No. 00-191 

In the Supreme Court of the United States 

FEDERAL ELECTION COMMISSION, PETITIONER 

v. 

COLORADO REPUBLICAN FEDERAL CAMPAIGN 
COMMITTEE 

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

PETITION FOR A WRIT OF CERTIORARI 

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 coor- 
dination with the party’s congressional candidates, 
notwithstanding the limits on such coordinated expen- 
ditures imposed by the Federal Election Campaign Act 
of 1971, 2 U.S.C. 431 et seq. 

(I) 

TABLE OF CONTENTS 

Page 

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

Jurisdiction ...................................................................................... 2 

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

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

Reasons for granting the petition ............................................... 
11 

Conclusion ....................................................................................... 26 

TABLE OF AUTHORITIES 

Cases: 

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

3, 4, 5, 14, 15, 

16, 22, 23, 24 
California Med. Ass’n v. FEC, 453 U.S. 182 (1981) ........ 

15, 23 

FEC v. Democratic Senatorial Campaign Comm., 

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

6, 17, 19 

FEC v. Massachusetts Citizens for Life, Inc., 

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

4, 15 

FEC v. National Conservative Political Action 

Comm., 470 U.S. 480 (1985) ................................................ 

4, 5 

FEC v. National Right to Work Comm., 459 U.S. 197 

(1982) ........................................................................................ 12 

Hill v. Colorado, 120 S. Ct. 2480 (2000) ............................. 

16 

Igneri v. Moore, 898 F.2d 870 (2d Cir. 1990) ..................... 

20 

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 

(1958) ........................................................................................ 25 

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

16 

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

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

4, 12, 15, 16, 17, 18, 21, 24, 25 

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

(1990) ........................................................................................ 20 

United States v. Gainey, 380 U.S. 63 (1965) ..................... 

12-13 

United States v. United Automobile Workers, 

352 U.S. 567 (1957) ................................................................ 22 

(III) 

IV 

Constitution, statutes and regulations: 
Page 

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

passim 

Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat. 

662 ............................................................................................. 13 

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

et seq. ........................................................................................ 

3 

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

5 

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(e) ................................................................. 

6 

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

6 

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

6 

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

6 

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

6 

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

6 

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

5 

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

3, 5, 17 

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

20 

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

5 

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

3, 17, 21 

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

21 

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

21 

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

5, 15 

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

22 

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

5, 17 

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

2, 3, 5, 6, 7, 10, 17, 18, 25 

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

5 

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

7, 18 

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

5 

11 C.F.R. (proposed May 5, 1997): 

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

9 

Pt. 104 ...................................................................................... 

9 

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

9 

Pt. 110 ...................................................................................... 9 

V 

Miscellaneous: Page 

65 Cong. Rec. 9507-9508 (1924) .............................................. 
22 

The Federalist No. 10 (J. Madison) (Jacob E. Cooke ed., 
1961) ......................................................................................... 19 

62 Fed. Reg. 24,367 (1997) ....................................................... 

9 

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

p. 68,955 ................................................................................. 
9 

Richard Hofstadter, The Idea of a Party System 
(1970) ........................................................................................ 18 

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

H.R. Rep. No. 660, 100th Cong., 2d Sess. (1988) ................. 13 

In the Supreme Court of the United States 

No. 00-191 

FEDERAL ELECTION COMMISSION, PETITIONER 

v. 

COLORADO REPUBLICAN FEDERAL CAMPAIGN 
COMMITTEE 

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

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the Federal Elec- 
tion Commission, respectfully petitions for a writ of 
certiorari to review the judgment of the United States 
Court of Appeals for the Tenth Circuit in this case. 

OPINIONS BELOW 

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

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
May 5, 2000. The jurisdiction of this Court is invoked 
under 28 U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

1. The First Amendment to the United States 
Constitution provides: 

Congress shall make no law respecting an estab- 
lishment 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 re- 
dress of grievances. 

