just as a party can
do. While a candidate has no way of coordinating spending with
every contributor, there is nothing hard about coordinating with
someone with a fortune to donate, any more than a candidate would
have difficulty in coordinating spending with an inner circle of
personal political associates or with his own family. Yet all of
them are
15 By noting that other political actors are validly burdened by
limitations on their coordinated spending, we do not mean to take a
position as to the wisdom of policies that promote one source of
campaign funding or another. Cf. Brief for Respondent 27, n. 17
(citing academic support for expanding the role of parties in
campaign finance).
455
subject to coordinated spending limits upheld in
Buckley,
supra, at 53, n. 59. A party, indeed, is now like some of these
political actors in yet another way: in its right under
Colorado
I to spend money in support of a candidate without legal limit
so long as it spends independently. A party may spend independently
every cent it can raise wherever it thinks its candidate will
shine, on every subject and any viewpoint.
A party is not, therefore, in a unique position. It is in the
same position as some individuals and PACs, as to whom coordinated
spending limits have already been held valid,
Buckley,
supra, at 46-47; and, indeed, a party is better off, for a
party has the special privilege the others do not enjoy, of making
coordinated expenditures up to the limit of the Party Expenditure
Provision.16
5
The Party's arguments for being treated differently from other
political actors subject to limitation on political spending under
the Act do not pan out. Despite decades of limitation on
coordinated spending, parties have not been rendered useless. In
reality, parties continue to organize to elect candidates, and also
function for the benefit of donors whose object is to place
candidates under obligation, a fact that parties cannot escape.
Indeed, parties' capacity to concentrate power to elect is the very
capacity that apparently opens them to exploitation as channels for
circumventing contribution and coordinated spending limits binding
on other political players. And some of these players could marshal
the same power and sophistication for the same electoral objectives
as political parties themselves.
16 This is the position of the FEC in the aftermath of
Colorado I: that a party committee may make coordinated
expenditures up to the amount of its expenditure limit, in addition
to the amount of direct contributions permitted by the generally
applicable contribution limit. Brief for Petitioner 5-6, and n.
3.
456
We accordingly apply to a party's coordinated spending
limitation the same scrutiny we have applied to the other political
actors, that is, scrutiny appropriate for a contribution limit,
enquiring whether the restriction is "closely drawn" to match what
we have recognized as the "sufficiently important" government
interest in combating political corruption.
Shrink Missouri,
528 U. S., at 387-388 (quoting
Buckley, supra, at 25, 30).17
With the standard thus settled, the issue remains whether adequate
evidentiary grounds exist to sustain the limit under that standard,
on the theory that unlimited coordinated spending by a party raises
the risk of corruption (and its appearance) through circumvention
of valid contribution limits. Indeed, all Members of the Court
agree that circumvention is a valid theory of corruption; the
remaining bone of contention is evidentiary.18
17Whether a different characterization, and hence a different
type of scrutiny, could be appropriate in the context of an
as-applied challenge focused on application of the limit to
specific expenditures is a question that, as JUSTICE THOMAS notes,
post, at 468, n. 2, we need not reach in this facial
challenge. Cf. Brief for Petitioner 9, n. 5 (noting that the FEC
has solicited comments regarding possible criteria for identifying
coordinated expenditures).
The Party appears to argue that even if the Party Expenditure
Provision is justified with regard to coordinated expenditures that
amount to no more than payment of the candidate's bills, the
limitation is facially invalid because of its potential application
to expenditures that involve more of the party's own speech. Brief
for Respondent 48-49. But the Party does not tell us what
proportion of the spending falls in one category or the other, or
otherwise lay the groundwork for its facial overbreadth claim. Cf.
Broadrick v.
Oklahoma, 413 U. S. 601 (1973)
(overbreadth must be substantial to trigger facial
invalidation).
18 Apart from circumvention, the FEC also argues that the Party
Expenditure Provision is justified by a concern with
quid pro
quo arrangements and similar corrupting relationships between
candidates and parties themselves, see Brief for Petitioner 33-38.
We find no need to reach that argument because the evidence
supports the long-recognized rationale of combating circumvention
of contribution limits designed to combat the corrupting influence
of large contributions to candidates from individuals
457
B
Since there is no recent experience with unlimited coordinated
spending, the question is whether experience under the present law
confirms a serious threat of abuse from the unlimited coordinated
party spending as the Government contends. Cf.
Burson v.
Freeman, 504
U. S. 191, 208 (1992) (opinion of Blackmun, J.) (noting
difficulty of mustering evidence to support long-enforced
statutes). It clearly does. Despite years of enforcement of the
challenged limits, substantial evidence demonstrates how
candidates, donors, and parties test the limits of the current law,
and it shows beyond serious doubt how contribution limits would be
eroded if inducement to circumvent them were enhanced by declaring
parties' coordinated spending wide open.19
and nonparty groups. The dissent does not take issue with this
justification as a theoretical matter. See also
213 F.3d
1221, 1232 (CAlO 2000) (Court of Appeals acknowledging
circumvention as a possible "avenue of abuse").
