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 

REPLY BRIEF FOR THE PETITIONER 

LOIS G. LERNER 

Acting General Counsel 
Federal Election 

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

Solicitor General 

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

TABLE OF CONTENTS 

Page 

I. The distinctive relationship between political 

parties and their candidates provides no basis for 

facial invalidation of the FECA’s limits on co- 
ordinated party spending .................................................. 

2 

II. The FECA limits on party-coordinated expenditures 

are a reasonable and constitutionally permissible 

means of preventing actual or apparent political 

corruption ............................................................................. 8 

TABLE OF AUTHORITIES 

Cases: 

Buckley v. Valeo: 

424 U.S. 1 (1976) ................................................................. 

passim 

519 F.2d 821 (D.C. Cir. 1975) ............................................... 

10 

Burson v. Freeman, 504 U.S. 191 (1992) ........................... 

10-11 

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

(1981) ........................................................................................ 11 

FEC v. Democratic Senatorial Campaign Comm., 

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

11 

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

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

11 

Garcia v. United States, 469 U.S. 70 (1984) ...................... 

19 

Mariani v. United States, 212 F.3d 761 (3d Cir.), 

cert. denied, 121 S. Ct. 564 (2000) ....................................... 

4 

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

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

10, 11, 15-16, 17 

Constitution and statute: 

U.S. Const. Amend. I ........................................................... 2, 9, 17 

(I) 

II 

Statute: Page 

Federal Election Campaign Act of 1971, 2 U.S.C. 431 

et seq.: 

2 U.S.C. 434 ........................................................................ 

15 

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

16 

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

16 

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

4 

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

9 

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

1, 5, 6, 8, 9, 16, 17, 18 

Miscellaneous: 

62 Fed. Reg. 50,712 (1997) ....................................................... 

7 

H.R. Conf. Rep. No. 1057, 94th Cong., 2d Sess. 
(1976) ........................................................................................ 18 

Party Fundraising Escalates, FEC News Release 
(Jan. 12, 2001) (available in www.fec.gov) ........................ 4 

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 

REPLY BRIEF FOR THE PETITIONER 

As we explain in our opening brief (at 5-6, 18-19), the 
statutory provision at issue in this case (2 U.S.C. 
441a(d)) does not impose any special disadvantage on 
political parties. Rather, the effect of Section 441a(d) is 
to allow party committees to make coordinated ex- 
penditures in support of their candidates for federal 
office in amounts far greater than the limits that apply 
to other donors. Our opening brief further explains (at 
16-18) that, as applied to individuals and to organi- 
zations other than political parties, the coordinated 
expenditure limits contained in the Federal Election 
Campaign Act of 1971 (FECA) have previously been 
sustained by this Court as a constitutionally permis- 
sible means of addressing the danger of actual or 

(1) 

2 

perceived political corruption. Thus, the question in 
this case is whether a party committee is entitled by 
the First Amendment to a complete exemption from 
coordinated spending limits that are valid as applied to 
other persons. 

Respondent offers two basic arguments in support of 
its claim to such an exemption. First, respondent 
contends (Br. 25-32) that a restriction on coordinated 
spending—or, to put it a slightly different way, a 
requirement that spending in excess of the applicable 
FECA limit must be made independently of the 
candidate—imposes greater burdens on political parties 
than on other donors. Second, respondent argues (Br. 
33-49) that the government has failed to demonstrate 
the corruptive potential of coordinated spending by 
political parties. For the reasons that follow, those 
arguments lack merit. 

I. THE DISTINCTIVE RELATIONSHIP BETWEEN 
POLITICAL PARTIES AND THEIR CANDI- 
DATES PROVIDES NO BASIS FOR FACIAL 
INVALIDATION OF THE FECA’S LIMITS ON 
COORDINATED PARTY SPENDING 

Respondent contends that the FECA limits on coor- 
dinated expenditures impose greater burdens on 
political parties than on other donors because (a) 
“[p]arties exist precisely to elect candidates that share 
the goals of their party” (Br. 26), and (b) “political 
parties find independent speech to be much less 
effective than coordinated speech” (Br. 29). Those 
arguments provide no basis for facial invalidation of the 
FECA’s limits on party-coordinated expenditures. 