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

(d) Expenditures by national committee, State 
committee, or subordinate committee of State com- 
mittee 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 limi- 
tations 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 con- 
nection with the general election campaign of candi- 
dates for Federal office, subject to the limitations 
contained in paragraphs (2) and (3) of this 
subsection. 

* * * * * 

3 

(3) The national committee of a political party, or 
a State committee of a political party, including any 
subordinate 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— 

(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 Representa- 
tive, 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 Commissioner in any other State, 
$10,000. 

STATEMENT 

1. This case involves the application of the Federal 
Election Campaign Act of 1971, 2 U.S.C. 431 et seq. 
(FECA or Act), 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 multi- 
candidate political committees 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 “funda- 

4 

mental constitutional difference between money spent 
to advertise one’s views independently of the candi- 
date’s campaign and money contributed to the candi- 
date to be spent on his campaign.” FEC v. National 
Conservative Political Action Comm., 470 U.S. 480, 497 
(1985) (NCPAC); see also FEC v. Massachusetts 
Citizens for Life, Inc., 479 U.S. 238, 259-260 (1986) (“We 
have consistently held that restrictions on contributions 
require less compelling justification than restrictions on 
independent spending.”); Nixon v. Shrink Missouri 
Gov’t PAC, 120 S. Ct. 897, 903-904 (2000). In Buckley, 
the Court upheld the FECA’s limitations on contri- 
butions, finding that they serve a compelling govern- 
ment 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 inde- 
pendent expenditures, however, reasoning that “[t]he 
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. 

The instant case involves a category of payments 
commonly known as “coordinated expenditures,” see 
Buckley, 424 U.S. at 46, which involve direct interaction 
with the candidate (or her agents) but do not involve a 
transfer of funds to the candidate herself. The FECA 
defines “expenditure” to include “any purchase, pay- 
ment, distribution, loan, advance, deposit, or gift of 
money or anything of value, made by any person for the 

5 

purpose of influencing any election for Federal office.” 
2 U.S.C. 431(9)(A)(i). The Act provides that “expendi- 
tures made by any person in cooperation, consultation, 
or concert, with” a candidate or her agents “shall be 
considered to be a contribution to such candidate.” 
2 U.S.C. 441a(a)(7)(B)(i).1 See Buckley, 424 U.S. at 46 
(“expenditures controlled by or coordinated with the 
candidate and his campaign * * * are treated as 
contributions rather than expenditures under the Act”); 
NCPAC, 470 U.S. at 492 (coordinated expenditures 
“are considered ‘contributions’ under the FECA”). 

The FECA authorizes the national and state com- 
mittees of a political party to make coordinated ex- 
penditures 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 expenditures would be covered by the 
contribution limitations stated in [Section 441a(a)(1) 
and (2)]”). 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 2 cents multiplied by the voting age population of 
the State in which the election is held. 2 U.S.C. 
441a(d)(3)(A). 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 

1 “[I]ndependent expenditure[s],” by contrast, are defined as 
“expenditure[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). 

6 

Colorado had increased to approximately $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., 454 
U.S. 27, 31-43 (1981) (DSCC). 

2. The instant case arises out of an enforcement 
action filed by petitioner Federal Election Commission 
(FEC or Commission) against respondent Colorado 
Republican Federal Campaign Committee.2 The grava- 
men of the enforcement action was that respondent’s 
payment for an advertisement 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. 
App. 144a-145a, 164a-166a. Under the FEC’s interpre- 
tation of the statute, that expenditure was conclusively 
presumed to be coordinated with the Republican 
Party’s candidate for the Senate, on the theory that 
political party committees were deemed to be “incap- 
able of making ‘independent’ expenditures in connec- 
tion with the campaigns of their party’s candidates.” 
DSCC, 454 U.S. at 28-29 n.1; see App. 105a-106a (518 
U.S. at 619-620). Because respondent had previously 