19 In
Colorado I, the principal opinion suggested that
the Party Expenditure Provision was not enacted out of "a special
concern about the potentially 'corrupting' effect of party
expenditures, but rather for the constitutionally insufficient
purpose of reducing what [Congress] saw as wasteful and excessive
campaign spending." 518 U. S., at 618. That observation was
relevant to our examination of the Party Expenditure Provision as
applied to independent expenditures, see id., at 617-618, limits on
which were invalidated with regard to other political actors in
Buckley in part because they were justified by concern with
wasteful campaign spending,
Buckley, 424 U. S., at 57. Our
point in
Colorado I was that there was no evidence that
Congress had a special motivation regarding parties that would
justify limiting their independent expenditures after similar
limits imposed on other spenders had been invalidated. As for the
Party Expenditure Provision's application to coordinated
expenditures, on the other hand, the evidence discussed in the text
suggests that the anticircumvention rationale that justifies other
coordinated expenditure limits, see
Buckley, supra, at
46-47, is at work here as well. The dissent ignores this
distinction,
post, at 475, but neither the dissent nor the
Party seriously argues that Congress was not concerned with
circumvention of contribution limits using parties as conduits. All
acknowledge that Congress enacted other measures prompted by just
that concern. See
post, at 481;
458
Under the Act, a donor is limited to $2,000 in contributions to
one candidate in a given election cycle. The same donor may give as
much as another $20,000 each year to a national party committee
supporting the candidate.20 What a realist would expect to occur
has occurred. Donors give to the party with the tacit understanding
that the favored candidate will benefit. See App. 247 (declaration
of Robert Hickmott, former Democratic fundraiser and National
Finance Director for Timothy Wirth's Senate campaign) ("We ... told
contributors who had made the maximum allowable contribution to the
Wirth campaign but who wanted to do more that they could raise
money for the DSCC so that we could get our maximum [Party
Expenditure Provision] allocation from the DSCC"); id., at 274
(declaration of Timothy Wirth) ("I understood that when I raised
funds for the DSCC, the donors expected that I would receive the
amount of their donations multiplied by a certain number that the
DSCC had determined in advance, assuming the DSCC has raised other
funds"); id., at 166 (declaration of Leon G. Billings, former
Executive Director of the Democratic Senatorial Campaign Committee
(DSCC)) ("People often contribute to party committees because they
have given the maximum amount to a candidate, and want to help the
candidate indirectly by contributing to the party"); id., at 99-100
(fundraising letter from Congressman Wayne Allard, dated Aug. 27,
1996, explaining to contributor that "you are at the limit of what
you can directly contribute to my campaign," but "you can further
help my campaign by assisting the Colorado Republican Party")P
Brief for Respondent 41-42 ("FECA provides interlocking
multilayered provisions designed to prevent circumvention").
20 See n. 7,
supra; see generally Federal Election
Commission, Campaign Guide for Congressional Candidates and
Committees 10 (1999).
21 Contrary to the dissent's suggestion,
post, at
477-478, we are not closing our eyes to District Court findings
rejecting this record evidence. After alluding to the evidence
cited above, 41 F. Supp. 2d 1197, 1203-1204 (Colo. 1999), and
concluding that it did not support theories of corruption that we
do not address here, see id., at 1211; n. 18,
supra, the
District
459
Although the understanding between donor and party may involve
no definite commitment and may be tacit on the donor's part, the
frequency of the practice and the volume of money involved has
required some manner of informal bookkeeping by the recipient. In
the Democratic Party, at least, the method is known as "tallying,"
a system that helps to connect donors to candidates through the
accommodation of a party. See App. 246-247 (Hickmott declaration)
("[The tally system] is an informal agreement between the DSCC and
the candidates' campaigns that if you help the DSCC raise
contributions, we will turn around and help your campaign"); id.,
at 268 (declaration of former Senator Paul Simon) ("Donors would be
told the money they contributed could be credited to any Senate
candidate. The callers would make clear that this was not a direct
contribution, but it was fairly close to direct"); id., at 165-166
(Billings declaration) ("There appeared to be an understanding
between the DSCC and the Senators that the amount of money they
received from the DSCC was related to how much they raised for the
Committee").22
Such is the state of affairs under the current law, which
requires most party spending on a candidate's behalf to be
Court mistakenly concluded that
Colorado I had rejected
the anticircumvention rationale as a matter of law, 41 F. Supp. 2d,
at 1211, n. 9. We explain below,
infra, at 463-465, why
Colorado I's rejection of the anticircumvention rationale in
the context of limits applied to independent party expenditures
does not control the outcome of this case.
22 The dissent dismisses this evidence as describing "legal"
practices.
Post, at 479. The dissent may be correct that the FEC
considers tallying legal, see Reply Brief for Petitioner 9, n. 3,
but one thing is clear: tallying is a sign that contribution limits
are being diluted and could be diluted further if the floodgates
were open. Why, after all, does a party bother to tally? The
obvious answer is that it wants to know who gets the benefit of the
contributions to the party, as the record quotations attest. See
also n. 23,
infra. And the fact that the parties may not
fund sure losers, stressed by the dissent
(post, at
478-479), is irrelevant. The issue is what would become of
contribution limits if parties could use unlimited coordinated
spending to funnel contributions to those serious contenders who
are favored by the donors.
460
done independently, and thus less desirably from the point of
view of a donor and his favored candidate. If suddenly every dollar
of spending could be coordinated with the candidate, the inducement
to circumvent would almost certainly intensify. Indeed, if a
candidate could be assured that donations through a party could
result in funds passed through to him for spending on virtually
identical items as his own campaign funds, a candidate enjoying the
patronage of affluent contributors would have a strong incentive
not merely to direct donors to his party, but to promote
circumvention as a step toward reducing the number of donors
requiring time-consuming cultivation. If a candidate could arrange
for a party committee to foot his bills, to be paid with $20,000
contributions to the party by his supporters, the number of donors
necessary to raise $1,000,000 could be reduced from 500 (at $2,000
per cycle) to 46 (at $2,000 to the candidate and $20,000 to the
party, without regard to donations outside the election
year).23
23 Any such dollar-for-dollar pass-through would presumably be
too obvious to escape the special provision on earmarking, 2 U. S.
C. § 441a(a)(8), see
infra, at 462. But the example
illustrates the undeniable inducement to more subtle
circumvention.
The same enhanced value of coordinated spending that could be
expected to promote greater circumvention of contribution limits
for the benefit of the candidate-fundraiser would probably enhance
the power of the fundraiser to use circumvention as a tactic to
increase personal power and a claim to party leadership. The
affluent nominee can already do this to a limited extent, by
directing donations to the party and making sure that the party
knows who raised the money, and that the needier candidates who
receive the benefit of party spending know whom to thank. The
candidate can thus become a player beyond his own race, and the
donor's influence is multiplied. See generally App. 249 (Hickmott
declaration) ("Incumbents who were not raising money for themselves
because they were not up for reelection would sometimes raise money
for other Senators, or for challengers. They would send $20,000 to
the DSCC and ask that this be entered on another candidate's tally.
They might do this, for example, if they were planning to run for a
leadership position and wanted to obtain the support of the
Senators they assisted"). If the effectiveness of party spending
could be enhanced by limitless coordination, the ties of straitened
candidates to prosperous ones and, vicariously, to
461
v
While this evidence rules out denying the potential for
corruption by circumvention, the Party does try to minimize the
threat. It says that most contributions to parties are small, with
negligible corrupting momentum to be carried through the party
conduit. Brief for Respondent 14. But some contributions are not
small; they can go up to $20,000, 2 U. s. C. § 441a(a)(1)(B),24 and
the record shows that even under present law substantial donations
turn the parties into matchmakers whose special meetings and
receptions give the donors the chance to get their points across to
the candidates.25 The Party again discounts the threat of
outflanking contribution limits on individuals and nonparty groups
by stressing that incumbent candidates give more excess campaign
funds to parties than parties spend on coordinated expenditures.
