No. 00-191 

In the Supreme Court of the United States 

FEDERAL ELECTION COMMISSION, PETITIONER 

v. 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 
THE TENTH CIRCUIT 

BRIEF FOR THE PETITIONER 

LAWRENCE M. NOBLE 

General Counsel 

RICHARD B. BADER 

Associate General Counsel 

DAVID KOLKER 

Attorney 
Federal Election 

Commission 
Washington, D.C. 20463 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether a political party has a First Amendment right to 
make unlimited campaign expenditures in coordination with 
the party’s congressional candidates, notwithstanding the 
limits on such coordinated expenditures imposed by the Fed- 
eral Election Campaign Act of 1971, 2 U.S.C. 431 et seq. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 3 

Summary of argument .................................................................. 
13 

Argument: 

I. Because this Court has previously sustained the 

FECA’s contribution limits against First 

Amendment challenge, and because the Act 

allows political parties to make much larger 

coordinated expenditures than other political 

committees, the FECA limits on party spend- 
ing are presumptively constitutional .......................... 

16 

A. This Court has repeatedly recognized the 

authority of Congress and the state leg- 
islatures to limit monetary contributions 

to candidates for public office, including 

expenditures made in coordination with 

the candidate ............................................................ 

16 

B. The FECA permits political parties to make 

coordinated expenditures in support of 

their candidates in amounts much greater 

than the contribution limits that apply to 

other donors ............................................................. 

18 

C. Respondent asserts a First Amendment 

right to make unlimited coordinated expen- 
ditures in support of its federal candidates, 

including coordinated expenditures that 

are functionally and constitutionally indis- 
tinguishable from direct monetary contribu- 
tions ............................................................................ 20 

(III) 

IV 

Table of contents—Continued: 

Page 

II. Unlimited coordinated expenditures by political 

parties in support of federal candidates would 

create a substantial risk of actual or apparent 

corruption ......................................................................... 23 

A. Large party coordinated expenditures may 

be used to circumvent the FECA limits on 

individual contributions to candidates, and 

thereby to advance the interests of the 

party’s major donors ............................................... 
25 

B. Large coordinated expenditures may be used 

to advance the interests of the individual 

party officials who control the disposition 

of party funds ........................................................... 
33 

C. Congress may impose reasonable contribu- 
tion limits in order to reduce the influence 

of money on the behavior of elected officials, 

regardless of the motivation of the donor ........... 

34 

III. Political parties have no favored constitutional 

status that would entitle them to an exemption 

from the spending limitations that apply to 

other potential donors .................................................... 

39 

A. The Framers distrusted political parties and 

did not intend to vest them with any favored 

constitutional status ................................................ 

39 

B. The formal role of political parties in the 

States’ electoral process has traditionally 

been treated as a ground for increased state 

regulation, not as a basis for heightened 

First Amendment protection ................................ 43 

V 

Table of contents—Continued: 

Page 

C. Legislative judgments regarding the appro- 
priate balance between the maintenance 

of a vigorous party system and the preven- 
tion of corruption are entitled to substantial 

deference ................................................................... 47 

Conclusion ...................................................................................... 50 

TABLE OF AUTHORITIES 

Cases: 

Alaska v. Alaska Civil Liberties Union, 978 P.2d 

597 (Alaska 1999), cert. denied, 120 S. Ct. 1156 

(2000) ........................................................................................ 23 

American Party of Tex. v. White, 415 U.S. 767 

(1974) ........................................................................................ 45 

Anderson v. Celebrezze, 460 U.S. 780 (1983) .................... 

45 

Buckley v. Valeo, 424 U.S. 1 (1976) .............................. 

passim 

California Democratic Party v. Jones, 120 S. Ct. 

2402 (2000) ......................................................................... 

42, 45 

California Med. Ass’n v. FEC, 453 U.S. 182 

(1981) .................................................................................... 

17, 30 

Davis v. Bandemer, 478 U.S. 109 (1986) ............................ 

48 

Elrod v. Burns, 427 U.S. 347 (1976) ................................... 

39 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) ............................................................. 

6, 7, 23 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ....................................... 

4, 11, 17, 36, 37 

FEC v. National Conservative PAC, 470 U.S. 

480 (1985) .................................................................... 

4, 5, 17, 38 

FEC v. National Right to Work Comm., 459 U.S. 

197 (1982) ....................................................................... 

17, 34, 47 

Jenness v. Fortson, 403 U.S. 431 (1971) ............................ 

45 

Missouri Republican Party v. Lamb, 227 F.3d 1070 

(8th Cir. 2000) ..................................................................... 47, 48 

VI 

Cases—Continued: Page 

Munro v. Socialist Workers Party, 479 U.S. 189 

(1986) ........................................................................................ 45 

NAACP v. Alabama ex rel. Patterson, 357 U.S. 

449 (1958) ................................................................................. 

38 

NEA v. Finley, 524 U.S. 569 (1998) .................................... 

22 

Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897 

(2000) .................................................... 

4, 17, 23, 24, 27, 35, 47 

Norman v. Reed, 502 U.S. 279 (1992) ................................. 

45 

Rutan v. Republican Party of Ill., 497 U.S. 62 

(1990) ........................................................................................ 34 

Storer v. Brown, 415 U.S. 724 (1974) ................................... 

45 

Tashjian v. Republican Party of Conn., 479 U.S. 

208 (1986) ................................................................................. 

42 

Timmons v. Twin Cities Area New Party, 520 U.S. 

351 (1997) ............................................................................. 

45, 48 

United States v. United Auto. Workers, 352 U.S. 

567 (1957) ................................................................................. 

27 

Willliams v. Rhodes, 393 U.S. 23 (1968) ........................... 

45 

Constitution, statutes and regulations: 

U.S. Const. Amend. I ....................................................... 

passim 

Federal Election Campaign Act Amendments of 

1976, Pub. L. No. 94-283, 90 Stat. 475 ................................ 

25 

Federal Election Campaign Act of 1971, 2 U.S.C. 

431 et seq. ................................................................................. 

3 

2 U.S.C. 431(9)(A)(i) ......................................................... 

4 

2 U.S.C. 431(16) .............................................................. 

5, 43 

2 U.S.C. 431(17) ................................................................ 

5 

2 U.S.C. 437c(b)(1) ........................................................... 

6 

2 U.S.C. 437d(a) ................................................................ 

6 

2 U.S.C. 437d(a)(6) ........................................................... 

6 

2 U.S.C. 437d(e) ................................................................ 

6 

2 U.S.C. 437f ...................................................................... 

6 

2 U.S.C. 437g ..................................................................... 

6 

2 U.S.C. 437g(a)(1) ........................................................... 6 

VII 

Statutes and regulations—Continued: 
Page 

2 U.S.C. 437g(a)(2) ........................................................... 

6 

2 U.S.C. 437h ..................................................................... 

6 

2 U.S.C. 441a(a)(1) ........................................................... 

29 

2 U.S.C. 441a(a)(1)(A) ..................................................... 

3 

2 U.S.C. 441a(a)(1)(A)-(C) .............................................. 

26 

2 U.S.C. 441a(a)(1)(C) ...................................................... 

30 

2 U.S.C. 441a(a)(2) ........................................................... 

6 

2 U.S.C. 441a(a)(2)(A) ............................................. 

3, 18, 26 

2 U.S.C. 441a(a)(2)(B) ...................................................... 

26 

2 U.S.C. 441a(a)(2)(C) ...................................................... 

26 

2 U.S.C. 441a(a)(4) ........................................................... 

3 

2 U.S.C. 441a(a)(7)(B)(i) .............................................. 

4-5, 17 

2 U.S.C. 441a(a)(8) ........................................................... 

29 

2 U.S.C. 441a(c) .............................................................. 

6, 19 

2 U.S.C. 441a(d) ........................................................ 

passiim 

2 U.S.C. 441a(d)(1) ......................................................... 

5, 18 

2 U.S.C. 441a(d)(2) ..................................................... 

5, 6, 18 

2 U.S.C. 441a(d)(3) ................................................. 

5, 6, 7, 18 

2 U.S.C. 441a(d)(3)(A) ..................................................... 

5 

2 U.S.C. 454 ..................................................................... 

9, 22 

Presidential Election Campaign Fund Act, 26 U.S.C. 

9001 et seq. ............................................................................... 

19 

26 U.S.C. 9006(b) ............................................................... 

19 

Colo. Rev. Stat. Ann. (West): 

§ 1-1-104(23.6) (Supp. 1996) ................................................. 

43 

§ 1-1-104(25) (Supp. 1996) ..................................................... 

43 

§ 1-4-502(1) (1973 & Supp. 1996) ......................................... 

43 

§ 1-4-802(1) (Supp. 1996) ....................................................... 

44 

§ 1-4-1101 (Supp. 1996) ......................................................... 

44 

§ 1-5-404(1) (Supp. 1996) ....................................................... 

43 

11 C.F.R.: 

Pt. 100 ...................................................................................... 

9 

Section 100.5(e)(3) ............................................................. 

3 

Pt. 104 ...................................................................................... 9 

VIII 

Regulations—Continued: Page 

Pt. 109 ...................................................................................... 

9 

Pt. 110 ...................................................................................... 

9 

Section 110.7(b)(3) ............................................................. 

5 

Miscellaneous: 

Richard Briffault: 

Campaign Finance, the Parties, and the Court, 
14 Const. Comm. 91 (1997) ................................... 

46, 48, 49 
The Political Parties and Campaign Finance 

Reform, 100 Colum. L. Rev. 620 (2000) ....................... 

36 

Thomas F. Burke, The Concept of Corruption in 

Campaign Finance Law, 14 Const. Comm. 127 
(1997) ........................................................................................ 38 

65 Cong. Rec. 9507-9508 (1924) .............................................. 

27 

119 Cong. Rec. (1973): 

p. 26,320 ............................................................................... 28 

p. 26,321 ............................................................................... 28 

p. 26,323 ............................................................................... 29 

pp. 26,323-26,324 .................................................................. 29 

Noble E. Cunningham, Jr., “The Jeffersonian 
Republican Party” in 1 History of U.S. Political 
Parties (A. Schlesinger ed., 1973) ................................... 

40, 41 

FEC Advisory Op. 1985-14, 2 Fed. Election Camp. 

Fin. Guide (CCH) ¶ 5819 (May 30, 1985) ........................... 

5-6 

64 Fed. Reg. (1999): 
pp. 68,951-68,952 .................................................................... 
9 

pp. 68,955-68,956 .................................................................... 
9 

The Federalist No. 10 (J. Madison) (Clinton 

Rossiter ed., 1961) ................................................................. 

40 

Richard Hofstadter, The Idea of a Party System 
(1970) .................................................................................... 
39, 41 

H.R. Conf. Rep. No. 1057, 94th Cong., 2d Sess. 
(1976) ...................................................................................... 
5, 19 

Independent Expenditures and Party Committee 

Expenditure Limitations, 62 Fed. Reg. 24,367 
(1997) ........................................................................................ 9 

S. Rep. No. 714, 90th Cong., 1st Sess. (1967) ....................... 

19 

E.E. Schattschneider, Party Government (1942) ............... 41 

IX 

Miscellaneous—Continued: Page 

Laurence H. Tribe, American Constitutional Law 
(2d ed. 1988) ............................................................................ 43 

In the Supreme Court of the United States 

No. 00-191 

FEDERAL ELECTION COMMISSION, PETITIONER 

v. 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE 

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 
THE TENTH CIRCUIT 

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-53a) is 
reported at 213 F.3d 1221. The opinion of the district court 
(Pet. App. 54a-91a) is reported at 41 F. Supp. 2d 1197. An 
earlier opinion of this Court in this case (Pet. App. 92a-142a) 
is reported at 518 U.S. 604. An earlier opinion of the court of 
appeals (Pet. App. 143a-162a) is reported at 59 F.3d 1015. 
An earlier opinion of the district court (Pet. App. 163a-180a) 
is reported at 839 F. Supp. 1448. 