2 The Commission is an independent agency charged with the 
administration, 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 

assigned its entire Section 441a(d) coordinated expendi- 
ture authority to the National Republican Senatorial 
Committee, the FEC found probable cause to believe 
that respondent had violated the FECA limits on 
coordinated expenditures. App. 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 connec- 
tion with” any federal election. See App. 166a, 171a- 
180a. The court declined to address respondent’s First 
Amendment challenge. App. 166a, 180a. The court of 
appeals reversed, holding that the payment was subject 
to (and violative of) the FECA cap on party coordinated 
expenditures, and that the cap was constitutional. App. 
143a-144a, 149a-162a. 

3. This Court reversed, sustaining respondent’s 
challenge to the FEC’s enforcement action while declin- 
ing to adjudicate respondent’s counterclaim. App. 92a- 
142a (518 U.S. 604 (1996)) (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 ap- 
proved the advertisement and had consulted only with 
party officials. See 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. App. 100a-101a (518 
U.S. at 614-615). The plurality found no justification for 
subjecting political parties to restrictions on inde- 
pendent spending that could not constitutionally be 

8 

imposed upon other entities. App. 101a-105a (518 U.S. 
at 615-619). The plurality rejected the government’s 
contention that expenditures made by a political party 
in support of its candidates can be conclusively pre- 
sumed to be coordinated. App. 105a-110a (518 U.S. at 
619-623). 

The plurality declined to consider the argument, 
raised in respondent’s counterclaim, that the FECA 
limits on political party expenditures are unconsti- 
tutional even as applied to expenditures that are in fact 
coordinated with the candidate. See App. 110a-114a 
(518 U.S. at 623-626). The plurality explained that 
neither the parties’ briefs nor the opinions of the lower 
courts had focused on that question. App. 111a (518 
U.S. at 624). It also observed that because many party 
coordinated expenditures are “virtually indistinguish- 
able from simple contributions (compare, for example, a 
donation of money with direct payment of a candidate’s 
media bills),” App. 111a (518 U.S. at 624), “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,” App. 112a (518 U.S. at 625). In the 
plurality’s view, the difficulty of the constitutional 
question and the parties’ failure to focus on it 
“provide[d] a reason for this Court to defer con- 
sideration of the broader issues until the lower courts 
have reconsidered the question.” App. 113a (518 U.S. 
at 625). 

b. Four Justices would have struck down the FECA 
limits on party expenditures even as applied to ex- 
penditures that are in fact coordinated with the 
candidate. See 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); 

9 

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 enforcement 
action. App. 140a-142a (518 U.S. at 648-650) (Stevens, 
J., joined by Ginsburg, J., dissenting).3 

4. The case was remanded to the district court for 
further consideration of respondent’s counterclaim. On 
remand, the district court granted respondent’s motion 
for summary judgment and declared the FECA limits 
on party expenditures unconstitutional. App. 54a-91a. 
The court stated that “[t]he only permissible purpose 
for limitations on campaign expenditures is to prevent 
corruption or the appearance thereof.” App. 79a. It 
concluded that “[g]iven 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 pro- 
vide a candidate with electoral funds because the 
candidate’s views are at odds with party positions is not 
an attempt to exert improper influence.” App. 87a-88a. 

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

a. The court of appeals stated that “[f]rom the birth 
of this republic into the 21st century, political parties 

3 After this Court’s decision in Colorado I, the Commission 
initiated a rulemaking proceeding and sought public comments to 
consider, inter alia, possible criteria for determining when spend- 
ing by parties is coordinated. See Independent Expenditures and 
Party Committee Expenditure Limitations, 62 Fed. Reg. 24,367 
(1997) (proposing revisions to 11 C.F.R. Pts. 100, 104, 109, 110 
(proposed May 5, 1997)). 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 (1999). The FEC has not yet proposed a final 
rule on that subject. 