Brief for Respondent 34. But the fact that parties may do well for
themselves off incumbents does not defuse concern over
circumvention; if contributions to a party were not used as a
funnel from donors to candidates, there would be no reason for
using the tallying system the way the witnesses have described
it.
large donors would be reinforced as well. Party officials who
control distribution of coordinated expenditures would obviously
form an additional link in this chain. See id., at 164, 168
(Billings declaration) ("[The DSCC's three-member Executive
Committee] basically made the decisions as to how to distribute the
money .... Taking away the limits on coordinated expenditures would
result in a fundamental transferal of power to certain individual
Senators").
24 In 1996, 46 percent of itemized (over $200) individual
contributions to the Democratic national party committees and 15
percent of such contributions to the Republican national party
committees were $10,000 or more. Biersack & Haskell, Spitting
on the Umpire: Political Parties, the Federal Election Campaign
Act, and the 1996 Campaigns, in Financing the 1996 Election 155,
160 (J. Green ed. 1999).
25 For example, the DSCC has established exclusive clubs for the
most generous donors, who are invited to special meetings and
social events with Senators and candidates. App. 254-255 (Hickmott
declaration).
462
Finally, the Party falls back to claiming that, even if there is
a threat of circumvention, the First Amendment demands a response
better tailored to that threat than a limitation on spending, even
coordinated spending.
Id., at 46-48. The Party has two
suggestions.
First, it says that better crafted safeguards are in place
already, in particular the earmarking rule of § 441a(a)(8), which
provides that contributions that "are in any way earmarked or
otherwise directed through an intermediary or conduit to [a]
candidate" are treated as contributions to the candidate. The Party
says that this provision either suffices to address any risk of
circumvention or would suffice if clarified to cover practices like
tallying.
Id., at 42, 47; see also 213 F. 3d, at 1232. This
position, however, ignores the practical difficulty of identifying
and directly combating circumvention under actual political
conditions. Donations are made to a party by contributors who favor
the party's candidates in races that affect them; donors are (of
course) permitted to express their views and preferences to party
officials; and the party is permitted (as we have held it must be)
to spend money in its own right. When this is the environment for
contributions going into a general party treasury, and
candidate-fundraisers are rewarded with something less obvious than
dollar-for-dollar pass-throughs (distributed through contributions
and party spending), circumvention is obviously very hard to trace.
The earmarking provision, even if it dealt directly with tallying,
would reach only the most clumsy attempts to pass contributions
through to candidates. To treat the earmarking provision as the
outer limit of acceptable tailoring would disarm any serious effort
to limit the corrosive effects of what Chief Judge Seymour called
"'understandings' regarding what donors give what amounts to the
party, which candidates are to receive what funds from the party,
and what interests particular donors are seeking to promote," id.,
at 1241 (dissenting opinion); see also Briffault, Political Parties
and Campaign Finance Re-
463
form, 100 Colum. L. Rev. 620, 652 (2000) (describing "web of
relations linking major donors, party committees, and elected
officials").26
The Party's second preferred prescription for the threat of an
end run calls for replacing limits on coordinated expenditures by
parties with limits on contributions to parties, the latter
supposedly imposing a lesser First Amendment burden. Brief for
Respondent 46-48. The Party thus invokes the general rule that
contribution limits take a lesser First Amendment toll, expenditure
limits a greater one. That was one strand of the reasoning in
Buckley itself, which rejected the argument that limitations
on independent expenditures by individuals, groups, and candidates
were justifiable in order to avoid circumvention of contribution
limitations. 424 U. S., at 44. It was also one strand of the logic
of the
Colorado I principal opinion in rejecting the Party
Expenditure Provision's application to independent party
expenditures. 518 U. S., at 617.27
In each of those cases, however, the Court's reasoning contained
another strand. The analysis ultimately turned on the understanding
that the expenditures at issue were not potential alter egos for
contributions, but were independent and therefore functionally true
expenditures, qualifying for the most demanding First Amendment
scrutiny employed in
Buckley. Colorado I, supra, at 617;
Buckley, supra, at 44-47. Thus, in
Colorado I we
could not assume, "absent
26 The Party's argument for relying on better earmarking
enforcement, accepted by the dissent,
post, at 481, would
invite a corresponding attack on all contribution limits. As we
said in
Buckley, 424 U. S., at 27-28, and
Shrink
Missouri, 528 U. S., at 390, the policy supporting contribution
limits is the same as for laws against bribery. But we do not throw
out the contribution limits for unskillful tailoring; prohibitions
on bribery, like the earmarking provision here, address only the
"most blatant and specific" attempts at corruption, 424 U. S., at
28.
27 The dissent therefore suggests,
post, at 482, and the
District Court mistakenly concluded, see discussion n. 21,
supra, that
Colorado I disposed of the tailoring
question for purposes of this case.
464
convincing evidence to the contrary," that the Party's
independent expenditures formed a link in a chain of
corruptionby-conduit. 518 U. S., at 617. "The absence of
prearrangement and coordination of an expenditure with the
candidate or his agent 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,"
Buckley, supra, at 47;
therefore, "the constitutionally significant fact" in
Colorado I was "the lack of coordination between the
candidate and the source of the expenditure," 518 U. S., at
617.
Here, however, just the opposite is true. There is no
significant functional difference between a party's coordinated
expenditure and a direct party contribution to the candidate, and
there is good reason to expect that a party's right of unlimited
coordinated spending would attract increased contributions to
parties to finance exactly that kind of spending.28 Coordinated
expenditures of money donated to a party are tailor-made to
undermine contribution limits. Therefore the choice here is not, as
in
Buckley and
Colorado I, between a limit on pure
contributions and pure expenditures.29 The choice is between
limiting contributions and
28 The dissent notes a superficial tension between this analysis
and our recent statement in
Bartnicki v.
Vopper,
532 U. S. 514
(2001), that "it would be quite remarkable to hold that speech by a
law-abiding [entity] can be suppressed in order to deter conduct by
a non-law-abiding third party,"
id., at 529-530. Unlike
Bartnicki, there is no clear dichotomy here between law
abider and lawbreaker. The problem of circumvention is a systemic
one, accomplished only through complicity between donor and
party.