JURISDICTION 

The judgment of the court of appeals was entered on May 
5, 2000. The petition for a writ of certiorari was filed on 
August 3, 2000, and was granted on October 10, 2000. The 
jurisdiction of this Court rests on 28 U.S.C. 1254(1). 

(1) 

2 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

1. The First Amendment to the United States Consti- 
tution provides: 

Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press; or 
the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances. 

2. Section 441a(d) of Title 2, United States Code, pro- 
vides in pertinent part: 

(d) Expenditures by national committee, State com- 
mittee, or subordinate committee of State committee in 
connection with general election campaign of candidates 
for Federal office 

(1) Notwithstanding any other provision of law with 
respect to limitations on expenditures or limitations on 
contributions, the national committee of a political party 
and a State committee of a political party, including any 
subordinate committee of a State committee, may make 
expenditures in connection with the general election 
campaign of candidates for Federal office, subject to the 
limitations contained in paragraphs (2) and (3) of this 
subsection. 

* * * * * 

(3) The national committee of a political party, or a 
State committee of a political party, including any sub- 
ordinate committee of a State committee, may not make 
any expenditure in connection with the general election 
campaign of a candidate for Federal office in a State who 
is affiliated with such party which exceeds— 

3 

(A) in the case of a candidate for election to the 
office of Senator, or of Representative from a State 
which is entitled to only one Representative, the 
greater of— 

(i) 2 cents multiplied by the voting age 
population of the State (as certified under sub- 
section (e) of this section); or 

(ii) $20,000; and 

(B) in the case of a candidate for election to the 
office of Representative, Delegate, or Resident Com- 
missioner in any other State, $10,000. 

STATEMENT 

1. This case involves the application of the Federal 
Election Campaign Act of 1971 (FECA or Act), 2 U.S.C. 431 
et seq., to the campaign spending of political parties. The Act 
imposes limits on contributions to candidates for federal 
office. Individuals may contribute no more than $1000 to any 
federal candidate, and multicandidate political committees1 
no more than $5000, with respect to any election. 2 U.S.C. 
441a(a)(1)(A) and (2)(A). 

Since its decision in Buckley v. Valeo, 424 U.S. 1 (1976) 
(per curiam), this Court has recognized a “fundamental con- 
stitutional difference between money spent to advertise 
one’s views independently of the candidate’s campaign and 
money contributed to the candidate to be spent on his 

1 A multicandidate political committee is “a political committee which 
has been registered under [2 U.S.C. 433] for a period of not less than 6 
months, which has received contributions from more than 50 persons, and, 
except for any State political party organization, has made contributions 
to 5 or more candidates for Federal office.” 2 U.S.C. 441a(a)(4); see 11 
C.F.R. 100.5(e)(3). 

4 

campaign.” FEC v. National Conservative PAC (NCPAC), 
470 U.S. 480, 497 (1985); see also FEC v. Massachusetts 
Citizens for Life, Inc., 479 U.S. 238, 259-260 (1986) (“We 
have consistently held that restrictions on contributions re- 
quire less compelling justification than restrictions on inde- 
pendent spending.”); Nixon v. Shrink Mo. Gov’t PAC, 120 S. 
Ct. 897, 903-904 (2000). In Buckley, the Court upheld the 
FECA’s limitations on contributions, finding that they serve 
a compelling government interest in “the prevention of 
corruption and the appearance of corruption spawned by the 
real or imagined coercive influence of large financial contri- 
butions on candidates’ positions and on their actions if 
elected to office.” 424 U.S. at 25; see id. at 23-38. The Court 
struck down the Act’s restrictions on independent expendi- 
tures, however, reasoning that “[t]he absence of prearrange- 
ment and coordination of an [independent] 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.” Id. at 47; see 
id. at 39-59. 

The instant case involves a category of payments com- 
monly known as “coordinated expenditures,” see Buckley, 
424 U.S. at 46, which involve direct interaction with the 
candidate (or his agents) but do not involve a transfer of 
funds to the candidate himself. The FECA defines “expendi- 
ture” to include “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.” 2 U.S.C. 431(9)(A)(i). The Act provides that 
“expenditures made by any person in cooperation, consulta- 
tion, or concert, with” a candidate or her agents “shall be 
considered to be a contribution to such candidate.” 2 U.S.C. 

5 

441a(a)(7)(B)(i).2 See Buckley, 424 U.S. at 46 (“expenditures 
controlled by or coordinated with the candidate and his 
campaign * * * are treated as contributions rather than ex- 
penditures under the Act”); NCPAC, 470 U.S. at 492 (coor- 
dinated expenditures “are considered ‘contributions’ under 
the FECA”). 

The FECA authorizes the national and state committees 
of a “political party” to make coordinated expenditures on 
behalf of their federal candidates well in excess of the 
contribution limits that apply to other entities. 2 U.S.C. 
441a(d)(1); see H.R. Conf. Rep. No. 1057, 94th Cong., 2d 
Sess. 59 (1976) (“but for [Section 441a(d)], these expendi- 
tures would be covered by the contribution limitations 
stated in [Section 441a(a)(1) and (2)]”). The term “political 
party” is defined to mean “an association, committee, or 
organization which nominates a candidate for election to any 
Federal office whose name appears on the election ballot as 
the candidate of such association, committee, or organiza- 
tion.” 2 U.S.C. 431(16). In elections for the United States 
Senate, Section 441a(d) initially authorized each national or 
state party committee to expend the greater of $20,000 or 
two cents multiplied by the voting age population of the 
State in which the election is held. 2 U.S.C. 441a(d)(3)(A).3 

2 “[I]ndependent expenditure[s],” by contrast, are defined as “expen- 
diture[s] by a person expressly advocating the election or defeat of a 
clearly identified candidate which [are] made without cooperation or 
consultation with any candidate, or any authorized committee or agent of 
such candidate, and which [are] not made in concert with, or at the request 
or suggestion of, any candidate, or any authorized committee or agent of 
such candidate.” 2 U.S.C. 431(17). 

3 As construed by the Federal Election Commission, Section 441a(d) 
permits a state party committee to make coordinated expenditures up to 
the limits set out in Section 441a(d)(2) and (3) in addition to the $5000 that 
can be contributed directly to the candidate. See 11 C.F.R. 110.7(b)(3); 
FEC Advisory Op. 1985-14, 2 Fed. Election Camp. Fin. Guide (CCH) 

6 

That limit is periodically adjusted for inflation. 2 U.S.C. 
441a(c). By 1996, the coordinated party expenditure limit for 
the Senate election in Colorado had increased to approxi- 
mately $171,000. C.A. App. 332. If a state party committee 
chooses not to make the coordinated expenditures that 
Section 441a(d) permits, it may assign its right to do so to a 
designated agent, such as a national committee of the party. 
See FEC v. Democratic Senatorial Campaign Comm. 
(DSCC), 454 U.S. 27, 31-43 (1981). 

2. The instant case arises out of an enforcement action 
filed by petitioner Federal Election Commission (FEC or 
Commission) against respondent Colorado Republican Fed- 
eral Campaign Committee.4 The gravamen of the enforce- 
ment action was that respondent’s payment for an advertise- 
ment attacking the voting record of Tim Wirth—at that time 
a candidate for the Democratic nomination for United States 
Senator—was an “expenditure” within the meaning of the 
FECA. Pet. App. 144a-145a, 164a-166a. Under the FEC’s 
interpretation of the statute, that expenditure was con- 
clusively presumed to be coordinated with the Republican 
Party’s candidate for the Senate, on the theory that political 
party committees were deemed to be “incapable of making 

¶ 5819, at 11,186 n.5 (May 30, 1985). Thus, if a party committee’s coordi- 
nated expenditures exceeded the limits established by Section 441a(d)(2) 
and (3), the excess expenditure could be treated, up to the amount of 
$5000, as an in-kind contribution falling within the limitations of 2 U.S.C. 
441a(a)(2). 

4 The Commission is an independent agency charged with the admini- 
stration, interpretation, and civil enforcement of the FECA. See 2 U.S.C. 
437c(b)(1), 437d(a) and (e), 437f, 437g. Congress has authorized the FEC 
to “formulate policy” under the Act, 2 U.S.C. 437c(b)(1); to institute 
investigations of possible violations of the Act, 2 U.S.C. 437g(a)(1) and (2); 
to initiate civil actions in the United States district courts to obtain 
judicial enforcement of the Act, 2 U.S.C. 437d(a)(6); and to initiate actions 
in the federal courts to determine the constitutionality of any provision of 
the Act, 2 U.S.C. 437h. 

7 

‘independent’ expenditures in connection with the campaigns 
of their party’s candidates.” DSCC, 454 U.S. at 28-29 n.1; see 
Pet. App. 105a-106a. Because respondent had previously 
assigned its entire Section 441a(d) coordinated expenditure 
authority to the National Republican Senatorial Committee, 
the FEC found probable cause to believe that respondent 
had violated the FECA limits on coordinated expenditures. 
Id. at 147a-148a. 

Respondent contested the enforcement action. It also 
asserted a counterclaim, arguing that Section 441a(d)(3) is 
facially violative of the First Amendment. The district court 
dismissed the enforcement action, holding that the payment 
at issue was not subject to the FECA limits because it was 
not made “in connection with” any federal election. See Pet. 
App. 166a, 171a-180a. The court declined to address respon- 
dent’s First Amendment challenge. Id. at 166a, 180a. The 
court of appeals reversed, holding that the payment was sub- 
ject to (and violative of) the FECA cap on party coordinated 
expenditures, and that the cap was constitutional. Id. at 
143a-144a, 149a-162a. 

3. This Court reversed, sustaining respondent’s chal- 
lenge to the FEC’s enforcement action while declining to 
adjudicate respondent’s counterclaim. Pet. App. 92a-142a 
(518 U.S. 604) (Colorado I). 

a. Three Justices concluded that the payment in question 
was properly regarded as an “independent” rather than a 
“coordinated” expenditure because the Chairman of the 
Colorado Republican Party had approved the advertisement 
and had consulted only with party officials. See Pet. App. 
98a-100a (518 U.S. at 613-614) (Breyer, J., joined by 
O’Connor and Souter, JJ.). The plurality noted that under 
Buckley, restrictions on independent campaign expenditures 
are presumptively violative of the First Amendment. Id. at 
100a-101a. The plurality found no justification for subjecting 
political parties to restrictions on independent spending that 

8 

could not constitutionally be imposed upon other entities. Id. 
at 101a-105a. The plurality rejected the government’s con- 
tention that expenditures made by a political party in sup- 
port of its candidates can be conclusively presumed to be 
coordinated. Id. at 105a-110a. 