A. In Buckley v. Valeo, 424 U.S. 1 (1976) (per 
curiam), this Court upheld the FECA’s limitations on 
contributions, finding that they serve a compelling 

3 

government interest in “the prevention of corruption 
and the appearance of corruption spawned by the real 
or imagined coercive influence of large financial 
contributions on candidates’ positions and on their 
actions if elected to office.” Id. at 25; see id. at 23-38. 
The Court recognized as well that “controlled or coordi- 
nated expenditures are treated as contributions rather 
than expenditures under the Act,” in order to “prevent 
attempts to circumvent the Act through prearranged or 
coordinated expenditures amounting to disguised 
contributions.” Id. at 46, 47. 

The Court struck down the Act’s restrictions on inde- 
pendent expenditures, however, concluding that “the 
independent advocacy restricted by the [FECA] does 
not presently appear to pose dangers of real or 
apparent corruption comparable to those identified with 
large campaign contributions.” 424 U.S. at 46. The 
Court explained that 

[u]nlike contributions, such independent expendi- 
tures may well provide little assistance to the can- 
didate’s campaign and indeed may prove counter- 
productive. The absence of prearrangement 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. Thus, respondent’s assertion 
that its independent expenditures are “much less 
effective than coordinated speech” provides no basis for 
distinguishing political parties from other would-be 
donors. To the contrary, the view that independent 
expenditures will generally be less efficacious than co- 

4 

ordinated spending in bringing about the election of the 
payor’s favored candidate was a central premise of the 
Buckley decision. 

B. Respondent contends (Br. 29) that the extensive 
interaction between candidates and party officials dur- 
ing the course of a campaign makes it especially diffi- 
cult and inefficient for the party to establish and 
maintain independence from the candidate with respect 
to particular expenditures. Respondent offers no 
meaningful support for that statement beyond the bare 
assertion that it is so.1 But even if respondent’s 
contention were empirically well-supported, the diffi- 

1 Under the FECA, the distinction between independent and 
coordinated expenditures turns on whether an expenditure is 
made “in cooperation, consultation, or concert, with” the candidate 
or his agents. 2 U.S.C. 441a(a)(7)(B)(i). As this Court’s decision in 
Colorado I shows, the general role of party officials in supporting 
the party’s candidates does not necessarily preclude the party 
from acting independently of the candidate with respect to 
individual expenditures. Respondent acknowledges (Br. 17) that 
so-called “soft money” (see Gov’t Br. 32) cannot be spent in 
coordination with a candidate for federal office; yet the volume of 
“soft money” spending by the two major political parties is very 
large and growing rapidly. See Party Fundraising Escalates, FEC 
News Release at 2 (Jan. 12, 2001) (available in www.fec.gov) 
(reporting that from January 1, 1999, through November 27, 2000, 
“Republicans raised $244.4 million [in soft money], an increase of 
73% over the same period in 1995-96, the last presidential cycle, 
while Democrats raised $243 million, a 99% increase”). And while 
soft money cannot be used for communications that expressly 
advocate the election or defeat of a candidate for federal office, it 
has frequently been used for advertisements that focus on the 
merits of particular federal candidates. See Mariani v. United 
States, 212 F.3d 761, 768 & n.4 (3d Cir.) (en banc), cert. denied, 121 
S. Ct. 564 (2000). That pattern of spending indicates that political 
parties have in fact successfully engaged in substantial campaign- 
related advertising without coordinating with their candidates. 

5 

culty of making independent expenditures would not 
entitle any particular donor to make coordinated expen- 
ditures in excess of the FECA limits. No individual or 
non-party organization would be permitted to grant 
itself (in effect) an exemption from the FECA’s 
coordinated spending limits simply by establishing a 
relationship with a candidate that made independent 
expenditures infeasible. Even assuming arguendo the 
empirical accuracy of respondent’s assertion— i.e., that 
the existence of a particularly close overall relationship 
between a candidate and a political committee makes it 
more “complex, expensive, and difficult” (Resp. Br. 29) 
for the organization to make independent expenditures 
in the candidate’s support—respondent is simply 
confronted with the same choice that the FECA re- 
quires of any other organization engaged in political 
advocacy. 