10 

have provided the principal forum for political speech 
and the principal means of political association.” App. 
13a. The court concluded that “the premise of [the 
FEC’s] theory, namely that political parties can corrupt 
the electoral system by influencing their candidates’ 
positions, gravely misunderstands the role of political 
parties in our democracy.” App. 20a. It 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. 

* * * 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.” App. 
21a-22a (internal quotation marks omitted). The court 
concluded that the challenged FECA provision “consti- 
tutes a significant interference with the First Amend- 
ment rights of political parties,” App. 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,” App. 25a. 

b. Chief Judge Seymour dissented. 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 in American politics, a view at odds with 
history and with legislation drafted by politicians.” 
App. 26a-27a. 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,” App. 38a, without leaving party expenditures 
wholly unconstrained. See App. 38a-39a. Chief Judge 
Seymour concluded that “[a]s a matter of common 

11 

sense, it is difficult to credit the bald assertion that 
politicians 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.” App. 50a (footnote omitted). 

REASONS FOR GRANTING THE PETITION 

Congress has limited the amounts of money that an 
individual or political committee may contribute to a 
candidate for federal office. Congress has expressly 
provided, moreover, that expenditures made in 
coordination with the candidate will be treated as con- 
tributions. This Court has sustained the FECA’s limits 
on campaign contributions against constitutional attack, 
and it has approved the application of those limits to 
coordinated expenditures. 

Recognizing the distinctive role that political parties 
have come to play in our system of government, Con- 
gress has authorized party committees to make 
coordinated expenditures in amounts much greater 
than the limits that apply to other donors. The court of 
appeals nevertheless struck down those higher limits, 
holding that political party committees have a First 
Amendment right to make unrestricted coordinated 
expenditures in support of candidates for federal office. 
The court’s decision disregards the principle, lying at 
the core of the FECA, that a federal elected official 
should not be unduly beholden to a single source of 
financial support. The court of appeals’ ruling sets 
aside the balance struck by Congress on a matter pecu- 
liarly within the legislative competence, and it threat- 
ens substantial disruption of the statutory scheme. 
Review by this Court is therefore warranted. 

12 

A. 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 coordi- 
nated expenditures on behalf of their federal candidates 
far in excess of the limits imposed on others.” App. 38a 
(Seymour, J., dissenting). Congress has declined, how- 
ever, to provide political parties a complete exemption 
from the contribution limits that apply to other donors. 
As the dissenting judge 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.” App. 39a (Seymour, C.J., dissenting); 
see Nixon v. Shrink Missouri Gov’t PAC, 120 S. Ct. 
897, 912 (2000) (Breyer, J., concurring) (“Where a legis- 
lature has significantly greater institutional expertise, 
as, for example, in the field of election regulation, the 
Court in practice defers to empirical legislative judg- 
ments.”); cf. FEC v. National Right to Work Comm., 
459 U.S. 197, 209 (1982) (NRWC) (Congress’s “careful 
legislative adjustment of the federal electoral laws 

* * * to account for the particular legal and economic 
attributes of corporations and labor organizations 
warrants considerable deference”). 

The court of appeals struck down the FECA limits on 
campaign expenditures by political parties, holding that 
the parties have an unrestricted First Amendment 
right to spend money in support of, and in coordination 
with, candidates for federal elective office. In so doing, 
the court rejected the balance struck by Congress on a 
question that is peculiarly within the legislative com- 
petence. The court of appeals’ “exercise of the grave 
power of annulling an Act of Congress,” United States 

13 

v. Gainey, 380 U.S. 63, 65 (1965), warrants review by 
this Court.4 
B. The court of appeals’ decision has far-reaching 
consequences. 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 expenditures are unconstitutional, 
unlawful, and void.” C.A. App. 28; see id. at 29 (re- 
questing “[a] declaratory judgment pursuant to 28 
U.S.C. § 2201 that [respondent] has the right to make 
unlimited expenditures from lawfully received contri- 
butions 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 unconsti- 
tutional and cannot be enforced against [respondent].” 
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.” App. 25a-26a (internal quota- 
tion 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. 