The plurality declined to consider the argument, raised in 
respondent’s counterclaim, that the FECA limits on political 
party expenditures are unconstitutional even as applied to 
expenditures that are in fact coordinated with the candidate. 
See Pet. App. 110a-114a. The plurality explained that 
neither the parties’ briefs nor the opinions of the lower 
courts had focused on that question. Id. at 111a. It also ob- 
served that because many party coordinated expenditures 
are “virtually indistinguishable from simple contributions 
(compare, for example, a donation of money with direct pay- 
ment of a candidate’s media bills),” ibid., “a holding on in-fact 
coordinated party expenditures necessarily implicates a 
broader range of issues than may first appear, including the 
constitutionality of party contribution limits,” id. at 112a. In 
the plurality’s view, the difficulty of the constitutional ques- 
tion, and the parties’ failure to focus on it, “provide[d] a 
reason for this Court to defer consideration of the broader 
issues until the lower courts have reconsidered the ques- 
tion.” Id. at 113a. 

b. Four Justices would have struck down the FECA 
limits on party expenditures even as applied to expenditures 
that are in fact coordinated with the candidate. See Pet. 
App. 114a-119a (518 U.S. at 626-631) (Kennedy, J., joined by 
Rehnquist, C.J., and Scalia, J., concurring in the judgment 
and dissenting in part); Pet. App. 119a-140a (518 U.S. at 631- 
648) (Thomas, J., joined in part by Rehnquist, C.J., and 
Scalia, J., concurring in the judgment and dissenting in part). 
Two Justices would have upheld the Commission’s enforce- 

9 

ment action. Pet. App. 140a-142a (518 U.S. at 648-650) 
(Stevens, J., joined by Ginsburg, J., dissenting).5 

4. The case was remanded to the district court for fur- 
ther consideration of respondent’s counterclaim. That coun- 
terclaim asserted that “the First Amendment forbids the 
government to limit [respondent’s] coordinated expendi- 
tures. The FEC’s attempts and intent to impose or enforce 
any limit on such coordinated expenditures are unconsti- 
tutional, unlawful, and void.” J.A. 23. The district court 
granted respondent’s motion for summary judgment and 
declared the FECA limits on party expenditures uncon- 
stitutional. Pet. App. 54a-91a. 

a. The district court held that respondent had standing 
to challenge the FECA limits on party coordinated expendi- 
tures, see Pet. App. 69a-72a, and that respondent’s claims 
were ripe for judicial review, see id. at 72a-74a. The court 
also held that Section 441a(d)’s application to coordinated 
expenditures was severable from its application (previously 
invalidated by this Court in Colorado I) to independent ex- 
penditures. See id. at 74a-76a. The district court explained 
that the “FECA contains a strong severability provision,” id. 
at 74a (citing 2 U.S.C. 454), and it found “no evidence that 
Congress would have rejected [Section 441a(d)] as it applies 
to coordinated expenditures in the absence of a limit on 
independent expenditures,” id. at 75a. 

5 After this Court’s decision in Colorado I, the Commission initiated a 
rulemaking and sought public comments to consider, inter alia, possible 
criteria for determining when spending by parties is coordinated. See 
Independent Expenditures and Party Committee Expenditure Limita- 
tions, 62 Fed. Reg. 24,367 (1997) (proposing revisions to 11 C.F.R. Pts. 100, 
104, 109, 110). Although that part of the rulemaking had been held in 
abeyance pending ongoing litigation, the Commission solicited further 
public comments in December 1999. 64 Fed. Reg. 68,951-68,952, 68,955- 
68,956. The FEC has not yet proposed a final rule on that subject. 

10 

b. On the merits, the district court stated that “[t]he only 
permissible purpose for limitations on campaign expendi- 
tures is to prevent corruption or the appearance thereof.” 
Pet. App. 79a. The court concluded that the FEC had failed 
to demonstrate a sufficient danger of actual or perceived cor- 
ruption to justify the statutory limits on party coordinated 
expenditures. The court explained: 

[A] political party functions to promote political ideas 
and policy objectives over time and through elected 
officials. Given the purpose of political parties in our 
electoral system, a political party’s decision to support a 
candidate who adheres to the [party’s] beliefs is not 
corruption. Conversely, a party’s refusal to provide a 
candidate with electoral funds because the candidate’s 
views are at odds with party positions is not an attempt 
to exert improper influence. A candidate who does not 
wish to toe the party line is not excluded from participa- 
tion in the political process or even in the party process. 
The FEC offers factual allegations which suggest that 
one party or the other withheld, or attempted to with- 
hold, campaign funds from a candidate who expressed 
viewpoints or campaign tactics contrary to those thought 
preferable by the party. The court regards those as 
instances of the party and the candidate exercising their 
First Amendment rights. A party that refuses to fund a 
candidate who engages in what the party deems as 
undesirable campaign tactics is not reflecting corruption 
or the appearance of corruption. 

Id. at 87a-88a (citation omitted). The district court entered a 
declaratory judgment “that the Party Expenditure Pro- 
vision, 2 U.S.C.A. § 441a(d) (West 1997), is unconstitutional 
and cannot be enforced against [respondent].” Id. at 91a. 

5. The court of appeals affirmed. Pet. App. 1a-53a. 

11 

a. The court of appeals acknowledged that “corruption or 
the appearance thereof are constitutionally sufficient jus- 
tifications” for limits on coordinated campaign spending. 
Pet. App. 12a-13a. The court stated, however, that to estab- 
lish the validity of Section 441a(d), “the FEC in this case 
must show that political parties through their spending 
authority corrupt or appear to corrupt the electoral process.” 
Id. at 13a. The court expressed the view that 

[t]he opportunity for corruption or its appearance is 
greatest when the political spending is motivated by 
economic gain. * * * [P]olitical parties are diverse 
entities, one step removed from the candidate, and they 
exist for noneconomic reasons. Much like an advocacy 
group, a party functions “to disseminate political ideas, 
not to amass capital. The resources it has available are 
not a function of its success in the economic marketplace, 
but its popularity in the political marketplace.” 

Ibid. (quoting Massachusetts Citizens for Life, 479 U.S. at 
259). The court of appeals also stated that “[f]rom the birth 
of this republic into the 21st century, political parties have 
provided the principal forum for political speech and the 
principal means of political association.” Id. at 13a. 

The court of appeals held that the Commission had failed 
to establish a constitutionally sufficient justification for 
Section 441a(d)’s restrictions on coordinated party spending 
in federal campaigns. The court stated that “the premise of 
[the FEC’s] theory, namely that political parties can corrupt 
the electoral system by influencing their candidates’ posi- 
tions, gravely misunderstands the role of political parties in 
our democracy.” Pet. App. 20a. It explained that 

[p]olitical parties today represent a broad-based coalition 
of interests, and there is nothing pernicious about this 
coalition shaping the views of its candidates. Parties are 
simply too large and too diverse to be corrupted by any 

12 

one faction. Evidence in the record demonstrates that 
the parties’ hard money comes from individual donors 
who give, on average, less than $40 * * *. 

Even if, as the FEC contends, party leaders subvert 
the greater will of the rank-and-file membership, we 
trust the members to replace their leaders. It is true 
that political parties have been involved in wrongdoing, 
dating back to the Tammany Hall machine. However, 
the electoral and litigation processes have always 
managed to right these wrongs. Given the importance of 
political parties to the survival of this democracy, we 
reject the notion that a party’s influence over the 
positions of its candidates constitutes a subversion of the 
political process. 

Id. at 21a-22a (internal quotation marks omitted). 

The court of appeals also rejected the FEC’s contention 
that the limits on party coordinated expenditures are a per- 
missible means of preventing circumvention of other FECA 
contribution limits. The court stated that “[v]igilant enforce- 
ment of [2 U.S.C.] § 441a(a)(8),” which provides that contri- 
butions earmarked for a candidate shall be treated as con- 
tributions to the candidate himself, “is a more appropriate 
and direct means to safeguard the integrity of the individual 
contribution limits.” Pet. App. 23a. The court of appeals 
concluded that the challenged FECA provision “constitutes 
a significant interference with the First Amendment rights 
of political parties,” id. at 24a (internal quotation marks 
omitted), and that “[t]he FEC has not demonstrated * * * 
that coordinated spending by political parties corrupts, or 
creates the appearance of corrupting, the electoral process,” 
id. at 25a. 

b. Chief Judge Seymour dissented. Pet. App. 26a-53a. 
She stated that the panel majority had “create[d] a special 
category for political parties based on its view of their place 

13 

in American politics, a view at odds with history and with 
legislation drafted by politicians.” Id. at 26a. She also 
expressed the view that the panel majority had “require[d] 
an improperly demanding level of proof from the FEC to 
support a contribution limit the Supreme Court has told us is 
presumably justified.” Id. at 37a. 

Chief Judge Seymour explained that Section 441a(d) 
reflected Congress’s effort to balance competing interests by 
“permitting [parties] to make coordinated expenditures on 
behalf of their federal candidates far in excess of the limits 
imposed on others,” Pet. App. 38a, without leaving party 
expenditures wholly unconstrained. See id. at 38a-39a. She 
found “no support in the Constitution, [the FECA], or Su- 
preme Court authority for the majority’s notion that political 
parties are entitled to favored treatment when assessing a 
contribution limit that impacts their associational rights.” 
Id. at 40a. She also observed that “[t]he FEC’s position 
voices long-standing Congressional concerns that have ani- 
mated the history of efforts to reform federal election 
financing, many of which were addressed to the evils arising 
from large contributions to political parties that put the 
parties in political debt to the donors, debts which were 
often paid by the parties’ candidates.” Id. at 44a. Chief 
Judge Seymour concluded that “[a]s a matter of common 
sense, it is difficult to credit the bald assertion that politi- 
cians do not understand the role political parties play in 
American politics. Moreover, the majority is not at liberty 
to substitute its judgment for that of Congress on how best 
to balance the need to promote the role of political parties 
and to combat its potential for corruption.” Id. at 50a 
(footnote omitted). 

SUMMARY OF ARGUMENT 

I. In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), 
this Court upheld the FECA’s limits on contributions to 

14 

candidates for federal office. Under the Act, a coordinated 
expenditure made in support of a federal candidate is treated 
as a contribution. In enacting 2 U.S.C. 441a(d), Congress 
sought to facilitate the parties’ performance of their distinc- 
tive functions by authorizing party committees to make 
coordinated expenditures that would otherwise exceed the 
Act’s limitations on contributions to candidates. Respon- 
dent’s facial challenge to the Act’s limitations on party coor- 
dinated expenditures can succeed only if those limitations 
are unconstitutional even as applied to coordinated expen- 
ditures that are the functional and constitutional equivalent 
of direct contributions to federal candidates. Because this 
Court has previously sustained the FECA’s contribution 
limits against First Amendment challenge, and because the 
Act allows political parties to make much larger coordinated 
expenditures than other political committees, the FECA 
limits on party spending are presumptively constitutional. 

II. Large coordinated expenditures by political party 
committees pose essentially the same risks of corruption as 
similar expenditures by other entities. Congress could rea- 
sonably conclude that large party-coordinated expenditures, 
like large campaign contributions generally, may be used to 
exert influence over legislators’ behavior while in office. A 
candidate assisted by party-coordinated expenditures may, 
once elected or re-elected, be induced to take actions favor- 
able to the individuals or political action committees who 
have contributed funds to the party, thereby in effect using 
the party as a conduit to evade the FECA limits on contribu- 
tions to candidates. Alternatively, the candidate may be 
induced to favor the private interests or policy preferences 
of the party leaders who control the coordinated expendi- 
tures. 

Even when individual party leaders conscientiously seek 
to use the influence generated by large coordinated expen- 
ditures not to advance their own interests or those of indi- 

15 

vidual contributors, but to further the interests of the 
membership as a whole, Congress may legitimately choose to 
limit the extent to which large infusions of money may be 
used to achieve the party’s objectives. Congress has rea- 
sonably concluded that the undue influence of large cam- 
paign contributions upon public policy is inherently subver- 
sive of democratic governance, regardless of the donor’s 
motives. That judgment underlies the FECA contribution 
limits generally (whose application has never depended upon 
the motivation of the donor), and it is no less applicable to 
political parties. 

III. Political parties have no favored constitutional status 
that would entitle them to an exemption from the spending 
limitations that apply to other potential donors. The 
Framers distrusted political parties and sought to devise 
governmental structures that would curtail their influence. 
Although the right to form and operate a political party is 
one aspect of the freedom of speech and association pro- 
tected by the First Amendment, the Framers did not intend 
to create special privileges or incentives for partisan 
activity. The drafting and ratification history of the Con- 
stitution therefore provides no support for respondent’s con- 
tention that the First Amendment entitles political parties 
to an exemption from the coordinated spending limits that 
apply to other voluntary associations. 

Under the FECA, the distinguishing feature of a political 
party (as opposed to other organizations that endorse can- 
didates for federal office and spend money in their support) 
is that the candidate is officially identified, on the ballot, as 
the party’s nominee. Such official recognition on the ballot 
cannot plausibly be thought to expand the party’s First 
Amendment rights by eliminating Congress’s authority to 
impose coordinated spending limits that are validly applied 
to non-party political committees. To the contrary, when a 
political party assumes an official role in the State’s electoral 

16 

machinery, it is typically subject to greater constraints than 
a political organization acting in a purely private capacity. 