29 Also, again, contrast
Bartnicki, where the gulf
between the First Amendment implications of two enforcement options
was clear. We rejected the decision to penalize disclosure of
lawfully obtained information of public interest instead of
vigorously enforcing prohibitions on intercepting private
conversations.
Ibid.
465
limiting expenditures whose special value as expenditures is
also the source of their power to corrupt. Congress is entitled to
its choice.
***
We hold that a party's coordinated expenditures, unlike
expenditures truly independent, may be restricted to minimize
circumvention of contribution limits. We therefore reject the
Party's facial challenge and, accordingly, reverse the judgment of
the United States Court of Appeals for the Tenth Circuit.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE SCALIA and JusTICE KENNEDY
join, and with whom THE CHIEF JUSTICE joins as to Part II,
dissenting.
The Party Expenditure Provision, 2 U. S. C. § 441a(d)(3),
severely limits the amount of money that a national or state
committee of a political party can spend in coordination with its
own candidate for the Senate or House of Representatives. See
ante, at 438-439, and n. 3. Because this provision sweeps
too broadly, interferes with the party-candidate relationship, and
has not been proved necessary to combat corruption, I respectfully
dissent.
I
As an initial matter, I continue to believe that
Buckley
v.
Valeo, 424 U.
S. 1 (1976)
(per curiam), should be overruled. See
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 410 (2000)
(THOMAS, J., dissenting);
Colorado Republican Federal Campaign
Comm. v.
Federal Election Comm'n, 518 U. S. 604, 631 (1996)
(Colorado I) (THOMAS, J., concurring in judgment and
dissenting in part). "Political speech is the primary object of
First Amendment protection,"
Shrink Missouri, supra, at
410-411 (THOMAS, J., dissenting); see also
Eu v.
San
Francisco County Democratic Central
466
THOMAS, J., dissenting
Comm., 489
U. S. 214, 223 (1989);
Mills v.
Alabama, 384 U. S. 214,218 (1966),
and it is the lifeblood of a self-governing people, see
Shrink
Missouri, supra, at 405 (KENNEDY, J., dissenting) ("[P]olitical
speech in the course of elections [is] the speech upon which
democracy depends"). I remain baffled that this Court has extended
the most generous First Amendment safeguards to filing lawsuits,
wearing profane jackets, and exhibiting drive-in movies with
nudity,1 but has offered only tepid protection to the core speech
and associational rights that our Founders sought to defend.
In this case, the Government does not attempt to argue that the
Party Expenditure Provision satisfies strict scrutiny, see
Perry
Ed. Assn. v.
Perry Local Educators' Assn., 460 U. S. 37, 45 (1983)
(providing that, under strict scrutiny, a restriction on speech is
constitutional only if it is narrowly tailored to serve a
compelling governmental interest). Nor could it. For the reasons
explained in my separate opinions in
Colorado I,
supra, at 641-644, and
Shrink Missouri, supra, at
427-430, the campaign financing law at issue fails strict
scrutiny.
II
We need not, however, overrule
Buckley and apply strict
scrutiny in order to hold the Party Expenditure Provision
unconstitutional. Even under
Buckley, which described the
requisite scrutiny as "exacting" and "rigorous," 424 U. S., at 16,
29, the regulation cannot pass constitutional muster. In practice,
Buckley scrutiny has meant that restrictions on
contributions by individuals and political committees do not
violate the First Amendment so long as they are "closely drawn" to
match a "sufficiently important" government interest,
Shrink
Missouri, supra, at 387-389; see also
Buckley, supra, at
58, but that restrictions on independent expendi-
1
NAACP v.
Button, 371 U. S. 415, 444
(1963);
Cohen v.
California, 403 U. S. 15, 26 (1971);
Erznoznik v.
Jacksonville, 422 U. S. 205, 208-215
(1975).
467
tures are constitutionally invalid, see
Buckley, supra,
at 58-59; see also
Federal Election Comm'n v.
National
Conservative Political Action Comm., 470 U. S. 480, 501
(1985). The rationale for this distinction between contributions
and independent expenditures has been that, whereas ceilings on
contributions by individuals and political committees "entai[l]
only a marginal restriction" on First Amendment interests,
Buckley, 424 U. S., at 20, limitations on independent
expenditures "impose significantly more severe restrictions on
protected freedoms of political expression and association," id.,
at 23.
A
The Court notes this existing rationale and attempts simply to
treat coordinated expenditures by political parties as equivalent
to contributions by individuals and political committees. Thus, at
least implicitly, the Court draws two conclusions: coordinated
expenditures are no different from contributions, and political
parties are no different from individuals and political committees.
Both conclusions are flawed.
1
The Court considers a coordinated expenditure to be an
"'expenditur[e] 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.'"
Ante, at
438 (quoting 2 U. S. C. § 441a(a)(7)(B)(i)). This definition covers
a broad array of conduct, some of which is akin to an independent
expenditure. At one extreme, to be sure, are outlays that are
"virtually indistinguishable from simple contributions."
Colorado I, 518 U. S., at 624 (opinion of BREYER, J.). An
example would be "a donation of money with direct payment of a
candidate's media bills."
Ibid. But toward the other end of
the spectrum are expenditures that largely resemble, and should be
entitled to the same protection as, independent expenditures.
468
THOMAS, J., dissenting
Take, for example, a situation in which the party develops a
television advertising campaign touting a candidate's record on
education, and the party simply "consult[s]," 2 U. s. c. §
441a(a)(7)(B)(i), with the candidate on which time slot the
advertisement should run for maximum effectiveness. I see no
constitutional difference between this expenditure and a purely
independent one. In the language of
Buck ley, the
advertising campaign is not a mere "general expression of support
for the candidate and his views," but a communication of "the
underlying basis for the support." 424 U. S., at 21. It is not just
"symbolic expression,"
ibid., but a clear manifestation of
the party's most fundamental political views. By restricting such
speech, the Party Expenditure Provision undermines parties'
"freedom to discuss candidates and issues,"
ibid., and
cannot be reconciled with our campaign finance jurisprudence.
2
Even if I were to ignore the breadth of the statutory text, and
to assume that all coordinated expenditures are functionally
equivalent to contributions,2 I still would strike down the Party
Expenditure Provision. The source of the "contribution" at issue is
a political party, not an individual or a political committee, as
in
Buckley and
Shrink Missouri.
