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 

APPENDIX TO THE 
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 

TABLE OF CONTENTS 

Page 

Appendix A (opinion of the court of appeals, May 5, 
2000) ................................................................................ 1a 

Appendix B (opinion of the district court, Feb. 18, 
1999) ................................................................................ 54a 

Appendix C (opinion of the Supreme Court, 
June 26, 1996) ................................................................ 

92a 

Appendix D (opinion of the court of appeals, 

June 23, 1995) ................................................................ 

143a 

Appendix E (opinion of the district court, Aug. 30, 
1993) ............................................................................... 163a 

(I) 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

No. 99-1211 

FEDERAL ELECTION COMMISSION, 

PLAINTIFF-COUNTER-DEFENDANT-APPELLANT 

v. 

COLORADO REPUBLICAN FEDERAL CAMPAIGN 
COMMITTEE, DEFENDANT-COUNTER-PLAINTIFF- 
APPELLEE 

DEMOCRATIC SENATORIAL CAMPAIGN COMMITTEE; 
DEMOCRATIC CONGRESSIONAL CAMPAIGN 
COMMITTEE; COMMON CAUSE; DEMOCRACY 21; 
THE BRENNAN CENTER FOR JUSTICE AT NEW 
YORK UNIVERSITY SCHOOL OF LAW, AMICI CURIAE 

[Filed: May 5, 2000] 

OPINION 

Before SEYMOUR, Chief Judge, TACHA, and KELLY, 
Circuit Judges. 

TACHA, Circuit Judge. 

Section 441a(d)(3) of the Federal Election Campaign 
Act, 2 U.S.C. §§ 431-455, limits the amount of money a 
political party may spend in coordination with its 

(1a) 

2a 

candidates for Congress. The Federal Election Com- 
mission (FEC) appeals the district court’s ruling that 
this limitation violates the First Amendment. We 
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 
affirm. 

I. 

We analyze § 441a(d)(3) within its statutory context. 
The Federal Election Campaign Act (FECA or “Act”), 
as amended in 1974, limited the amount of money that 
individuals, corporations, banks, labor organizations, 
political committees, (e.g., political action committees, 
or PACs), and political parties could contribute to 
candidates for federal office. See 18 U.S.C. §§ 608, 610 
(1970 ed. Supp. IV). The Act also imposed limits on the 
amount these groups—and the candidates themselves 
—could spend in connection with a campaign for federal 
office. Id. 

Shortly after Congress amended FECA, the Su- 
preme Court struck down many of the Act’s expendi- 
ture limits as unconstitutional under the First Amend- 
ment’s free speech and association guarantees. Buckley 

v. Valeo, 424 U.S. 1, 39-59, 96 S. Ct. 612, 46 L.Ed.2d 659 
(1976) (per curiam) (invalidating FECA provisions 
limiting (1) individual expenditures independent of a 
candidate’s campaign, (2) a candidate’s expenditure of 
personal funds, and (3) overall campaign expenditures); 
see also Federal Election Comm’n v. National Conser- 
vative Political Action Comm., 470 U.S. 480, 497, 105 S. 
Ct. 1459, 84 L.Ed.2d 455 (1985) (NCPAC) (invalidating 
FECA provision limiting independent expenditures by 
political committees). 

3a 

However, the Court generally has upheld FECA’s 
contribution limits. Buckley, 424 U.S. at 28, 29, 35-36, 96 
S. Ct. 612 (finding constitutional the Act’s limits on the 
amount individuals and political committees can con- 
tribute to a candidate for federal office); California 
Med. Ass’n v. Federal Election Comm’n, 453 U.S. 182, 
193-99, 101 S. Ct. 2712, 69 L.Ed.2d 567 (1981) (uphold- 
ing limits on the amount individuals may contribute to 
political committees). Furthermore, the Supreme 
Court has recognized that “coordinated expenditures” 
qualify as contributions under FECA and, therefore, 
are subject to FECA’s contribution limits. Buckley, 
424 U.S. at 46-47, 96 S. Ct. 612; NCPAC, 470 U.S. at 
492, 105 S. Ct. 1459. Thus, FECA’s contribution limits 
apply not only when an individual or group contributes 
money directly to a campaign, but also when an 
individual or group contributes money indirectly by 
making expenditures coordinated with the campaign. 
See 2 U.S.C. § 441a(a)(7)(B)(i) (“[E]xpenditures made 
by any person in cooperation, consultation, or concert 
with . . . a candidate . . . shall be considered to be a 
contribution to such candidate.”). 

As presently codified, the Act sets the following 
contribution limits: A “person” is entitled to contribute 
$1000 to a candidate “with respect to any election for 
Federal office;” $5000 in any calendar year to a political 
committee that is not established and maintained by a 
national political party; and $20,000 in any calendar 
year to the political committees of a national political 
party. 2 U.S.C. § 441a(a)(1). However, no person may 
make contributions totaling more than $25,000 in any 
year. Id. § 441a(a)(3). A “multicandidate political com- 
mittee” (or PAC) may contribute $5000 to a candidate 
with respect to any federal election; $5000 in any 

4a 

calendar year to any other political committee that is 
not established and maintained by a national political 
party; and $15,000 in any calendar year to the political 
committees of a national political party. Id. § 441a(a)(2). 

National and state political parties meet FECA’s 
definition of “multicandidate political committees.” See 
id. § 441a(a)(4) (defining a “multicandidate political 
committee” as “a political committee . . . which has 
received contributions from more than 50 persons, and 

. . . has made contributions to 5 or more candidates for 
Federal office”). Thus, political parties ordinarily 
would be subject to the above dollar limits. However, 
Congress recognized that parties are different than 
PACs. Consequently, Congress exempted political 
parties from the Act’s general contribution limits and 
imposed substitute limits upon them. Id. § 441a(d)(1), 
(3). Section 441a(d)(3), known as the Party Expendi- 
ture Provision, provides that political parties “may not 
make any expenditure in connection with the general 
election campaign of a candidate for Federal office” 
which exceeds the greater of $20,000 or 2 cents 
multiplied by the voting age population of the state.1 
Id. § 441a(d)(3). 

II. 

The prior proceedings in this case have narrowed the 
issues we must decide. In January 1986, Timothy 
Wirth, then a Democratic Congressman from Colorado, 
announced that he would seek Colorado’s open Senate 

1 A separate provision, § 441a(d)(2), limits party expenditures 
in connection with Presidential campaigns. Our analysis and hold- 
ing apply only to party spending in connection with congressional 
races. 

5a 

seat in November. Several months later, before the 
Democratic primary or the Republican convention, the 
Colorado Republican Federal Campaign Committee 
(“Colorado Party” or “Party”) developed and aired a 
radio advertisement criticizing Wirth’s voting record. 
In its quarterly report to the FEC, the Party classified 
the advertisement outlay as an operating expense 
instead of a § 441a(d)(3) expenditure. The Colorado 
Democratic Party filed an administrative complaint 
with the FEC, alleging that the Party’s purchase of 
radio time was an expenditure in connection with the 
Senate campaign and exceeded § 441a(d)(3)’s spending 
limit. The FEC agreed with the Democratic Party and 
filed suit in district court against the Colorado Party. 

On motion for summary judgment, the Party argued 
that the outlay did not fall within the Party Expendi- 
ture Provision because the Colorado Party did not 
develop the advertisement “in connection with” the 
campaign of any federal candidate. The Party also 
asserted a counterclaim, alleging that the Party Expen- 
diture Provision violated its First Amendment rights of 
free speech and association. The district court nar- 
rowly interpreted § 441a(d)(3) as limiting only those 
expenditures that use “ ‘express words of advocacy of 
election or defeat.’ ” Federal Election Comm’n v. Colo- 
rado Republican Fed. Campaign Comm., 839 F. Supp. 
1448, 1455 (D. Colo. 1993) (quoting Buckley, 424 U.S. at 
44 n. 52, 96 S. Ct. 612). Under this statutory construc- 
tion, the district court found that the provision did not 
cover the Wirth advertisement and entered summary 
judgement in favor of the Party. Id. at 1456-57. Be- 
cause the court resolved the dispute on statutory 
grounds, it did not reach the Party’s constitutional 
challenge. Id. at 1457. 

6a 

On appeal, the FEC argued for a broader interpre- 
tation of the provision as limiting “expenditures 
depicting a clearly identified candidate and conveying 
an electioneering message.” Federal Election Comm’n 

v. Colorado Republican Fed. Campaign Comm., 59 
F.3d 1015, 1022 (10th Cir. 1995). We agreed with the 
FEC and thus concluded that the advertisement was 
subject to the limits of the Party Expenditure Provi- 
sion. Id. at 1023. We also reached the constitutional 
challenge and held that § 441a(d)(3) did not imper- 
missibly burden the Party’s First Amendment rights. 
Id. 

The Supreme Court granted certiorari “primarily to 
consider the Colorado Party’s argument that the Party 
Expenditure Provision violates the First Amendment 
either facially or as applied.” Colorado Republican 
Fed. Campaign Comm. v. Federal Election Comm’n, 
518 U.S. 604, 613, 116 S. Ct. 2309, 135 L.Ed.2d 795 
(1996) (internal quotation marks and citation omitted) 
(“Colorado I”). Three members of the Court found the 
provision unconstitutional as applied to the expenditure 
at issue, and four other Justices joined in this judgment. 
Id. at 608, 116 S. Ct. 2309.2 

Based on the summary judgment record before it, the 
plurality noted that the Colorado Party had developed 

2 The four Justices who concurred in the judgment also dis- 
sented in part, urging the Court to resolve the Party’s facial chal- 
lenge to § 441a(d)(3). Colorado I, 518 U.S. at 626, 116 S. Ct. 2309 
(Kennedy, J., concurring in the judgment and dissenting in part); 
id. at 631, 116 S. Ct. 2309 (Thomas, J., concurring in the judgment 
and dissenting in part). Chief Justice Rehnquist and Justice Scalia 
joined Justice Kennedy’s opinion in full and Justice Thomas’s 
opinion in part. 

7a 

and approved the advertisement script independent of 
any candidate for Federal office. Id. at 613-14, 116 S. 
Ct. 2309. In fact, at the time the advertisement was 
placed, the Party had not yet selected a senatorial 
nominee. Id. Thus, the plurality concluded that the 
advertisement in question was an “independent ex- 
penditure,” not a “coordinated expenditure” subject to 
the limits of § 441a(d)(3). Id. at 613, 116 S. Ct. 2309. As 
such, the expenditure was entitled to full First Amend- 
ment protection under controlling precedent. Id. at 614- 
15, 116 S. Ct. 2309 (citing NCPAC, 470 U.S. at 497, 105 
S. Ct. 1459; Buckley, 424 U.S. at 19- 21, 96 S. Ct. 612). 

Having found the provision unconstitutional as 
applied to this particular independent expenditure, the 
plurality declined to reach the broader question of 
whether the First Amendment forbids limits on coordi- 
nated expenditures by political parties. Id. at 623, 116 
S. Ct. 2309. Instead, the Court remanded the case to 
the district court for further proceedings, noting that 
“to our knowledge, this is the first case in the 20-year 
history of the Party Expenditure Provision to suggest 
that in-fact coordinated expenditures by political 
parties are protected from congressional regulation by 
the First Amendment.” Id. at 624, 116 S. Ct. 2309. 

On remand, the parties compiled an extensive record, 
focusing exclusively on the novel constitutional ques- 
tion highlighted in Colorado I. On cross motions for 
summary judgment, the district court concluded that 
the FEC had “failed to offer evidence which demon- 
strates the compelling need for limits on political party 
coordinated expenditures.” Federal Election Comm’n 

v. Colorado Republican Fed. Campaign Comm., 41 F. 

8a 

Supp. 2d 1197, 1213 (D. Colo. 1999).3 The court there- 
fore declared the Party Expenditure Provision uncon- 
stitutional and entered summary judgment in favor of 
the Party. Id. at 1213-14. This appeal followed. 

III. 

We review a decision granting summary judgment de 
novo, applying the same legal standard used by the 
district court. Mesa v. White, 197 F.3d 1041, 1043 (10th 
Cir. 1999). In First Amendment cases, “the de novo 
standard is appropriate . . . for the further reason 
that . . . an appellate court has an obligation to make 
an independent examination of the whole record in 
order to make sure that the judgment does not 
constitute a forbidden intrusion on the field of free 
expression.” Id. (internal quotation marks and citation 
omitted). Summary judgment is appropriate “if the 
pleadings, depositions, answers to interrogatories, and 
admissions on file, together with the affidavits, if any, 

3 The plurality in Colorado I noted that neither the parties nor 
the lower courts had “considered whether Congress would have 
wanted the Party Expenditure Provision’s limitations to stand 
were they to apply only to coordinated, and not to independent, 
expenditures.” 518 U.S. at 625, 116 S. Ct. 2309. Thus, the plurality 
directed the parties on remand to brief this “nonconstitutional 
ground for exempting party coordinated expenditures from FECA 
limitations.” Id. at 625-26, 116 S. Ct. 2309. On remand, the 
Colorado Party argued that FECA’s unconstitutional limit on a 
party’s independent expenditures could not be severed from its 
limit on a party’s coordinated spending. Thus, the Party insisted 
that § 441a(d)(3) must fail as a matter of statutory construction. 
The district court disagreed and found that the Party Expenditure 
Provision, as it applies to coordinated expenditures, remained in 
effect after Colorado I. 41 F. Supp.2d at 1207. On appeal, the 
parties raise only the constitutional question. 

9a 

show that there is no genuine issue as to any material 
fact and that the moving party is entitled to a judgment 
as a matter of law.” Fed. R. Civ. P. 56(c). 

Determining the standard of scrutiny appropriate for 
the constitutional analysis is more complicated than 
determining our standard of review. In Buckley, the 
Supreme Court referred generally to “the exacting 
scrutiny required by the First Amendment,” 424 U.S. 
at 16, 96 S. Ct. 612, and added specifically “that the 
constitutional guarantee has its fullest and most urgent 
application precisely to the conduct of campaigns for 
political office,” id. at 15, 96 S. Ct. 612 (internal quota- 
tion marks and citation omitted). In Colorado I, the 
plurality concluded that the government must demon- 
strate a “compelling” interest to restrict the First 
Amendment freedoms of candidates and their sup- 
porters. 518 U.S. at 609, 116 S. Ct. 2309. Such language 
suggests “strict scrutiny” of campaign finance regula- 
tion in general. 

However, the Supreme Court most recently revisited 
the standard of scrutiny as to campaign contribution 
limits in particular. See Nixon v. Shrink Mo. Gov’t 
PAC, —— U.S. ——, 120 S. Ct. 897, 145 L.Ed.2d 886 
(2000). In Shrink Missouri, the Court construed a state 
statute that limited each person to a contribution of 
$1000, adjusted for inflation, in support of candidates 
for various statewide offices. Id. at 901-02. The Court 
upheld the statute against a First Amendment chal- 
lenge. In doing so, the Court recognized that the 
Buckley distinction between (permissible) restrictions 
on contributions and (impermissible) restrictions on 
expenditures implies that different types of FECA 
limits require different levels of justification. Id. at 

10a 

903-04. Prior to Shrink Missouri, the Court had made 
this implied distinction explicit in Federal Election 
Comm’n v. Massachusetts Citizens for Life, Inc., 479 
U.S. 238, 259-60, 107 S. Ct. 616, 93 L.Ed.2d 539 (1986) 
(“We have consistently held that restrictions on contri- 
butions require less compelling justification than 
restrictions on independent spending.”). The Shrink 
Missouri court thus restated the standard of scrutiny 
for contribution limits as follows: 

[U]nder Buckley’s standard of scrutiny, a contribu- 
tion limit involving “significant interference” with 
associational rights could survive if the Government 
demonstrated that contribution regulation was 
“closely drawn” to match a “sufficiently important 
interest,” though the dollar amount of the limit need 
not be “fine tun[ed].” 

120 S. Ct. at 904 (quoting Buckley, 424 U.S. at 25, 30, 96 
S. Ct. 612).4 

In this case, we must determine whether the FEC 
can justify § 441a(d)(1)’s limit on coordinated expen- 
ditures by political parties. Since FECA treats 
coordinated expenditures as “contributions,” 2 U.S.C. § 
441a(a)(7)(B)(i), and the Court has recognized this 
statutory classification, NCPAC, 470 U.S. at 492, 105 S. 

4 We note that the Court appears internally divided over the 
appropriate level of scrutiny. Compare Shrink Mo., 120 S. Ct. at 
917 (Thomas, J., dissenting) (criticizing “the majority’s refusal to 
apply strict scrutiny to contribution limits”), with id. at 911 
(Breyer, J., concurring) (concluding that, in this case, “there is no 
place for a strong presumption against constitutionality, of the sort 
often thought to accompany the words ‘strict scrutiny’ ”). 

11a 

Ct. 1459, we apply the foregoing standard to our review 
of the Party Expenditure Provision. 

However, we admit some difficulty in applying this 
standard to this particular contribution limit. As noted 
in Shrink Missouri, the Supreme Court has found in 
general that contribution limits bear “more heavily on 
the associational right than on freedom to speak.” 
Shrink Mo., 120 S. Ct. at 904. This finding rested in 
part upon the recognition that contribution limits 
ordinarily “entail[ ] only a marginal restriction upon the 
contributor’s ability to engage in free communication.” 
Buckley, 424 U.S. at 20, 96 S. Ct. 612. In the case of 
political parties, though, a limit upon the amount a 
party can spend in coordination with its candidates 
certainly entails more than a “marginal restriction” 
upon the party’s free speech. Indeed, in the context of 
an election, a party speaks in large part through its 
identified candidates; candidates, in significant mea- 
sure, speak for their political parties.5 We therefore 
question whether the contribution/expenditure dichot- 
omy which underlies the Shrink Missouri standard 
applies with equal force in this case. However, we need 
not resolve this question definitively because the Party 
Expenditure Provision fails even under the more 
deferential standard reformulated in Shrink Missouri. 

5 Notwithstanding the dissent’s charge, we do not conclude that 
parties and their candidates share an identity of interest. We, like 
the plurality in Colorado I, will not assume any “metaphysical 
identity” between party and candidate. We simply make the com- 
mon sense observation that limiting a party’s speech through its 
identified candidates imposes more than a marginal restriction 
upon that party’s First Amendment freedoms. 

12a 

IV. 

The Buckley court recognized the “prevention of 
corruption and the appearance of corruption” as “con- 
stitutionally sufficient justification[s]” for the regula- 
tion of campaign contributions. 424 U.S. at 25, 26, 96 S. 
Ct. 612. “[I]mproper influence” and “opportunities for 
abuse” go beyond bribery and “extend[ ] to the broader 
threat from politicians too compliant with the wishes of 
large contributors.” Shrink Mo., 120 S. Ct. at 905. 

To the extent that large contributions are given to 
secure a political quid pro quo from current and 
potential office holders, the integrity of our system 
of representative democracy is undermined. . . . Of 

almost equal concern as the danger of actual quid 
pro quo arrangements is the impact of the appear- 
ance of corruption stemming from public awareness 
of the opportunities for abuse inherent in a regime 
of large individual financial contributions. . . . [In 

enacting contribution limits] Congress could legiti- 
mately conclude that the avoidance of the appear- 
ance of improper influence “is also critical . . . if 
confidence in the system of representative Govern- 
ment is not to be eroded to a disastrous extent.” 

Id. at 26-27, 96 S. Ct. 612 (quoting United States Civil 
Serv. Comm’n v. National Ass’n of Letter Carriers, 413 
U.S. 548, 565, 93 S. Ct. 2880, 37 L.Ed.2d 796 (1973)). 