In enacting Section 441a(d), Congress sought to balance 
competing objectives by permitting parties to play an 
important role in federal campaigns without leaving party 
spending wholly unconstrained. That legislative judgment is 
entitled to substantial deference, particularly in light of Con- 
gress’s intimate familiarity with the workings of our political 
system. Respondent’s First Amendment claim would inap- 
propriately restrict the authority of the federal and state 
governments to define and limit the role of the parties vis-à- 
vis other participants in ongoing public policy debates. 

ARGUMENT 

I. BECAUSE THIS COURT HAS PREVIOUSLY SUS- 
TAINED THE FECA’S CONTRIBUTION LIMITS 

AGAINST FIRST AMENDMENT CHALLENGE, AND 
BECAUSE THE ACT ALLOWS POLITICAL PARTIES 
TO MAKE MUCH LARGER COORDINATED EXPEN- 
DITURES THAN OTHER POLITICAL COMMIT- 
TEES, THE FECA LIMITS ON PARTY SPENDING 
ARE PRESUMPTIVELY CONSTITUTIONAL 

A. This Court Has Repeatedly Recognized The Authority 

Of Congress And The State Legislatures To Limit 

Monetary Contributions To Candidates For Public 

Office, Including Expenditures Made In Coordination 

With The Candidate 

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), this 
Court sustained Congress’s determination that bribery and 
public disclosure laws were not a sufficient response to the 
threat of electoral corruption, and “that contribution ceilings 
were a necessary legislative concomitant to deal with the 
reality or appearance of corruption inherent in a system 
permitting unlimited financial contributions.” Id. at 28; see 
also id. at 30 (“Congress was justified in concluding that the 

17 

interest in safeguarding against the appearance of impropri- 
ety requires that the opportunity for abuse inherent in the 
process of raising large monetary contributions be elimi- 
nated.”). The Court in Buckley upheld both the $1000 limit 
on individual contributions imposed by the FECA and the 
Act’s $5000 limit on contributions by a political committee to 
a single candidate. Id. at 58. The Court has since repeatedly 
referred, with evident approval, to the Buckley Court’s 
holding that reasonable contribution limits are a constitu- 
tionally permissible means of preventing actual or apparent 
electoral corruption. See FEC v. Massachusetts Citizens for 
Life, Inc., 479 U.S. 238, 259-260 (1986); FEC v. National 
Right to Work Comm., 459 U.S. 197, 208 (1982); California 
Med. Ass’n v. FEC, 453 U.S. 182, 196-197 & n.16 (1981) (plu- 
rality opinion). Most recently, the Court in Nixon v. Shrink 
Missouri Government PAC, 120 S. Ct. 897 (2000), relied on 
Buckley in upholding Missouri’s $1000 limit (adjusted for 
inflation) on contributions by individuals or political commit- 
tees to candidates for statewide office. See id. at 903-910. 

The FECA provides that “expenditures made by any per- 
son in cooperation, consultation, or concert, with” a candi- 
date or her agents “shall be considered to be a contribution 
to such candidate.” 2 U.S.C. 441a(a)(7)(B)(i); see Buckley, 
424 U.S. at 46 (“controlled or coordinated expenditures are 
treated as contributions rather than expenditures under the 
Act”); FEC v. National Conservative PAC (NCPAC), 470 
U.S. 480, 492 (1985) (coordinated expenditures “are con- 
sidered ‘contributions’ under the FECA”). That provision 
serves to “prevent attempts to circumvent the Act through 
prearranged or coordinated expenditures amounting to 
disguised contributions.” Buckley, 424 U.S. at 47; see id. at 
46 (noting that donors might otherwise “avoid[] the con- 
tribution limitations by the simple expedient of paying 
directly for media advertisements or for other portions of 
the candidate’s campaign activities”). Thus, the general 

18 

rule—which neither respondent nor the courts below have 
questioned in its application to persons other than political 
parties—is that a coordinated expenditure in support of a 
candidate for federal office is both statutorily and 
constitutionally indistinguishable from a direct payment of 
money to the candidate’s campaign. 

B. The FECA Permits Political Parties To Make Coor- 
dinated Expenditures In Support Of Their Candidates 

In Amounts Much Greater Than The Contribution 

Limits That Apply To Other Donors 

As the dissenting judge in the court of appeals explained, 
Congress “recognize[d] the role political parties play in 
American politics and accorded them special treatment by 
permitting them to make coordinated expenditures on behalf 
of their federal candidates far in excess of the limits imposed 
on others.” Pet. App. 38a (Seymour, C.J., dissenting). The 
effect of 2 U.S.C. 441a(d) is not to impose special disadvan- 
tages on political parties. Rather, Section 441a(d) facilitates 
the parties’ performance of their distinctive functions by 
authorizing state and national party committees to make 
coordinated expenditures that would otherwise exceed the 
Act’s limitations on contributions to candidates. 

The Act generally prohibits any “multicandidate political 
committee” from making contributions in excess of $5000 to 
any candidate for federal office. 2 U.S.C. 441a(a)(2)(A). Sec- 
tion 441a(d)(1) provides, however, that, “[n]otwithstanding 
any other provision of law with respect to limitations on 
expenditures or limitations on contributions,” a national or 
state political party “may make expenditures in connection 
with the general election campaign of candidates for Federal 
office,” subject to the monetary limits set forth in Section 
441a(d)(2) and (3). The Conference Report accompanying 
the 1976 FECA amendments explains: 

19 

This limited permission allows the political parties to 
make contributions in kind by spending money for cer- 
tain functions to aid the individual candidates who repre- 
sent the party during the election process. Thus, but for 
this subsection [Section 441a(d)], these expenditures 
would be covered by the contribution limitations stated 
in subsections (a)(1) and (a)(2) of this provision. 

H.R. Conf. Rep. No. 1057, 94th Cong., 2d Sess. 59 (1976). As 
adjusted for inflation, the coordinated party expenditure 
limit for the 1996 Senate election in Colorado was approxi- 
mately $171,000. See p. 6, supra.6 

6 The Presidential Election Campaign Fund Act, 26 U.S.C. 9001 et 
seq., authorizes federal funding for presidential candidates who satisfy the 
statutory criteria. Under the Act, federal funds are paid directly to the 
candidate. 26 U.S.C. 9006(b). An earlier proposal to provide campaign 
funds to the political parties rather than to the candidates was changed so 
as to ensure, inter alia, that “a national committee of a political party will 
not be able to use control of a large Federal payment as a weapon to 
dictate party policies and strategies to * * * candidates and potential 
candidates.” S. Rep. No. 714, 90th Cong., 1st Sess. 15 (1967). 

Under the FECA, the national committee of a political party is per- 
mitted to make coordinated expenditures in support of its presidential 
candidate in an amount (two cents times the voting age population of the 
United States, adjusted for inflation, see 2 U.S.C. 441a(c), 441a(d)(2)) 
much greater than the contribution limits applicable to other donors. The 
court of appeals declined to address the constitutionality of the FECA 
limit on party coordinated expenditures in presidential campaigns. See 
Pet. App. 4a n.1. 

20 

C. Respondent Asserts A First Amendment Right To 

Make Unlimited Coordinated Expenditures In Support 

Of Its Federal Candidates, Including Coordinated Ex- 
penditures That Are Functionally And Constitu- 
tionally Indistinguishable From Direct Monetary Con- 
tributions 

Respondent’s counterclaim asserted that “the First 
Amendment forbids the government to limit [respondent’s] 
coordinated expenditures. The FEC’s attempts and intent 
to impose or enforce any limit on such coordinated expendi- 
tures are unconstitutional, unlawful, and void.” J.A. 23; see 
J.A. 24 (requesting “[a] declaratory judgment pursuant to 28 
U.S.C. § 2201 that [respondent] has the right to make 
unlimited expenditures from lawfully received contributions 
in support of its candidates for federal office, and that any 
limits that FECA purports to impose are invalid and void.”). 
The district court agreed, entering a declaratory judgment 
“that the Party Expenditure Provision, 2 U.S.C.A. § 441a(d) 
(West 1997), is unconstitutional and cannot be enforced 
against [respondent].” Pet. App. 91a. The court of appeals 
affirmed, holding that “§ 441a(d)(3)’s limit on party spending 
is not closely drawn to the recognized governmental interest 
but instead constitutes an unnecessary abridgment of First 
Amendment freedoms.” Id. at 25a-26a (internal quotation 
marks omitted). Thus, the effect of the court of appeals’ 
decision is that respondent’s coordinated expenditures in 
support of candidates for federal office are subject to no 
FECA limitation whatever. 

The concept of a “coordinated expenditure” covers a vari- 
ety of financial arrangements between a candidate and her 
supporters, many of which are functionally and constitu- 
tionally indistinguishable from direct contributions to can- 
didates for federal office. Respondent’s own expert stated, 
with respect to the national parties’ coordinated expendi- 
tures, that “[t]he predominant approach is to provide 

21 

candidates with the funding needed to broadcast their 
messages or post letters to selected voters within their dis- 
tricts.” J.A. 209. The Court in Buckley recognized the need 
“to prevent would-be contributors from avoiding the contri- 
bution limitations by the simple expedient of paying directly 
for media advertisements or for other portions of the can- 
didate’s campaign activities.” 424 U.S. at 46. Citing Buck- 
ley, the plurality in Colorado I observed that “many 
[coordinated] expenditures are * * * virtually indistin- 
guishable from simple contributions (compare, for example, a 
donation of money with direct payment of a candidate’s 
media bills).” Pet. App. 111a; see also id. at 112a (noting that 
“a holding on in-fact coordinated party expenditures nec- 
essarily implicates a broader range of issues than may first 
appear, including the constitutionality of party contribution 
limits”). 

This Court has not attempted to define the full range of 
circumstances under which a campaign expenditure may 
properly be treated as “coordinated.” The instant case, how- 
ever, involves solely a facial challenge, in which respondent 
successfully requested a declaratory judgment that it “has 
the right to make unlimited expenditures from lawfully 
received contributions in support of its candidates for federal 
office, and that any limits that FECA purports to impose are 
invalid and void.” J.A. 24. Respondent is not entitled to that 
relief unless the FECA limits on party coordinated expen- 
ditures are unconstitutional even as applied to expenditures 
that are the functional equivalent of direct contributions.7 

7 Even in a First Amendment challenge, 

[f]acial invalidation “is, manifestly, strong medicine” that “has been 
employed by the Court sparingly and only as a last resort.” Broad- 
rick v. Oklahoma, 413 U.S. 601, 613 (1973); see also FW/PBS, Inc. v. 
Dallas, 493 U.S. 215, 223 (1990) (noting that “facial challenges to 
legislation are generally disfavored”). To prevail, [the plaintiff] must 

22 

Thus, the question in this case is whether political parties 
are constitutionally entitled to a blanket exemption from the 
limits on coordinated campaign spending—squarely upheld 
by this Court in Buckley—that apply to all other entities, 
including other political committees. For the reasons set 
forth below, party committees have no such constitutional 
right. We explain in Part II that large coordinated expen- 
ditures by political parties pose essentially the same risks of 
corruption as similar expenditures by other entities. We 
explain in Part III that political parties do not enjoy a 
favored constitutional status that would entitle them to an 
exemption from generally applicable spending limits.8 

demonstrate a substantial risk that application of the provision will 
lead to the suppression of speech. See Broadrick, supra, at 615. 

NEA v. Finley, 524 U.S. 569, 580 (1998). The FECA statutory limit on 
party coordinated expenditures “contemplates a number of indisputably 
constitutional applications.” Id. at 584. 