C. As we explain in our opening brief (at 39-49), 
political parties have no constitutional entitlement to an 
exemption from the coordinated spending limits that 
apply to other potential donors. Congress has recog- 
nized, however, that parties have come to play a role in 
the Nation’s electoral processes significantly different 
from that of other political organizations. 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 substantially exceed the Act’s 
limitations on contributions to candidates. See Gov’t 
Br. 18-19. 

Thus, insofar as the maintenance of independence 
from the candidate with respect to particular expendi- 
tures might be thought to entail greater practical 
burdens on party committees than on other political 
organizations, Section 441a(d) alleviates the disparity 

6 

by authorizing parties to engage in substantially 
greater coordinated spending than the Act otherwise 
allows. As our opening brief explains (at 47-49), the 
task of fashioning an appropriate balance between 
facilitation of the parties’ distinctive functions and the 
prevention of political corruption is preeminently a 
legislative endeavor. Respondents have offered no per- 
suasive ground for concluding that Congress has drawn 
the balance in a constitutionally unacceptable manner. 

D. As our opening brief explains (at 20-21), the effect 
of the court of appeals’ decision is to preclude enforce- 
ment of the FECA limits on party-coordinated expendi- 
tures even with respect to party spending (e.g., 
payment of the candidate’s bills) that is the functional 
and constitutional equivalent of a direct contribution of 
money. Respondent does not explain how the FECA 
limits on that form of coordinated spending subject 
political parties to greater hardship than other political 
committees experience as a result of the analogous 
(though much lower) limits applicable to them. Indeed, 
respondent expressly disavows any constitutional chal- 
lenge to the FECA’s $5000 limit on the amount that a 
political party may contribute to one of its candidates. 
See Resp. Br. 50 n.31. 

Nor does respondent suggest—much less 
demonstrate—that expenditures of the sort described 
above constitute an insubstantial portion of overall 
party-coordinated spending. Respondent asserts (Br. 

25) that Section 441a(d) “limits party speech,” based 
on its expert’s determination that “[o]ver 90% of the 
monies spent by national party committees on behalf of 
their candidates is spent on political communication.” 
Respondent’s statement is apparently intended to 
convey the impression that most party-coordinated 
spending is devoted to communication of the party’s 

7 

own ideas. But money “spent on political communi- 
cation” would include “direct payment of a candidate’s 
media bills”—a form of coordinated expenditure that 
involves no meaningful communication by the party 
itself, and that the plurality in Colorado I characterized 
as “virtually indistinguishable from simple contri- 
butions.” Pet. App. 111a. Indeed, the same expert 
stated, with respect to the national parties’ coordinated 
expenditures, that “[t]he predominant approach is to 
provide candidates with the funding needed to broad- 
cast their messages or post letters to selected voters 
within their districts.” J.A. 209; see Gov’t Br. 20-21. 
That Section 441a(d) constrains a political party’s 
ability to pay for its candidates’ speech does not mean 
that the statute significantly impairs the party’s ability 
to engage in its own communication.2 

2 Respondent attaches significance to the Federal Election 
Commission’s statement, in a Federal Register notice, that 
“coordinated party expenditures . . . are not contributions.” 
Resp. Br. 10 (emphasis omitted); see Resp. Br. 32. The import of 
the Commission’s Federal Register statement, however, was 
simply that for recordkeeping purposes, a party’s coordinated 
expenditures in support of its federal candidates must be reported 
separately from its direct monetary contributions. See 62 Fed. 
Reg. 50,712 (1997). In addition, the FECA distinguishes between 
party-coordinated expenditures and party contributions to 
candidates to the extent of establishing separate limits for each. 
See Gov’t Br. 5-6 n.3. Those technical distinctions under the 
statute and regulations are in no way inconsistent with this Court’s 
repeated recognition that for constitutional purposes, coordinated 
expenditures are regulable on the same terms as direct 
contributions. That equivalence is particularly clear with respect 
to coordinated expenditures, such as payment of a candidate’s bills, 
that involve no meaningful communication of the party’s own 
views. 