2 The Court makes this very assumption. See
ante, at 464
("There is no significant functional difference between a party's
coordinated expenditure and a direct party contribution to the
candidate"). To the extent the Court has not defined the universe
of coordinated expenditures and leaves open the possibility that
there are such expenditures that would not be functionally
identical to direct contributions, the constitutionality of the
Party Expenditure Provision as applied to such expenditures remains
unresolved. See,
e. g.,
ante, at 456, n. 17. At oral
argument, the Government appeared to suggest that the Party
Expenditure Provision might not reach expenditures that are not
functionally identical to contributions. See Tr. of Oral Arg. 15
(stating that the purpose of the Party Expenditure Provision is
simply to prevent someone "from making contributions in the form of
paying the candidate's bills").
469
Restricting contributions by individuals and political
committees may, under
Buckley, entail only a "marginal
restriction,"
Buckley, supra, at 20, but the same cannot be
said about limitations on political parties.
Political parties and their candidates are "inextricably
intertwined" in the conduct of an election.
Colorado I,
supra, at 630 (KENNEDY, J., concurring in judgment and
dissenting in part). A party nominates its candidate; a candidate
often is identified by party affiliation throughout the election
and on the ballot; and a party's public image is largely defined by
what its candidates say and do. See,
e. g., California
Democratic Party v.
Jones, 530 U. S. 567, 575 (2000)
("Some political parties-such as President Theodore Roosevelt's
Bull Moose Party, the La Follette Progressives of 1924, the Henry
Wallace Progressives of 1948, and the George Wallace American
Independent Party of 1968-are virtually inseparable from their
nominees (and tend not to outlast them"); see also M. Zak, Back to
Basics for the Republican Party 1 (2000) (noting that the
Republican Party has been identified as the "Party of Lincoln").
Most importantly, a party's success or failure depends in large
part on whether its candidates get elected. Because of this unity
of interest, it is natural for a party and its candidate to work
together and consult with one another during the course of the
election. See,
e. g., App. 137 (declaration of Herbert E.
Alexander, Director of the Citizens' Research Foundation at the
University of Southern California). Indeed, "it would be
impractical and imprudent ... for a party to support its own
candidates without some form of 'cooperation' or 'consultation.'"
See
Colorado I, 518 U. S., at 630 (KENNEDY, J., concurring
in judgment and dissenting in part). "[C]andidates are necessary to
make the party's message known and effective, and vice versa."
Id., at 629. Thus, the ordinary means for a party to provide
support is to make coordinated expenditures, see,
e. g.,
App. 137-138 (declaration of Herbert E. Alexander), as the
Government itself maintained just five years ago, see
470
THOMAS, J., dissenting
Brief for Respondent in
Colorado I, O. T. 1995, No.
95-489, p. 27 (contending that Congress had 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"); see also FEC
Advisory Opinion 1985-14, CCH Fed. Election Camp. Fin. Guide ~
5819, p. 11,186, n. 4 (1985) ("Party political committees are
incapable of making independent expenditures").
As the District Court explained, to break this link between the
party and its candidates would impose "additional costs and burdens
to promote the party message." 41 F. Supp. 2d 1197, 1210 (Colo.
1999). This observation finds full support in the record. See,
e. g., App. 218 (statement of Anthony Corrado, Associate
Professor of Government, Colby College) (explaining that, to ensure
that expenditures were independent, party organizations had to
establish legally separate entities, which in turn had to "rent and
furnish an office, hire staff, and pay other administrative costs,"
as well as "engage additional consulting services" and "duplicate
many of the functions already being undertaken by other party
offices"); id., at 52 (statement by Federal Election Commission
admitting that national party established separate entities that
made independent expenditures); id., at 217 (statement of Anthony
Corrado) (explaining that reliance on independent expenditures
would increase fundraising demands on party organizations because
independent expenditures are less effective means of
communication); id., at 219 ("[I]ndependent expenditures do not
qualify for the lowest unit rates on the purchase of broadcasting
time"); App. in No. 99-1211 (CAlO), p. 512 (report of Frank J.
Sorauf, professor at University of Minnesota, and Jonathan S.
Krasno, professor at Princeton University) (noting inefficiency of
independent expenditures). Establishing and maintaining
independence also tends to create voter confusion and to undermine
the candidate that the party sought to support. App. 220 (statement
of Anthony Corrado); App. in No. 99-1211 (CAlO), at 623-624
471
(deposition of John Heubusch); App. 159 (affidavit of Donald K.
Bain) ("[O]ur communications can be more focused, understandable,
and effective if the Party and its candidates can work together").
Finally, because of the ambiguity in the term "coordinated
expenditure," the Party Expenditure Provision chills permissible
speech as well. See,
e. g., id., at 159-160 (affidavit of
Donald K. Bain). Thus, far from being a mere "marginal" restraint
on speech,
Buckley, 424 U. S., at 20, the Party Expenditure
Provision has restricted the party's most natural form of
communication; has precluded parties "from effectively amplifying
the voice of their adherents," id., at 22; and has had a "stifling
effect on the ability of the party to do what it exists to do."3
Colorado I,
supra, at 630 (KENNEDY, J., concurring in
judgment and dissenting in part).
The Court nevertheless concludes that these concerns of
inhibiting party speech are rendered "implausible" by the nearly 30
years of history in which coordinated spending has been statutorily
limited.
Ante, at 449. Without a single citation to the
record, the Court rejects the assertion "that for almost three
decades political parties have not been func-
3 The Court contends that, notwithstanding this burden, "it is
nonetheless
possible for parties, like individuals and
nonparty groups, to speak independently."
Ante, at 450, n.11
(emphasis added). That is correct, but it does not render the
restriction constitutional. If Congress were to pass a law imposing
a $1,000 tax on every political newspaper editorial, the law would
surely constitute an unconstitutional restraint on speech, even
though it would still be
possible for newspapers to print
such editorials.
The Court's holding presents an additional First Amendment
problem.
Because of the close relationship between parties and
candidates, lower courts will face a difficult, if not
insurmountable, task in trying to determine whether particular
party expenditures are in fact coordinated or independent. As the
American Civil Liberties Union points out, "[e]ven if such an
inquiry is feasible, it inevitably would involve an intrusive and
constitutionally troubling investigation of the inner workings of
political parties." Brief for American Civil Liberties Union et al.
as
Amici Curiae 18.
472
THOMAS, J., dissenting
tional or have been functioning in systematic violation of the
law."