4 In 1988 Congress eliminated most of this Court’s mandatory 
appellate jurisdiction. See Act of June 27, 1988, Pub. L. No. 100- 
352, 102 Stat. 662. The legislative history of that enactment, how- 
ever, reflects the understanding that “[u]nder usual circumstances 
any lower Federal court decision invalidating an act of Congress 
presents issues of great public importance warranting Supreme 
Court review.” H.R. Rep. No. 660, 100th Cong., 2d Sess. 9 (1988). 

14 

The concept of a “coordinated expenditure” covers a 
variety of financial arrangements between a candidate 
and her supporters, many of which are functionally and 
constitutionally indistinguishable from direct contribu- 
tions to candidates for federal office. The Court in 
Buckley recognized the need “to prevent would-be 
contributors from avoiding the contribution limitations 
by the simple expedient of paying directly for media 
advertisements or for other portions of the candidate’s 
campaign activities.” 424 U.S. at 46. It explained that 
because “such controlled or coordinated expenditures 
are treated as contributions rather than expenditures 
under the Act,” the FECA’s “contribution ceilings 

* * * prevent attempts to circumvent the Act through 
prearranged or coordinated expenditures amounting 
to disguised contributions.” Id. at 46, 47. Citing 
Buckley, the plurality in Colorado I observed that 
“many [coordinated] expenditures are * * * virtually 
indistinguishable from simple contributions (compare, 
for example, a donation of money with direct payment 
of a candidate’s media bills).” App. 111a (518 U.S. at 
624); see also App. 112a (518 U.S. at 625) (noting that “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”). 

Under the court of appeals’ decision, political party 
committees within the Tenth Circuit may now employ 
“the simple expedient of paying directly for media 
advertisements or for other portions of the candidate’s 
campaign activities.” Buckley, 424 U.S. at 46. That 
holding effectively exempts party committees within 
the Tenth Circuit from the FECA contribution limits, 
and it significantly undermines the operation of the 
federal statutory scheme. Review by this Court is 

15 

warranted in light of the substantial practical effect of 
the court of appeals’ decision. 

C. The court of appeals’ decision is incorrect. 

1. This Court in Buckley upheld the FECA’s $1000 
limit on contributions to candidates for federal office, 
finding it justified by the compelling government inter- 
est in preventing both the fact and the appearance of 
political corruption. See 424 U.S. at 23-30. The Court 
has repeatedly referred, with apparent approval, to 
that aspect of the Buckley Court’s analysis. See 
Federal Election Comm’n v. Massachusetts Citizens 
for Life, Inc., 479 U.S. 238, 259-260 (1986); NRWC, 459 
U.S. at 208; California Med. Ass’n v. FEC, 453 U.S. 
182, 196-197 & n.16 (1981) (plurality opinion). Most 
recently, the Court in Shrink Missouri relied on 
Buckley in upholding Missouri’s $1000 limit (adjusted 
for inflation) on contributions to candidates for state- 
wide office. See 120 S. Ct. at 903-910. The Court dis- 
tinguished Colorado I, noting that in that case “the 
issue in question was limits on independent expendi- 
tures by political parties, which the principal opinion 
expressly distinguished from contribution limits.” Id. 
at 907. 