8 

II. THE FECA LIMITS ON PARTY-COORDINATED 
EXPENDITURES ARE A REASONABLE AND 
CONSTITUTIONALLY PERMISSIBLE MEANS 
OF PREVENTING ACTUAL OR APPARENT 
POLITICAL CORRUPTION 

Respondent’s principal argument is that the govern- 
ment has failed to demonstrate a sufficient logical or 
empirical connection between party-coordinated ex- 
penditures and political corruption to justify the 
spending limits imposed by Section 441a(d). For the 
reasons that follow, that argument is unsound. 

A. As our opening brief explains (at 31-32 n.14), the 
Federal Election Commission introduced extensive evi- 
dence indicating that donors who have contributed the 
maximum permissible amount to an individual 
candidate are frequently urged to contribute additional 
sums to the candidate’s party, and through informal 
understandings are encouraged to expect that the party 
will make equivalent expenditures in support of the 
candidate’s campaign. The purpose and effect of 
fundraising techniques like the “tally system” is that 
both the donor and the candidate are aware of the 
causal connection between the donor’s contribution to 
the party and the candidate’s subsequent receipt of 
financial support. See, e.g., J.A. 273 (former Senator 
Tim Wirth asserts that in soliciting funds for the state 
party, he “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”). 
Under those circumstances, the corruptive potential of 
the private donation is not meaningfully less than if the 
contribution were made directly to the candidate 

9 

himself. Although Section 441a(d) does not entirely 
prevent such arrangements, it substantially reduces the 
potential for circumvention of the caps on contributions 
to candidates by limiting the aggregate amounts of 
money that can be channeled through the parties.3 

In asserting that “the FEC failed to identify a single 
instance in which a modern political party has cor- 
rupted a member of Congress” (Resp. Br. 33 (emphasis 
omitted)), respondent apparently means that the 
evidence presented to the district court identified no 
occasion in which party-coordinated spending was 
demonstrably used to alter the voting behavior of a 
Member of Congress. But nothing in this Court’s 
decisions suggests that empirical evidence of that na- 
ture is necessary in order to sustain a campaign funding 
restriction that is premised on an anti-corruption 
rationale. Indeed, while the Court in Buckley referred 
in passing to “the deeply disturbing examples [of 
political corruption] surfacing after the 1972 election,” 
424 U.S. at 27; see id. at 27 n.28 (explaining that “[t]he 
Court of Appeals’ opinion in [Buckley] discussed a 

3 The fact that the tally system is not itself unlawful (see Resp. 
Br. 39-40, 42) does not reduce the force of our argument on this 
point. To the contrary, the absence of any legal prohibition on 
arrangements (like the tally system) that do not involve definite 
commitments by the party, but that nevertheless create a practical 
danger of circumvention of the FECA contribution limits, rein- 
forces the propriety of Section 441a(d)’s caps on party-coordinated 
expenditures. Nor is there merit to respondent’s argument (Br. 

42) that Congress is constitutionally required to broaden the 
earmarking prohibition contained in 2 U.S.C. 441a(a)(8) in pre- 
ference to restricting party-coordinated spending. An effort to 
broaden the earmarking ban (e.g., by prohibiting donors to the 
party from expressing to party officials their particular support for 
individual candidates) could itself raise serious First Amendment 
concerns. 

10 

number of the abuses uncovered after the 1972 
elections”), neither this Court nor the court of appeals 
in that case identified any instance in which a legis- 
lator’s vote was shown to have been altered by the 
receipt of large contributions. Rather, the thrust of the 
evidence to which the Court alluded was simply that 
large campaign contributions by persons having an 
interest in the outcome of a government decision would 
create a significant danger (and a corresponding public 
perception) of “improper influence” (Buckley, 424 U.S. 
at 27; Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897, 
905 (2000)) based on financial largesse. See Buckley v. 
Valeo, 519 F.2d 821, 839-840 (D.C. Cir. 1975).4 

B. In emphasizing the supposed dearth of evidence 
regarding the corruptive effects of party-coordinated 
expenditures, respondent altogether ignores the fact 
that the FECA has limited party spending for over 25 
years. Questions concerning the corruptive potential 
of unrestricted party-coordinated spending therefore 
must necessarily be resolved on the basis of logical 
inferences regarding the likely consequences of a future 
change in the governing legal regime. Cf. Burson v. 