Since Buckley, the Court has stated that “preventing 
corruption or the appearance of corruption are the only 
legitimate and compelling government interests thus 
far identified for restricting campaign finances.” 
NCPAC, 470 U.S. at 496-97, 105 S. Ct. 1459. While cor- 
ruption or the appearance thereof are constitutionally 

13a 

sufficient justifications, the FEC in this case must show 
that political parties through their spending authority 
corrupt or appear to corrupt the electoral process. The 
opportunity for corruption or its appearance is greatest 
when the political spending is motivated by economic 
gain. As discussed below, political parties are diverse 
entities, one step removed from the candidate, and they 
exist for noneconomic reasons. Much like an advocacy 
group, a party functions “to disseminate political ideas, 
not to amass capital. The resources it has available are 
not a function of its success in the economic market- 
place, but its popularity in the political marketplace.” 
See Massachusetts Citizens for Life, 479 U.S. at 259, 
107 S. Ct. 616. Political parties have played a vital role 
in the American system of government. 

[A]stute observers[ ] all agree that the political 
party is—or should be—central to the American 
political system. Parties are—or should be—integral 
parts of all political life, from structuring the rea- 
soning and choice of the electorate, through all 
facets of campaigns and seemingly all facets of the 
government, to the very possibility of effective 
governance in a democracy. 

John H. Aldrich, Why Parties: The Origin and Trans- 
formation of Political Parties in America 18 (1995). 
From the birth of this republic into the 21st century, 
political parties have provided the principal forum for 
political speech and the principal means of political 
association. See, e.g., Clinton Rossiter, Parties and 
Politics in America 1 (1960) (declaring that there is 
“[n]o America without democracy, no democracy with- 
out politics, and no politics without parties. . . .”). 

Political speech and association, unfettered by unneces- 

14a 

sary government interference, are the lifeblood of a 
free and independent republic. We need only look to 
the struggling new republics of our time to confirm this 
principle. 

In its FECA enactments, Congress certainly recog- 
nized the importance of parties. See H.R. Conf. Rep. 
No. 94-1057, at 58 (1976), 1976 U.S.C.C.A.N. 946, at 973 
(acknowledging that political parties fulfill a “unique 
role in the political process”), S. Rep. No. 93-689, at 3, 7 
(1974), 1974 U.S.C.C.A.N. 5587, at 5589, 5593 (declaring 
that political parties “serve as a legitimate pooling 
mechanism for private contributions to candidates in 
general elections” and concluding that “a vigorous 
party system is vital to American politics”). 

The Supreme Court likewise has acknowledged the 
role of the party. See, e.g., Eu v. San Francisco County 
Democratic Cent. Comm., 489 U.S. 214, 222-25, 109 S. 
Ct. 1013, 103 L.Ed.2d 271 (1989), [sic] Tashjian v. 
Republican Party of Conn., 479 U.S. 208, 214-15, 107 S. 
Ct. 544, 93 L.Ed.2d 514 (1986); see also Davis v. 
Bandemer, 478 U.S. 109, 144-45, 106 S. Ct. 2797, 92 
L.Ed.2d 85 (1986) (O’Connor, J., concurring in the 
judgment) (“There can be little doubt that the 
emergence of a strong and stable two-party system in 
this country has contributed enormously to sound and 
effective government. The preservation and health of 
our political institutions, state and federal, depends to 
no small extent on the continued vitality of our two- 
party system, which permits both stability and 
measured change.”). Indeed, all three branches of 
government, to an important extent, rely on the speech 
and associational functions of parties to assure the 

15a 

orderly conduct of elections, appointments and 
governance in general. 

In Colorado I, the plurality acknowledged that they 
“are not aware of any special dangers of corruption 
associated with political parties” in the context of 
independent spending. 518 U.S. at 616, 116 S. Ct. 2309. 
Remand has only confirmed that conclusion for this 
court in the context of coordinated spending. We are 
convinced that Shrink Missouri, decided during the 
pendency of this appeal, does not alter this conclusion. 
As we discuss later, infra note 9, Shrink Missouri 
involved a straightforward application of Buckley to 
uphold counterpart state contribution limits. The Court 
did not confront the more difficult issue of whether 
limits on coordinated spending by political parties are 
consistent with the First Amendment. 

The FEC submits essentially three theories on how 
coordinated spending by political parties corrupts, or 
creates the appearance of corrupting, our electoral 
system. Were any of these theories valid, one would 
have to question why Congress permits any coordi- 
nated expenditures by political parties, let alone 
removes them from the Act’s more restrictive limits. 
At a minimum, Congress has signaled that political 
parties are different than individuals and other 
organizations. 

A. 

The FEC first argues that contributors to a political 
party—individuals or PACs—can corrupt (or appear to 
corrupt) the political process through their influence 
over a party. Under this theory, a contributor gives so 
much money to a party that the party grows beholden 

16a 

to the donor. The party then exercises its coordinated 
expenditure authority to either support or neglect 
those candidates who endorse or eschew the interests 
of the large contributor. By limiting the spending 
authority of a political party, the Party Expenditure 
Provision limits the financial leverage a party can exert 
on behalf of a generous donor. 

To support this theory, the FEC submitted the 
declaration of former Senator Paul Simon and other 
evidence concerning meetings between party donors 
and federal officeholders. In his declaration, Simon 
describes a meeting of the Democratic Caucus where 
members discussed an amendment to a bill that was 
already before the House-Senate Conference Com- 
mittee. Simon opposed the amendment because it had 
not passed through the typical committee hearing 
process. The amendment clearly benefitted one 
particular corporation, and Simon referenced published 
reports that this corporation had contributed $1.4 
million in the last election cycle to incumbent members 
of Congress. One of Simon’s senior colleagues spoke 
out in favor of the amendment, saying: “I’m tired of 
Paul always talking about special interests; we’ve got to 
pay attention to who is buttering our bread.” R. at 466. 

This anecdote, along with the FEC’s other evidence, 
might say something about corporate influence over the 
legislative process. But this evidence does not demon- 
strate that parties undermine the integrity of the elec- 
toral process. Corporate giving may indeed influence 
legislators, and Congress recognized this danger in 
enacting FECA. See, e.g., Federal Election Comm’n v. 
National Right to Work Comm., 459 U.S. 197, 209-10, 
103 S. Ct. 552, 74 L.Ed.2d 364 (1982) (“[FECA] reflects 

17a 

a legislative judgment that the special characteristics of 
the corporate structure require particularly careful 
regulation.”). Consequently, corporations may not 
make contributions or expenditures in connection with 
any federal election, 2 U.S.C. § 441b(a), and PACs orga- 
nized by such corporations are subject to strict dollar 
limits, id. § 441a(a)(2). 

The FEC may find these limits inadequate to elimi- 
nate all corporate sway over members of Congress. If 
so, this argument should be addressed to Congress, not 
to this court in this case. We will not validate limits on 
the protected speech of a political party as a back-door 
means of stemming corporate involvement in the 
legislative process. See Massachusetts Citizens for 
Life, 479 U.S. at 265, 107 S. Ct. 616 (“Where at all possi- 
ble, government must curtail speech only to the degree 
necessary to meet the particular problem at hand, and 
must avoid infringing on speech that does not pose the 
danger that has prompted regulation.”). 

To overcome a constitutional challenge, the FEC 
must demonstrate that a restriction on coordinated 
expenditures by political parties is “closely drawn” to 
match important government interests. Shrink Mo., 
120 S. Ct. at 904 (internal quotation marks and citation 
omitted). However, many of the interests identified by 
the FEC are hardly vindicated by this restriction. For 
example, the party may become an independent power 
source, seek contributions from interest groups and 
attempt to influence members’ votes regardless of any 
limitation on coordinated expenditures. After all, 
Colorado I confirms that a party may make unlimited 
expenditures independent of its candidates. Moreover, 
as the district court observed, many of the activities the 

18a 

FEC wishes to curtail are consistent with our model of 
representative democracy. Colorado Republican Fed. 
Campaign Comm., 41 F. Supp.2d at 1210-13. 

The FEC insists that we must also consider the 
corrupting influence of corporate, bank and union 
money contributed to political parties outside of 
FECA’s limits, so-called “soft money” contributions. In 
the parlance of campaign finance, FECA regulates only 
“hard money.” Hard money is the common term for the 
limited and disclosed funds parties raise from indi- 
viduals and PACs in conformity with the FECA limits 
outlined in the opening section. Parties may use only 
hard money to expressly advocate the election or defeat 
of federal candidates, and corporations, national banks 
and labor organizations cannot make hard money 
contributions to political parties. 2 U.S.C. § 441b(a). 

FECA does not regulate so-called “soft money” con- 
tributions. An individual or group may contribute 
unlimited amounts of soft money to a political party. 
However, the party may use soft money only for limited 
activities, such as electing candidates for state office, 
see id. § 431(8)(A)(i), or for voter registration and “get- 
out-the-vote” drives, see id. § 431(8)(B)(xii). Thus, 
unregulated soft money contributions may not be used 
to influence a federal campaign, except through the 
limited party-building activities specifically designated 
in the statute. 

The FEC contends that large soft money donors 
purchase influence over a political party, and the Party 
Expenditure Provision must be maintained to ensure 
that a party does not pressure its candidates to heed 
this influence. We appreciate the FEC’s concern over 
soft money, but this proceeding does not present the 

19a 

opportunity for soft money reform. In this case, we 
address only the constitutionality of § 441a(d)(3)’s limit 
on hard money coordinated expenditures. The FEC 
has presented no evidence to suggest that parties have 
illegally utilized soft money for hard money spending. 
Absent such a showing, we will not allow the appear- 
ance of soft money excess to justify a limit on hard 
money expenditures.6 

B. 

The FEC next contends that unscrupulous party 
officials can utilize the party’s coordinated spending 
authority to further their personal interests or those of 
an unrepresentative party faction. Under this theory, 
the cap on coordinated expenditures limits the party 

6 As part of its evidence below, the FEC submitted newspaper 
articles and editorials concerning soft and hard money. The 
district court did not make an evidentiary ruling on any individual 
article, but it did make general comments concerning the admis- 
sibility and weight of the articles. See, e.g., Colorado Republican 
Fed. Campaign Comm., 41 F. Supp.2d at 1200 (“The FEC makes 
numerous factual assertions, for example, based on reports in 
newspaper articles. Except as otherwise noted, the discussion 
which follows simply ignores the mass of irrelevant and/or inad- 
missible evidence in the record. . . .”). It appears to us that the 

district court considered all the submitted evidence, while ac- 
knowledging evidentiary weaknesses therein. Thus, we also 
consider the full record before us. We note, however, that media 
accounts documenting a vague (though visceral) public cynicism 
about campaign finance prove too little. We should not allow gen- 
eric public dissatisfaction to support the restriction of political 
speech. See NCPAC, 470 U.S. at 499-500, 105 S. Ct. 1459 (con- 
cluding that “newspaper articles and polls purportedly showing a 
public perception of corruption” fall “far short” of the required 
evidence to justify a limitation on the independent expenditures of 
PACs). 

20a 

elite from corrupting (or appearing to corrupt) the 
electoral process through improper pressure upon its 
own candidates. The FEC submits evidence that a 
small group of incumbent officeholders controls 
coordinated spending decisions, and certain incumbents 
have utilized this power to support candidates in their 
home states. 

This theory, unlike the first, has the appeal of 
directly targeting the source of alleged corruption. If 
party elites corrupt the electoral process, then a limit 
on coordinated spending directly curtails one means of 
this alleged corruption. However, the premise of this 
theory, namely that political parties can corrupt the 
electoral system by influencing their candidates’ posi- 
tions, gravely misunderstands the role of political 
parties in our democracy.7 

7 The dissent mischaracterizes the object of our criticism. 
According to the dissent, we accuse Congress of undervaluing the 
role of the party. This is simply not true. As we noted earlier, 
supra Part IV, Congress has recognized the party’s unique role in 
the political process. The plurality in Colorado I found that the 
legislative history of FECA “rather than indicating a special fear 
of the corruptive influence of political parties . . . demonstrates 
Congress’ general desire to enhance what was seen as an impor- 
tant and legitimate role for political parties in American elections.” 
518 U.S. at 618, 116 S. Ct. 2309. 

The object of our criticism is the FEC. Defying this clear con- 
gressional intent, the FEC argued before this court that Congress 
limited a party’s coordinated expenditures out of a fear of corrup- 
tion. The Supreme Court in this case has suggested otherwise. 
“[T]his Court’s opinions suggest that Congress wrote the Party 
Expenditure Provision not so much because of a special concern 
about the potentially ‘corrupting’ effect of party expenditures, but 
rather for the constitutionally insufficient purpose of reducing 
what it saw as wasteful and excessive campaign spending.” Id. 

21a 

To state the matter with utmost simplicity: 
political parties, with all their well-known human 
and structural shortcomings, are the only devices 
thus far invented by the wit of Western man which 
with some effectiveness can generate countervailing 
collective power on behalf of the many individually 
powerless against the relatively few who are 
individually—or organizationally— powerful. 

Walter Dean Burnham, Critical Elections and the 
Mainsprings of American Politics 133 (1970). Political 
parties today represent a broad-based coalition of 
interests, and there is nothing pernicious about this 
coalition shaping the views of its candidates. Parties are 
simply too large and too diverse to be corrupted by any 
one faction. Evidence in the record demonstrates that 
the parties’ hard money comes from individual donors 
who give, on average, less than $40. As amici recog- 
nized in Colorado I, the old rule of sanitary engineers 
applies here: the solution to pollution is dilution. 
Amicus Curiae Br. of the Committee for Party 
Renewal, Colorado I, 518 U.S. 604, 116 S. Ct. 2309, 135 
L.Ed.2d 795 (1996) (No. 95-489). 

We therefore do not take issue with Congress on this point but 
rather reject the FEC’s post hoc rationalization for this particular 
provision. 

Nevertheless, in construing an enactment of Congress, we must 
necessarily review some judgments made by the legislative body. 
But that, of course, is our fundamental duty. See Marbury v. 
Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803) (“It is emphatically 
the province and duty of the judicial department to say what the 
law is.”). We are mindful of the need for deference to Congress in 
this particular arena and appreciate the dissent’s repeated re- 
minders on this count. However, such deference must ultimately 
give way to our constitutional obligation. 

22a 

Even if, as the FEC contends, party leaders subvert 
the greater will of the rank-and-file membership, we 
trust the members to replace their leaders. It is true 
that political parties have been involved in wrongdoing, 
dating back to the Tammany Hall machine. However, 
the electoral and litigation processes have always 
managed to right these wrongs. Given the importance 
of political parties to the survival of this democracy, we 
reject the notion that a party’s influence over the 
positions of its candidates constitutes “a subversion of 
the political process.” NCPAC, 470 U.S. at 497, 105 S. 
Ct. 1459. 

C. 

Finally, the FEC contends that the Party Expen- 
diture Provision must be upheld to prevent evasion of 
the Act’s other contribution limits. For example, an 
individual may contribute only $1000 directly to a 
candidate for federal office, 2 U.S.C. § 441a(a)(1)(A), but 
may contribute up to $20,000 of hard money to a 
national political party, id. § 441a(a)(1)(B). The FEC 
claims that if the coordinated expenditure limit is 
struck down, individuals will circumvent the $1000 limit 
by contributing $20,000 to a political party with the 
expectation that this money be used to support a 
particular candidate. 

The Supreme Court has recognized that certain 
contribution limits serve to protect the integrity of 
others. CMA, 453 U.S. at 198-99, 101 S. Ct. 2712; 
Buckley, 424 U.S. at 38, 96 S. Ct. 612. We agree with 
the FEC that if an individual used the party as a con- 
duit to channel money to specified candidates, this 
would certainly threaten the integrity of the individual 
contribution limit. However, Congress evidently fore- 

23a 

saw this avenue of abuse and foreclosed it. The Act 
provides that individual “contributions which are in any 
way earmarked or otherwise directed through an 
intermediary or conduit” to a particular candidate shall 
be treated as contributions from the original source to 
the candidate. 2 U.S.C. § 441a(a)(8); see 11 C.F.R. 
§ 110.6(b)(1) (2000) (defining “earmarked” as any “des- 
ignation, instruction, or encumbrance, whether direct 
or indirect, express or implied, oral or written, which 
results in all or any part of a contribution being made to 

. . . a clearly identified candidate”). 

Under this provision and its expansive agency 
interpretation, the FEC certainly has the authority to 
ensure that individuals do not use political parties to 
circumvent the Act’s other contribution limits. Vigilant 
enforcement of § 441a(a)(8), rather than a severe 
abridgement of party speech, is a more appropriate and 
direct means to safeguard the integrity of the individual 
contribution limits.8 

V. 

We recognize that the Supreme Court typically has 
upheld limits upon political contributions and that 
FECA treats coordinated expenditures by a political 

8 We profess some confusion at the dissent’s analysis on this 
point. The dissent maintains that § 441a(a)(8) operates only as a 
disclosure provision, and that disclosure alone is a partial measure 
that may be supplemented with valid contribution ceilings. We 
agree that disclosure is only a partial measure, but § 441a(a)(8) 
does not stop at disclosure. All earmarked contributions must be 
disclosed, and such contributions are then subject to the strict 
contribution ceilings under the Act. Thus, while § 441a(a)(8) does 
provide for disclosure, this disclosure then triggers enforcement of 
the concomitant individual contribution limit upheld in Buckley. 

24a 

party as contributions. However, in this case, a simple 
cubbyholing of constitutional values under the labels 
“contribution” and “expenditure” cheapens the cur- 
rency. See, e.g., National Ass’n for the Advancement of 
Colored People v. Button, 371 U.S. 415, 429, 83 S. Ct. 
328, 9 L.Ed.2d 405 (1963) (stating that the government 
“cannot foreclose the existence of constitutional rights 
by mere labels”). We also recognize that the Buckley 
court was concerned about the “real or imagined coer- 
cive influence of large financial contributions on can- 
didates’ positions.” Id. at 25, 96 S. Ct. 612. But the 
Buckley court so defined corruption for the purpose of 
reviewing limits upon giving and spending by indi- 
viduals, PACs and candidates. Because the Buckley 
litigants did not challenge the Party Expenditure 
Provision on First Amendment grounds, the Court said 
nothing about the First Amendment implications of 
restricting party speech on behalf of its candidates. Id. 
at 58 n. 66, 96 S. Ct. 612. To encompass political parties 
within the Buckley language on corruption would 
require a real extension of this precedent. Such an 
extension is not warranted by the Court’s post- 
Buckley FECA jurisprudence and would betray the 
historic importance of political parties. See Colorado I, 
518 U.S. at 629, 116 S. Ct. 2309 (Kennedy, J., concurring 
in the judgment and dissenting in part) (“In my view, 
we should not transplant the reasoning of cases 
upholding ordinary contribution limitations to a case 
involving FECA’s restrictions on political party 
spending.”). 