2. As we explain above, see pp. 4-5, 14, supra, 
Congress has determined that “expenditures made by 
any person in cooperation, consultation, or concert, 
with, or at the request or suggestion of, a candidate, 

* * * shall be considered to be a contribution to such 
candidate.” 2 U.S.C. 441a(a)(7)(B)(i). This Court has 
recognized that the statutory limits on coordinated 
expenditures are an essential means of preventing 
circumvention of the FECA’s contribution caps. See 
pp. 14-15, supra. The Court has not attempted to 
define the full range of circumstances under which a 
campaign expenditure may properly be treated as 

16 

“coordinated.” The instant case, however, involves 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.” C.A. App. 29. Respon- 
dent is not entitled to that relief unless the FECA 
limits on party coordinated expenditures are unconsti- 
tutional even as applied to expenditures that are the 
functional equivalent of direct contributions.5 

3. The First Amendment does not entitle respon- 
dent to an exemption from the FECA limits on coordi- 
nated expenditures. 

a. This Court’s decisions upholding campaign contri- 
bution limits have “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.” Shrink Missouri, 120 S. Ct. at 905. 

5 As the Court explained in NEA v. Finley, 524 U.S. 569, 580 
(1998), 

[f]acial invalidation “is, manifestly, strong medicine” that “has 

been employed by the Court sparingly and only as a last 
resort.” Broadrick 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 demonstrate a substantial risk 
that application of the provision will lead to the suppression of 
speech. See Broadrick, supra, at 615. 

See also Hill v. Colorado, 120 S. Ct. 2480, 2498 (2000), (“specula- 
tion about possible vagueness in hypothetical situations not before 
the Court will not support a facial attack on a statute when it is 
surely valid in the vast majority of its intended applications”) 
(internal quotation marks omitted). The FECA statutory limit on 
party coordinated expenditures “contemplates a number of indis- 
putably constitutional applications.” Finley, 524 U.S. at 584. 

17 

The effective operation of democratic government is 
threatened if public officials are, or appear to be, unduly 
influenced by the preferences of large-scale contri- 
butions. See id. at 905-906. The Court in Shrink 
Missouri reviewed the available evidence and found 
“little reason to doubt that sometimes large contri- 
butions will work actual corruption of our political 
system, and no reason to question the existence of a 
corresponding suspicion among voters.” Id. at 908. 

Congress was entitled to conclude that large coordi- 
nated expenditures by political parties, like large 
campaign contributions generally, may be used to exert 
influence over legislators’ behavior while in office. 
Congress was well aware of the valuable functions 
performed by political parties in the American system 
of government. As the Court in DSCC observed, 
“effective use of party resources in support of party 
candidates may encourage candidate loyalty and 
responsiveness to the party.” 454 U.S. at 42. Pre- 
sumably for that reason, Congress did not subject po- 
litical parties to the same limits on campaign contri- 
butions that it established for other persons and 
organizations, but instead fixed limits in Section 441a(d) 
that are higher by many thousands of dollars.6 

6 The Act imposes a $1000 contribution limit per election for 
individuals and a $5000 limit for multicandidate political com- 
mittees, and the limits are not indexed for inflation. 2 U.S.C. 
441a(a)(1)(A) and (2)(A). Section 441a(d) establishes much higher 
basic limitations on coordinated expenditures by party committees 
and, pursuant to 2 U.S.C. 441a(c), those limits are adjusted periodi- 
cally to take into account increases in the Consumer Price Index. 
For example, in 1996 the coordinated party expenditure limitation 
for the Senate election in Colorado was approximately $171,000. 
C.A. App. 332. Under the Act, moreover, the national and state 

18 

“[R]ather than indicating a special fear of the corrup- 
tive influence of political parties, the legislative history 
[of Section 441a(d)] demonstrates Congress’ general 
desire to enhance what was seen as an important and 
legitimate role for political parties in American elec- 
tions.” App. 104a (Colorado I, 518 U.S. at 618) (plural- 
ity opinion). 

Congress declined, however, to leave coordinated 
spending by political parties wholly unconstrained. 
Congress’s determination that some campaign spending 
by political parties would have salutary effects does not 
undermine its determination that unlimited coordi- 
nated expenditures pose the same danger—i.e., the 
risk of actual or perceived “improper influence” 
(Shrink Missouri, 120 S. Ct. at 905) based on financial 
largesse—as unrestricted campaign contributions gen- 
erally. 