4 Much of the evidence on which the court of appeals in Buckley 
relied indicated that “[l]arge contributions are intended to, and do, 
gain access to the elected official after the campaign for con- 
sideration of the contributor’s particular concerns.” 519 F.2d at 
838; see id. at 839-840 nn.36-38. The court evidently regarded the 
purchase of access as an appropriate object of congressional con- 
cern, even in the absence of direct evidence that votes in Congress 
or substantive government decisions had been altered in response 
to large campaign contributions. Similarly in the instant case, the 
Commission introduced substantial evidence that party com- 
mittees solicit large contributions to the party through promises to 
facilitate meetings between donors and the party’s Members of 
Congress. See, e.g., J.A. 91-93, 96-98. 

11 

Freeman, 504 U.S. 191, 208 (1992) (opinion of Black- 
mun, J.) (“The fact that these laws have been in effect 
for a long period of time also makes it difficult for the 
States to put on witnesses who can testify as to what 
would happen without them.”).5 

As our opening brief explains (at 18-19, 49), Congress 
in establishing limits on party-coordinated spending has 
endeavored to strike an appropriate balance between 
the prevention of actual or apparent corruption and the 
desire to “assur[e] that political parties will continue to 
have an important role in federal elections.” FEC v. 
Democratic Senatorial Campaign Comm., 454 U.S. 27, 
41 (1981). That effort is in keeping with this Court’s 
recognition that “the ‘differing structures and purposes’ 
of different entities ‘may require different forms of 
regulation in order to protect the integrity of the 
electoral process.’ ” 

FEC v. National Right to Work 
Comm., 459 U.S. 197, 210 (1982) (quoting California 
Med. Ass’n v. FEC, 453 U.S. 182, 201 (1981)). The con- 
stitutional legitimacy of the balance struck by Congress 
can scarcely be thought to depend on proof that Section 
441a(d) has failed to achieve its objective. 

C. The FECA limits on federal campaign contri- 
butions (defined to include coordinated expenditures) 
rest on Congress’s judgment that donations above the 
statutory limits create a sufficient risk of actual or 
perceived political corruption to warrant the adoption 
of a prophylactic rule. In Buckley, this Court sustained 

5 By contrast, the contribution limits at issue in both Buckley 
and Shrink Missouri were subjected to constitutional challenge 
shortly after their enactment. See Buckley, 424 U.S. at 6-7; Shrink 
Mo., 120 S. Ct. at 901-902. It was therefore somewhat more 
feasible to expect the government in defending those laws to pre- 
sent evidence indicating that the abuses at which the caps were 
directed had actually occurred in the recent past. 

12 

the FECA contribution limits, notwithstanding the 
Court’s assumption 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 
explained that it is “difficult to isolate suspect contri- 
butions,” and that “Congress was justified in concluding 
that the interest in safeguarding against the appear- 
ance of impropriety requires that the opportunity for 
abuse inherent in the process of raising large monetary 
contributions be eliminated.” Id. at 30. Neither 
Buckley nor this Court’s subsequent campaign-finance 
decisions suggest that the danger of corruption must be 
proved separately with respect to each potential cate- 
gory of donor. 

To the contrary, the Court in Buckley upheld the 
application of the FECA contribution limits to mem- 
bers of a candidate’s immediate family, even though 
it was not presented with either record evidence or 
legislative findings of corruption by family members. 
424 U.S. at 53 n.59. The Court explained that 
“[a]lthough the risk of improper influence is somewhat 
diminished in the case of large contributions from 
immediate family members, we cannot say that the 
danger is sufficiently reduced to bar Congress from 
subjecting family members to the same limitations as 
nonfamily contributors.” Ibid. Similarly here, since 
respondent seeks a categorical exemption from spend- 
ing limits that have been held valid as applied to 
individuals and non-party political committees, it is 
respondent’s burden to demonstrate that unlimited 
party-coordinated spending will not create the same 

13 

potential for abuse as similar expenditures by non- 
party donors.6 Respondent cannot make that showing. 