Ibid. I am unpersuaded by the Court's attempts to
downplay the extent of the burden on political parties' First
Amendment rights. First, the Court does not examine the record or
the findings of the District Court, but instead relies wholly on
the "observ[ationsJ" of the "political scientists" who happen to
have written an
amicus brief in support of the petitioner.
Ibid. I find more convincing, and more relevant, the record
evidence that the parties have developed, which, as noted above,
indicates that parties have suffered as a result of the Party
Expenditure Provision.4 See
supra, at 470-471. Second, we
have never before upheld a limitation on speech simply because
speakers have coped with the limitation for 30 years. See,
e.
g., Bartnicki v.
Vopper, 532 U. S. 514, 517 (2001)
(holding unconstitutional under the First Amendment restrictions on
the disclosure of the contents of an illegally intercepted
communication, even though federal law had prohibited such
disclosure for 67 years). And finally, if the passage of time were
relevant to the constitutional inquiry, I would wonder why the
Court adopted
4 Moreover, were I to depart from the record, as does the Court,
I could consider sources suggesting that parties in fact have lost
power in recent years. See,
e. g., M. Wattenberg, The
Decline of American Political Parties, 1952-1996, p. 174 (1998)
(indicating that percentage of voters who identify with a party has
declined while percentage of split tickets has increased); Maisel,
American Political Parties: Still Central to a Functioning
Democracy?, in American Political Parties: Decline or Resurgence?,
103, 107-111 (J. Cohen, R. Fleisher, & P. Kantor eds. 2001)
(describing weaknesses of modern political parties). I also could
explore how political parties have coped with the restrictions on
coordinated expenditures. As JUSTICE KENNEDY has explained, "[t]he
Court has forced a substantial amount of political speech
underground, as contributors and candidates devise ever more
elaborate methods of avoiding contribution limits."
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 406 (2000)
(dissenting opinion). Perhaps political parties have survived, not
because the regulation at issue imposes less than a substantial
burden on speech, but simply because the parties have found
"underground" alternatives for communication.
473
a "30-year" rule rather than the possible countervailing
"200-year" rule. For nearly 200 years, this country had
congressional elections without limitations on coordinated
expenditures by political parties. Nowhere does the Court suggest
that these elections were not "functional,"
ante, at 449, or
that they were marred by corruption.
The Court's only other response to the argument that parties are
linked to candidates and that breaking this link would impose
significant costs on speech is no response at all. The Court
contends that parties are not organized simply to "elec[t]
particular candidates" as evidenced by the fact that many political
action committees donate money to both parties and sometimes even
opposing candidates.
Ante, at 451. According to the Court,
"[p]arties are thus necessarily the instruments of some
contributors whose object is not to support the party's message or
to elect party candidates across the board."
Ante, at
451-452. There are two flaws in the Court's analysis. First, no one
argues that a party's role is merely to get particular candidates
elected. Surely, among other reasons, parties also exist to develop
and promote a platform. See,
e. g., Brief for Respondent 23.
The point is simply that parties and candidates have shared
interests, that it is natural for them to work together, and that
breaking the connection between parties and their candidates
inhibits the promotion of the party's message. Second, the mere
fact that some donors contribute to both parties and their
candidates does not necessarily imply that the donors control the
parties or their candidates. It certainly does not mean that the
parties are mere "instruments" or "agents,"
ante, at 452, of
the donors. Indeed, if a party receives money from donors on both
sides of an issue, how can it be a tool of both donors? If the
Green Party were to receive a donation from an industry that
pollutes, would the Green Party necessarily become, through no
choice of its own, an instrument of the polluters? The Court
proffers no evidence that parties have become pawns of wealthy
contrib-
474
THOMAS, J., dissenting
utors. Parties might be the target of the speech of donors, but
that does not suggest that parties are influenced (let alone
improperly influenced) by the speech. Thus, the Court offers no
explanation for why political parties should be treated the same as
individuals and political committees.
B
But even if I were to view parties' coordinated expenditures as
akin to contributions by individuals and political committees, I
still would hold the Party Expenditure Provision constitutionally
invalid. Under
Shrink Missouri, a contribution limit is
constitutional only if the Government demonstrates that the
regulation is "closely drawn" to match a "sufficiently important
interest." 528 U. S., at 387-388 (quoting
Buckley, 424 U.
S., at 25) (internal quotation marks omitted). In this case, there
is no question that the Government has asserted a sufficient
interest, that of preventing corruption. See
Shrink Missouri,
supra, at 388 (" '[T]he prevention of corruption and the
appearance of corruption' was found to be a 'constitutionally
sufficient justification''') (quoting
Buckley, supra, at
25-26). The question is whether the Government has demonstrated
both that coordinated expenditures by parties give rise to
corruption and that the restriction is "closely drawn" to curb this
corruption. I believe it has not.
1
As this Court made clear just last Term, "[w]e have never
accepted mere conjecture as adequate to carry a First Amendment
burden."
Shrink Missouri, 528 U. S., at 392. Some "quantum
of empirical evidence [is] needed to satisfy heightened judicial
scrutiny of legislative judgments."
Id., at 391. Precisely
how much evidence is required will "vary up or down with the
novelty and plausibility of the justification raised."
Ibid.
Today, the Court has jettisoned this evidentiary requirement.
475
Considering that we have never upheld an expenditure limitation
against political parties, I would posit that substantial evidence
is necessary to justify the infringement of parties' First
Amendment interests. But we need not accept this high evidentiary
standard to strike down the Party Expenditure Provision for want of
evidence. Under the least demanding evidentiary requirement, the
Government has failed to carry its burden, for it has presented no
evidence at all of corruption or the perception of corruption. The
Government does not, and indeed cannot, point to any congressional
findings suggesting that the Party Expenditure Provision is
necessary, or even helpful, in reducing corruption or the
perception of corruption. In fact, this Court has recognized 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." 5
Colorado I, 518 U. S., at
618. See also
ibid. ("[R]ather 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").
Without explanation, the Court departs from this earlier,
well-considered understanding of the Party Expenditure Provision.
Were there any evidence of corruption in the
5 The Court contends that I "ignor[e] [a] distinction,"
ante, at 457, n. 19:
Whereas Congress may not have been concerned with corruption
insofar as independent expenditures were implicated, Congress was
concerned with corruption insofar as coordinated expenditures were
implicated. This "distinction" must have been lost on Congress as
well, which made no finding that the Party Expenditure Provision
serves different purposes for different expenditures. It also was
lost on the Court in
Colorado I, which stated in no
uncertain terms that Congress was not motivated by "the potentially
'corrupting' effect of party expenditures." 518 U. S., at 618.