Thus, respondent’s First Amendment challenge to 
Section 441a(d) necessarily depends on the proposition 
that political parties have a preferred constitutional 
status vis-a-vis individuals or other organizations. The 
relevant historical evidence provides no support for 
that contention. Commenting on the political beliefs of 
men like 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). Indeed, the Founders viewed political parties as 
a potential threat to representative governance and 

committees of a political party may each spend up to the statutory 
limit. See 2 U.S.C. 441a(d)(3). 

19 

consciously devised a constitutional framework de- 
signed to restrain their power. See The Federalist No. 
10 (J. Madison) (Jacob E. Cooke ed., 1961). 

b. The court of appeals did not question the pro- 
position that party coordinated expenditures may be 
used as a means of influencing a legislator’s per- 
formance of his official responsibilities. 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 spending 
cannot properly be regarded as a form of “corruption.” 
See 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 candi- 
dates constitutes a subversion of the political process.”) 
(internal quotation marks omitted). 

The court of appeals’ analysis underestimates the 
potential 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 coordi- 
nated expenditures directed by political party officials. 

i. “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, small groups of people may 
have de facto control over the manner in which those 
funds are spent. As a result, candidates who benefit 

20 

from large coordinated expenditures will likely feel 
indebted not to the party as an abstract entity, but to 
the individual party officials who cause those expendi- 
tures 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. There is no 
reason to believe that such individuals are immune from 
the corrupting temptations and self-interest of other 
persons. To the contrary, history demonstrates that 
individual officials of political organizations are parti- 
cularly 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 Illinois, 497 U.S. 62, 88 n.4 (1990) 
(Stevens, J., concurring); Igneri v. Moore, 898 F.2d 870, 
876 (2d Cir. 1990) (State may enact legislation to deter 
party officials from “capitalizing on their special re- 
lationships” with public officials to “curry[] favor for 
themselves and their associates”). 

ii. If party committees were permitted to make 
unlimited coordinated expenditures in support of candi- 
dates for federal office, the party could serve in effect 
as a conduit for contributions by individuals or political 
action committees, thereby facilitating evasion of other 
FECA contribution limits. Thus, an individual or 
political action committee that has already contributed 
the maximum $1000 or $5000 directly to the candidate 
could contribute additional amounts to one or more 
party committees,7 and could in various ways com- 

7 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 

21 

municate the expectation that all or part of those sums 
would be used for coordinated expenditures in support 
of the candidate. Assuming that the candidate were 
aware of the nexus between the contribution to the 
party and the party coordinated expenditures,8 that 
sequence of payments would create the very danger 
that the underlying contribution limits are intended to 
prevent—i.e., the fact or appearance of “improper 
influence” resulting from payments to “politicians too 
compliant with the wishes of large contributors.” 
Shrink Missouri, 120 S. Ct. at 905.9 

operated by a national political party. 2 U.S.C. 441a(a)(1)(A)-(C). 
A political action committee can contribute 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 additional 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). 

8 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 committees,” 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.” 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.” App. 66a. See also App. 46a (Seymour, C.J., dis- 
senting) (“Senators are expected to encourage their major donors, 
who have maximized their contribution to the candidate, to make 
contributions to the state or national party, which in turn gives the 
candidates money for their campaigns.”). 

9 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 organi- 

22 

The court of appeals suggested (App. 23a) that con- 
cerns regarding the possible circumvention of other 
FECA limits could adequately be addressed through 
“[v]igilant enforcement of [2 U.S.C.] § 441a(a)(8),” 
which provides that contributions “earmarked or other- 
wise 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 provide a complete response to the danger that 
contributions to political committees may be used to 
evade the FECA limits on contributions to candidates. 
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 

zations seek and sometimes obtain by reason of liberal cam- 
paign contributions. Many believe that when an individual or 
association of individuals makes large contributions for the 
purpose of aiding candidates of political parties in winning the 
elections, they expect, and sometimes demand, and occasion- 
ally, at least, receive, consideration by the beneficiaries of 
their contributions which not infrequently is harmful to the 
general public interest. It is unquestionably an evil which 
ought to be dealt with, and dealt with intelligently and effec- 
tively. 