1. The individuals who direct the disbursement of 
party funds—who are in many instances themselves 
Members of Congress responsible to the party’s 
congressional leadership (see Gov’t Br. 33 n.16)—have 
an obvious and substantial interest in the voting be- 
havior of legislators within the party. Although the 
election to Congress of as many party members as 
possible is certainly one of the party’s goals (see Resp. 
Br. 26-27, 34), that goal is subordinate to the party’s 
ultimate objective of implementing a legislative pro- 
gram. A Member of Congress who is nominally aligned 
with a political party, but who regularly flouts the 
wishes of the party leadership, is at best an uncertain 
asset. There is no reason to believe that the officials 
charged with allocating the party’s funds would be 
more willing than other donors to forgo efforts to utilize 
coordinated expenditures as a means of influencing 
legislative behavior. To the contrary, because party- 
coordinated expenditures will often be controlled by a 
small number of individuals who are intensely inter- 
ested in the voting behavior of the party’s candidate 
once elected or re-elected to office (see Gov’t Br. 33 & 

6 Respondent contends (Br. 30) that coordinated spending by a 
political party in support of its candidates should be regarded as 
analogous to the candidate’s financial support of his own campaign, 
which the Court in Buckley held (see 424 U.S. at 51-54) could not 
constitutionally be limited. But if the candidate’s immediate family 
members are treated as sufficiently distinct from the candidate to 
permit limitation of their coordinated expenditures, there is no 
reason that a different constitutional rule should apply to party 
officials. 

14 

n.16), the rationale of Buckley is directly applicable 
here.7 

2. Four Justices in Colorado I concluded that the 
FECA limits on party expenditures are unconsti- 
tutional even as applied to spending that is in fact 
coordinated with a candidate for federal office. See Pet. 
App. 114a-119a (Kennedy, J., joined by Rehnquist, C.J., 
and Scalia, J., concurring in the judgment and dissent- 
ing in part); id. at 119a-140a (Thomas, J., joined in part 
by Rehnquist, C.J., and Scalia, J., concurring in the 
judgment and dissenting in part); Gov’t Br. 8. Those 
Justices did not suggest, however, that party com- 
mittees are less likely than other donors to use 
coordinated spending as a means of influencing the 
conduct of party members once in office. Justice 
Kennedy’s concurring and dissenting opinion took the 
position that political parties have a particular need 
to coordinate their campaign spending with their 
candidates and are therefore specially burdened by the 
FECA’s limits on coordinated expenditures. See Pet. 
App. 114a-115a, 118a. We address that argument at 
pages 2-7, supra. The thrust of Justice Thomas’s con- 
curring and dissenting opinion was that because “[t]he 
very aim of a political party is to influence its can- 
didate’s stance on issues and, if the candidate takes 
office or is reelected, his votes,” the party’s achieve- 
ment of that aim “does not * * * constitute a 
subversion of the political process.” Id. at 138a 

7 The fact that some Members of Congress are able to transfer 
surplus campaign funds to the party (see Resp. Br. 34 & n.20) 
scarcely prevents the use of party-coordinated expenditures as a 
means of influencing legislative behavior. To the contrary, the fact 
that certain senior legislators may be the source of party funds is 
likely to heighten their influence over those Members of Congress 
who are supported by party-coordinated expenditures. 

15 

(internal quotation marks omitted). As we explain in 
our opening brief, however, although party officials 
have an undoubted right to seek to influence their 
members’ voting behavior, the effort to pursue that 
legitimate objective through financial largesse poses 
special risks. Congress’s decision to address those risks 
through reasonable limits on party-coordinated spend- 
ing is constitutional. See Gov’t Br. 38 & n.18. 

Significantly, respondent makes no effort to defend 
the theory, articulated in Justice Thomas’s concurring 
and dissenting opinion in Colorado I, that a political 
party has a constitutional right to employ coordinated 
expenditures as a means of influencing its members’ 
votes. Respondent relies instead upon the quite 
different assertion that party officials will not utilize 
coordinated expenditures in that manner, even if all 
limits on such expenditures are eliminated. For the 
reasons set forth above, there is no basis for concluding 
that party officials are uniquely reluctant to use 
coordinated spending as a means of influencing legis- 
lative behavior. 