476
THOMAS, J., dissenting
record that the parties have since developed, such a departure
might be justified. But as the District Court found, "[t]he facts
which [the] FEC contends support its position ... do not establish
that the limit on party coordinated expenditures is necessary to
prevent corruption or the appearance thereof." 41 F. Supp. 2d, at
1211. Indeed, "[n]one of the FEC's examples [of alleged corruption]
involve[s] coordinated expenditures."
Ibid. See also App. in
No. 99-1211 (CAlO), at 346 (declaration of Herbert E. Alexander)
("In the decades since 1974, when coordinated expenditures were
allowed for both presidential and congressional campaigns, there
has not been any dispute relating to them, no charges of corruption
or the appearance thereof ... "); id., at 430 (statement of Anthony
Corrado) ("There is no academic analysis or scholarly study
conducted to date that demonstrates that parties are corrupted by
the federally regulated contributions, the so-called 'hard-money
funds,' they receive from donors. None of the studies of party
finance or party coordinated spending contend[s] that these funds
are corruptive or generate the appearance of corruption in the
political process"); id., at 624 (deposition of John Heubusch)
(testifying that, in his experience, political party spending was
not a source of corruption of Members of the United States
Senate).6
The dearth of evidence is unsurprising in light of the unique
relationship between a political party and its candidates: "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."
Colorado I, 518 U. S., at
6 In
Missouri Republican Party v.
Lamb, 227 F.3d
1070 (2000), the Eighth Circuit held that the State of
Missouri's restrictions on contributions by political parties
violated the First Amendment. In accord with the Tenth Circuit in
this case, the Eighth Circuit concluded that "the record is wholly
devoid of any evidence that limiting parties' campaign
contributions will either reduce corruption or measurably decrease
the number of occasions on which limitations on individuals'
campaign contributions are circumvented."
Id., at 1073.
477
646 (THOMAS, J., concurring in judgment and dissenting in part).
If coordinated expenditures help achieve this aim, the achievement
"does not ... constitute 'a subversion of the political process.'"
Ibid. (quoting
Federal Election Comm'n, 470 U. S., at
497). It is simply the essence of our Nation's party system of
government. One can speak of an individual citizen or a political
action committee corrupting or coercing a candidate, but "[w]hat
could it mean for a party to 'corrupt' its candidate or to exercise
'coercive' influence over him?" 518 U. S., at 646.
Apparently unable to provide an answer to this question, the
Court relies upon an alternative theory of corruption. According to
the Court, the Party Expenditure Provision helps combat
circumvention of the limits on individual donors' contributions,
which limits are necessary to reduce corruption by those donors.7
See
ante, at 452-455. The primary problem with this
contention, however, is that it too is plainly contradicted by the
findings of the District Court, see 41 F. Supp. 2d, at 1211, and
the overwhelming evidence in the record, see
supra, at 475.8
And this contention is particularly surprising in light of
Colorado I, in which we discussed the same opportunity for
corruption through circumvention, and, far from finding it
dispositive, concluded
7 The Court does not argue that the Party Expenditure Provision
is necessary to reduce the perception of corruption. Nor could the
record sustain such an argument. See 41 F. Supp. 2d 1197, 1211
(Colo. 1999).
8 Contrary to the Court's suggestion,
ante, at 459, n.
21, the District Court did not simply conclude that
"Colorado
I had rejected the anticircumvention rationale as a matter of
law." Instead, the District Court first concluded there was no
evidence of corruption, 41 F. Supp. 2d, at 1211. Only after the
District Court made this factual finding did it, in a footnote,
cite
Colorado I to support the legal conclusion. See 41 F.
Supp. 2d, at 1211, n. 9 ("Moreover, if the skirting of contribution
limits is the issue with which the FEC is concerned ... there are
more tailored means of addressing such a concern than limiting the
coordinated expenditure limits" (citing
Colorado I)).
478
THOMAS, J., dissenting
that any opportunity for corruption was, "at best, attenuated."
518 U. S., at 616.
Without addressing the District Court's determination or
reflecting on this Court's understanding in
Colorado I, the
Court today asserts that its newfound position is supported by
"substantial evidence." The best evidence the Court can come up
with, however, is the Democratic Senatorial Campaign Committee's
(DSCC) use of the "tally system," which "connect[s] donors to
candidates through the accommodation of a party."
Ante, at
459. The tally system is not evidence of
corruption-by-circumvention. In actuality, the DSCC is not acting
as a mere conduit, allowing donors to contribute money in excess of
the legal limits. The DSCC instead has allocated money based on a
number of factors, including "the financial strength of the
campaign," "what [the candidate's] poll numbers looked like," and
"who had the best chance of winning or who needed the money most."
App. 250-251 (declaration of Robert Hickmott, former Democratic
fundraiser and National Finance Director for Timothy Wirth's Senate
campaign); see also App. in No. 99-1211 (CAlO), at 430 (statement
of Anthony Corrado) ("When parties are deciding whether to spend
funds on behalf of a candidate, they chiefly examine the
competitiveness of the district or race, the political situation of
the incumbent, and the strength of the party contender's
candidacy"); id., at 563 (deposition of Donald Bain) (stating that
the party generally did not support someone who has a safe seat or
is clearly not going to win). As the District Court found, "the
primary consideration in allocating funds is which races are
marginal-that is, which races are ones where party money could be
the difference between winning and losing." 41 F. Supp. 2d, at
1203. "Maintaining party control over seats is paramount to the
parties' pursuits."
Ibid.; see also App. in No. 99-1211
(CAlO), at 483 (stating that primary goal of legislative campaign
committees is "to win or maintain control of the chamber and the
powers of the majority legislative party"). The
479
"bottom line" of the tally system is that "some candidates get
back more money than they raise, and others get back less." App.
250 (declaration of Robert Hickmott).
Moreover, the Court does not explain how the tally system could
constitute evidence of corruption. Both the initial contribution to
the party and the subsequent expenditure by the party on the
candidate are currently legal. In essence, the Court is asserting
that it is corrupt for parties to do what is legal to enhance their
participation in the political process. Each step in the process is
permitted, but the combination of those steps, the Court apparently
believes, amounts to corruption sufficient to silence those who
wish to support a candidate. In my view, the First Amendment
demands a more coherent explication of the evidence of
corruption.9
Finally, even if the tally system were evidence of
corruption-through-circumvention, it is only evidence of what is
occurring under the current system, not of additional "corruption"
that would arise in the absence of the Party Expenditure Provision.