In sum, we conclude that the Party Expenditure 
Provision constitutes a “significant interference” with 
the First Amendment rights of political parties. 
Buckley, 424 U.S. at 25, 96 S. Ct. 612 (internal quotation 

25a 

marks and citation omitted). This interference effects 
more than a “marginal restriction upon the [parties’] 
ability to engage in free communication.” Id. at 20, 96 
S. Ct. 612. The FEC has not demonstrated on remand 
that coordinated spending by political parties corrupts, 
or creates the appearance of corrupting, the electoral 
process.9 Therefore, § 441a(d)(3)’s limit on party spend- 

9 The dissent contends that we betray the evidentiary thres- 
hold applied in Shrink Missouri. As the dissent accurately re- 
counts, the Shrink Missouri court did caution against too rigorous 
an evidentiary standard in the context of campaign finance. How- 
ever, those words of caution must be read in light of the particular 
challenge before the Court in that case. The state provision before 
the Court in Shrink Missouri limited each person to a contribution 
of $1000, adjusted for inflation, in support of candidates for various 
statewide offices. The Court found that this provision bore a 
“striking resemblance to the limitations sustained in Buckley.” 
Shrink Mo., 120 S. Ct. at 908. As a consequence, the Court ulti- 
mately concluded that “[t]here is no reason in logic or evidence to 
doubt the sufficiency of Buckley to govern this case.” Id. at 910. 
Since the case “d[id] not present a close call,” the Court declined 
any “further definition” of the government’s evidentiary obliga- 
tion. Id. at 907. However, the Court did indicate that there might 
be “need for a more extensive evidentiary documentation if peti- 
tioners had made any showing of their own to cast doubt on the 
apparent implications of Buckley’s evidence.” Id. at 908. In our 
judgment, the Colorado Party has amply demonstrated that the 
evidence before the Buckley court is largely inapposite to the 
constitutionality of this provision. As noted earlier, the Buckley 
litigants did not challenge the Party Expenditure Provision on 
First Amendment grounds. Therefore, the Court said nothing 
about the First Amendment implications of restricting party 
speech through its candidates. 

The Shrink Missouri court essentially incorporated by refer- 
ence the Buckley evidence, because the disposition amounted to a 
routine application of the Buckley precedent. As we have 
demonstrated, this case does not involve a routine application of 

26a 

ing is not “closely drawn” to the recognized govern- 
mental interest but instead constitutes an “unnecessary 
abridgment” of First Amendment freedoms. 

10 Id. at 25, 

96 S. Ct. 612. 
AFFIRMED. 

SEYMOUR, Chief Judge, dissenting. 

The majority opinion is fundamentally flawed in 
several aspects. First, the discussion and analysis are 
permeated with and skewed by the majority’s deter- 
mination to substitute its judgment for that of Congress 
on quintessentially political matters the Supreme Court 
has cautioned courts to leave to the legislative process. 
In so doing, the majority creates 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. The majority 

Buckley. Therefore, it was incumbent upon the FEC to make a 
more extensive evidentiary showing, which they failed to do. 

10 In Colorado I, the plurality indicated that the more restric- 
tive limits upon coordinated spending by a “multicandidate 
political committee,” see § 441a(a)(2), would apply to political 
parties if the entire Party Expenditure Provision were struck 
down. 518 U.S. at 625, 116 S. Ct. 2309. Heeding this signal from 
the Court, the Party on remand challenged all FECA limits to the 
extent they restrict coordinated spending by political parties. The 
district court did not strike § 441a(a)(2) as applied to political 
parties, and we decline to do so as well. The record contains no 
evidence of a credible threat by the FEC to enforce this provision 
against political parties. Therefore, this particular issue is not ripe 
for our resolution. See Renne v. Geary, 501 U.S. 312, 321-22, 111 S. 
Ct. 2331, 115 L.Ed.2d 288 (1991) (finding no justiciable controversy 
in a First Amendment political speech case where there was “no 
factual record of an actual or imminent application” of the chal- 
lenged provision). 

27a 

supports its decision to accord political parties an 
exemption from contribution limits Congress believed 
necessary to protect the integrity of the democratic 
political process by discounting the type of evidence the 
Supreme Court has recently held sufficient to sub- 
stantiate congressional concerns, and by relying instead 
on evidence the Court has expressly discounted. 
Accordingly, I respectfully dissent. 

I 

As originally enacted, the Federal Election Cam- 
paign Act (FECA or the Act), 2 U.S.C. §§ 431-455, 
placed limits on both political contributions and expen- 
ditures. The primary interest to be served by these 
limitations was “the prevention of corruption and the 
appearance of corruption spawned by the real or imag- 
ined coercive influence of large financial contributions 
on candidates’ positions and on their actions if elected 
to office.” Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 
612, 46 L.Ed.2d 659 (1976). In Buckley, the Supreme 
Court was faced with First Amendment challenges to 
several sections of FECA and drew a distinction for 
purposes of First Amendment analysis between expen- 
ditures and contributions. The Court viewed limits on 
expenditures as a direct restraint on political speech 
but characterized contribution limits as entailing only a 
marginal restriction. Accordingly, the Court upheld the 
$1000 limit on contributions by individuals and groups 
to a particular candidate or authorized campaign com- 
mittee for any single election, id. at 23-35, 96 S. Ct. 612, 

28a 

the $5000 limit on contributions by a political committee 
to a single candidate, id. at 35-36, 96 S. Ct. 612, and the 
$25,000 limit on total annual contributions by an indi- 
vidual, id. at 38, 96 S. Ct. 612. 

The Court reached a different result with respect to 
limits on expenditures and held unconstitutional the 
$1000 limit on independent expenditures for communi- 
cations advocating the election or defeat of an identified 
candidate. Id. at 39-51, 96 S. Ct. 612. The Court also 
struck down the ceiling on a candidate’s personal ex- 
penditures as unsupported by the governmental inter- 
est in preventing actual and apparent corruption, id. at 
51-54, 96 S. Ct. 612, and invalidated that section of the 
Act limiting overall campaign expenditures by can- 
didates for federal office, id. at 54-58, 96 S. Ct. 612. 

As indicated by Buckley, FECA regulates two types 
of expenditures: those that are coordinated with a can- 
didate and those that are made independently. Coor- 
dinated expenditures are considered contributions un- 
der section 441a(a)(7)(B)(i) and therefore may be 
subject to limits not permissible with respect to inde- 
pendent expenditures. Prior to the Supreme Court 
ruling in this case, see Colorado Republican Fed. Cam- 
paign Comm. v. Federal Election Comm’n, 518 U.S. 
604, 116 S. Ct. 2309, 135 L.Ed.2d 795 (1996), the FEC 
had construed FECA as requiring that all party expen- 
ditures be deemed coordinated. 

29a 

The instant appeal concerns section 441a(d)(3), 

11 a 
provision of the Act not at issue in Buckley, which 
limits the amount a committee for a political party can 
spend in connection with the general election campaign 
of a candidate for federal office. The expenditure at 
issue was made by the Colorado Republican Federal 
Campaign Committee for a radio advertisement 
criticizing an announced Democratic candidate that 
aired before either party had actually nominated 
senatorial candidates. In line with the FEC’s position, 
the district court in its original opinion held that the 
expenditure was coordinated even though no Republi- 
can candidate had been nominated at the time. None- 
theless the court ruled that the expenditure did not 
violate the Act, holding that because it did not consti- 
tute express advocacy, it was not made “in connection 

11 That section provides: 

(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 Representative, the greater of- 
(i) 2 cents multiplied by the voting age population of 

the State (as certified under subsection (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. 

2 U.S.C. § 441a(d)(3). 

30a 

with” the Republican candidate within the meaning of 
section 441a(d)(3). See Federal Election Comm’n v. 
Colorado Republican Fed. Campaign Comm., 839 F. 
Supp. 1448 (D. Colo. 1993). 

On appeal, this court disagreed and held that section 
441a(d)(3) applied to coordinated spending that in- 
volved a clearly identified candidate and an electioneer- 
ing message without regard to whether the message 
constitutes express advocacy. See Federal Election 
Comm’n v. Colorado Republican Fed. Campaign 
Comm., 59 F.3d 1015 (10th Cir. 1995). We further held 
that the limit imposed by the section on coordinated 
expenditures did not violate the First Amendment. 

In a fractured opinion, the Supreme Court vacated 
and remanded. See Colorado Republican Fed. Cam- 
paign Comm., 518 U.S. 604, 116 S. Ct. 2309, 135 
L.Ed.2d 795. The plurality opinion of Justice Breyer, 
joined by Justices O’Connor and Souter, rejected the 
FEC’s argument that all expenditures by political 
parties must be deemed coordinated, and held that the 
expenditure here was in fact independent and that a 
limit on independent expenditures by political parties 
was unconstitutional under Buckley. In so doing, the 
plurality emphasized “the fundamental constitutional 
difference” between independent expenditures and con- 
tributions to a candidate to be spent on his campaign. 
Id. at 614-15, 116 S. Ct. 2309. The plurality held that 
the government’s interest in preventing corruption and 
the appearance of corruption was not sufficient to 
justify the restriction on independent spending, ob- 
serving that while the danger of a political quid pro quo 
was not eliminated, that danger was alleviated by the 
absence of prearrangement and coordination. The 

31a 

plurality did not reach the issue of whether FECA’s 
limit on coordinated expenditures by political parties is 
facially invalid under the First Amendment, pointing 
out that the issue had not been adequately developed in 
the lower courts. 

Justices Kennedy, Rehnquist, Scalia, and Thomas 
agreed with the plurality but would have gone further 
to hold the spending limit invalid as applied to all 
expenditures, independent and coordinated. Justice 
Thomas, standing alone, also advocated the abandon- 
ment of the analysis in Buckley altogether. Justices 
Stevens and Ginsburg dissented on the ground that all 
money spent by a political party should be deemed a 
contribution to the campaign and that FECA’s limits on 
spending by political parties are constitutional. 

On remand, this court determined that factual evi- 
dence might be relevant to the issues yet to be 
determined and sent the case back to the district court 
for further proceedings. See Federal Election Comm’n 

v. Colorado Republican Fed. Campaign Comm., 96 
F.3d 471 (10th Cir. 1996). The district court held the 
Act’s limits on all spending by political parties facially 
invalid. See Federal Election Comm’n v. Colorado 
Republican Fed. Campaign Comm., 41 F. Supp.2d 1197 
(D. Colo. 1999). In so doing, the court referred to the 
material supplied by the FEC in support of the 
constitutionality of section 441a(d)(3) as lacking “any 
attention to elementary evidentiary requirements, such 
as authentication (Fed. R. Evid. 901), or evidentiary 
limitations, such as the rule against hearsay (Fed. R. 
Evid. 801).” Id. at 1200. Accordingly, the court “simply 
ignore[d] the mass of irrelevant and/or inadmissible 
evidence in the record and recite[d] facts which [it] 

32a 

regard[ed] as having some significance to the questions 
before the court.” Id. at 1200-01. The court held that 
under the standard established by the Supreme Court, 
the FEC must demonstrate that the limit serves a 
compelling interest and is narrowly tailored. Id. at 
1208. The court further held that the FEC had failed 
the test because it had offered no evidence of quid pro 
quo corruption, stating that mere access does not con- 
stitute corruption. 

II 

While the appeal of this district court ruling was 
pending, the Supreme Court decided a case addressing 
contribution limits at the state level that were based on 
the “proposition that large contributions raise suspi- 
cions of influence peddling tending to undermine citi- 
zens’ confidence ‘in the integrity of . . . government.’ ” 
Nixon v. Shrink Missouri Gov’t PAC, —— U.S. ——, 
——, 120 S. Ct. 897, 902, 145 L.Ed.2d 886 (2000) (quot- 
ing Shrink Missouri Gov’t PAC v. Adams, 5 F. Supp.2d 
734, 738 (E.D. Mo. 1998)). In upholding the contribution 
limits at issue, the Court addressed several issues rele- 
vant to the instant appeal. The Court’s analysis thus 
requires more than the perfunctory nod given it by the 
majority. 

In Shrink Missouri the Court addressed the stan- 
dard applicable to a claim that a contribution limit 
violates the First Amendment and reiterated the line it 
had drawn in Buckley between limits on expenditures 
and limits on contributions as they impact speech 
rights. Shrink Missouri, 120 S. Ct. at 903. Signifi- 
cantly, as the majority grudgingly acknowledges, the 
Court reaffirmed and expanded on Buckley’s distinction 

33a 

between expenditure and contribution limitations in 
their impacts on the association right. While an 
expenditure limit “precludes most associations from 
effectively amplifying the voice of their adherents,” 
(thus interfering with the freedom of the adherents 
as well as the association) the contribution limits 
“leave the contributor free to become a member of 
any political association and to assist personally in 
the association’s efforts on behalf of candidates.” 

Id. at 903-04 (citations omitted) (emphasis added). The 
Court reiterated and expressly applied to associational 
rights its holdings that “‘restrictions on contributions 
require less compelling justification than restrictions on 
independent spending,’ ” id. at 904, and that “a contri- 
bution limit involving ‘significant interference’ with 
associational rights could survive if the Government 
demonstrated that contribution regulation was ‘closely 
drawn’ to match a ‘sufficiently important interest,’ ” id. 
(citations omitted). 

The Court in Shrink Missouri also addressed the 
governmental interest furthered by contribution limits. 
The Court reiterated its prior cases holding that 
preventing corruption and the appearance of corruption 
are constitutionally sufficient to justify the abridge- 
ment of the associational right, pointing out that “[c]or- 
ruption is a subversion of the political process. Elected 
officials are influenced to act contrary to their obliga- 
tions of office by the prospect of financial gain to 
themselves or infusions of money into their cam- 
paigns.” Shrink Missouri, 120 S. Ct. at 905 (quoting 
Federal Election Comm’n v. National Right to Work 

34a 

Comm., 459 U.S. 197, 208, 103 S. Ct. 552, 74 L.Ed.2d 364 
(1982)) (emphasis added). 

In speaking of “improper influence” and “opportuni- 
ties for abuse” in addition to “quid pro quo arrange- 
ments,” we recognized a concern not confined to bri- 
bery 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 our recognition that the 
Congress could constitutionally address the power 
of money to “influence government action” in ways 
less “blatant and specific” than bribery. 

Id. (quoting Buckley, 424 U.S. at 28, 96 S. Ct. 612). The 
Court observed that there is “no serious question” 
about the legitimacy of the governmental interest in 
preventing corruption and its appearance. Id. 

The Court then addressed and rejected the lower 
court’s conclusion that the state had “fail[ed] to justify 
the invocation of those interests with empirical evi- 
dence of actually corrupt practices or of a perception 
among Missouri voters that unrestricted contributions 
must have been exerting a covertly corrosive influ- 
ence.” Id. at 906. The Court’s discussion of the 
requisite evidentiary showing is directly relevant here 
in view of the majority’s conclusion that the FEC has 
failed to meet its burden with respect to the contri- 
bution limit before us. The Court began its analysis by 
pointing out: 

The quantum of empirical evidence needed to satisfy 
heightened judicial scrutiny of legislative judgments 
will vary up or down with the novelty and plausibil- 
ity of the justification raised. Buckley demonstrates 

35a 

that the dangers of large, corrupt contributions and 
the suspicion that large contributions are corrupt 
are neither novel nor implausible. The opinion 
noted that “the deeply disturbing examples sur- 
facing after the 1972 election demonstrate that the 
problem [of corruption] is not an illusory one.” 

Id. (quoting Buckley, 424 U.S. at 27 & n. 28, 96 S. Ct. 
612). The Court also rejected the argument that the 
evidentiary showing held sufficient in Buckley had 
subsequently been supplemented by a new requirement 
that the government “demonstrate that the recited 
harms are real, not merely conjectural.” Id. at 907. In 
so doing, the Court distinguished between independent 
expenditure limits and contribution limits, implying 
that because limits on contributions are directly related 
to preventing corruption they may be assumed to be 
necessary absent convincing evidence to the contrary. 
Id. 

The Court then set out the evidence supporting the 
contribution limit in that case, which did “not present a 
close call” requiring further definition of the state’s 
evidentiary obligation. Id. This evidence consisted of 
an affidavit from a state lawmaker stating that “large 
contributions have the real potential to buy votes,” id. 
(internal quotation omitted), newspaper reports of 
large contributions, and anecdotal evidence, as well as a 
statewide vote indicating a public perception that limits 
were necessary. Id. at 907-08. The Court acknowl- 
edged that more extensive documentation might be 
needed if the state had made a showing 

to cast doubt on the apparent implications of 
Buckley’s evidence and the record here, but the 
closest respondents come to challenging these 

36a 

conclusions is their invocation of academic studies 
said to indicate that large contributions to public 
officials or candidates do not actually result in 
changes in candidates’ positions. . . . Given the 

conflict among these publications, and the absence of 
any reason to think that public perception has been 
influenced by the studies cited by respondents, 
there is little reason to doubt that sometimes large 
contributions will work actual corruption of our 
political system, and no reason to question the 
existence of a corresponding suspicion among 
voters. 

Id. at 908. 

III 

An evaluation of the majority’s analysis in light of 
Shrink Missouri reveals that the majority opinion is 
replete with instances in which Congressional assess- 
ments and priorities are criticized and disregarded 
based on the majority’s view of the role political parties 
should play in the American political process and how 
best to promote that role. The majority accepts, as it 
must, that the prevention of both corruption and the 
appearance of corruption is a legitimate justification for 
impinging on First Amendment rights. Nonetheless 
the majority essentially eviscerates that interest by 
reweighing the balance struck by Congress in order to 
elevate what the majority believes to be the paramount 
interest political parties have in making unlimited 
coordinated contributions. 

In my judgment, the majority has crossed the line 
between assessing the legal merits of a First Amend- 
ment challenge and imposing its own political judg- 

37a 

ments. A court owes “deference to a congressional 
determination of the need for a prophylactic rule where 
the evil of potential corruption had long been recog- 
nized.” Shrink Missouri, 120 S. Ct. at 906 n. 5. “Where 
a legislature has significantly greater institutional ex- 
pertise, as, for example, in the field of election regula- 
tion, the Court in practice defers to empirical legislative 
judgments. . . .” Id. at 912 (Breyer, J., concurring). 

“[T]he legislature understands the problem—the threat 
to electoral integrity, the need for democratiza- 
tion—better than do we. We should defer to its politi- 
cal judgment that unlimited spending threatens the 
integrity of the electoral process.” Id. at 913. 

Rather than deferring, the majority substitutes its 
view for that of Congress and levels a broad-based 
attack on the contribution limit at issue. It concludes 
that the FEC has failed to provide adequate eviden- 
tiary support for the limit, that in imposing the limit 
Congress “gravely misunderst[ood] the role of political 
parties in our democracy,” maj. op. at 1231, that the 
provision cannot be supported as a necessary compo- 
nent in the overall regulatory scheme, and that the 
same result can be obtained by the less intrusive re- 
porting requirements of section 441a(a)(8). In so doing, 
the majority requires an improperly demanding level of 
proof from the FEC to support a contribution limit the 
Supreme Court has told us is presumably justified. The 
majority disregards evidentiary material expressly 
cited by the Court as sufficient to justify a contribution 
limit, yet relies on disputed academic articles of the 
type the Court expressly held insufficient to cast doubt 
on the validity of the justification. Finally, by immuniz- 
ing political parties from contribution limits designed to 
prevent corruption, the majority ignores the Court’s 

38a 

directive that courts not “second-guess a legislative 
determination as to the need for prophylactic measures 
where corruption is the evil feared.” Shrink Missouri, 
120 S. Ct. at 906 n. 5. 

The premise for the majority’s result is its view of 
the “vital role” that political parties have played in the 
American system of government. Maj. op. at 1227-28. 
While there is no doubt that parties play an important 
role in American politics, there is also ample support for 
the legislative determination that if left unchecked, 
parties can exert a corrupting influence on democratic 
processes or, equally importantly, appear to do so. 