3. Respondent contends that “FECA’s extensive 
reporting and disclosure requirements,” as well as the 
limits on contributions to party committees, render 
limits on party-coordinated expenditures unnecessary. 
See Resp. Br. 35, 42. Those features of the Act, how- 
ever, are not unique to political parties. All political 
committees must publicly report a broad range of 
information regarding income and outlays. See 2 U.S.C. 
434. With party committees, no less than other political 
committees, “Congress was surely entitled to conclude 
that disclosure was only a partial measure, and that 
contribution ceilings were a necessary legislative con- 
comitant to deal with the reality or appearance of 
corruption.” Buckley, 424 U.S. at 28; accord Shrink 

16 

Mo., 120 S. Ct. at 908 n.7. And contributions to non- 
party political committees are subject to the same 
FECA limits that apply to contributions to respondent. 
See 2 U.S.C. 441a(a)(1)(C) and (2)(C).8 

D. Respondent contends (Br. 36-38, 44-45) that the 
FECA limits on party-coordinated expenditures cannot 
be sustained on an anti-corruption rationale because 
those limits were enacted for a different reason. Re- 
spondent principally relies (Br. 37) on the plurality’s 
statement in Colorado I that “this Court’s opinions 

8 Respondent also contends that party-coordinated expendi- 
tures in support of congressional candidates are unlikely to cause 
corruption because “a party’s incumbent members of Congress 

* * * are unlikely to be pushed around by offers to provide or 
threats to withhold campaign support,” while non-incumbent 
candidates “are not in a position to provide official favors” at the 
time the expenditures are made. Resp. Br. 34, 35. Like the 
arguments discussed in the preceding paragraph of the text, those 
contentions if persuasive would suggest that all FECA limits on 
contributions to candidates are unnecessary (since every potential 
recipient of campaign funding is either an incumbent or a non- 
incumbent); but they provide no basis for distinguishing party- 
coordinated expenditures from the coordinated spending of other 
donors. Cf. Buckley, 424 U.S. at 33 (“Since the danger of corrup- 
tion and the appearance of corruption apply with equal force to 
challengers and to incumbents, Congress had ample justification 
for imposing the same fundraising constraints upon both.”). 

There is also no merit to respondent’s suggestion (Br. 46) that a 
more “closely drawn response [to the danger of corruption] would 
be to reduce the allowable size of contributions” to the party. That 
approach would effectively reduce the party’s ability to engage in 
independent spending in support of its candidates for federal office. 
Far from being “closely drawn,” a limit on contributions to the 
party would as a practical matter more significantly constrain the 
party’s own communications than does Section 441a(d)’s require- 
ment that expenditures above the statutory limit must be made 
independently of the candidate. 

17 

suggest that Congress wrote [Section 441a(d)] not so 
much because of a special concern about the potentially 
‘corrupting’ effect of party expenditures, but rather for 
the constitutionally insufficient purpose of reducing 
what it saw as wasteful and excessive campaign spend- 
ing.” Pet. App. 104a (citing Buckley, 424 U.S. at 57).9 
As the dissenting judge in the court of appeals recog- 
nized, however, that statement “is found in [the Colo- 
rado I plurality’s] discussion of limits on independent 
party expenditures.” Id. at 50a n.6 (Seymour, J., dis- 
senting); cf. Shrink Mo., 120 S. Ct. at 907 (explaining 
that Colorado I “did not deal with a government’s bur- 
den to justify limits on contributions”; rather, “the issue 
in question was limits on independent expenditures by 
political parties”). The apparent import of the Colorado 
I plurality’s assertion is that Congress’s attempt to 

9 The Colorado I plurality also stated that “rather than indi- 
cating a special fear of the corruptive influence of political parties, 
the legislative history demonstrates Congress’ general desire to 
enhance what was seen as an important and legitimate role for 
political parties in American elections.” Pet. App. 104a. We agree 
that the FECA’s legislative history reveals no “special fear of the 
corruptive influence of political parties”—i.e., Congress did not 
believe that party campaign spending creates a greater risk of 
corruption than similar spending by other political committees. 
Congress’s “desire to enhance what was seen as an important and 
legitimate role for political parties in American elections” explains 
Congress’s decision to permit party-coordinated spending in 
amounts far greater than the contribution limits that apply to 
other donors, but it provides no basis for exempting parties from 
all constraints on coordinated spending. Similarly, the absence of 
“special” reasons for concern about party expenditures supports 
the Colorado I plurality’s determination that parties (like other 
political committees) have an unrestricted First Amendment right 
to engage in independent campaign spending; but it does not 
suggest that parties are constitutionally entitled to make unlimited 
coordinated expenditures. 