8 As the district court correctly held (Pet. App. 74a-76a), Section 
441a(d)’s application to coordinated expenditures is severable from its 
application (previously invalidated by this Court in Colorado I) to 
independent expenditures. The FECA provides that “[i]f any provision of 
this Act, or the application thereof to any person or circumstance, is held 
invalid, the validity of the remainder of the Act and the application of such 
provision to other persons and circumstances shall not be affected 
thereby.” 2 U.S.C. 454. There is, moreover, nothing remotely anomalous 
about a statutory scheme in which political parties are permitted to make 
unlimited independent expenditures but are subject to dollar limits on 
their coordinated campaign spending. To the contrary, that is precisely 
the regime to which individuals and non-party political committees are 
subject as a result of this Court’s decisions in Buckley and its progeny. 
See pp. 3-4, supra. In the court of appeals, respondent abandoned the 
contention that Section 441a(d)’s application to coordinated expenditures 
cannot be severed from its application to independent spending. See Pet. 
App. 8a n.3. 

23 

II. UNLIMITED COORDINATED EXPENDITURES BY 
POLITICAL PARTIES IN SUPPORT OF FEDERAL 

CANDIDATES WOULD CREATE A SUBSTANTIAL 
RISK OF ACTUAL OR APPARENT CORRUPTION 

As the Court explained in Shrink Missouri, 

[i]n speaking of “improper influence” and “opportunities 
for abuse” in addition to “quid pro quo arrangements,” 
[the Court has] recognized a concern not confined to 
bribery of public officials, but extending to the broader 
threat from politicians too compliant with the wishes of 
large contributors. These were the obvious points 
behind [the Court’s] recognition that the Congress could 
constitutionally address the power of money “to influ- 
ence governmental action” in ways less “blatant and 
specific” than bribery. 

120 S. Ct. at 905 (quoting Buckley, 424 U.S. at 28). It is 
reasonable to assume that large coordinated expenditures by 
political parties, like large campaign contributions generally, 
may be used to exert influence over legislators’ behavior 
while in office. Indeed, the Court in FEC v. Democratic 
Senatorial Campaign Comm. (DSCC), 454 U.S. 27 (1981), 
observed that “effective use of party resources in support of 
party candidates may encourage candidate loyalty and re- 
sponsiveness to the party.” Id. at 42; see also Alaska v. 
Alaska Civil Liberties Union, 978 P.2d 597, 626 (Alaska 
1999) (“The natural tendency of successful candidates who 
receive unlimited contributions from a party would be to 
reduce independent consideration of issues and adhere to 
positions taken by the party itself.”), cert. denied, 120 S. Ct. 
1156 (2000). In enacting Section 441a(d), Congress evidently 
concluded that the use of campaign spending as a means of 
party discipline, if kept within acceptable bounds, would 
have salutary rather than corrosive effects. That 

24 

determination does not undermine Congress’s judgment that 
unlimited party coordinated expenditures pose the same 
danger—i.e., the risk of actual or perceived “improper 
influence” (Shrink Mo., 120 S. Ct. at 905) based on financial 
largesse—as unrestricted campaign contributions by indivi- 
duals or non-party committees. 

The court of appeals did not question the proposition that 
party coordinated expenditures may be used as a means of 
influencing a legislator’s performance of her official respon- 
sibilities. The court concluded, however, that because the 
essential function of parties is to facilitate the election of 
candidates who will implement the party’s platform—a 
function that necessarily involves efforts to influence the 
behavior of the candidate once he has been elected to office 
—the exercise of such influence through coordinated spend- 
ing cannot properly be regarded as a form of “corruption.” 
See Pet. App. 22a (“Given the importance of political parties 
to the survival of this democracy, we reject the notion that a 
party’s influence over the positions of its candidates consti- 
tutes a subversion of the political process.”) (internal quota- 
tion marks omitted). 

The court of appeals’ analysis underestimates the poten- 
tial for abuse inherent in large-scale spending by political 
parties, and it misconceives the underlying justification for 
contribution limits generally. The premise of the FECA 
contribution caps is not that a private person’s “influence” 
with government officials is per se illegitimate. Rather, the 
premise is that such influence should not be based on large 
infusions of money. 

That judgment applies with full force to 

coordinated expenditures directed by political party 
officials.9 

9 As the Court noted in Buckley, the FECA’s contribution limits were 
originally based in part on two purposes—the desire “to mute the voices of 
affluent persons and groups in the election process and thereby to equalize 

25 

A. Large Party Coordinated Expenditures May Be Used To 

Circumvent The FECA Limits On Individual Con- 
tributions To Candidates, And Thereby To Advance The 

Interests Of The Party’s Major Donors 

Party-coordinated expenditures often serve as a conduit 
to channel contributions from individuals or political action 
committees, to the benefit of particular candidates. If party 
committees were permitted to make unlimited coordinated 
expenditures, this use of the party as a conduit would 
facilitate evasion of other FECA contribution limits, and 
raise precisely the same potential for corruption that those 
limits were designed to avoid. Thus, an individual or politi- 
cal action committee that has already contributed the maxi- 
mum $1000 or $5000 directly to the candidate could contri- 

the relative ability of all citizens to affect the outcome of elections,” 424 
U.S. at 25-26, and the belief that “the ceilings may to some extent act as a 
brake on the skyrocketing cost of political campaigns and thereby serve to 
open the political system more widely to candidates without access to 
sources of large amounts of money,” id. at 26—in addition to the pre- 
vention of actual and perceived corruption. The Court in Buckley held 
that those purposes did not constitute compelling governmental interests 
that could justify the Act’s restrictions on independent expenditures. Id. 
at 55-57. The Court concluded, however, that “[i]t is unnecessary to look 
beyond the Act’s primary purpose—to limit the actuality and appearance 
of corruption resulting from large individual financial contributions—in 
order to find a constitutionally sufficient justification for the $1,000 
contribution limitation.” Id. at 26. 

Shortly after Buckley was decided, Congress amended and reenacted 
the FECA, including Section 441a(d)’s provisions dealing specifically with 
campaign expenditures by political parties. See Federal Election Cam- 
paign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475. Thus, 
whatever combination of factors may have initially motivated Congress to 
limit party expenditures, Congress chose to retain those limits after this 
Court’s decision in Buckley circumscribed the constitutionally permissible 
objectives that could justify such caps. 

26 

bute additional amounts to one or more party committees, 

10 

and could in various ways communicate the expectation that 
all or part of those sums would be used for coordinated ex- 
penditures in support of the candidate. When the candidate 
is aware of the nexus between the contribution to the party 
and the party-coordinated expenditures, 

11 that sequence of 
payments creates the very danger that the underlying limits 
on contributions to candidates are intended to prevent—i.e., 
the fact or appearance of “improper influence” resulting 

10 Although an individual can contribute no more than $1000 per 
election to a candidate for federal office, she can contribute up to $5000 to 
a multicandidate political committee operated by a state political party, 
and up to $20,000 to a political committee operated by a national political 
party. 2 U.S.C. 441a(a)(1)(A)-(C). A political action committee can con- 
tribute no more than $5000 per election directly to a candidate for federal 
office. 2 U.S.C. 441a(a)(2)(A). Such an organization can contribute addi- 
tional sums of up to $15,000 to a political committee established by a 
national political party, and up to $5000 to a state political party 
committee. 2 U.S.C. 441a(a)(2)(B) and (C). 

11 As the district court recognized, evidence submitted by the FEC in 
this case indicates that “party committees keep track of the Member of 
Congress who is responsible for contributions to the campaign com- 
mittees,” and that “[m]any, although not all, Members of Congress raise 
money on behalf of the party from contributors who have already given 
the maximum permissible amount to the individual candidate’s campaign.” 
Pet. App. 65a. The evidence further indicates that “the parties take into 
consideration the fund-raising efforts of candidates in deciding allocations 
of campaign funds,” and that “[c]andidates in need of funding do request 
assistance and attempt to lobby those with control over allocations.” Id. at 
66a. See also id. at 46a (Seymour, C.J., dissenting) (“Senators are ex- 
pected to encourage their major donors, who have maximized their con- 
tribution to the candidate, to make contributions to the state or national 
party, which in turn gives the candidates money for their campaigns.”); 
J.A. 165-166, 246-247, 274-275; C.A. App. 457, 635. 

27 

from payments to “politicians too compliant with the wishes 
of large contributors.” Shrink Mo., 120 S. Ct. at 905. 

12 

The pertinent legislative history reflects congressional 
concern about the potential corruptive effects of campaign 
spending by political parties—and, in particular, the danger 
that large party contributions could be used as a means of 

12 As early as 1924, one Senate leader explained 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 con- 
tributions. 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, con- 
sideration by the beneficiaries of their contributions which not infre- 
quently is harmful to the general public interest. It is unquestionably 
an evil which ought to be dealt with, and dealt with intelligently and 
effectively.” 

United States v. United Auto. Workers, 352 U.S. 567, 576-577 (1957) (quot- 
ing 65 Cong. Rec. 9507-9508 (1924) (statement of Sen. Robinson)). As the 
dissenting judge below recognized, the current FECA limits on party 
coordinated expenditures reflect “long-standing Congressional concerns 
that have animated the history of efforts to reform federal election 
financing, many of which were addressed to the evils arising from large 
contributions to political parties that put the parties in political debt to the 
donors, debts which were often paid by the parties’ candidates.” Pet. App. 
44a (Seymour, C.J., dissenting). 

Of course, the means by which party leaders can influence the official 
behavior of their candidates in office have changed considerably since the 
beginning of this century. In an era when the party’s nominees were 
chosen by the leadership rather than through primary elections, those 
leaders possessed a greater ability to dictate the behavior of elected 
officials. But as the passage quoted above makes clear, the danger at 
which Section 441a(d) is in part directed—i.e., that party leaders will use 
whatever methods of influence are available to induce elected officials to 
take positions favorable to the party’s major donors–-is a matter of 
longstanding concern. 

28 

evading statutory limits on individual donations. That con- 
cern was expressed during Senate debate in 1973 on a 
predecessor bill to the one finally enacted in 1974. Senator 
Mathias explained: 

We have controlled the line which runs from the individ- 
ual to the candidate to a $3,000 limit. We have controlled 
or limited the flow from a political committee to a can- 
didate to $5,000. We have limited or controlled the line 
which flows from an individual to a political party to 
$100,000. 

But what this amendment really goes to is one of the 
areas which is not controlled, and that is from the party 
to the candidate. That, of course, is a wide open avenue. 
An [individual] who could contribute $100,000 to a party 
could well envision that that money, by some arrange- 
ment, would be directed to a candidate. Such arrange- 
ments are not unknown. They may be informal, but 
earmarking would be possible. This amendment would 
prevent that kind of indirect contribution of $100,000 to a 
single candidate by a single contributor. I think it is a 
loophole which needs to be looked at very carefully. 

119 Cong. Rec. 26,321 (1973). 

13 Senators Kennedy and Pas- 
tore observed, based on their prior experience as legislators, 

13 The amendment to which Senator Mathias referred was offered by 
Senator Stevenson (see 119 Cong. Rec. at 26,320) and would have had the 
effect of subjecting party committees to the same spending limits as other 
political committees. See id. at 26,321 (Senator Stevenson states that the 
amendment would “have the effect of equalizing the amount to party 
political committees and all other political committees”). The bill ulti- 
mately enacted in 1974 permits political parties to make substantially 
larger coordinated expenditures in support of federal candidates than 
other political committees are allowed to make. See 2 U.S.C. 441a(d); pp. 
5-6, 18-19, supra. The FECA also places lower limits on individual con- 

29 

that through unspoken understandings donors could achieve 
the result that Senator Mathias described—i.e., using the 
party as a conduit for large contributions to candidates with- 
out any explicit earmarking of funds. See id. at 26,323, 
26,323-26,324. Although the provisions ultimately enacted in 
1974 differed in some respects from those debated during the 
previous year (see note 13, supra), the 1973 debate casts 
significant light on the interests that Section 441a(d) was 
intended to serve. 