12 

In formulating contribution limits, Congress did in 
fact recognize the role political parties play in American 
politics and accorded them special treatment by per- 
mitting them to make coordinated expenditures on 
behalf of their federal candidates far in excess of the 
limits imposed on others, see 2 U.S.C. § 441a(d)(1), and 
by permitting adjustment for inflation, see id. § 441a(c). 
Indeed, the majority cites the legislative history 
accompanying these provisions as evidence of Con- 
gressional recognition that parties play a unique role in 
the political process. See H.R. CONF. REP. NO. 94-1057, 
at 58-59 (1976), reprinted in 1976 U.S.C.C.A.N. 946, 
973-74. However, other legislative material reveals 
that Congress wanted to ensure that “party assistance 
[would] actually represent[ ] the involvement of many 
voters and not merely the influence of a wealthy 
few.” S. Rep. No. 93-689 (1974), reprinted in 1974 

12 Significantly, the majority offers no evidence to the contrary 
beyond passages from law review articles which contain platitudes 
about the abstract value of parties in the American political 
process. 

39a 

U.S.C.C.A.N. 5587, 5594. The FECA amendments of 
1974 were intended to “prevent[ ] evasion of the 
individual contribution limits by persons funneling 
large gifts through party committees; each person’s 
donation to party funds used to assist federal 
candidates under this special provision must not exceed 
the maximum amount he could give directly to a 
candidate.” Id. 

Significantly, these Congressional remarks appear in 
a discussion of legislation intended to strengthen 
political parties by promoting the pooling of resources 
from many small contributors, building coalitions of 
voters, keeping candidates responsible to the elector- 
ate, and increasing party resources for important party 
operations between elections. See id. at 5593-94. 
Indeed, Amici Democratic Senatorial Campaign Com- 
mittee and Democratic Congressional Campaign Com- 
mittee argue persuasively that during the past twenty 
years political parties have recovered dramatically from 
a prolonged period of decline due in large part to the 
FECA provisions limiting contributions and expen- 
ditures, which in turn encourage parties to deploy their 
resources in other party-building functions that ulti- 
mately enhance their role in the political process. 
Whether one accepts this argument or not, it clearly 
illuminates the fact that 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. 

The majority prefaces its analysis with a discussion 
voicing reservations on whether the standard set out in 
Shrink Missouri for assessing contribution limits 
should apply to political parties. See maj. op. at 12-13. 

40a 

Under that test, a contribution limit survives a First 
Amendment challenge if the Government demonstrates 
that it was closely drawn to match a sufficiently 
important interest. Shrink Missouri, 120 S. Ct. at 904. 
As an initial matter, the majority is simply mistaken in 
asserting that the Court in either Buckley or Shrink 
Missouri analyzed contribution limits more closely 
when they affected associational rights than when they 
affected speech rights. To the contrary, as discussed 
above, after setting out the Buckley analysis in the 
context of restraints on speech, the Court in Shrink 
Missouri expressly stated that it had “flagged a similar 
difference between expenditure and contribution 
limitations in their impacts on the association right.” 
Id. While recognizing that contribution limits have a 
greater impact on associational rights than on speech 
rights, the Court nonetheless reiterated its past 
holdings that expenditure and contribution limits are 
governed by differing standards even when they affect 
associational rights. Id. It is beyond quibble that the 
Court has drawn a distinction for purposes of First 
Amendment scrutiny between expenditures and 
contributions, rather than between associational and 
speech rights. 

Moreover, there is no support in the Constitution, 
this legislation, or Supreme Court authority for the 
majority’s notion that political parties are entitled to 
favored treatment when assessing a contribution limit 
that impacts their associational rights. The majority 
supports its position by stating that “a party speaks in 

41a 

13 Maj. op. 
at 1227. The same can be said, however, of any entity 
seeking to associate itself with a political candidate. 
That fact therefore does not serve to set political 
parties apart from others subject to contribution limits. 
More importantly, the Supreme Court has expressly 
rejected the argument that a party and its candidate 
are identical: “We cannot assume . . . that this is so. 
Congress chose to treat candidates and their parties 
quite differently under the Act, for example, by regu- 
lating contributions from one to the other.” Colorado 
Republican Comm., 518 U.S. at 623-24, 116 S. Ct. 2309 
(citation omitted). The Supreme Court and Congress 
have thus foreclosed the very assumption made by the 
majority here. 

In holding the contribution limit at issue uncon- 
stitutional, the majority requires the FEC to provide 
evidence in support of Congress’ determination that 
political parties corrupt or appear to corrupt the 
political process through unlimited contributions. 

14 The 
Supreme Court addressed the quantum of evidence 
required to support this interest in Shrink Missouri, 

13 In focusing on the speech a party can allegedly only make 
through its candidate, the majority blurs the very line it wishes to 
draw between limits on speech and limits on associational rights. 

14 In addition, the majority requires that Congress’ determina- 
tion be analyzed in light of the vital role political parties play in 
that process. As I have discussed in text, Congress was clearly 
aware of the role parties play in the political process, and it en- 
acted measures aimed at promoting that role as well as strength- 
ening parties in general. The majority thus “double counts” the 
importance of protecting political parties and improperly sub- 
stitutes its balancing of the competing values at issue here for that 
of Congress. 

large part through its identified candidates.” 

42a 

and its discussion there cannot be squared with the 
majority’s treatment of the matter here. The Court 
pointed out that the necessary evidentiary showing 
“will vary up or down with the novelty and plausibility 
of the justification raised,” and that “the dangers of 
large, corrupt contributions and the suspicion that large 
contributions are corrupt are neither novel nor imp- 
lausible.” Shrink Missouri, 120 S. Ct. at 906. Because 
the legitimacy of the interest is thus so critical to the 
evidence required, the relevant inquiry is whether the 
Court’s discussion in Shrink Missouri of the well- 
recognized dangers of large contributions applies when 
those contributions are from political parties rather 
than from other donors. 

In Shrink Missouri, the lower court accepted the 
argument that the State had not justified the invocation 
of this interest with empirical evidence of actually cor- 
rupt practices or the public perception of a corrupting 
influence. The Supreme Court disagreed and expanded 
on the dangers flowing from large contributions gener- 
ally. 

In speaking of “improper influence” and “oppor- 
tunities for abuse” in addition to “quid pro quo 
arrangements,” we recognized a concern not con- 
fined to bribery of public officials, but extending to 
the broader threat from politicians too compliant 
with the wishes of large contributors. These were 
the obvious points behind our recognition that the 
Congress could constitutionally address the power 
of money “to influence governmental action” in ways 
less “blatant and specific” than bribery. 

43a 

Shrink Missouri, 120 S. Ct. at 905 (quoting Buckley, 
424 U.S. at 28, 96 S. Ct. 612). The Court pointed out: 

Even without the authority of Buckley, there would 
be no serious question about the legitimacy of the 
interests claimed, which, after all, underlie bribery 
and anti-gratuity statutes. While neither law nor 
morals equate all political contributions, without 
more, with bribes, we spoke in Buckley of the 
perception of corruption “inherent in a regime of 
large individual financial contributions” to candi- 
dates for public office, as a source of concern “almost 
equal” to quid pro quo improbity. The public 
interest in countering that perception was, indeed, 
the entire answer to the overbreadth claim raised in 
the Buckley case. This made perfect sense. Leave 
the perception of impropriety unanswered, and the 
cynical assumption that large donors call the tune 
could jeopardize the willingness of voters to take 
part in democratic governance. Democracy works 
“only if the people have faith in those who govern, 
and that faith is bound to be shattered when high 
officials and their appointees engage in activities 
which arouse suspicions of malfeasance and corrup- 
tion.” 

Id. at 905-06 (citations omitted). 

The FEC contends that these concerns apply equally 
to large contributions from political parties, arguing 
that parties can use their ability to funnel large 
amounts into the campaigns of particular candidates in 
response to large donations by outside interests, to 
assist in the evasion of contribution limits placed on 
individual and political committee contributions, and to 

44a 

promote the personal interests of party leaders, their 
friends, and party factions. The FEC’s position voices 
long-standing Congressional concerns that have 
animated the history of efforts to reform federal elec- 
tion 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. In 
United States v. International Union UAW-CIO, 352 
U.S. 567, 77 S. Ct. 529, 1 L.Ed.2d 563 (1957), for exam- 
ple, the Supreme Court addressed the circumstances 
giving rise to the Corrupt Practices Act, 18 U.S.C. 
§ 610, which prohibited corporations and labor unions 
from making contributions or expenditures in connec- 
tion with federal elections. The Court found the 
following legislative history indicative of Congressional 
intent to “protect the political process from what it 
deemed to be the corroding effect of money employed in 
elections by aggregated power,” id. at 582, 77 S. Ct. 529: 

We all know . . . that one of the great political 
evils of the time is the apparent hold on political 
parties which business interests and certain 
organizations seek and sometimes obtain by reason 
of liberal campaign contributions. Many believe 
that when an individual or association of individuals 
makes large contributions for the purpose of aiding 
candidates of political parties in winning the 
elections, they expect, and sometimes demand, and 
occasionally, at least, receive, consideration by the 
beneficiaries of their contributions which not 
infrequently is harmful to the general public inter- 
est. It is unquestionably an evil which ought to be 
dealt with, and dealt with intelligently and 
effectively. 

45a 

Id. at 576-77, 77 S. Ct. 529 (quoting remarks by 
“Senator Robinson, one of the leaders of the Senate”). 
“We all know that money is the chief source of corrup- 
tion. We all know that large contributions to political 
campaigns . . . put the political party under obligation 
to the large contributors, who demand pay in the way of 
legislation. . . .” Id. at 577-78, 77 S. Ct. 529 (quoting 

Senator Bankhead offering 1940 amendments to the 
Hatch Act restricting contributions to federal elec- 
tions). 

One of the matters upon which I sensed that the 
public was taking a stand opposite to that of labor 
leaders was the question of the handling of funds of 
labor organizations. The public was aroused by 
many rumors of . . . political contributions to 
parties and candidates which later were held as 
clubs over the head of high Federal officials. 

Id. at 579, 77 S. Ct. 529 (quoting Congressman Landis, 
author of 1943 measure extending sections of Corrupt 
Practices Act to labor unions). These remarks, all of 
which were made by federal legislators during the 
efforts to pass earlier campaign finance reform, 
establish that the dangers from large contributions by 
political parties are no more novel or implausible than 
those from large contributions generally. 

The Court’s analysis of the quantum of evidence 
presented in Shrink Missouri governs the inquiry here. 
In concluding that the evidentiary showing in that case 
was sufficient to justify the contribution limits chal- 
lenged there, the Court cited an affidavit from a state 
legislator stating generally that large contributions 
have the potential to buy votes, and “newspaper 
accounts of large contributions supporting inferences of 

46a 

impropriety.” Shrink Missouri, 120 S. Ct. at 907. 
Although the majority largely ignores the record before 
us, it likewise contains affidavits and depositions from 
those who have been active in federal fund raising 
activities, both as candidates and as party activists. 
These materials state that large donors to political 
parties give with an eye toward obtaining favorable 
consideration of legislation they deem important or 
obtaining access to a legislator in order to urge 
favorable action. See, e.g., Decl. of Robert Hickmott 
(DNC fundraiser), jt. app. at 452-53; Aff. of Robert 
Razen (staff person for Senator George Mitchell), id. at 
462; Aff. of Former Senator Paul Simon, id. at 466; Decl. 
of Former Senator Timothy Wirth, id. at 545-46; Dep. of 
Paul Simon, id. at 636; Dep. of Timothy Wirth, id. at 
649, 661. See also Fax from National Republican 
Senatorial Comm., id. at 626. The record also reveals 
that although earmarking funds for a particular can- 
didate 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. See, e.g., 
Decl. of Leon G. Billings (former Exec. Dir. of Dem. 
Sen. Campaign Comm.), id. at 382; Decl. of Robert 
Hickmott (DNC fundraiser), id. at 446-48; Aff. of Paul 
Simon, id. at 465; Decl. of Timothy Wirth, id. at 543; 
Dep. of Timothy Wirth, id. at 644-45. 

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. See, e.g., Decl. of Leon G. Billings, id. 
at 382-83; Decl. of Robert Hickmott, id. at 446-47; Aff. 

47a 

of R. William Johnstone (staff person for Senator 
Wysche Fowler, Jr.), id. at 457; Decl. of Timothy Wirth, 
id. at 543; Dep. of Paul Simon, id. at 635. See also 
Letter from Congressman Wayne Allred, id. at 191. 
Former Senator Simon candidly admitted, “I have 
found the process to be corruptive for everyone and, 
even those of us who go out of our way to make sure 
money does not influence our decision, we are affected 
by it.” Id. at 630; see also id. at 640 (noting one col- 
league saying bluntly, “We have to pay attention to 
who is buttering our bread.”). 

In addition, the record contains numerous media 
articles and interviews reporting on episodes in which 
the inference can be drawn that donations to a party 
brought about access to that party’s candidates and 
legislators, which in turn furthered the donor’s business 
interests. 

15 See generally id. at 250-89. Given the 

15 Despite the Court’s explicit reliance on newspaper articles in 
Shrink Missouri, the majority here refuses to accord them any 
weight in addressing the Congressional goal of preventing public 
perception of corruption. The majority states that “media accounts 
documenting a vague (though visceral) public cynicism about 
campaign finance prove too little. We should not allow generic 
public dissatisfaction to support the restriction of political speech.” 
Maj. op. at 1230 n. 6. In so doing, the majority mischaracterizes 
and then ignores the significance of the media material here, and 
fails to accord any weight to the public interest in countering the 
perception of impropriety, which the Supreme Court has described 
“as a source of concern ‘almost equal’ to quid pro quo improbity.” 
Shrink Missouri, 120 S. Ct. at 905-06 (quoting Buckley, 424 U.S. at 
30, 96 S. Ct. 612). Significantly, the Supreme Court authority 
upon which the majority relies was directed to evaluating limits on 
independent expenditures, which the Court has emphatically 
distinguished from coordinated expenditures. 

48a 

Supreme Court’s reliance on this very type of evidence 
in Shrink Missouri, I believe that we are required to 
credit it here and to hold that the FEC has indeed 
carried its evidentiary burden to support the legislative 
judgment that party contribution limits are necessary 
to prevent corruption and the appearance of corruption. 

The majority opinion’s several responses to the 
evidence offered by the FEC all run afoul of Supreme 
Court authority. First, the majority begins on the 
wrong foot in relying on a statement by the plurality 
opinion in Colorado Republican Fed. Campaign Comm. 
that it was “ ‘not aware of any special dangers of 
corruption associated with political parties.’ ” 

Maj. op. 
at 1228 (quoting Colorado Republican Fed. Campaign 
Comm., 518 U.S. at 616, 116 S. Ct. 2309). This remark 
was not directed to contribution limits on party dona- 
tions. Rather, it referred to limits on a party’s inde- 

[T]he constitutionally significant fact . . . is the lack of coor- 
dination between the candidate and the source of the 
expenditure. This fact prevents us from assuming, absent 
convincing evidence to the contrary, that a limitation on 
political parties’ independent expenditures is necessary to 
combat a substantial danger of corruption of the electoral 
system. 

Colorado Republican Campaign Comm., 518 U.S. at 617-18, 116 S. 
Ct. 2309 (citing Buckley, 424 U.S. at 45-46, 96 S. Ct. 612; Federal 
Election Comm’n v. National Conservative Political Action 
Comm., 470 U.S. 480, 498, 105 S. Ct. 1459, 84 L.Ed.2d 455 (1985)). 
When, as here, this constitutionally significant fact is missing and 
the expenditure is instead coordinated, the Court has clearly 
indicated that a substantial danger of corruption may be assumed 
absent convincing evidence to the contrary. The majority thus 
errs in placing the burden on the FEC rather than on the Colorado 
Republican Party, which certainly has not shouldered that burden 
in this case. 

49a 

pendent expenditures which, unlike contributions, are 
not deemed to be coordinated and therefore pass con- 
stitutional muster due to the absence of prearrange- 
ment and coordination. Id. This statement is simply 
inapposite to coordinated party contributions. Cf., 
Shrink Missouri, 120 S. Ct. at 907 (making same point 
about Colorado Republican Fed. Campaign Comm. 
with respect to government’s evidentiary burden). 

Next the majority takes issue with Congress’ deci- 
sion to limit party contributions as a means of 
addressing the ability of corporations and other big 
donors to influence the legislative process. Here, too, 
the majority acts contrary to the admonition in Shrink 
Missouri that courts are not to “second-guess a 
legislative determination as to the need for prophylactic 
measures where corruption is the evil feared.” 120 S. 
Ct. at 906 n. 5. “Where a legislature has significantly 
greater institutional expertise, as, for example, in the 
field of election regulation, the Court in practice defers 
to empirical legislative judgments . . .” Id. at 912 
(Breyer, J., concurring). Given the legitimacy of the 
goal of preventing corruption and the undeniable fact 
that parties funnel funds from donors to candidates 
when they coordinate expenditures, the Supreme Court 
has made clear that we are not at liberty to replace 
Congress’ judgment on an effective means for 
furthering its interest. See Buckley, 424 U.S. at 30, 96 
S. Ct. 612 (court “has no scalpel” to probe Congres- 
sional choice of means to accomplish necessary end). 

The majority also rejects the FEC’s argument that 
limits on party contributions are necessary to prevent 
unscrupulous party officials from furthering their pet 
interests, thereby corrupting or appearing to corrupt 

50a 

the legislative process. The majority posits that in 
adopting this theory, Congress “gravely misunder- 
stands the role of political parties in our democracy.” 
Maj. op. at 1231. As a matter of common sense, it is 
difficult to credit the bald assertion that politicians do 
not understand the role political parties play in 
American politics.6 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. The majority also views the electoral and 
litigation processes as the proper means for righting 
the wrongs perpetrated by corrupt party leaders, again 
displacing the judgment of Congress on matters 
uniquely within its province. 

Finally, the majority rejects the argument that limits 
on party expenditures are necessary to prevent evasion 
of the Act’s other contribution limits. The majority 

6 The majority apparently concedes the problem in accusing 
Congress of failing to understand the political process, and 
attempts to shift the focus of its criticism from Congress to the 
FEC, asserting that the FEC misunderstands Congressional 
intent in defending limits on coordinated party spending as a 
means of combating corruption. See Maj. Op. at 1231 n. 7. The 
Supreme Court language in Colorado Republican Campaign 
Comm., upon which the majority relies, however, is found in its 
discussion of limits on independent party expenditures. See 518 
U.S. at 616-18, 116 S. Ct. 2309. As I have previously pointed out, 
see supra at 1227 n. 5, the Court in that discussion specifically 
distinguished independent party spending from coordinated 
spending on the basis of the “constitutionally significant” “lack of 
coordination.” 518 U.S. at 617, 116 S. Ct. 2309. The majority relies 
on selective quotations and simply ignores the fact that the 
Supreme Court analyses in which these quotes occur is grounded 
on the very distinction that renders the majority’s reliance invalid. 

51a 

believes that enforcement of the disclosure require- 
ments in section 441a(a)(8) is adequate to protect 
against this problem. To the contrary, the Supreme 
Court has made it unmistakably clear that the existence 
of disclosure requirements is not a ground for invalidat- 
ing contribution limits. 