United States v. United Automobile Workers, 352 U.S. 567, 576- 
577 (1957) (quoting 65 Cong. Rec. 9507-9508 (1924) (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.” App. 44a 
(Seymour, C.J., dissenting). 

23 

which an individual may associate himself by means of 
financial support.” 424 U.S. at 38. The Court explained 
that the $25,000 aggregate limit was “a corollary of the 
basic individual contribution limitation” that restricts 
the possibility of evasion “by a person who might other- 
wise contribute massive amounts of money to a 
particular candidate through the use of unearmarked 
contributions to political committees likely to contri- 
bute to that candidate, or huge contributions to the 
candidate’s political party.” Ibid. See also California 
Med. Ass’n, 453 U.S. at 198 (plurality opinion); id. at 203 
(Blackmun, J., concurring in part and concurring in the 
judgment). 

10 

Under current federal law, moreover, an individual 
(or a corporation or union) may donate unlimited 
amounts of “soft money” to political parties. See App. 
102a (Colorado I, 518 U.S. at 616) (plurality opinion). 
Because “soft money” cannot lawfully be spent to influ- 
ence 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, how- 
ever, be used to induce the party to make large 
coordinated expenditures with funds acquired from 
other (“hard money”) sources. Those coordinated 
expenditures may in turn be used to induce elected 
officials to look favorably upon the soft money donor. 
The FECA limits on party coordinated expenditures 

10 As the dissenting judge in the court of appeals explained, 
“[t]he record [in this case] * * * reveals that although ear- 
marking 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.” App. 46a (Seymour, C.J., dissenting). 

24 

serve to break that chain, thereby helping to prevent 
circumvention of the statutory limits on individual 
contributions to candidates. 

iii. As the foregoing analysis indicates, large party 
coordinated expenditures may be used to further the 
private interests either of individual party officials or of 
the party’s major contributors. When party coordinated 
expenditures are employed towards those ends, they 
raise the very dangers that the FECA contribution 
limits are intended to address. But even when individ- 
ual 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 “oppor- 
tunities for abuse” in addition to “quid pro quo ar- 
rangements,” [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 influence govern- 
mental action” in ways less “blatant and specific” 
than bribery. 

120 S. Ct. at 905 (quoting Buckley, 424 U.S. at 28). 
Congress’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 

25 

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 may similarly conclude 
that the undue influence of large campaign contri- 
butions upon public policy is inherently subversive of 
democratic governance, regardless of the donor’s 
motives. 

In invalidating the FECA’s limits on party coordi- 
nated expenditures, the court of appeals “reject[ed] the 
notion that a party’s influence over the positions of its 
candidates constitutes a subversion of the political 
process.” App. 22a (internal quotation marks omitted). 
By defining the issue in that manner, the court of 
appeals attacked a straw man. The justification for 
Section 441a(d) is not that party leaders should be 
prevented from exerting influence over the official be- 
havior of the party’s candidates. Rather, the cap 
reflects the same premise as the FECA contribution 
limits generally—i.e., that large infusions of money are 
an inappropriate method of influencing an office- 
holder’s conduct. 

11 That judgment is as applicable to 
political parties as to other potential donors. 

11 Similarly, the justification for imposing contribution limits 
upon individuals or political action 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 Government 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). The FECA limits on 
contributions made by individuals and political committees reflect 
the premise that a legislator’s conduct should not be affected by an 
actual or anticipated infusion of money from a single source—not a 
suspicion of private influence per se. Congress’s decision to treat 

26 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

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 

AUGUST 2000 

large monetary contributions as a source of special concern is 
neither irrational nor constitutionally problematic.