The court of appeals acknowledged (Pet. App. 22a) that “if 
an individual used the party as a conduit to channel money to 
specified candidates, this would certainly threaten the 
integrity of the individual contribution limit.” The court sug- 
gested (id. at 23a), however, that concerns regarding the 
possible circumvention of other FECA limits could ade- 
quately be addressed through “[v]igilant enforcement of [2 
U.S.C.] § 441a(a)(8),” which provides that contributions 
“earmarked or otherwise directed through an intermediary 
or conduit” shall be treated as contributions to the candidate 
herself. This Court has previously recognized, however, that 
the earmarking provision of Section 441a(a)(8) does not pro- 
vide a complete response to the danger that contributions to 
political committees may be used to evade the FECA limits 
on contributions to candidates. 

Thus, in Buckley, the Court upheld the FECA’s $25,000 
annual aggregate limit on individual contributions, despite 
the fact that it imposed “an ultimate restriction upon the 
number of candidates and committees with which an individ- 
ual may associate himself by means of financial support.” 
424 U.S. at 38. The Court explained that the $25,000 aggre- 
gate limit was “a corollary of the basic individual contribu- 
tion limitation” that restricts the possibility of evasion “by a 

tributions to candidates and to political parties than the predecessor bill 
discussed by Senator Mathias. See 2 U.S.C. 441a(a)(1). 

30 

person who might otherwise contribute massive amounts of 
money to a particular candidate through the use of unear- 
marked contributions to political committees likely to contri- 
bute to that candidate, or huge contributions to the candi- 
date’s political party.” Ibid. The Court employed a similar 
analysis in California Medical Ass’n, where it upheld the 
$5000 limit on contributions to political committees, see 
2 U.S.C. 441a(a)(1)(C), as a reasonable means of preventing 
circumvention of the limits on contributions to candidates. 
The plurality explained that if contributions to political 
committees were unrestricted, “an individual or association 
seeking to evade the $1,000 limit on contributions to can- 
didates could do so by channelling funds through a multi- 
candidate political committee.” 453 U.S. at 198. The plural- 
ity found it “clear that this provision is an appropriate means 
by which Congress could seek to protect the integrity of the 
contribution restrictions upheld by this Court in Buckley.” 
Id. at 199. Justice Blackmun similarly “conclude[d] that con- 
tributions to multicandidate political committees may be 
limited to $5,000 per year as a means of preventing evasion 
of the limitations on contributions to a candidate or his 
authorized campaign committee upheld in Buckley.” Id. at 
203 (Blackmun, J., concurring). Those decisions refute the 
court of appeals’ suggestion (see Pet. App. 23a) that “[v]igi- 
lant enforcement of § 441a(a)(8)” is the only constitutionally 

31 

permissible means of preventing the use of intermediaries to 
circumvent the individual contribution limits. 

14 

14 As the dissenting judge in the court of appeals observed, “[t]he 
record [in this case] * * * reveals that although earmarking funds for a 
particular candidate is illegal, this prohibition is circumvented through 
‘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.” Pet. App. 46a 
(Seymour, C.J., dissenting). A former official of the Democratic Senatorial 
Campaign Committee (DSCC) explained that “[t]he Senators who 
solicited the money for the DSCC could not promise that the money would 
be used directly in support of their own or another particular campaign, 
because earmarking contributions was prohibited. However, that did not 
mean that Senators who raised money could not be assured that they 
would get a significant return from their efforts. 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.” J.A. 165-166; see J.A. 166 (same former official states 
that “[p]eople 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”). Another individual who had 
served first as a Democratic Party official and then as National Finance 
Director for Tim Wirth’s 1986 Senate campaign explained that the DSCC 
employed a “tally system,” which he described as “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.” 
J.A. 246. He stated that during the 1986 Senate race, “[w]e also 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 
§ 441a(d) allocation from the DSCC.” J.A. 247. Senator Wirth himself 
stated, “[w]hen I solicited contributions for the state party, in effect I 
solicited funds for my election campaign. I understood that the solicitees 
who made contributions to the party almost always did so because they 
expected that the contributions would support my campaign one way or 
another, and for the most part they expected I would remember their 
contributions.” J.A. 273. A former campaign aide to Senator Wyche 
Fowler explained that “[i]n raising money for the DSCC, we mostly went 
back to contributors who had already given the maximum allowable 

32 

Under current federal law, moreover, an individual may 
donate unlimited amounts of so-called “soft money” to 
political parties. See Pet. App. 102a. Because “soft money” 
cannot lawfully be spent to influence federal elections, the 
party cannot (even under the court of appeals’ decision) use 
those donations to make coordinated expenditures on behalf 
of candidates for federal office. Large soft money donations 
may, however, be used to induce the party to make large 
coordinated expenditures with funds acquired from other 
(“hard money”) sources. 

15 Those coordinated expenditures 
may in turn be used to induce elected officials to look favora- 
bly upon the soft money donor. The FECA limits on party 
coordinated expenditures serve to break that chain, thereby 
helping to prevent circumvention of the statutory limits on 
individual contributions to candidates. 

contribution to Mr. Fowler’s campaign. While we were not able to tell 
these contributors that the money could come back directly to help us, we 
knew that this was part of the effort to demonstrate our viability to the 
DSCC, to show that we were worthy of their help. In that way the money 
contributed was certainly an indirect help to Mr. Fowler.” C.A. App. 457. 
Former Senator Paul Simon testified in his deposition that “[t]he tally 
system is a way of contributing that does not violate the law [against 
earmarking] but comes close to violating the law. * * * They always 
made clear that this is not just automatic, so no one could say if Tom Smith 
contributed $5,000 to the DSCC, that was a way of laundering it coming to 
Paul Simon, but you knew that if you got your tally, even though you 
might be in a safe seat, you would get your money.” Id. at 635. 

15 One former Democratic Party official explained that “[i]f people start 
giving $50,000, $100,000, or $500,000 to a party committee, even if that is 
soft money, they would probably expect a greater voice in how that money 
was spent and what they would want in return. It is unrealistic to think 
that if I give you a check for $500,000, I will not expect you to make the 
largest possible contribution to my favorite candidate who can do the most 
for my legislative concerns.” J.A. 260. 

33 

B. Large Coordinated Expenditures May Be Used To 

Advance The Interests Of The Individual Party 
Officials Who Control The Disposition Of Party 
Funds 

“In the nature of things, a [party] committee must act 
through its employees and agents.” DSCC, 454 U.S. at 33. 
Even when party funds are raised from a large number of 
contributors, the record in this case indicates that small 
groups of party officials may have de facto control over the 
manner in which those funds are spent. See J.A. 164 (former 
Executive Director of the Democratic Senatorial Campaign 
Committee (DSCC) explains that during his tenure, the 
DSCC’s three-member Executive Committee “basically 
made the decisions as to how to distribute the money”). As a 
result, candidates who benefit from large coordinated expen- 
ditures may feel indebted not to the party as an abstract 
entity, but to the individual party officials who cause those 
expenditures to be made. Party leaders may thereby 
acquire the ability to induce the candidates (once elected or 
re-elected) to take actions favorable to the leaders’ own 
private interests or policy preferences. 

16 

There is no reason to believe that political party officials 
are immune from the corrupting temptations and self-inter- 
est of other persons. To the contrary, history demonstrates 

16 The two major parties’ senatorial campaign committees have tra- 
ditionally been headed by incumbent Senators chosen by the parties’ 
Senate leadership. See J.A. 163-164, 246, 249, 252, 253, 262-263, 275-276; 
C.A. App. 486. As the DSCC’s former Executive Director explained, 
“[t]aking away the limits on coordinated expenditures would result in a 
fundamental transferal of power to certain individual Senators.” J.A. 168. 
Reasonable people may disagree regarding the appropriate balance 
between leadership control and individual discretion within a legislative 
body. But party leaders within the legislature cannot plausibly claim a 
constitutional right to utilize large coordinated expenditures in support of 
other candidates as a means of strengthening their control. 

34 

that individual officials of political organizations are par- 
ticularly well-situated to exert a corrupting influence upon 
candidates and officeholders in order to advance their 
private interests. See generally, e.g., Rutan v. Republican 
Party of Ill., 497 U.S. 62, 88 n.4 (1990) (Stevens, J., concur- 
ring). The court of appeals acknowledged that “political 
parties have been involved in wrongdoing, dating back to the 
Tammany Hall machine,” but it concluded (without citation) 
that “the electoral and litigation processes have always 
managed to right these wrongs.” Pet. App. 22a. The 
propriety of the FECA’s coordinated expenditure limits 
does not depend, however, on proof that without such limits 
electoral abuses would permanently go unchecked. Nor does 
it depend on proof that party officials will typically utilize 
their control over party funds to advance a personal agenda. 
The Court in Buckley assumed “that most large contributors 
do not seek improper influence over a candidate’s position or 
an officeholder’s action.” 424 U.S. at 29. The Court never- 
theless sustained the $1000 limit on individual contributions, 
explaining that it is “difficult to isolate suspect contri- 
butions,” and that “Congress was justified in concluding that 
the interest in safeguarding against the appearance of 
impropriety requires that the opportunity for abuse inherent 
in the process of raising large monetary contributions be 
eliminated.” Id. at 30; see National Right to Work Comm., 
459 U.S. at 210 (Court will not “second-guess a legislative 
determination as to the need for prophylactic measures 
where corruption is the evil feared”). 

C. Congress May Impose Reasonable Contribution Limits 

In Order To Reduce The Influence Of Money On The 

Behavior Of Elected Officials, Regardless Of The 

Motivation Of The Donor 

As the foregoing analysis indicates, large party coordi- 
nated expenditures may be used to induce elected officials to 

35 

favor the private interests either of the party’s major con- 
tributors or of individual party officers. Use of coordinated 
expenditures to achieve those ends is a paradigmatic 
example of the “improper influence” (Shrink Mo., 120 S. Ct. 
at 905) that the FECA contribution limits are intended to 
prevent. But the validity of Section 441a(d) does not 
ultimately depend upon the likelihood of such blatant abuses. 
Even when individual party leaders conscientiously seek to 
further the interests and values of the membership as a 
whole, Congress may legitimately choose to limit the extent 
to which large infusions of money may be used to achieve 
those objectives. 

As the Court explained in Shrink Missouri, 

[i]n speaking of “improper influence” and “opportuni- 
ties for abuse” in addition to “quid pro quo arrange- 
ments,” [the Court has] recognized a concern not con- 
fined to bribery of public officials, but extending to the 
broader threat from politicians too compliant with the 
wishes of large contributors. These were the obvious 
points behind [the Court’s] recognition that the Congress 
could constitutionally address the power of money “to 
influence governmental action” in ways less “blatant and 
specific” than bribery. 

120 S. Ct. at 905 (quoting Buckley, 424 U.S. at 28). Con- 
gress’s authority to “address the power of money ‘to 
influence governmental action’ ” (ibid.) does not depend on 
the motivation of the donor. The wealthy individual who 
pays a large sum as an explicit quid pro quo for a legislator’s 
vote is guilty of bribery, whether the payor has a pecuniary 
or similar tangible interest in the passage or defeat of the 
proposed legislation, or instead is motivated solely by 
ideological concerns. With respect to methods “less ‘blatant 
and specific’ than bribery” (ibid.), Congress has similarly 
concluded that the undue influence of large campaign 

36 

contributions upon public policy is inherently subversive of 
democratic governance, regardless of the donor’s motives. 

In explaining its conclusion that party coordinated 
expenditures are unlikely to have corruptive effects, the 
court of appeals stated that 

[t]he opportunity for corruption or its appearance is 
greatest when the political spending is motivated by 
economic gain. * * * [P]olitical parties are diverse 
entities, one step removed from the candidate, and they 
exist for noneconomic reasons. Much like an advocacy 
group, a party functions “to disseminate political ideas, 
not to amass capital.” 