We specifically rejected this notion in Buckley, 
where we said . . . that “Congress was surely 
entitled to conclude that disclosure was only a 
partial measure, and that contribution ceilings were 
a necessary legislative concomitant to deal with the 
reality or appearance of corruption inherent in a 
system permitting unlimited financial contributions, 
even when the identities of the contributors and the 
amounts of their contributions are fully disclosed.” 
We understood contribution limits, on the other 
hand, to “focu[s] precisely on the problem of large 
campaign contributions-the narrow aspect of 
political association where the actuality and 
potential for corruption have been identified-while 
leaving persons free to engage in independent 
political expression, to associate actively through 
volunteering their services, and to assist to a limited 
but nonetheless substantial extent in supporting 
candidates and committees with financial 
resources.” There is no reason to view contribution 
limits any differently today. 

Shrink Missouri, 120 S. Ct. at 908 n. 7. 

In sum, the majority has substituted a paean to its 
view of the role of political parties for a properly 
deferential assessment of the constitutionality of limits 
on coordinated party contributions under applicable 
Supreme Court authority. The result the majority 

52a 

reaches simply cannot be reconciled with that 
authority. 

In my view, section 441a(d) is unquestionably valid 
under the analysis in Shrink Missouri and prior 
Supreme Court authority. The FEC has amply sup- 
ported its argument that limits on coordinated 
expenditures by political parties serve the public 
interest in preventing both corruption and the appear- 
ance of corruption by limiting the leverage parties 
possess to pay off the political debts owed to large 
contributors. The FEC has offered evidence that the 
access purchased by large donations translates into 
power which distorts the democratic process. Both 
common sense and experience dictate that the public 
justifiably views the access obtained by large donations 
as the unfair opportunity to gain a candidate’s support 
on the basis of financial considerations rather than on 
policy or belief. The FEC has also supported its 
contention that the limits at issue are an integral part of 
FECA’s regulatory scheme because they prevent 
donors from evading the limits on contributions to a 
candidate by contributing to political parties with the 
understanding, tacit or otherwise, that the funds will be 
used for that candidate. Finally, the majority’s con- 
clusion that the limit here is not narrowly drawn rings 
hollow in light of the Court’s earlier holding in this case 
that parties may make independent expenditures on 
behalf of a candidate. 

I see no merit to the assertion that the political 
atmosphere has changed to the extent that the limits at 
issue are no longer needed. This evaluation, like so 
many of the others made by the majority in this case, is 
to be made by Congress through the legislative process 

53a 

and not by us through judicial fiat. Neither the majority 
nor the Committee has made a persuasive argument 
that human nature has changed in the twenty years 
that have passed since FECA was enacted. To the 
extent that the political process has in fact improved, 
FECA has played a major role in the curtailment of 
abuses. Eliminating an integral part of the Act would 
allow those abuses to flourish once again. The fact that 
FECA has accomplished what it was meant to do is 
hardly a justification for doing away with it. In holding 
to the contrary, the majority makes a grave error by 
turning a deaf ear to the voices of history that advise us 
to learn from our mistakes lest we repeat them. 

Accordingly, I dissent. 

54a 

APPENDIX B 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO 

No. CIV.A.89 N 1159 

FEDERAL ELECTION COMMISSION, PLAINTIFF 

v. 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE, DEFENDANT 

[Filed: Feb. 18, 1999] 

MEMORANDUM OPINION AND ORDER 

NOTTINGHAM, District Judge. 

This case has come back to the court on remand from 
the United States Supreme Court and the United 
States Court of Appeals for the Tenth Circuit. The only 
claim to have survived the gauntlet is a counterclaim 
asserted by Defendant Colorado Republican Federal 
Campaign Committee [hereinafter “Colorado Party”]. 
This counterclaim asserts a constitutional challenge to a 
provision of the Federal Election Campaign Act of 1971 
[hereinafter “FECA”], codified, as amended, at 2 
U.S.C.A. §§ 431-456 (West 1997 & Supp. 1998). The 
provision at issue, which the Supreme Court labeled for 
convenient reference as “the Party Expenditure Pro- 

55a 

16 places limits on the amount of money which 
committees of political parties may expend “in connec- 
tion with the general election campaign of candidates 
for Federal office.” See 2 U.S.C.A. § 441a(d). The 
matter is now before the court on cross-motions for 
summary judgment. Jurisdiction is based on 28 
U.S.C.A. § 1345 (West 1993). 

FACTS 

a. Procedural History 

Plaintiff Federal Election Commission [hereinafter 
“FEC”] originally brought this action against the 
Colorado Party, asking the court to declare: (1) that the 
disbursement of money which the Colorado Party had 
made for certain political advertising should have been 
reported as an “expenditure,” as FECA defines that 
term; and (2) that, had the disbursement been so re- 
ported, it would have violated the spending limitations 
set forth in the Party Expenditure Provision. In 1986, 
before the Colorado Republican Party had selected its 
candidate for the senatorial election to take place in the 
fall of 1986, the Colorado Party bought and aired 
campaign advertisements attacking Timothy Wirth, the 
putative candidate of the Democratic Party. The state 
Democratic Party complained to the FEC. The FEC 
agreed with the Democratic Party and brought this 
case. 

Relying on previous Supreme Court language and 
interpretations by the FEC which, to the eye, sug- 
gested that political parties were by their nature 

16 Colorado Republican Fed. Campaign Comm. v. FEC, 518 
U.S. 604, 611, 116 S. Ct. 2309, 2313, 135 L.Ed.2d 795 (1996). 

vision,” 

56a 

incapable of making “independent” expenditures on 
behalf of candidates, this court found, as a matter of 
law, that the Colorado Party had made a 
“coordinated” 

17 expenditure. FEC v. Colorado 
Republican Fed. Campaign Comm., 839 F.Supp. 1448, 
1452-53 (D.Colo.1993) (relying on FEC v. Democratic 
Senatorial Campaign Comm., 454 U.S. 27, 28 n. 1, 102 
S. Ct. 38, 40 n. 1, 70 L.Ed.2d 23 [1981] [hereinafter 
“DSCC”]; FEC Advisory Opinion 1985-14, 1 Fed. 
Election Campaign Fin. Guide [CCH] ¶ 5819 [July 18, 
1985]; FEC Advisory Opinion 1984-15, 1 Fed. Election 
Campaign Fin. Guide [CCH] ¶ 5766 [Aug. 16, 1984] ). 
The court then recognized that even a coordinated 
expenditure is only subject to the limitations of section 
441a(d)(3) if it is made “in connection with” a general 
election campaign. In accordance with Supreme Court 
and federal circuits’ previous interpretations, the court 
construed the phrase “in connection with” narrowly, as 
requiring “express advocacy.” Thus, the court 
concluded that the advertisement aired by the Colorado 
Party did not constitute express advocacy, was not 
made “in connection with” a general election campaign, 
and did not run afoul of section 441a(d)(3). FEC v. 
Colorado Republican Fed. Campaign Comm., 839 F. 
Supp. at 1455-57. 

The Tenth Circuit reversed. FEC v. Colorado 
Republican Fed. Campaign Comm., 59 F.3d 1015 (10th 
Cir. 1995). The court adopted a definition of the phrase 
“in connection with” broader than the one used by this 
court. The Tenth Circuit’s definition focused on 
whether the advertisement contained an “electioneer- 

17 The distinction between “independent” and “coordinated” ex- 
penditures is discussed beginning infra at 5. 

57a 

ing message” and targeted a clearly identifiable can- 
didate. Id. at 1023. The Colorado Party’s advertise- 
ment, according to the Tenth Circuit, contained such a 
message and identified Timothy Wirth as its focus. Id. 

The Supreme Court vacated the Tenth Circuit’s 
opinion and remanded the case. The Court rejected the 
assumption made by both courts below—that political 
parties were, by definition, only able to make coor- 
dinated expenditures—and found, as matter of fact, 
that the expenditure in this case was an independent 
one. The Court then considered FECA’s limitations on 
independent expenditures by political parties and 
deemed the limits unconstitutional. Colorado Republi- 
can Fed. Campaign Comm. v. FEC, 518 U.S. at 617-20, 
116 S. Ct. 2309, 2317-18, 135 L.Ed.2d 795 (1996) [here- 
inafter “Colorado I”]. The Court did not resolve the 
Colorado Party’s counterclaim—a facial challenge to 
the FECA limits on coordinated as well as independent 
expenditures. Id. at 623-24, 116 S. Ct. at 2319-20. 

b. Legal and Factual Background 

The provision at issue is section 441a(d), in particular 
as it applies to congressional elections. The statute 
provides as follows: 

(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 connec- 
tion with the general election campaign of candi- 
dates for Federal office, subject to the limitations 

58a 

contained in paragraphs (2) and (3) of this subsec- 
tion. 

. . . . . 

(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 Representative, the 
greater of— 

(I) 2 cents multiplied by the voting age popula- 
tion of the State (as certified under subsection 
(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. 

2 U.S.C.A. § 441a(d). 

18 As I noted earlier, this provision 
establishes limitations on expenditures made “in con- 

18 Section 441a(d) specifies that it applies to the national com- 
mittee of a political party, state committees of a political party, and 
subcommittees of state parties. Throughout this Memorandum 
Opinion and Order, the court refers generically and interchangea- 
bly to political parties, parties, and party committees because the 
Colorado Party and the FEC have not suggested any relevant dis- 
tinction between these entities, and none is apparent to the court. 

59a 

nection with the general election campaign of candi- 
dates for Federal office.” 

Expenditures are divided into two categories: inde- 
pendent and coordinated. Coordinated expenditures are 
those which are made “in cooperation, consultation, or 
concert, with, or at the request or suggestion of, a 
candidate, his authorized political committees, or their 
agents.” 2 U.S.C.A. § 441a(a)(7)(B)(I) (West 1997). 
Party committees work closely with candidates and 
campaigns in making coordinated expenditures. 

19 (See 
FEC Facts ¶ 38; admitted at Colorado Party’s Resp. to 
FEC Facts ¶ 38.) 

All other expenditures are independent. In order to 
make an independent expenditure, a party must be 
sufficiently distant from a candidate’s campaign and a 
candidate’s campaign strategies that it is able to skirt 
FECA’s definition of a “coordinated” expenditure. See 

19 In 1996, the parties made coordinated expenditures as 
follows: $19,254,219 by the Republican Party committees (national, 
state, and local) and $15,843,754 by the Democratic Party com- 
mittees (national, state, and local). (Federal Election Commis- 
sion’s Statement of Material Facts Not in Genuine Dispute, 
Submitted Under Seal ¶ 8 [filed Jan. 23, 1998] [hereinafter “FEC 
Facts”]; admitted in pertinent part at Def. Colorado Republican 
Federal Campaign Committee’s Resp. to the FEC’s Statement of 
Material Facts Not in Genuine Dispute, Submitted Under Seal ¶ 8 
[filed Feb. 17, 1998] [hereinafter “Colorado Party’s Resp. to FEC 
Facts”].) The three national Republican Party committees are the 
Republican National Committee (“RNC”), the National Republican 
Senatorial Committee (“NRSC”), and the National Republican 
Congressional Committee (“NRCC”). The three national Democ- 
ratic Party Committees are the Democratic National Committee 
(“DNC”), the Democratic Senatorial Campaign Committee 
(“DSCC”), and the Democratic Congressional Campaign Commit- 
tee (“DCCC”). 

60a 

Colorado I, 518 U.S. at 614-15, 116 S. Ct. at 2315. 
Following Colorado I, political parties may engage in 
unlimited independent expenditures on behalf of con- 
gressional candidates. Id. at 615, 116 S. Ct. at 2315. 

The Colorado I Court declined, for “prudential” rea- 
sons, to consider whether coordinated party expen- 
ditures could constitutionally be limited by application 
of the Party Expenditure Provision. The Court there- 
fore remanded the case for further factual and legal 
development. Id. at 623-25, 116 S. Ct. at 2319-20. The 
litigants have seized this opportunity to lard the sum- 
mary judgment record with voluminous documentation 
and disputation concerning the admissibility and 
significance of that documentation. The FEC has been 
especially prone to supply material without any atten- 
tion to elementary evidentiary requirements, such as 
authentication (Fed.R.Evid.901), or evidentiary limita- 
tions, such as the rule against hearsay (Fed. R. Evid. 
801). The FEC makes numerous factual assertions, for 
example, based on reports in newspaper articles. 
Except as otherwise noted, the discussion which follows 
simply ignores the mass of irrelevant and/or inadmissi- 
ble evidence in the record and recites facts which the 
court regards as having some significance to the 
questions before the court. 

The money which flows to political parties is a crucial 
aspect of the dispute before the court. The term “hard” 
money or “federal” money means that money which 
may be raised in accordance with FECA limits, and is 
the only money which parties may spend on behalf of 
candidates for federal election. Parties may accept 
hard money only in limited amounts and from limited 
sources. The aggregate amounts which individuals may 

61a 

give to federal candidates, and federal and state parties, 
may not exceed $25,000 per year to permissible 
recipients. 2 U.S.C.A. § 441a(a)(3). “Multicandidate po- 
litical committees,” most commonly referred to as 
political action committees or PACs, may give up to 
$15,000 per year to a national party and $5,000 per year 
to a state party, and such entities are not subject to an 
aggregate limit. 2 U.S.C.A. § 441a(a)(2). Except 
through their PACs, corporations and unions may not 
contribute money to be used in connection with federal 
elections. 2 U.S.C.A. § 441b(a). 

In contrast to the limitations on the money which 
may be used in connection with federal elections, “soft” 
money is a term commonly applied to contributions to 
political parties which FECA does not regulate as to 
source or amount. “Soft” money may not be spent in 
connection with federal elections. It may, however, be 
used for non-federal-election activity, such as “get out 
the vote” campaigns, issue advocacy, and elections for 
state office. 

In the labyrinth of federal election regulation, both 
types of money, hard and soft, may flow in all direc- 
tions. Soft money and hard money may be exchanged. 
Various state parties have traded soft dollars for hard 
dollars, and state parties have made similar trades with 
national party committees. 

20 In addition, national party 

20 The FEC asserts that the exchanges were typically not 
dollar-for-dollar exchanges but, rather, reflected a premium for the 
higher value of hard dollars. (FEC Facts ¶¶ 43-48.) The Colorado 
Party admits only one exchange: the Texas Republican Party, 
needing federal (i.e., hard) funds late in the 1996 campaign 
swapped $35,000 in federal funds for non- federal funds (i.e., soft) 

62a 

committees transfer hard monies to state and local 
party committees in accordance with 11 C.F.R. § 
110.3(c)(1) (1997). 

21 (See FEC Facts ¶ 19; admitted at 
Colorado Party’s Resp. to FEC Facts ¶ 19.) National 
parties may also transfer their own soft money to state 
parties. The national parties (the RNC, for example) 
report such activities to the FEC; the Colorado Party 
reports its non-federal money activity to the Colorado 
Secretary of State. (See FEC Facts ¶ 20; admitted in 
pertinent part at Colorado Party’s Resp. to FEC Facts 
¶ 20.) 

In addition to the transfer of money, party com- 
mittees are permitted to—and do—share or transfer 

with the Colorado Republican Party. (FEC Facts ¶ 43; admitted at 
Colorado Party’s Resp. to FEC Facts ¶ 43.) 

With respect to all of the FEC’s other money exchange 
allegations—including those regarding premiums paid for hard 
money—the Colorado Party admits that such exchanges have been 
reported but disputes the truth of the matter reported and objects 
to the consideration of such evidence as “unreliable hearsay.” 
(Colorado Party’s Resp. to FEC Facts ¶¶ 44-48.) The FEC claims 
to be offering the assertions only for the fact that they were 
reported and not for the truth of the reported material. I do not 
understand how the mere reporting that a premium was paid for 
hard dollars is relevant in this case, and I therefore treat such 
assertions as inadmissible hearsay. 

21 For example, in the 1996 senate elections, the RNC trans- 
ferred $166,068 to the Colorado Party. The Colorado Party used 
that money as an expenditure coordinated with the campaign of 
Wayne Allard. The parties dispute whether the Colorado Party 
would have made this expenditure without such a transfer. (FEC 
Facts ¶ 31; Colorado Party’s Resp. to FEC Facts ¶ 31.) The 
coordinated expenditure limit for Colorado senate candidates in 
the 1996 election was almost $171,000. (FEC Facts ¶¶ 29-30; 
admitted in pertinent part at Colorado Party’s Resp. to FEC Facts 
¶¶ 29-30.) 

63a 

agency authority to other party entities. The transfer 
of such authority appears to have the same practical 
effect as the exchange of hard dollars for soft dollars. 
The transferee committee is then responsible for mak- 
ing expenditures under section 441a(d). (FEC Facts ¶¶ 
21-22, 24-27, 34-37; admitted in pertinent part at Colo- 
rado Party’s Resp. to FEC Facts ¶¶ 21-22, 24-27, 34- 

37.) 

The various party committees keep track of all this 
by maintaining separate accounts according to the use 
for which money may be expended. For example, the 
NRSC has a federal (i.e., hard money) account which it 
uses to support federal candidates and two non-federal 
(i.e., soft money) accounts which it uses for party- 
building activities. In particular, the NRSC focused in 
1995 and 1996 on states with active senate races where 
party-building money would be of assistance. (FEC 
Facts ¶ 18; admitted in pertinent part at Colorado 
Party’s Resp. to FEC Facts ¶ 18.) 

Because political parties do not have money of their 
own, they must raise funds from contributors. Money 
to be used for party expenditures on behalf of can- 
didates is “generated through ongoing fund-raising 
operations that include direct-mail solicitations, tele- 
marketing efforts, party fund raisers, an annual 
congressional dinner, and the solicitation of individual 
donors.” (Statement of Undisputed Facts and Support- 
ing Exs. ¶ 23, Ex. B [Corrado Report at 20] [filed Jan. 
23, 1998] [hereinafter “Colorado Party Facts”]; admit- 
ted at Federal Election Commission’s Resp. to the 
Colorado Party’s Statement of Undisputed Facts and 
Supporting Exs. ¶ 23 [filed Feb. 17, 1998] [hereinafter 
“FEC’s Resp. to Colorado Party Facts”].) According to 

64a 

the Colorado Party, the “vast majority of the monies 
used for coordinated expenditures are generated 
through contributions of relatively small amounts from 
individual donors.” (Colorado Party Facts ¶ 23, Ex. B 
[Corrado Report at 20].) The FEC refuses to admit 
that the “vast” majority of such funds are raised in the 
manner described. The evidence in the record, 
however—particularly the testimony of Haley Barbour, 
RNC Chairman from 1993 to 1997, former Congress- 
man Tony Coehlo, DCCC Chairman from 1981 to 1986, 
and Jon Heubusch, Executive Director of the NRSC 
during the 1995-1996 election cycle—demonstrates that 
at least the majority of hard money received by the 
parties is in the form of small (i.e., less than $100) 
contributions from individual contributors. (See Joint 
Ex. Vols. II, Ex. G [Barbour Dep. at 23 (“[I]n the first 
couple of years I was Chairman I believe more than 70 
percent of all our revenue came in contributions of $100 
or less.”)], Ex. J [Coehlo Dep. at 24, 36 (recognizing the 
value of direct mail which became the “major revenue 
source” based on contributions averaging $35)], Ex. M 
[Heubusch Dep. at 99] [filed Jan. 23, 1998].) These 
hard-money contributions overwhelmingly result from 
direct-mail solicitations at the national level, and from 
direct-mail and telephone solicitations at the state 
party level. (Colorado Party Facts ¶ 24; admitted at 
FEC’s Resp. to Colorado Party Facts ¶ 24.) 