18 

limit the independent campaign expenditures of politi- 
cal parties is most plausibly understood as an effort to 
reduce overall campaign spending. But there is no 
reason to doubt that Congress’s decision to restrict 
party-coordinated expenditures was motivated (at least 
in part) by the same anti-corruption rationale that 
generally underlies the FECA contribution limits. 

10 

10 Contrary to respondent’s suggestion (Br. 37 & n.23), Congress 
in 1976 focused specifically upon the spending limits applicable to 
political parties before amending the FECA in response to this 
Court’s decision in Buckley. The Conference Report accom- 
panying the 1976 FECA amendments explains that Section 441a(d) 

allows the political parties to make contributions in kind by 

spending money for certain functions to aid the individual 
candidates who represent 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); see Gov’t 
Br. 18-19. The Conference Report thus expressly contemplates 
the application of Section 441a(d) to coordinated expenditures 
amounting to “contributions in kind.” It is surely reasonable to 
assume that Congress, in continuing to subject such expenditures 
to dollar limits (albeit limits much higher than the caps that apply 
to other donors), was motivated by the same considerations that 
generally support the FECA contribution limits. 

There is also no merit to respondent’s contention (Br. 36 n.22) 
that Section 441a(d)’s population-based formula for calculating the 
party-coordinated expenditure limit for Senate campaigns in each 
State (see Gov’t Br. 3, 5-6) “belies an anticorruption motive.” The 
statutory formula reflects Congress’s recognition that the expense 
of campaigning is generally proportional to the number of potential 
voters in a particular election. The formula preserves a roughly 
comparable role for political parties in Senate campaigns in each 
State. Determining the precise level of appropriate contribution 
limits is a legislative judgment that does not raise meaningful 
constitutional concerns, see Buckley, 424 U.S. at 30, and Congress 

19 

Indeed, as our opening brief explains (at 27-29), 
Members of Congress, in debating a 1973 predecessor 
to the FECA, expressly advocated the imposition of 
limits on contributions by parties to their candidates 
based on an anti-corruption rationale. As our opening 
brief acknowledges (at 28-29 & n.13), the provisions 
ultimately enacted in 1974 differed in some respects 
from those debated the previous year. Contrary to 
respondent’s contention (Br. 38), however, those dif- 
ferences in no way undermine the natural inference 
that Congress’s retention in the enacted bill of limits on 
party spending reflected a continuing concern regard- 
ing potential corruption of candidates. 

11 

* * * * * 

is not precluded from considering other policy objectives in 
fashioning the legislation, see id. at 36, 84 n.112. 

11 Respondent’s reliance (Br. 38) on Garcia v. United States, 469 
U.S. 70 (1984), is misplaced. The Court in Garcia recognized that 
“[t]o permit [floor] colloquies to alter the clear language of the 
statute undermines the intent of Congress.” Id. at 78. The instant 
case, however, involves no question of statutory interpretation at 
all, let alone an effort “to alter the clear language of the statute.” 
Rather, the 1973 legislative history simply reinforces what would 
in any event be the most normal inference—i.e., that Congress’s 
decision to limit the coordinated expenditures of political parties 
was motivated by roughly the same concern that has been held to 
support the coordinated spending limits imposed on other persons. 

20 

For the reasons stated above, and for those stated in 
our opening brief, the judgment of the court of appeals 
should be reversed. 

Respectfully submitted. 

LOIS G. LERNER 

Acting General Counsel 
Federal Election 

Commission 
SETH P. WAXMAN 

Solicitor General 

JANUARY 2001