Pet. App. 13a (quoting Massachusetts Citizens for Life, 479 
U.S. at 259). The distinction drawn by the court of appeals 
has no basis in law. Neither the text of the FECA nor this 
Court’s precedents suggest that the applicability or con- 
stitutional status of the Act’s coordinated expenditure limits 
turns on whether the overall character of the contributing 
organization, or its motive in making a specific expenditure, 
is economic in nature. 

17 

17 One commentator explains: 

FECA’s dollar limits on individual and PAC contributions apply 
equally to donations by advocacy organizations or ideologically- 
minded individuals as to organizations and individuals with economic 
agendas for giving. The Supreme Court has never suggested that 
ideological contributions are constitutionally immune from dollar 
limitation. There is thus no basis in the Supreme Court’s campaign 
finance jurisprudence for [the court of appeals’] determination [in this 
case] that restrictions on party contributions are subject to more 
stringent scrutiny because parties are ideological organizations–- 
even if it is assumed that the parties are primarily ideological 
organizations. 

Richard Briffault, The Political Parties and Campaign Finance Reform, 
100 Colum. L. Rev. 620, 664 (2000). 

37 

The court of appeals’ reliance on Massachusetts Citizens 
for Life is wholly misplaced. The Court in that case relied on 
the distinctive attributes of a particular corporate entity— 
including the fact that the organization “was formed for the 
express purpose of promoting political ideas, and cannot 
engage in business activities,” 479 U.S. at 264—as a basis for 
holding that the organization was constitutionally entitled to 
make independent campaign expenditures. Of course, under 
this Court’s decision in Colorado I, party committees are 
similarly free to make unlimited independent expenditures 
in support of their candidates for federal office. But nothing 
in Massachusetts Citizens for Life suggests that an organiza- 
tion’s “political” (as opposed to “economic”) orientation enti- 
tles it to a constitutional exemption from the FECA limits on 
coordinated campaign spending. To the contrary, the Court 
in Massachusetts Citizens for Life specifically distinguished 
its prior decision in National Right to Work Committee on 
the ground that “the political activity at issue in that case 
was contributions,” and it observed that the Court “ha[s] 
consistently held that restrictions on contributions require 
less compelling justification than restrictions on independent 
spending.” 479 U.S. at 259-260. 

The court of appeals also stated that “[p]olitical parties 
today represent a broad-based coalition of interests, and 
there is nothing pernicious about this coalition shaping the 
views of its candidates.” Pet. App. 21a; see id. at 22a (“we 
reject the notion that a party’s influence over the positions of 
its candidates constitutes a subversion of the political pro- 
cess”) (internal quotation marks omitted). The court was 
surely correct in stating that political parties may legiti- 
mately seek to influence the official behavior of their mem- 
bers. There is no inconsistency, however, between that prin- 
ciple and the imposition of reasonable coordinated spending 
limits. 

38 

The justification for imposing contribution limits upon 
individuals or non-party political committees is not that 
persons outside the government should be prevented from 
exerting “influence” over federal policy. To the contrary, 
individuals have a constitutional right “to petition the Gov- 
ernment for a redress of grievances,” U.S. Const. Amend. I, 
and “to engage in association for the advancement of beliefs 
and ideas,” NAACP v. Alabama ex rel. Patterson, 357 U.S. 
449, 460 (1958); see also NCPAC, 470 U.S. at 498 (“The fact 
that candidates and elected officials may alter or reaffirm 
their own positions on issues in response to political mes- 
sages paid for by the PACs can hardly be called corruption, 
for one of the essential features of democracy is the 
presentation to the electorate of varying points of view.”). 
The FECA limits on contributions made by individuals and 
non-party political committees reflect Congress’s judgment 
that a legislator’s conduct should not be affected by an actual 
or anticipated infusion of money—not a suspicion of private 
influence per se. That judgment is no less applicable to 
political parties than to other potential donors. 

18 

18 As Justice Thomas explained in his separate opinion in Colorado I, 
“[t]he very aim of a political party is to influence its candidate’s stance on 
issues and, if the candidate takes office or is reelected, his votes.” Pet. 
App. 138a (518 U.S. at 646). It does not follow, however, that a political 
party is incapable of “corrupting” its candidates. No one (to our knowl- 
edge) suggests, for example, that a party committee has a constitutional 
right to offer money as an explicit quid pro quo for a legislator’s vote on a 
particular measure. Although the party’s objective of influencing the 
official behavior of its candidates is wholly legitimate, the federal bribery 
laws validly limit the means by which that objective may be achieved. Cf. 
Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 
14 Const. Comm. 127, 138 (1997) (“The reason we make bribery illegal is 
that we don’t want officials to be affected by monetary considerations, not 
that we have a particular animus against deal-making.”). The con- 
gressional policy judgment reflected in Section 441a(d)—i.e., that a party 

39 

III. POLITICAL PARTIES HAVE NO FAVORED CON- 
STITUTIONAL STATUS THAT WOULD ENTITLE 
THEM TO AN EXEMPTION FROM THE SPEND- 
ING LIMITATIONS THAT APPLY TO OTHER 
POTENTIAL DONORS 

In deciding how to exercise his official responsibilities, a 
Member of Congress will be influenced by a wide variety of 
considerations. Those will include the Member’s own moral 
and political values and her independent perception of the 
public interest; the views of her constituents; the beliefs of 
prominent persons (e.g., major employers, union leaders, 
newspaper publishers and editors) within the State or 
district; and the preferences of party leaders. Neither his- 
tory nor precedent suggests that political party committees 
have a favored constitutional status that would entitle them 
to utilize a mode of influence—large coordinated expendi- 
tures in support of candidates for federal office—that other 
participants in the public dialogue are forbidden to employ. 

A. The Framers Distrusted Political Parties And Did 

Not Intend To Vest Them With Any Favored Con- 
stitutional Status 

“Partisan politics bears the imprimatur only of tradition, 
not the Constitution.” Elrod v. Burns, 427 U.S. 347, 369 n.22 
(1976) (plurality opinion). Commenting on the political be- 
liefs of such men as Washington, Adams, Madison, Hamilton, 
and Jefferson, the historian Richard Hofstadter has written: 
“If there was one point of political philosophy upon which 
these men, who differed on so many things, agreed quite 
readily, it was their common conviction about the baneful 
effects of the spirit of party.” Richard Hofstadter, The Idea 
of a Party System 3 (1970). The Framers “equated parties 

committee should have only a limited ability to use coordinated campaign 
expenditures as a means of influencing its members—is similarly valid. 

40 

with divisiveness, disruption, and conspiracy against govern- 
ment. The Constitution had not anticipated parties and had 
made no provision for their existence. In the Federalist 
papers Madison had stressed the argument that the Consti- 
tution would, in fact, control ‘the violence of faction.’ ” Noble 
E. Cunningham, Jr., “The Jeffersonian Republican Party,” in 
1 History of U.S. Political Parties 240 (A. Schlesinger ed., 
1973); see The Federalist No. 10, at 77 (J. Madison) (Clinton 
Rossiter ed., 1961). 

Any reference to the Framers’ distrust of political parties 
is subject to at least two important caveats. First, although 
the Framers were concerned about the potentially deleteri- 
ous effects of parties, they did not seek to suppress partisan 
activity directly. Rather, recognizing that direct suppres- 
sion of parties would entail unacceptable threats to liberty, 

19 

they sought instead to devise governmental structures that 
would have the practical effect of curtailing the parties’ 
influence. As one eminent political scientist has explained: 

[T]he Convention at Philadelphia produced a constitution 
with a dual attitude: it was proparty in one sense and 
antiparty in another. The authors of the Constitution 
refused to suppress the parties by destroying the funda- 

19 Thus, Madison acknowledged that one possible “method[] of remov- 
ing the causes of faction” was to “destroy[] the liberty which is essential to 
its existence.” The Federalist No. 10, supra, at 78. Madison vigorously 
opposed that approach, however, explaining: 

It could never be more truly said than of [that] remedy that it was 
worse than the disease. Liberty is to faction what air is to fire, an 
aliment without which it instantly expires. But it could not be a less 
folly to abolish liberty, which is essential to political life, because it 
nourishes faction than it would be to wish the annihilation of air, 
which is essential to animal life, because it imparts to fire its 
destructive agency. 

Ibid. 

41 

mental liberties in which parties originate. They or their 
immediate successors accepted amendments that guar- 
anteed civil rights and thus established a system of party 
tolerance, i.e., the right to agitate and to organize. This 
is the proparty aspect of the system. On the other hand, 
the authors of the Constitution set up an elaborate 
division and balance of powers within an intricate gov- 
ernmental structure designed to make parties ineffec- 
tive. It was hoped that the parties would lose and 
exhaust themselves in futile attempts to fight their way 
through the labyrinthine framework of the government, 
much as an attacking army is expected to spend itself 
against the defensive works of a fortress. This is the 
antiparty part of the constitutional scheme. 

E.E. Schattschneider, Party Government 7 (1942) (footnotes 
omitted). 

Second, notwithstanding the Framers’ philosophical objec- 
tions to political parties, partisan activity has been an 
important feature of American political life for nearly all of 
the Nation’s history. “The formation of national political 
parties was almost concurrent with the formation of the 
Republic itself.” California Democratic Party v. Jones, 120 
S. Ct. 2402, 2408 (2000); see Cunningham, supra, at 240 (“In a 
single decade, then, the nonparty conditions which had 
existed when Washington took office had been replaced by a 
two party system”); Hofstadter, supra, at 4 (although “[t]he 
Founding Fathers had inherited a political philosophy which 

* * * denied the usefulness of parties and stressed their 
dangers,” the Framers “deeply believed in the necessity of 
checks on power, and hence in freedom for opposition, and 
were rapidly driven, in spite of their theories, to develop a 
party system.”). 

Thus, the historical evidence amply supports this Court’s 
repeated holdings (see, e.g., California Democratic Party, 

42 

120 S. Ct. at 2408; Tashjian v. Republican Party of Conn., 
479 U.S. 208, 214 (1986)) that the freedom of speech and 
association protected by the First Amendment encompasses 
the right to form and operate a political party. The question 
in the instant case, however, is whether the First Amend- 
ment entitles political parties not only to exist and to advo- 
cate, but also to an exemption from the coordinated spending 
limits that apply to other organizations, including organiza- 
tions whose principal function is political advocacy. The 
drafting and ratification history of the Constitution provides 
no support for that proposition. The Framers regarded 
political parties as an inevitable feature of a free society, but 
they did not intend to create special privileges or incentives 
for partisan activity. 

As we explain above, the evil at which the FECA spend- 
ing limits are directed is not private influence per se, but 
influence exerted through financial largesse. Respondent 
asserts a constitutional right not simply to exert “influence 
over the positions of its candidates” (Pet. App. 22a), but to 
employ a means of influence that is forbidden to other par- 
ticipants in the political fray. Reasonable people may surely 
believe that the stability and efficacy of the federal govern- 
ment will be increased if elected officials are encouraged, in 
balancing the demands of competing constituencies (see p. 
39, supra), to display primary loyalty to the party leader- 
ship. But the Framers clearly did not intend to enshrine 
that preference in the Constitution. 

43 

B. The Formal Role Of Political Parties In The 

States’ Electoral Process Has Traditionally Been 
Treated As A Ground For Increased State Regu- 
lation, Not As A Basis For Heightened First 
Amendment Protection 

The FECA defines the term “political party” to mean “an 
association, committee, or organization which nominates a 
candidate for election to any Federal office whose name 
appears on the election ballot as the candidate of such 
association, committee, or organization.” 2 U.S.C. 431(16). 
Thus, under the Act, the distinguishing feature of a political 
party (as opposed to other organizations that endorse 
candidates for federal office and spend money in their 
support) is that the candidate is officially identified, on the 
ballot, as the party’s nominee. 

The modern practice, in Colorado and among the States 
generally, is that the major political parties are entitled by 
law to have their nominees placed upon the ballot, and the 
candidates are identified on the ballot by party affiliation. 