The FEC offers almost forty factual allegations 
regarding candidate fund raising for parties. (FEC 
Facts ¶¶ 95-132.) Some of them are undisputed. With 
specific reference to the Colorado Party, the parties 
agree that Republican federal candidates and office- 
holders are asked to assist in fund raising. This assis- 
tance includes their attendance at fund-raising events 

65a 

as a “draw” to other potential attendees, permission to 
identify the candidates and/or officeholders as co-hosts 
of fund raisers at which hard and soft money are raised, 
and signing a direct-mail fund-raising letter. (FEC 
Facts ¶ 122; admitted at Colorado Party’s Resp. to 
FEC Facts ¶ 122.) 

In general, the evidence offered by the FEC 
indicates that candidates and officeholders raise funds 
for their parties in disparate ways. Members of 
Congress are encouraged by their party to transfer 
excess campaign funds to the party or a committee 
thereof and to help raise money for the party. (FEC 
Facts ¶¶ 96-100.) Further, the FEC highlights what is 
known as a “tally” system, whereby party committees 
keep track of the Member of Congress who is responsi- 
ble for contributions to the campaign committees. 
Some candidates willingly raise money for the party 
and party committees; others are less committed to the 
parties’ common pursuits, at least with respect to 
finances. (See, e.g., FEC Facts ¶¶ 96, 97.) Some raise 
money for the party even when they are not themselves 
in an election, or when they otherwise have no 
expectation of receiving funds from the party in return 
for their efforts. (See FEC Facts ¶¶ 104, 120.) Other 
Members of Congress raise money for their party and, 
in turn, request that they receive assistance in the form 
of coordinated expenditures. (See FEC Facts ¶¶ 125, 
126, 130, 131.) Many, 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. (FEC Facts ¶¶ 133-43.) Where fund raising 
is done in conjunction with a candidate, and the poten- 
tial contributor has already contributed the maximum 

66a 

amount directly to the candidate, the contributor is 
made aware that, although any contribution to the 
party would not go directly to the candidate, it would 
indirectly assist the candidate by assisting his or her 
party. (FEC Facts ¶¶ 103, 115, 132.) Parties also 
cultivate giving from PACs and encourage giving from 
PACs based on the performance of competing PACs. 
(See FEC Facts ¶¶ 83-86, 88-91, 93.) 

The evidence offered by the FEC suggests that the 
parties take into consideration the fund-raising efforts 
of candidates in deciding allocations of campaign funds. 
(See FEC Facts ¶¶ 99, 101-03, 116, 118.) The evidence 
also indicates, however, that the primary consideration 
in allocating funds is which races are marginal—that is, 
which races are ones where party money could be the 
difference between winning and losing, (see FEC Facts 
¶¶ 106, 109), assuming that a candidate is competent, 
exercises common sense, and acts professionally, (FEC 
Facts ¶ 7; admitted at Colorado Party’s Resp. to FEC 
Facts ¶ 7; see also FEC Facts ¶ 9). Maintaining party 
control over seats is paramount to the parties’ pursuits. 
(See, e.g., FEC Facts ¶¶ 222-223, 225.) Candidates in 
need of funding do request assistance and attempt to 
lobby those with control over allocations. (FEC Facts 
¶ 106; admitted in pertinent part at Colorado Party’s 
Resp. to FEC Facts ¶ 106.) 

The FEC makes numerous factual claims regarding 
where contributors to the political parties choose to 
make their donations and what they allegedly gain in 
return. In particular, the FEC highlights the various 
party-donor programs and the benefits and access to 
Members of Congress which a contributor gains by 
giving at various levels. (FEC Facts ¶¶ 50-65, 68-78, 

67a 

161-210.) The FEC also suggests that, in exchange for 
financial support, contributors to party committees 
expect that party committees will intercede with can- 
didates and officeholders on behalf of large contri- 
butors. 

22 (FEC Facts ¶¶ 242- 81.) The evidence 
offered also addresses the fund-raising practices by 
which Members of Congress solicit money and existing 
donors are recruited to bring others into the donating 
fold. In some cases, contributors give money directly to 
a party committee instead of giving to a candidate if, for 
example, the contributor is a PAC and the candidate 
does not accept PAC contributions. (FEC Facts ¶ 144.) 
There is evidence that one reason contributors give to 
party committees after having given directly to a 
candidate is to help their candidate indirectly. (FEC 
Facts ¶¶ 135-37, 139.) 

22 Of those allegations, fewer than ten even mention the name of 
a specific Member of Congress or Members of Congress in general. 
(FEC Facts ¶¶ 242-45, 247-48, 269.) The remainder involve party 
committee interactions with the White House or other parts of the 
executive branch. Further, many involve soft-money contributions. 
As with many other allegations by the FEC, these allegations are 
simply not relevant to the dispute before the court. Suggesting or 
arranging for meetings between party contributors and the 
President or Vice President or any other administration officials 
has no bearing on the constitutionality of limits on coordinated 
party expenditures. Even the FEC’s allegations which do involve 
Members of Congress fail to even suggest that coordinated party 
expenditures result in quid pro quo corruption or the appearance 
thereof. Further, the fact that Senator Wirth, for example, was 
asked to meet with large donors to the party with whom he had 
not previously met, (see FEC Fact ¶ 243), offers no support for the 
FEC’s position. If anything, the evidence suggests that party 
committees who attempted to arrange meetings for donors with 
legislators were kept from doing so by staff, where such a meeting 
would be “inappropriate.” (FEC Facts ¶ 242.) 

68a 

The FEC contends that party committees exert 
influence over candidates. 

23 (FEC Facts ¶¶ 211-41.) 
The FEC’s evidence includes newspaper articles alleg- 
ing that party leaders have suggested withholding 
campaign funds from candidates if they refuse to adopt 
a particular policy position. See FEC Facts ¶¶ 234, 238- 
39; Federal Election Commission’s Supplemental State- 
ment of Material Facts Not in Genuine Dispute ¶ 307 
[filed Feb. 17, 1998] [hereinafter “FEC Supplemental 
Facts”].) As with the other instances where the FEC 
attempts to rely on newspaper reports in support of its 
factual assertions, however, the court will not accept 
such evidence as establishing the facts reported 
therein. 

Resting on hundreds of factual allegations and 
thousands of pages of documentation, the Colorado 
Party and the FEC filed cross motions for summary 
judgment. (Mot. for Summ. J. [filed Jan. 23, 1998]; 
Def./Counter-Pl.’s Mot. for Summ. J. [filed Jan. 23, 
1998].) The FEC contends that the Colorado Party has 
failed to present a justiciable controversy and seeks 
summary judgment on the grounds of standing and 

23 The FEC also makes allegations regarding activities by 
“party leaders” in assisting in state elections. (FEC Facts ¶¶ 283- 

91.) Those allegations do not, however, involve any Members of 
Congress. The allegation regarding the use of non-federal money 
by Republican Party leaders to assist in state elections involves 
soft money and does not suggest corruption or the appearance 
thereof. (FEC Facts ¶ 282.) What it does suggest is that parties 
are not just concerned at electoral success at the federal level, and 
that furthering parties’ agendas at the state level is also an 
important aspect of parties’ goals. The connection between these 
alleged activities and the corruption which the FEC claims will 
follow from unlimited party coordinated expenditures is not 
apparent to the court. 

69a 

ripeness. (Federal Election Commission’s Mem. in 
Supp. of Its Mot. for Summ. J., Submitted Under Seal 
at 17-20 [filed Jan. 23, 1998] [hereinafter “FEC’s Summ. 
J. Br.”].) At the heart of its argument on the merits, 
the FEC maintains that the Party Expenditure Provi- 
sion serves a compelling Government interest and is 
narrowly tailored to achieve that interest. (Id. at 21- 

36.) It also maintains that the Party Expenditure 
Provision is not unconstitutionally vague. (Id. at 36-38.) 
The Colorado Party maintains that the Party Expen- 
diture Provision severely restricts core First Amend- 
ment rights and that the FEC cannot carry its burden 
of establishing that the limits contained in the provision 
serve compelling governmental interests. (Mem. in 
Supp. of the Colorado Party’s Mot. for Summ. J. [filed 
Jan. 23, 1998] [hereinafter “Colorado Party’s Summ. J. 
Br.”].) 

ANALYSIS 

1. Justiciability 

a. Standing 

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 
S. Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court 
held that “the irreducible constitutional minimum of 
standing” contains the following three elements: 

First, the plaintiff must have suffered an “injury in 
fact”—an invasion of a legally-protected interest 
which is (a) concrete and particularized; and (b) “ac- 
tual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” 
Second, there must be a causal connection between 
the injury and the conduct complained of—the in- 
jury has to be “fairly . . . trace[able] to the chal- 

70a 

lenged action of the defendant[s], and not . . . the 
result [of] the independent action of some third 
party not before the court.” Third, it must be 
“likely,” as opposed to merely “speculative,” that 
the injury will be “redressed by a favorable deci- 
sion.” 

Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136 (citations 
omitted); accord Committee to Save the Rio Hondo v. 
Lucero, 102 F.3d 445, 447 (10th Cir. 1996). Plaintiff 
bears the burden of proving standing. Lujan, 504 U.S. 
at 561, 112 S. Ct. at 2136; Gilbert v. Shalala, 45 F.3d 
1391, 1394 (10th Cir. 1995). Where a challenge to stand- 
ing is before the court on a motion for summary judg- 
ment, “standing must be supported by specific eviden- 
tiary facts and not by mere allegations.” Phelps v. 
Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) (citing 
Lujan, 504 U.S. at 562, 112 S. Ct. at 2137). Here, the 
FEC questions whether the Colorado Party meets the 
injury- in-fact element of standing under Lujan. 

It is a constitutional certainty that elections will 
continue to occur. U.S. Const. Art. I, 2, cl. 1; U.S. 
Const. amend XVII. It is almost as certain that the 
Colorado Party will have candidates in those elections 
whom it will want to support by way of coordinated 
expenditures. Indeed, during the 1996 federal election 
year, the Colorado Party made a single, large coor- 
dinated expenditure on behalf of its successful 
senatorial candidate, Wayne Allard. This expenditure 
alone came to within $4,000 of the limit which section 
441a(d) imposed on the Colorado Party’s coordinated 
expenditures for the senate race. (FEC Facts ¶ 30; 
admitted in part and denied in part at Colorado Party’s 
Resp. to FEC Facts ¶ 30.) Donald K. Bain, erstwhile 

71a 

chairman of the Colorado Party, testified that the 
Colorado Party “was, is, and for the foreseeable future 
will be ready, willing, and able to spend more [on coor- 
dinated expenditures than FECA permits].” (Colorado 
Party Exs. Vol. III, Ex. P [Bain Aff. ¶ 3] [filed Jan. 23, 
1998] [hereinafter “Colo. Exs. Vol. III”].) Bain further 
testified that, in the 1996 campaign, the Colorado Party 
considered a coordinated expenditure in excess of the 
FECA limits, but ultimately refrained from making the 
expenditure because of the concern that the FEC 
would challenge such an expenditure. (Id., Ex. P [Bain 
Aff. ¶ 4].) The Colorado Party’s supposition that the 
FEC would challenge any coordinated expenditure 
exceeding the FECA statutory limit is not fanciful, for 
this case began as an FEC enforcement proceeding 
under the very section which is at issue now. 

In these circumstances, I conclude that the Colorado 
Party has made a sufficient showing of injury-in-fact. It 
possesses the intent and the ability to make coordinated 
expenditures which exceed statutory limitations, and it 
would confront FEC enforcement action if it did so. 
Contrary to the FEC’s apparent argument, the fact 
that the Colorado Party receives some money from the 
RNC or other national party committees for coordi- 
nated expenditures does not logically require the con- 
clusion that the Colorado Party is impermissibly 
attempting to assert standing on behalf of the RNC. 
See FEC’s Summ. J. Br. at 19.) The source of funds 
which a political party expends for a candidate is simply 
irrelevant to the question of whether the coordinated 
expenditure limitation constrains and chills the speech 
of the party on behalf of its candidates. Similarly, the 
fact that the Colorado Party may, from time to time, 
lack hard money which would permit it to exceed the 

72a 

expenditure limitations does not defeat its standing. It 
may still receive hard funds from national or state 
party committees, and receipt of such funds would 
permit it to make expenditures which would exceed the 
limitations. Accordingly, I conclude that the Colorado 
Party has standing to challenge the coordinated expen- 
diture limits. 

b. Ripeness 

Ripeness has been described as “providing a time- 
bound perspective [ ] on the injury inquiry of standing.” 
DKT Mem’l Fund v. Agency for Int’l Dev., 887 F.2d 
275, 298 (D.C. Cir. 1989) (quoting 13 Charles A. Wright, 
Arthur R. Miller & Edward H. Cooper, Federal 
Practice and Procedure § 3531, at 350 [2d ed. 1990]). 
The inquiry involves two elements: (1) the fitness of 
the issues for judicial decision; and (2) the hardship 
from withholding court consideration. Abbott Labs. v. 
Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515, 18 
L.Ed.2d 681 (1967). Ripeness includes both constitu- 
tional elements and prudential elements. Because, 
however, this case involves First Amendment rights, 
the prudential elements on standing are lessened. 
Phelps, 122 F.3d at 1326 (citing Secretary of State of 
Md. v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S. 
Ct. 2839, 2847, 81 L.Ed.2d 786 [1984]; ACORN v. City of 
Tulsa, Okla., 835 F.2d 735, 738 [10th Cir. 1987]). 

The FEC contends that the Colorado Party has failed 
to demonstrate the existence of a live dispute regarding 
the actual or threatened application of section 441a(d). 
(FEC’s Summ. J. Br. at 20.) The FEC’s position, in light 
of the history of this case and the Colorado Party’s 
allegations and evidence regarding its campaign 
practices, limitations, and intentions, is unpersuasive. 

73a 

As noted, this case began as an enforcement action 
under section 441a(d) for the Colorado Party’s ex- 
ceeding the coordinated expenditure limits imposed 
thereunder. The Supreme Court ultimately determined 
that the expenditure at issue was independent and not 
coordinated, but the reality facing the Colorado Party is 
that (1) what was believed to be a coordinated expen- 
diture in excess of the limits was challenged in the past, 
and (2) the Colorado Party can expect to face and FEC 
challenge in the next election cycle if it makes a 
coordinated expenditure in contravention of section 
441a(d). The Colorado Party need not wait for that to 
occur before a court considers its challenge to the 
coordinated expenditure limit. See Secretary of State of 
Md., 467 U.S. at 956-57, 104 S. Ct. at 2847. 

Indeed, the Court in Colorado I noted only that the 
case may be moot if in fact the Colorado Party wanted 
to make only independent expenditures. Colorado I, 
518 U.S. at 624, 116 S. Ct. at 2320. The Colorado Party 
has clearly indicated that it is not content with unlim- 
ited independent expenditures, has curtailed coordi- 
nated expenditures in the past to avoid the specter of 
an FEC enforcement action, and wants to make coor- 
dinated expenditures which exceed what it contends is 
an impermissible limit on such expenditures. Accord- 
ingly, I conclude that the issue is fit for judicial 
consideration. Further, the Colorado Party would incur 
substantial hardship if this court were to refuse to hear 
its challenge until it actually violated the statute and 
found itself on the other side of an FEC action like the 
one that began this present judicial odyssey. Cf. 
Buckley, 424 U.S. at 117-18, 96 S. Ct. at 681-82 (per- 
mitting challenge to method of appointing FEC mem- 
bers in anticipation of future rulings and deter- 

74a 

minations by the FEC). Accordingly, I conclude that 
the case is ripe for determination. 

2. Severability 

The Supreme Court directed that, on remand, the 
lower courts consider whether Congress would have 
wanted the Party Expenditure Provision to stand were 
the limits contained therein to apply only to coor- 
dinated, and not to independent, expenditures. Colo- 
rado I, 518 U.S. at 625-26, 116 S. Ct. at 2320-21. A 
conclusion that the limits on coordinated party expen- 
ditures cannot be severed from the unconstitutional 
limits on independent party expenditures would permit 
the court to resolve the Colorado Party’s challenge to 
section 441a(d) as a matter of statutory construction, 
without reaching the constitutional issue of whether the 
First Amendment permits legislative limits on 
coordinated expenditures. See United States v. Locke, 
471 U.S. 84, 92 & n. 9, 105 S. Ct. 1785, 1791 & n. 9, 85 
L.Ed.2d 64 (1985). The Colorado Party contends that, 
the congressional attempt to limit a political party’s 
independent expenditures having been found uncon- 
stitutional, Congress would never have intended to 
regulate only a political party’s coordinated expendi- 
tures. The Colorado Party would thus have the court 
conclude that the limitation on coordinated expendi- 
tures must fall under the weight of the Court’s decision 
in Colorado I concerning independent expenditures. 

FECA contains a strong severability provision: “If 
any provision of this Act, or the application thereof to 
any person or circumstance, is held invalid, the validity 
of the remainder of the Act and the application of such 

75a 

provision to other persons and circumstances shall not 
be affected thereby.” 2 U.S.C.A. § 454. Such a clause 
“evidences a congressional intent to minimize the bur- 
dens imposed by a declaration of unconstitutionality.” 
Califano v. Westcott, 443 U.S. 76, 90, 99 S. Ct. 2655, 
2664, 61 L.Ed.2d 382 (1979) (construing an identically 
worded severability clause in the Social Security Act). 
The inclusion of such a clause “creates a presumption 
that Congress did not intend the validity of the statute 
in question to depend on the validity of the con- 
stitutionally offensive provision.” Alaska Airlines, Inc. 

v. Brock, 480 U.S. 678, 686, 107 S. Ct. 1476, 1481, 94 
L.Ed.2d 661 (1987) (citations omitted). “Unless it is 
evident that the legislature would not have enacted 
those provisions which are within its power, indepen- 
dently of that which is not, the invalid part may be 
dropped if what is left is fully operative as a law.” 
Buckley v. Valeo, 424 U.S. 1, 108-09, 96 S. Ct. 612, 677, 
46 L.Ed.2d 659 (1976) (internal citation and quotation 
marks omitted). “ ‘[A] court should refrain from invali- 
dating more of the statute than is necessary.’ ” Alaska 
Airlines, Inc., 480 U.S. at 684, 107 S. Ct. at 1479 
(quoting Regan v. Time, Inc., 468 U.S. 641, 652, 104 S. 
Ct. 3262, 3268, 82 L.Ed.2d 487 [1984] [plurality opinion] 
[internal citation and quotations marks omitted] ). 

There is no evidence that Congress would have 
rejected the Party Expenditure Provision as it applies 
to coordinated expenditures in the absence of a limit on 
independent expenditures. Nothing necessarily and 
inherently links limits on independent expenditures 
with limits on coordinated expenditures. Section 
441a(d) can operate to limit the latter without any 
regulation of the former. Because there is no evidence 
to the contrary, the presumption created by FECA’s 

76a 

strong severability clause compels the conclusion that 
the Party Expenditure Provision, as it applies to 
coordinated expenditures, remains in effect. The Colo- 
rado Party’s motion is denied insofar as the Colorado 
Party seeks summary judgment on the ground that the 
unconstitutional independent expenditure limitation 
cannot be severed from the remainder of the Party 
Expenditure Provision. 