The Court speculates that, if we invalidated the Party Expenditure
Provision, "the inducement to circumvent would almost certainly
intensify."
Ante, at 460. But that is nothing more than
supposition, which is insufficient under our precedents to sustain
a restriction on First Amendment interests. See
Shrink Missouri,
528 U. S., at 392 ("We have never accepted mere conjecture as
adequate to carry a First Amendment burden"). See also
United
States v.
Playboy Entertainment Group, Inc., 529 U. S.
803, 822 (2000) (concluding that the government "must present more
than anecdote and supposition"). And it is weak supposition at
that. The Court does not contend that
9 Ironically, earlier this Term, this Court was less willing to
uphold a speech restriction based on inference of circumvention.
See,
e. g.,
Bartnicki v.
Vopper, 532 U. S. 514, 529-535
(2001) (holding unconstitutional the prohibition on disclosure of
illegally intercepted conversation even though the initial step in
the disclosure process, the interception, was illegal and harmful
to those whose privacy was invaded).
480
THOMAS, J., dissenting
the DSCC's alleged efforts to channel money through the tally
system were restricted in any way by the Party Expenditure
Provision. On the contrary, the Court suggests that a donation to
the DSCC was increased by the party; in other words, the candidate
got more than the initial donation. See
ante, at 458
(quoting declaration of Timothy Wirth) (" 'I understood that when I
raised funds for the DSCC, the donors expected that I would receive
the amount of their donations
multiplied by a certain number
that the DSCC had determined in advance,
assuming the DSCC has
raised other funds'" (emphasis added)). Because I am
unpersuaded by weak speculation ungrounded in any evidence, I
disagree with the Court's conclusion that the Party Expenditure
Provision furthers the Government interest of reducing
corruption.10
10 The other "evidence" on which the Court relies is less
compelling than the tally system. The Court presents four
quotations, two of which do not even support the proposition that
donations are funneled through parties to candidates. See
ante, at 458 (quoting declaration of Leon G. Billings,
former Executive Director of the DSCC);
ante, at 458. These
comments simply reflect the obvious fact that a candidate benefits
when his party receives money. Neither comment suggests that the
candidate is aided through the surreptitious laundering of money,
as opposed to issue advertisements, get-out-the-vote campaigns, and
independent expenditures.
The other two quotations are somewhat suspect in that they are
made by Timothy Wirth, who was the object of the negative
advertisements giving rise to this lawsuit, and by his national
finance director. See ibid. (quoting App. 274 (declaration of
Timothy Wirth)); App. 247 (declaration of Robert Hickmott, former
Democratic fundraiser and National Finance Director for Timothy
Wirth's Senate campaign). Moreover, neither Wirth nor his finance
director described how donations were actually treated by the DSCC,
either in general or in Wirth's particular case; instead Wirth and
his finance director simply reflected on their understandings of
how the money would be used in Wirth's election. As noted above,
the District Court found that "the primary consideration in
allocating funds is which races are marginal." 41 F. Supp. 2d, at
1203. And the evidence in the record supports this finding. See
supra, at 477.
481
2
Even if the Government had presented evidence that the Party
Expenditure Provision affects corruption, the statute still would
be unconstitutional, because there are better tailored alternatives
for addressing the corruption. In addition to bribery laws and
disclosure laws, see
Shrink Missouri, supra, at 428 (THOMAS,
J., dissenting), the Government has two options that would not
entail the restriction of political parties' First Amendment
rights.
First, the Government could enforce the earmarking rule of 2 U.
S. C. § 441a(a)(8), under which contributions that "are in any way
earmarked or otherwise directed through an intermediary or conduit
to [a] candidate" are treated as contributions to the candidate.
Vigilant enforcement of this provision is a precise response to the
Court's circumvention concerns. If a donor contributes $2,000 to a
candidate (the maximum donation in an election cycle), he cannot
direct the political party to funnel another dime to the candidate
without confronting the Federal Election Campaign Act's civil and
criminal penalties, see 2 U. S. C. § 437g(a)(6)(C) (civil); §
437g(d) (criminal).
According to the Court, reliance on this earmarking provision
"ignores the practical difficulty of identifying and directly
combating circumvention" and "would reach only the most clumsy
attempts to pass contributions through to candidates."
Ante,
at 462. The Court, however, does not cite any evidence to support
this assertion. Nor does it articulate what failed steps the
Government already has taken. Nor does it explain why the burden
that the Government allegedly would have to bear in uncovering
circumvention justifies the infringement of political parties'
First Amendment rights. In previous cases, we have not been so
willing to overlook such failures. See,
e. g., Bartnicki,
532 U. S., at 530-531 ("[T]here is no empirical evidence to support
the assumption that the prohibition against disclosures reduces the
number of illegal interceptions").
482
THOMAS, J., dissenting
In any event, there is a second, well-tailored option for
combating corruption that does not entail the reduction of parties'
First Amendment freedoms. The heart of the Court's circumvention
argument is that, whereas individuals can donate only $2,000 to a
candidate in a given election cycle, they can donate $20,000 to the
national committees of a political party, an amount that is
allegedly large enough to corrupt the candidate. See
ante,
at 453. If indeed $20,000 is enough to corrupt a candidate (an
assumption that seems implausible on its face and is, in any event,
unsupported by any evidence), the proper response is to lower the
cap. That way, the speech restriction is directed at the source of
the alleged corruption-the individual donor-and not the party. "The
normal method of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in it."
Bartnicki, 532 U. S., at 529. "[I]t would be quite
remarkable to hold that speech by a law-abiding [entity] can be
suppressed in order to deter conduct by a non-law-abiding third
party."
Id., at 529-530. The Court takes that unorthodox
path today, a decision that is all the more remarkable considering
that the controlling opinion in
Colorado I expressly
rejected it just five years ago. 518 U. S., at 617 ("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. 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" (citations omitted)).
In my view, it makes no sense to contravene a political party's
core First Amendment rights because of what a third party might
unlawfully try to do. Instead of broadly restricting political
parties' speech, the Government should have pursued better-tailored
alternatives for combating the alleged corruption.
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