20 

20 One commentator explains that the States typically “grant[] prefer- 
ential ballot access to the nominees of political parties, thereby making 
party nomination a kind of ‘feeder’ into the state’s official political system. 
Every state grants access to the general election ballot to the nominees of 
political parties that satisfy certain conditions, conditions that typically 
differ from those that independent candidates must satisfy.” Laurence H. 
Tribe, American Constitutional Law § 13-23, at 1121 (2d ed. 1988). Under 
Colorado law, the nominees of all “political parties” are placed on the bal- 
lot for all “partisan elections.” Colo. Rev. Stat. Ann. § 1-5-404(1) (West 
Supp. 1996); see id. § 1-1-104(23.6) (West Supp. 1996) (defining the term 
“partisan election” to mean “an election in which the names of the candi- 
dates are printed on the ballot along with their affiliations”). All elections 
for federal office conducted in Colorado are “partisan elections.” Id. § 1-4- 
502(1) (1973 & West Supp. 1996). The term “political party” is defined to 
mean “any political organization whose candidate at the last preceding 
gubernatorial election received at least ten percent of the total gubernato- 
rial vote cast.” Id. § 1-1-104(25) (West Supp. 1996). Colorado law also es- 

44 

But nothing in the Constitution mandates that approach. 
Consistent with the Constitution, the States might choose 
instead to make ballot access contingent for all candidates on 
the submission of a particular number of signatures. The 
States might also decide that candidates should be listed on 
the ballot by name alone, without reference to party or other 
group affiliation. Under such a system, individuals would 
retain their First Amendment right to associate for the 
purpose of endorsing and supporting particular candidates or 
slates of candidates. But the identification of the candidate 
with the association on the ballot itself—the feature that 
(under the FECA) distinguishes political parties from other 
advocacy groups—is the product of state discretion rather 
than constitutional command. 

Neither logic nor precedent suggests that a State’s deci- 
sion to give an organization official recognition on the ballot 
expands the organization’s First Amendment rights by 
eliminating Congress’s authority to impose coordinated 
spending limits that are validly applied to non-party political 
committees. 

21 To the contrary, when a political party 
assumes an official role in the State’s electoral machinery, it 
is typically subject to greater constraints than a political 
organization acting in a purely private capacity. This Court 
has held that “when a State prescribes an election process 
that gives a special role to political parties,” the parties’ 

tablishes a petition procedure for placing on the ballot the names of 
“[c]andidates for partisan public offices * * * who do not wish to affiliate 
with a political party,” id. § 1-4-802(1) (West Supp. 1996), and provides for 
write-in voting as well, see id. § 1-4-1101 (West Supp. 1996). 

21 Of course, respondent could in theory propose a definition of “politi- 
cal party” other than that contained in the FECA, and could contend that 
political parties (so defined) are constitutionally entitled to an exemption 
from the coordinated expenditure limits that apply to other donors. But 
neither respondent nor the courts below have suggested an alternative 
method of distinguishing a “party” from a non-party political committee. 

45 

conduct may for certain purposes be attributed to the State 
itself, thereby subjecting the parties to constitutional 
requirements that would not apply to wholly private actors. 
California Democratic Party, 120 S. Ct. at 2407. More 
generally, the “States have a major role to play in structur- 
ing and monitoring the election process, including prima- 
ries,” id. at 2406, and in performing that responsibility the 
State has significant latitude to regulate the political parties’ 
internal decisionmaking processes. The Court has “con- 
sidered it ‘too plain for argument,’ for example, that a State 
may require parties to use the primary format for selecting 
their nominees, in order to assure that intraparty competi- 
tion is resolved in a democratic fashion.” Id. at 2407 (quoting 
American Party of Tex. v. White, 415 U.S. 767, 781 (1974)). 

22 

Notwithstanding their involvement with the State’s elec- 
toral machinery, political parties retain a significant private 
character, and a corresponding right to invoke the guaran- 
tees of the Constitution. This Court has squarely rejected 
“the proposition that party affairs are public affairs, free of 
First Amendment protections.” California Democratic 
Party, 120 S. Ct. at 2407. As we emphasize above, however, 
the FECA restrictions at issue in this case do not impose 
special restrictions on a party’s efforts to support its nomi- 
nees, but instead permit party-coordinated expenditures in 
amounts substantially greater than the limits that apply to 

22 In considering constitutional challenges to state ballot-access restric- 
tions, the Court has similarly recognized that the States have significant 
(though not unlimited) discretion to impose reasonable limits in order to 
prevent voter confusion and preserve the stability of its political system. 
See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357-370 
(1997); Norman v. Reed, 502 U.S. 279, 288-296 (1992); Munro v. Socialist 
Workers Party, 479 U.S. 189, 193-199 (1986); Anderson v. Celebrezze, 460 
U.S. 780, 786-806 (1983); Storer v. Brown, 415 U.S. 724, 728-746 (1974); 
Jenness v. Fortson, 403 U.S. 431, 434-442 (1971); Williams v. Rhodes, 393 
U.S. 23, 30-35 (1968). 

46 

other donors. Respondent claims not merely a First Amend- 
ment right to engage in political association and advocacy, 
but a First Amendment right to a complete exemption from 
the campaign spending limits that apply (and that have been 
upheld by this Court as applied) to other would-be donors. 
Because the quasi-official status of political parties has 
traditionally been regarded as a justification for increased 
regulation of their affairs (in comparison to those of other 
advocacy groups), respondent’s theory is unsupported by 
this Court’s precedents. 

State regulation of the party nominating process, like the 
FECA limits on party coordinated expenditures, has his- 
torically served to reduce the power of the party hierarchy 
and to promote candidate responsiveness to a broader 
constituency. “The Progressive Era laws that shifted con- 
trol over nominations from party committees and conven- 
tions to primaries constituted an effort to reduce the influ- 
ence of party organizations over party candidates, presuma- 
bly reflecting the notion that candidates (and elected 
officials) would embrace different positions on issues of 
public importance if they were less beholden to party 
officials.” Richard Briffault, Campaign Finance, the Parties, 
and the Court, 14 Counts. Comm. 91, 117 (1997). If the First 
Amendment permits the States to pursue that objective by 
imposing rules on party governance that have no 
counterpart with respect to other political associations, 
Congress can surely subject the parties to spending limits 
that are similar in kind to (and less stringent than) the caps 
that apply to political committees generally. 

47 

C. Legislative Judgments Regarding The Appropriate 

Balance Between The Maintenance Of A Vigorous 

Party System And The Prevention Of Corruption Are 

Entitled To Substantial Deference 

As the dissenting judge in the court of appeals observed, 
“determining which measures suitably balance the nurture 
of political parties and the prevention of their use as tools of 
corruption is a matter for the legislative rather than the 
judicial process.” Pet. App. 39a (Seymour, C.J., dissenting); 
see also id. at 50a (“As a matter of common sense, it is 
difficult to credit the bald assertion that politicians do not 
understand the role political parties play in American 
politics.”); Shrink Mo., 120 S. Ct. at 912 (Breyer, J., con- 
curring) (“Where a legislature has significantly greater insti- 
tutional expertise, as, for example, in the field of election 
regulation, the Court in practice defers to empirical legis- 
lative judgments.”); cf. FEC v. National Right to Work 
Comm., 459 U.S. 197, 209 (1982) (Congress’s “careful legis- 
lative adjustment of the federal electoral laws * * * to 
account for the particular legal and economic attributes of 
corporations and labor organizations warrants considerable 
deference”). 

By vesting political parties with a preferred constitutional 
status, respondent would disable Congress and the States 
from imposing limits on the parties’ campaign spending. 

23 

23 In Missouri Republican Party v. Lamb, 227 F.3d 1070 (8th Cir. 
2000), a divided panel of the Eighth Circuit recently held that a state-law 
limitation on cash and in-kind contributions by political parties to can- 
didates violates the party’s First Amendment rights. The court rejected 
Missouri’s contention that the contribution limit serves to prevent actual 
or apparent political corruption, stating that “it is not easy to see how a 
party could ‘corrupt’ one of its own candidates, since, on account of their 
general unity of purpose, they are committed, in the main, to the same 
aims and principles.” Id. at 1073. The court relied in part on the Tenth 
Circuit’s decision in the instant case. See id. at 1072, 1073. The dissenting 

48 

Although this Court has recognized the substantial public 
and governmental interest in the effective functioning of our 
current two-party system, see, e.g., Timmons v. Twin Cities 
Area New Party, 520 U.S. 351, 366-367 (1997); Davis v. 
Bandemer, 478 U.S. 109, 144-145 (1986) (O’Connor, J., 
concurring), federal and state legislatures have traditionally 
enjoyed significant latitude to determine how that interest is 
best effectuated and how it is appropriately balanced against 
competing objectives. Acceptance of respondent’s constitu- 
tional argument, by contrast, would sharply restrict legisla- 
tive authority to define and limit the appropriate role of the 
parties vis-à-vis other participants in the political fray. 

24 

judge would have upheld the law on the ground that “contributions made 
by a political party are no different than contributions made by individuals 
or other groups.” Id. at 1077 (John R. Gibson, J., concurring and dis- 
senting). He concluded that “[b]ecause Missouri’s limits on cash contri- 
butions that a party may make to a candidate are closely drawn to meet a 
sufficiently important governmental interest, they do not violate the First 
Amendment.” Ibid. 

24 One commentator explains: 

In essence, the question of whether party committee coordinated 
spending raises a danger of parties corrupting candidates is really a 
question of how much or how little potential for influence parties 
ought to be allowed to have over their candidates’ campaigns–-and 
whether Congress or the Court should decide this. Certainly, elected 
officials seem to be in a much better position to consider and combine 
the multiple and often conflicting values of candidate autonomy, party 
responsibility, voter participation, and the potential for parties to 
serve as conduits for special interest influence. Elected officials are 
more likely to understand the impact of the campaign finance laws on 
the political process and the interaction of party spending with other 
campaign finance laws and governance generally. 

Briffault, Campaign Finance, the Parties, and the Court, 14 Const. 
Comm. at 118-119. Professor Briffault notes that “there is no reason to 
believe that elected officials are likely to be hostile to party interests,” 
since “[t]he vast majority of elected federal and state officials are elected 
on party lines and nearly all carry major party labels.” Id. at 119. He 

49 

With respect to federal elections, Congress has specifi- 
cally addressed the subject of campaign spending by political 
parties and has attempted to draw an appropriate balance 
between competing objectives. See 2 U.S.C. 441a(d). 
Recognizing the distinctive role that political parties have 
come to play in our system of government, Congress has 
authorized party committees to make coordinated expendi- 
tures in amounts much greater than the limits that apply to 
other donors. Congress has declined, however, to leave 
party campaign spending wholly unconstrained. Because an 
Act of Congress comes to this Court with a presumption of 
constitutionality; because the Court has already upheld 
against First Amendment challenge the more stringent coor- 
dinated spending limits applicable to non-party organiza- 
tions; and because Members of Congress are neither igno- 
rant of the practical needs of political parties nor hostile to 
their interests, that legislative judgment should be sus- 
tained. 

acknowledges the existence of “considerable scholarly support for a party- 
centered campaign finance system as a step toward creating a more 
‘responsible’ two-party system, with attendant benefits for government 
performance and responsiveness.” Id. at 118. He concludes, however, 
that “[a] party-centered system might very well be a good idea. But it 
would be a major departure from past and present practice. And it is hard 
to believe that the decision whether to have a party-centered or can- 
didate-centered system is a question of constitutional law, to be decided 
by the Supreme Court, rather than a preeminently political question to be 
decided by Congress.” Id. at 120. 

50 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

LAWRENCE M. NOBLE 

General Counsel 

RICHARD B. BADER 

Associate General Counsel 

DAVID KOLKER 

Attorney 
Federal Election 

Commission 
SETH P. WAXMAN 

Solicitor General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

DECEMBER 2000