3. The Merits of the Case: Constitutional Challenge 
to Section 441a(d) 

a. Legislative History 

The Colorado Party contends that, because the Party 
Expenditure Provision was enacted for the consti- 
tutionally infirm purpose of curtailing what Congress 
saw as excessive and wasteful campaign spending, it 
should be held unconstitutional. (Colorado Party’s 
Summ. J. Br. at 19-21.) The Party Expenditure Provi- 
sion, currently codified as 2 U.S.C.A. § 441a(d), had its 
origins in the Congress’ 1974 federal election legis- 
lation. See Federal Election Campaign Act Amend- 
ments of 1974, Pub. L. No. 92-225, 86 Stat. 3 (then 
codified as 18 U.S.C.A. § 608[f ] ). Buckley recognized 
that the primary effect of the expenditure limitations, 
such as those embodied in what was then 18 U.S.C.A. 
§ 608(f ), was to limit the quantity of political speech. 
Buckley, 424 U.S. at 39, 96 S.Ct. at 644. In the after- 
math of Buckley, Congress repealed 18 U.S.C.A. § 608. 
See Federal Election Campaign Act Amendments of 
1976, Pub. L. No. 94-283, 90 Stat. 496. At the same 
time, Congress enacted a new section, codified as 2 
U.S.C.A. § 441a, which incorporated and augmented the 
Party Expenditure Provision, as it been enacted in 
1974. See Federal Election Campaign Act Amendments 

77a 

of 1976, Pub. L. No. 94-283, 90 Stat. 489. The Court has 
since recognized that “Congress wrote the Party 
Expenditure Provision not so much because of a special 
concern about the potentially ‘corrupting’ effect of 
party expenditures, but rather for the constitutionally 
insufficient purpose of reducing what it saw as wasteful 
and excessive campaign spending.” Colorado I, 518 
U.S. at 618, 116 S.Ct. at 2317 (citing Buckley, 424 U.S. 
at 57, 96 S. Ct. at 653). Congress, however, reenacted 
the Party Expenditure Provision in light of the 
principles established in Buckley. Further, Buckley 
(and the Supreme Court precedents established there- 
from) indicates that the primary purpose of FECA is to 
prevent corruption and the appearance thereof. See 
Buckley, 424 U.S. at 25-27, 96 S. Ct. at 637-39. Thus, 
although the origins of the Party Expenditure Pro- 
vision included a constitutionally impermissible pur- 
pose, FECA also sought to control quid pro quo 
corruption or the appearance thereof. That FECA 
combined impermissible motives with permissible ones 
does not compel the conclusion that the Party Expen- 
diture Provision is unconstitutional. Rather, the court 
must consider coordinated expenditures in light of the 
constitutional standards for regulating political speech. 

b. Coordinated Expenditures by Political Parties 

The FEC suggests at the outset that it need only 
meet an intermediate standard of scrutiny with respect 
to limits on coordinated party expenditures. In 
Colorado I, the Supreme Court reviewed previous 
cases which challenged provisions of FECA on First 
Amendment grounds. The Court determined that the 
analysis it had engaged in was “essentially weigh[ing] 
the First Amendment interest in permitting candidates 

78a 

(and their supporters) to spend money to advance their 
political views, against a ‘compelling’ governmental 
interest in assuring the electoral system’s legitimacy, 
protecting it from the appearance and reality of corrup- 
tion.” Colorado I, 518 U.S. at 609, 116 S. Ct. at 2313 
(citing FEC v. Massachusetts Citizens for Life, 479 U.S. 
238, 256-63, 107 S. Ct. 616, 626-30, 93 L.Ed.2d 539 
[1986]; FEC v. National Conservative Political Action 
Comm., 470 U.S. 480, 493-501, 105 S. Ct. 1459, 1466-71, 
84 L.Ed.2d 455 [1985] [hereinafter “NCPAC “]; Califor- 
nia Med. Ass’n v. FEC, 453 U.S. 182, 193-99, 101 S. Ct. 
2712, 2720-23, 69 L.Ed.2d 567 [1981]; Buckley, 424 U.S. 
at 14-23, 96 S.Ct. at 632-37, 46 L.Ed.2d 659). In accor- 
dance with the standard established by the Supreme 
Court, and contrary to the FEC’s suggestion, the FEC 
must demonstrate that the Party Expenditure Pro- 
vision serves a compelling Government interest and is 
narrowly tailored. FEC carries a heavy burden of 
proof. 

Section 441a(a) places dollar limits on contributions 
by persons and by multicandidate political committees. 
As noted earlier, coordinated expenditures are con- 
sidered contributions. See 2 U.S.C.A. § 441a(a)(7)(B)(I). 
The FEC suggests that because coordinated expen- 
ditures are considered contributions, and contributions 
have been permissibly limited by the Supreme Court, 
this court’s inquiry is at an end. (Br. by Counter-Def. 
Federal Election Commission in Opp’n to Mot. for 
Summ. J. at 5-9 [filed Feb. 17, 1998].) While it is true 
that the Court has permitted regulation of contribu- 
tions, and that coordinated expenditures have been 
considered, in other circumstances, to be contributions, 
that does not end this court’s inquiry. First, the court 
is not bound by the Government-selected labels or 

79a 

characterizations, particularly in the context of a First 
Amendment challenge. Colorado I, 518 U.S. at 627, 116 
S. Ct. at 2321 (citing Landmark Communications, Inc. 

v. Virginia, 435 U.S. 829, 843, 98 S. Ct. 1535, 1544, 56 
L.Ed.2d 1 [1978] [“Deference to a legislative finding 
cannot limit judicial inquiry when First Amendment 
rights are at stake.”] ). Second, the Court has per- 
mitted regulation of contributions in the past because 
the regulations imposed only a “marginal restriction” 
on the contributor’s First Amendment rights. See 
Colorado I, 518 U.S. at 627, 116 S. Ct. at 2321 (citing 
Buckley, 424 U.S. at 20, 96 S. Ct. at 635.) Thus, the 
question before the court is whether limits on coor- 
dinated party expenditures minimally restrict parties in 
engaging in protected First Amendment freedoms and 
serve a compelling Government interest. The case 
cannot be resolved solely by convenient reference to 
established categories. 

The only permissible purpose for limitations on 
campaign expenditures is to prevent corruption or the 
appearance thereof. “Corruption is a subversion of the 
political process. Elected officials are influenced to act 
contrary to their obligations of office by the prospect of 
financial gain to themselves or infusions of money into 
their campaigns. The hallmark of corruption is the 
financial quid pro quo: dollars for political favors.” 
NCPAC, 470 U.S. at 497, 105 S. Ct. at 1468. The FEC’s 
attempt to broaden the definition of corruption to 
include mere access is unsupported by precedent. In 
Buckley, the Court recognized that campaign finance 
reporting requirements serve the purpose of (1) iden- 
tifying “[t]he sources of a candidate’s financial support,” 
and (2) deterring actual corruption and avoiding the 
appearance of corruption because “[a] public armed 

80a 

with information about a candidate’s most generous 
supporters is better able to detect any post-election 
special favors that may be given in return.” Buckley, 
424 U.S. at 67, 96 S. Ct. at 658; cf. McIntyre v. Ohio 
Elections Comm’n, 514 U.S. 334, 356 n. 20, 115 S. Ct. 
1511, 1523 n. 20, 131 L.Ed.2d 426 (1995) (recognizing 
that in United States v. Harriss, 347 U.S. 612, 74 S. Ct. 
808, 98 L.Ed. 989 [1954], the Court upheld limited dis- 
closure requirements for lobbyists and stating that 
“[t]he activities of lobbyists who have direct access to 
elected representatives, if undisclosed, may well pre- 
sent the appearance of corruption.”). Buckley thus 
recognized that money, in many cases, may grant access 
to a candidate. It did not, however, conclude that such 
access is akin to corruption or the appearance of 
corruption. 

The FEC seeks to broaden the definition of corrup- 
tion to the point that it intersects with the very frame- 
work of representative government. Corruption cannot 
be defined so broadly. Nor can corruption be defined to 
include whatever it is that political parties and 
candidates do which the FEC does not like. In order to 
carry its heavy burden, the FEC must establish that 
limiting party coordinated expenditures is necessary to 
avoid corruption or the appearance thereof. 

“The First Amendment ‘has its fullest and most 
urgent application’ to speech uttered during a campaign 
for political office.” Eu v. San Francisco County 
Democratic Central Comm., 489 U.S. 214, 223, 109 S. 
Ct. 1013, 1020, 103 L.Ed.2d 271 (1989). Political parties, 
and the central activities in which they engage, are a 
paradigm of the right to freedom of association as 
guaranteed by the First Amendment. Id., 489 U.S. at 

81a 

224, 109 S. Ct. at 1020-21. FECA specifically defines a 
political party as “an association, committee, or organ- 
ization which nominates a candidate for election to any 
Federal office whose name appears on the election 
ballot as the candidate of such association, committee, 
or organization.” 2 U.S.C.A. § 431(16). FECA makes 
special provisions for political parties, 2 U.S.C.A. § 
441a(d), and establishes a special position for them in 
the statutory framework out of the recognition that “a 
vigorous party system [is] vital to American politics.” 
S. Rep. 93-689 (1974), reprinted in 1974 U.S.C.C.A.N. 
5587, 5593. A political party is an entity which (1) 
allows the individual voter to associate with others who 
share similar political beliefs, (2) identifies people who 
constitute the party, and (3) “select[s] a ‘standard 
bearer who best represents the party’s ideologies and 
preferences.’ ” Eu, 489 U.S. at 224, 109 S. Ct. at 1020-21 
(citing Tashjian v. Republican Party of Conn., 479 U.S. 
208, 214, 107 S. Ct. 544, 548, 93 L.Ed.2d 514 [1986] 
[internal citations and quotations omitted] and quoting 
Ripon Soc., Inc. v. National Republican Party, 525 
F.2d 567, 601 [1975] ). Political parties “can give effect 
to their views only by selecting and supporting can- 
didates.” Colorado I, 518 U.S. at 629, 116 S. Ct. at 2322 
(Kennedy, J. concurring in judgment and dissenting in 
part). Thus, political parties must have a continuing 
sense of their purpose and existence to succeed. Cf. 
Anderson v. Celebrezze, 460 U.S. 780, 821, 103 S. Ct. 
1564, 1586-87, 75 L.Ed.2d 547 (1983) (Rehnquist, J., 
dissenting) (“Political parties have, or at least hope to 
have, a continuing existence, representing particular 
philosophies. Each party has an interest in finding the 
best candidate to advance its philosophy in each 
election.”). 

82a 

Political parties, like PACs, “act in the political arena, 

. . . seek to elect candidates of their choice, . . . 
spend money, [and] want some policy outcome.” 
(Colorado Party Facts ¶ 44, Ex. A [Alexander Report] 
at 17.) According to the Colorado Party, however, 
parties differ in at least one salient way from PACs. 
“While the various interest groups (and their PACs) 
usually have one specific goal or concern, political 
parties represent an amalgam or coalition of interests 
and goals; moreover, the purpose of parties is to gain 
control of government, rather than to pursue single 
goals, as PACs do.” (Colorado Party Facts ¶ 44, Ex. A 
[Alexander Report at 17]; see also id. ¶ 33, Ex. A 
[Alexander Report at 24] [discussing the parties’ need 
to be focused on longterm], Ex. E [Alexander Dep. at 
111-12, 115] [“The party can’t afford to get in a situation 
that is corrupt or corrupting because the party has to 
be held accountable, and the party is held accountable 
through the ballot.”].) Parties help to build broad-based 
coalitions, both in terms of issues and in terms of 
geography, and parties are held accountable at the 
ballot box by the voters. (See Colorado Party Facts ¶¶ 
45-48.) There is an identity cultivated by the law and 
borne out in fact between a political party and a 
candidate who represents that he or she is of that 
party. Political parties function, in large part, to elect 
persons who represent the shared political beliefs of 
their members. Thus, First Amendment rights—the 
freedom of speech and the freedom of association—are 
critical to attaining that goal. See Colorado I, 518 U.S. 
at 629, 116 S. Ct. at 2321 (Kennedy, J., concurring in 
judgment and dissenting in part). 

The Colorado Party describes independent expen- 
ditures as “unnatural” because such expenditures 

83a 

“create an artificial separation of the party and its 
candidate.” The need to be independent of a candidate 
and his or her campaign so as not to run afoul of the 
requirements for independent expenditures and fall 
within the regulations on coordinated expenditures 
dampens the ability to engage in the party’s normal 
functions and imposes additional costs and burdens to 
promote the party message. (Colorado Party Facts ¶¶ 
31-32, Ex. A [Alexander Report at 25], Ex. B [Corrado 
Report at 35-37], Ex. C [Sorauf/Krasno Report at 44, 

46], Ex. F [Bain Dep. at 46-47], Ex. K [Corrado Dep. at 
54-56].) For example, independent expenditures do not 
qualify for the lowest rates on the purchase of 
broadcasting time, as coordinated expenditures would. 
(Colorado Party Facts ¶ 32, admitted in pertinent part 
at FEC’s Resp. to Colorado Party Facts ¶ 32.) Because 
independent expenditures are perceived as often 
inefficient and counterproductive, it is suggested that 
the Colorado Party and other entities will not engage in 
them or will do so with extreme caution. (Colorado 
Party Facts ¶¶ 36-37, Ex. F [Bain Dep. at 47], Ex. M 
[Heubusch Dep. at 102, 106]; see also id. ¶ 38, Ex. A 
[Alexander Report at 24-25].) Coordinated expen- 
ditures, on the other hand, provide the candidate and 
the party the optimum opportunity to communicate 
their message. (Colorado Party Facts ¶¶ 40-41, 43.) 
Thus, unlike contributions, communications via coordi- 
nated party expenditures implicate core First Amend- 
ment rights. The message of the party and the message 
of the candidate are unified, and the party’s dollars 
cannot be characterized as simply speech by proxy. 

The FEC’s argument is relatively simple: a powerful 
party hierarchy, made so because of its ability to grant 
or withhold funding for unlimited coordinated expen- 

84a 

ditures, has the ability to exact a quid pro quo from a 
candidate who needs assistance from the party during 
his or her campaign. The FEC contends that “the re- 
cord contains ample evidence . . . that large 
coordinated expenditures create the opportunity for 
[quid pro quo] arrangements.” (FEC Summ. J. Br. at 

24.) The FEC’s claim fails. To support its argument, 
the FEC offers hundreds of factual allegations detailing 
party fund-raising practices, donor expectations of 
access, and party control over candidates. The facts 
which FEC contends support its position, however, do 
not establish that the limit on party coordinated 
expenditures is necessary to prevent corruption or the 
appearance thereof. The FEC must do more than show 
“the opportunity” for corruption. See Turner Broad. 
Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S. Ct. 2445, 
2470, 129 L.Ed.2d 497 (1994) ( “When the Government 
defends a regulation on speech as a means to . . . 
prevent anticipated harms, it must do more than simply 
posit the existence of the disease sought to be cured.”) 
(citation and internal quotation marks omitted); 
NCPAC, 470 U.S. at 498, 105 S. Ct. at 1469. 

The FEC appears to identify two types of “corrup- 
tion” which are addressed by the Party Expenditure 
Provision. First, the FEC suggests that contributors to 
the party committees—individuals and PACs—are so 
powerful that they could force the party committee to 
compel a candidate to take a particular position. Second, 
parties themselves have agendas which they wish to 
pursue and will support only those candidates who 
agree to follow that agenda. 

With respect to the former type of “corruption,” the 
Colorado Party contends that the FEC can offer no 

85a 

evidence of any quid pro quo corruption where a 
Member of Congress took an official action in exchange 
for any contribution to a political party. (Colorado 
Party Facts ¶ 58.) The FEC denies this assertion, 
offering what it claims are seven examples of such 
conduct. (FEC Facts ¶¶ 94, 179, 205, 250, 251, 262, 
263.) The Colorado Party objects to all of these 
examples on various grounds. The FEC’s factual asser- 
tions suffer numerous flaws. The evidentiary objec- 
tions are all good ones. In addition, even if the proffered 
evidence were admissible, it does not support the 
FEC’s position that limiting coordinated party expen- 
ditures serves the compelling Government interest of 
preventing corruption or the appearance thereof. The 
alleged facts either (1) involve claims of access, which, 
as the court has stated above, does not constitute 
corruption, or (2) involve soft money, which may not be 
used for coordinated expenditures anyway. None of the 
FEC’s examples involve coordinated expenditures. 
The FEC cannot maintain the constitutionality of the 
coordinated expenditure provision by pointing to 
examples of money in the political process which are 
unrelated to party coordinated expenditures. 

24 

Moreover, because of the limits on hard-money con- 
tributions, which are the only funds permissibly used 
for coordinated party expenditures, I regard con- 
tributor-to-party-to-candidate pressure as an unlikely 

24 Moreover, if the skirting of contribution limits is the issue 
with which the FEC is concerned (see FEC Summ. J. Br. at 28-32), 
there are more tailored means of addressing such a concern than 
limiting the coordinated expenditure limits. See Colorado I, 518 
U.S. at 616-17, 116 S. Ct. at 2316. 

86a 

avenue of corruption, based on the facts in the record. 

25 

The FEC attempts to cloud the evidentiary picture 
before the court by including evidence of soft-money 
contributions. While soft money may be received in 
unlimited amounts and from a multitude of sources, 
there is no suggestion in the evidence that such money 
is also used for coordinated expenditures. To the ex- 
tent that the FEC suggests that the court should 
consider the cumulative impact of hard and soft money 
contributions from one entity, I reject the suggestion. 
This case is not about the entirety of the campaign 
finance system. 

Further, that candidates are made aware of who 
contributes to their campaigns and to the parties, 
despite the FEC’s attempt to cast a sinister pall over 
such activity, is not, by itself, evidence of corruption or 
the appearance of corruption. The FECA reporting 
requirements which indicate the sources and amounts 
of contributions are designed to insure that campaign 
finance can be scrutinized. Buckley, 424 U.S. at 60-83, 
96 S. Ct. at 654-66. Nothing in the record suggests that 
this type of fund raising and reporting begets corrup- 
tion or the appearance of corruption. 

With respect to the other type of “corruption” identi- 
fied by the FEC—party pressure over candidates— 
despite the FEC’s attempts to cast it otherwise, it is 

25 If Congress is concerned about how much hard money parties 
may receive, it may curtail such limits and do so directly and 
constitutionally. Cf. Colorado I, 518 U.S. at 617, 116 S. Ct. at 2316 
(recognizing, in considering limits on independent party expen- 
ditures, that Congress could directly regulate contribution limits 
rather than indirectly prevent their circumvention by limiting 
independent expenditures). 

87a 

not corruption. As Buckley reiterated again and again, 
the concern with corruption is related to “large indivi- 
dual financial contributions.” Buckley, 424 U.S. at 26, 
27, 96 S. Ct. at 638-39. Party-coordinated expenditures 
are not large individual contributions. As required by 
law and demonstrated by the evidence, the hard-money 
contributions are not from one or a few individuals. 
They come from many small contributors. Even the 
largest contributors are statutorily limited in the 
amounts they may give. I cannot conclude that party 
contributions are akin to large individual contributions. 
The relationship between a party and a Member of 
Congress who represents that party is wholly different 
from the relationship between a private individual or 
corporation and a Member of Congress. Parties exist 
because of their success in electing representatives of 
their philosophy to legislative bodies. 

The FEC contends that parties exert influence over 
candidates. 

26 (FEC Facts ¶¶ 211-41.) The FEC’s facts 
do suggest that the parties and their committees are 
involved with the candidates and their policy positions. 
That, however, is the nature of the party-candidate 
relationship and, again, highlights the paramount First 
Amendment concerns with respect to limiting coordi- 
nated speech. 

As discussed above, a political party functions to 
promote political ideas and policy objectives over time 
and through elected officials. Given the purpose of 
political parties in our electoral system, a political 

26 The FEC, in the factual allegations regarding this subject, 
combines factual assertions with argument and engages in specula- 
tion as to what could occur. Although this appears throughout the 
FEC’s asserted facts, it is particularly acute in this section. 

88a 

party’s decision to support a candidate who adheres to 
the parties’ beliefs is not corruption. Conversely, a 
party’s refusal to provide a candidate with electoral 
funds because the candidate’s views are at odds with 
party positions is not an attempt to exert improper 
influence. A candidate who does not wish to toe the 
party line is not excluded from participation in the 
political process or even in the party process. The FEC 
offers factual allegations which suggest that one party 
or the other withheld, or attempted to withhold, cam- 
paign funds from a candidate who expressed viewpoints 
or campaign tactics contrary to those thought pre- 
ferable by the party. (See, e.g., FEC Facts ¶ 224.) The 
court regards those as instances of the party and the 
candidate exercising their First Amendment rights. A 
party that refuses to fund a candidate who engages in 
what the party deems as undesirable campaign tactics 
is not reflecting corruption or the appearance of 
corruption. Indeed, the evidence offered by the parties 
suggests that the parties direct their coordinated 
expenditure dollars to candidates who are most in need, 
that is, candidates for whom the money could be the 
difference between winning or losing. 

Unable to produce admissible evidence which con- 
vinces the court that party expenditures must be 
limited to prevent corruption, the FEC relies on the 
“appearance of corruption” to discharge its burden. 
Specifically, the FEC attempts to rely on the apparent 
public perception (or, perhaps, misperception) regard- 
ing the role of money in politics to establish that un- 
limited coordinated party expenditures cause the 
“appearance of corruption.” (FEC Facts ¶¶ 292-302.) 
But, as the evidence reveals, (see Colorado Party Facts 
¶¶ 49-53), the public is unaware of the nuances of 

89a 

campaign financing, particularly the role of hard money 
in coordinated campaign expenditures. If the FEC’s 
position is correct and the public cannot distinguish 
hard money from soft money and the role that each 
plays in the system, the proper course of action is not to 
limit speech by permitting unnecessary and unconsti- 
tutional limitations on parties’ and candidate’s freedoms 
of speech and association but, rather, to engage in more 
speech to educate the public. See Linmark Assocs., 
Inc. v. Township of Willingboro, 431 U.S. 85, 97, 97 S. 
Ct. 1614, 1620, 52 L.Ed.2d 155 (1977) (citing Whitney v. 
California, 274 U.S. 357, 377, 47 S. Ct. 641, 649, 71 
L.Ed. 1095 [1927] [Brandeis, J. concurring] ). The FEC 
cannot rely on general public dissatisfaction with par- 
ties and politicians and the amount of money in the 
political process, particularly money which cannot even 
be used for the expenditures at issue in this case, to 
support its claim that the party coordinated expen- 
diture limit serves a compelling purpose and is nar- 
rowly tailored to accomplish that purpose. 

In short, the FEC has failed to offer evidence which 
demonstrates the compelling need for limits on political 
party coordinated expenditures. Only by attempting to 
divert the focus of the case from hard money to soft 
money and by seeking to broaden the definition of 
corruption beyond recognizable bounds does the FEC 
even approach the requisite showing. As Justice 
Kennedy said in Colorado I: 

The problem is not just the absence of a basis in our 
First Amendment cases for treating the party’s 
spending as contributions. The greater difficulty 
posed by the statute is its stifling effect on the 
ability of the party to do what it exists to do. It is 

90a 

fanciful to suppose that limiting party spending of 
the type at issue here “does not in any way infringe 
the contributor’s freedom to discuss candidates and 
issues,” [Buckley, 424 U.S. at 21, 96 S. Ct. at 635], 
since it would be impractical and imprudent, to say 
the least, for a party to support its own candidates 
without some form of “cooperation” or “consulta- 
tion.” The party’s speech, legitimate on its own 
behalf, cannot be separated from speech on the 
candidate’s behalf without constraining the party in 
advocating its most essential positions and pursuing 
its most basic goals. The party’s form of organiza- 
tion and the fact that its fate in an election is 
inextricably intertwined with that of its candidates 
cannot provide a basis for the restrictions imposed 
here. See [NCPAC, 470 U.S. at 494- 495, 105 S. Ct. 
at 1467-68.] 

We have a constitutional tradition of political parties 
and their candidates engaging in joint First Amend- 
ment activity; we also have a practical identity of 
interests between the two entities during an 
election. Party spending “in cooperation, consulta- 
tion, or concert with” a candidate therefore is 
indistinguishable in substance from expenditures by 
the candidate or his campaign committee. We held 
in Buckley that the First Amendment does not 
permit regulation of the latter, see 424 U.S. at 54-59, 
96 S. Ct. at 651-54, and it should not permit this 
regulation of the former. Congress may have 
authority, consistent with the First Amendment, to 
restrict undifferentiated political party contribu- 
tions which satisfy the constitutional criteria we 
discussed in Buckley, but that type of regulation is 
not at issue here. 

91a 

Colorado I, 518 U.S. at 630, 116 S. Ct. 2309, at 2322-23, 
135 L.Ed.2d 795 (Kennedy, J. concurring in judgment 
and dissenting in part). Because the FEC has failed to 
offer relevant, admissible evidence which suggests that 
coordinated party expenditures must be limited to 
prevent corruption or the appearance thereof, I 
conclude that summary judgment is warranted. 
Accordingly, the FEC’s motion for summary judgment 
is denied, and the Colorado Party’s motion for summary 
judgment is granted with respect to its constitutional 
challenge to the Party Expenditure Provision. I there- 
fore do not address the parties’ arguments regarding 
vagueness. 

4. Conclusion 

Upon the foregoing findings and conclusions, it is 
therefore 

ORDERED as follows: 

1. The FEC’s motion for summary judgment 
and to dismiss the amended counterclaim with 
prejudice is DENIED. 

2. The Colorado Party’s motion for summary 
judgment is GRANTED. 

3. The parties’ joint motion to correct the 
transcript is GRANTED. 

4. The clerk shall forthwith enter judgment 
declaring that the Party Expenditure Provision, 2 
U.S.C.A. § 441a(d) (West 1997), is unconstitutional 
and cannot be enforced against defendant. 

92a 

APPENDIX C 

SUPREME COURT OF THE UNITED STATES 

No. 95-489 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE ET AL., PETITIONERS, 

v. 

FEDERAL ELECTION COMMISSION 

[Argued: April 15, 1996 
Decided: June 26, 1996] 

Justice BREYER announced the judgment of the 
Court and delivered an opinion, in which Justice 
O’CONNOR and Justice SOUTER join. 

In April 1986, before the Colorado Republican Party 
had selected its senatorial candidate for the fall’s 
election, that Party’s Federal Campaign Committee 
bought radio advertisements attacking Timothy Wirth, 
the Democratic Party’s likely candidate. The Federal 
Election Commission (FEC) charged that this “ex- 
penditure” exceeded the dollar limits that a provision of 
the Federal Election Campaign Act of 1971 (FECA or 
Act) imposes upon political party “expenditure[s] in 
connection with” a “general election campaign” for 
congressional office. 90 Stat. 486, as amended, 2 U.S.C. 
§ 441a(d)(3). This case focuses upon the constitutional- 

93a 

ity of those limits as applied to this case. We conclude 
that the First Amendment prohibits the application of 
this provision to the kind of expenditure at issue 
here—an expenditure that the political party has made 
independently, without coordination with any candi- 
date. 

I 

To understand the issues and our holding, one must 
begin with FECA as it emerged from Congress in 1974. 
That Act sought both to remedy the appearance of a 
“corrupt” political process (one in which large contri- 
butions seem to buy legislative votes) and to level the 
electoral playing field by reducing campaign costs. See 
Buckley v. Valeo, 424 U.S. 1, 25-27 (1976) (per curiam). 
It consequently imposed limits upon the amounts that 
individuals, corporations, “political committees” (such 
as political action committees, or PAC’s), and political 
parties could contribute to candidates for federal office, 
and it also imposed limits upon the amounts that 
candidates, corporations, labor unions, political com- 
mittees, and political parties could spend, even on their 
own, to help a candidate win election. See 18 U.S.C. §§ 
608, 610 (1970 ed., Supp. IV). 

This Court subsequently examined several of the 
Act’s provisions in light of the First Amendment’s free 
speech and association protections. See Federal Elec- 
tion Comm’n v. Massachusetts Citizens for Life, Inc., 
479 U.S. 238 (1986); Federal Election Comm’n v. 
National Conservative Political Action Comm., 470 
U.S. 480 (1985) (NCPAC); California Medical Assn. 

v. Federal Election Comm’n, 453 U.S. 182 (1981); 
Buckley, supra. In these cases, the Court essentially 

94a 

weighed the First Amendment interest in permitting 
candidates (and their supporters) to spend money to 
advance their political views against a “compelling” 
governmental interest in assuring the electoral 
system’s legitimacy, protecting it from the appearance 
and reality of corruption. See Massachusetts Citizens 
for Life, supra, at 256-263; NCPAC, supra, at 493-501; 
California Medical Assn., supra, at 193-199; Buckley, 
424 U.S., at 14-23. After doing so, the Court found that 
the First Amendment prohibited some of FECA’s 
provisions, but permitted others. 

Most of the provisions this Court found unconsti- 
tutional imposed expenditure limits. Those provisions 
limited candidates’ rights to spend their own money, 
id., at 51-54, limited a candidate’s campaign expendi- 
tures, id., at 54-58, limited the right of individuals to 
make “independent” expenditures (not coordinated 
with the candidate or candidate’s campaign), id., at 39- 
51, and similarly limited the right of political com- 
mittees to make “independent” expenditures, NCPAC, 
supra, at 497. The provisions that the Court 
found constitutional mostly imposed contribution 
limits—limits that apply both when an individual or 
political committee contributes money directly to a 
candidate and also when they indirectly contribute by 
making expenditures that they coordinate with the 
candidate, § 441a(a)(7)(B)(i). See Buckley, supra, at 23- 

36. See also 424 U.S., at 46-48; California Medical 
Assn., supra, at 193-199 (limits on contributions to poli- 
tical committees). Consequently, for present purposes, 
the Act now prohibits individuals and political com- 
mittees from making direct, or indirect, contributions 
that exceed the following limits: 

95a 

(a) For any “person”: $1,000 to a candidate 
“with respect to any election”; $5,000 to any political 
committee in any year; $20,000 to the national 
committees of a political party in any year; but all 
within an overall limit (for any individual in any 
year) of $25,000. 2 U.S.C. §§ 441a(a)(1), (3). 

(b) For any “multicandidate political com- 
mittee”: $5,000 to a candidate “with respect to any 
election”; $5,000 to any political committee in any 
year; and $15,000 to the national committees of a 
political party in any year. § 441a(a)(2). 

FECA also has a special provision, directly at issue in 
this case, that governs contributions and expenditures 
by political parties. § 441a(d). This special provision 
creates, in part, an exception to the above contribution 
limits. That is, without special treatment, political 
parties ordinarily would be subject to the general limi- 
tation on contributions by a “multicandidate political 
committee” just described. See § 441a(a)(4). That 
provision, as we said in subsection (b) above, limits 
annual contributions by a “multicandidate political com- 
mittee” to no more than $5,000 to any candidate. And 
as also mentioned above, this contribution limit governs 
not only direct contributions but also indirect contri- 
butions that take the form of coordinated expenditures, 
defined as “expenditures made . . . in cooperation, 
consultation, or concert, with, or at the request or sug- 
gestion of, a candidate, his authorized political com- 
mittees, or their agents.” § 441a(a)(7)(B)(i). Thus, 
ordinarily, a party’s coordinated expenditures would be 
subject to the $5,000 limitation. 

However, FECA’s special provision, which we shall 
call the “Party Expenditure Provision,” creates a 

96a 

general exception from this contribution limitation, and 
from any other limitation on expenditures. It says: 

“Notwithstanding any other provision of law with 
respect to limitations on expenditures or limita- 
tions on contributions, . . . political party [com- 
mittees] . . . may make expenditures in connection 
with the general election campaign of candidates for 
Federal office . . . .” § 441a(d)(1) (emphasis 

added). 

After exempting political parties from the general 
contribution and expenditure limitations of the statute, 
the Party Expenditure Provision then imposes a sub- 
stitute limitation upon party “expenditures” in a 
senatorial campaign equal to the greater of $20,000 or 
“2 cents multiplied by the voting age population of the 
State,” § 441a(d)(3)(A)(i), adjusted for inflation since 
1974, § 441a(c). The provision permitted a political 
party in Colorado in 1986 to spend about $103,000 in 
connection with the general election campaign of a can- 
didate for the United States Senate. See FEC Record, 
vol. 12, no. 4, p. 1 (Apr.1986). (A different provision, not 
at issue in this case, § 441a(d)(2), limits party expendi- 
tures in connection with Presidential campaigns. Since 
this case involves only the provision concerning con- 
gressional races, we do not address issues that might 
grow out of the public funding of Presidential cam- 
paigns.) 

In January 1986, Timothy Wirth, then a Democratic 
Congressman, announced that he would run for an open 
Senate seat in November. In April, before either the 
Democratic primary or the Republican convention, the 
Colorado Republican Federal Campaign Committee 
(Colorado Party or Party), a petitioner here, bought 

97a 

radio advertisements attacking Congressman Wirth. 
The State Democratic Party complained to the FEC. It 
pointed out that the Colorado Party had previously 
assigned its $103,000 general election allotment to the 
National Republican Senatorial Committee, leaving it 
without any permissible spending balance. See Federal 
Election Comm’n v. Democratic Senatorial Campaign 
Comm., 454 U.S. 27 (1981) (state party may appoint 
national senatorial campaign committee as agent to 
spend its Party Expenditure Provision allotment). It 
argued that the purchase of radio time was an “ex- 
penditure in connection with the general election cam- 
paign of a candidate for Federal office,” § 441a(d)(3), 
which, consequently, exceeded the Party Expenditure 
Provision limits. 

The FEC agreed with the Democratic Party. It 
brought a complaint against the Colorado Party, charg- 
ing a violation. The Colorado Party defended in part 
by claiming that the Party Expenditure Pro- 
vision’s expenditure limitations violated the First 
Amendment—a charge that it repeated in a counter- 
claim that said the Colorado Party intended to make 
other “expenditures directly in connection with” 
senatorial elections, App. 68, ¶ 48, and attacked the 
constitutionality of the entire Party Expenditure 
Provision. The Federal District Court interpreted the 
provision’s words “ ‘in connection with’ the general 
election campaign of a candidate” narrowly, as meaning 
only expenditures for advertising using “ ‘express 
words of advocacy of election or defeat.’ ” 839 F. Supp. 
1448, 1455 (D. Colo. 1993) (quoting Buckley, 424 U.S., at 
46, n. 52). See also Massachusetts Citizens for Life, 479 
U.S., at 249. As so interpreted, the court held, the 
provision did not cover the expenditures here. The 

98a 

court entered summary judgment for the Colorado 
Party and dismissed its counterclaim as moot. 

Both sides appealed. The Government, for the FEC, 
argued for a somewhat broader interpretation of 
the statute—applying the limits to advertisements 
containing an “electioneering message” about a “clearly 
identified candidate,” FEC Advisory Op.1985-14, 2 
CCH Fed. Election Camp. Fin. Guide ¶ 5819, p. 11,185 
(May 30, 1985) which, it said, both covered the ex- 
penditure and satisfied the Constitution. The Court of 
Appeals agreed. It found the Party Expenditure 
Provision applicable, held it constitutional, and ordered 
judgment in the FEC’s favor. 59 F.3d 1015, 1023-1024 
(CA 10 1995). 

We granted certiorari primarily to consider the 
Colorado Party’s argument that the Party Expenditure 
Provision violates the First Amendment “either facially 
or as applied.” Pet. for Cert. i. For reasons we shall 
discuss in Part IV, infra, we consider only the latter 
question—whether the Party Expenditure Provision as 
applied here violates the First Amendment. We 
conclude that it does. 

II 

The summary judgment record indicates that the 
expenditure in question is what this Court in Buckley 
called an “independent” expenditure, not a “coordi- 
nated” expenditure that other provisions of FECA 
treat as a kind of campaign “contribution.” See 
Buckley, supra, at 36-37, 46-47, 78; NCPAC, 470 U.S., 
at 498. The record describes how the expenditure was 

99a 

made. In a deposition, the Colorado Party’s Chairman, 
Howard Callaway, pointed out that, at the time of the 
expenditure, the Party had not yet selected a senatorial 
nominee from among the three individuals vying for the 
nomination. App. 195-196. He added that he arranged 
for the development of the script at his own initiative, 
id., at 200, that he, and no one else, approved it, id., at 
199, that the only other politically relevant individuals 
who might have read it were the Party’s executive 
director and political director, ibid., and that all rele- 
vant discussions took place at meetings attended only 
by Party staff, id., at 204. 

Notwithstanding the above testimony, the Govern- 
ment argued in District Court—and reiterates in 
passing in its brief to this Court, Brief for Respondent 
27, n. 20—that the deposition showed that the Party 
had coordinated the advertisement with its candidates. 
It pointed to Callaway’s statement that it was the 
practice of the Party to “coordinat[e] with the candi- 
date” “campaign strategy,” App. 195, and for Callaway 
to be “as involved as [he] could be” with the individuals 
seeking the Republican nomination, ibid., by making 
available to them “all of the assets of the party,” id., at 
195-196. These latter statements, however, are general 
descriptions of Party practice. They do not refer to the 
advertising campaign at issue here or to its pre- 
paration. Nor do they conflict with, or cast significant 
doubt upon, the uncontroverted direct evidence that 
this advertising campaign was developed by the 
Colorado Party independently and not pursuant to any 
general or particular understanding with a candidate. 
We can find no “genuine” issue of fact in this respect. 
Fed. Rule Civ. Proc. 56(e); Matsushita Elec. Industrial 
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). 

100a 

And we therefore treat the expenditure, for consti- 
tutional purposes, as an “independent” expenditure, not 
an indirect campaign contribution. 

So treated, the expenditure falls within the scope of 
the Court’s precedents that extend First Amendment 
protection to independent expenditures. Beginning 
with Buckley, the Court’s cases have found a “funda- 
mental constitutional difference between money spent 
to advertise one’s views independently of the candi- 
date’s campaign and money contributed to the 
candidate to be spent on his campaign.” NCPAC, 
supra, at 497. This difference has been grounded in the 
observation that restrictions on contributions impose 
“only a marginal restriction upon the contributor’s 
ability to engage in free communication,” Buckley, 
supra, at 20-21, because the symbolic communicative 
value of a contribution bears little relation to its size, 
424 U.S., at 21, and because such limits leave “persons 
free to engage in independent political expression, to 
associate actively through volunteering their services, 
and to assist to a limited but nonetheless substantial 
extent in supporting candidates and committees with 
financial resources,” id., at 28. At the same time, 
reasonable contribution limits directly and materially 
advance the Government’s interest in preventing ex- 
changes of large financial contributions for political 
favors. Id., at 26-27. 

In contrast, the Court has said that restrictions on 
independent expenditures significantly impair the 
ability of individuals and groups to engage in direct 
political advocacy and “represent substantial . . . 
restraints on the quantity and diversity of political 
speech.” Id., at 19. And at the same time, the Court 

101a 

has concluded that limitations on independent expendi- 
tures are less directly related to preventing corruption, 
since “[t]he absence of prearrangement and coordina- 
tion of an expenditure with the candidate . . . not only 
undermines the value of the expenditure to the candi- 
date, but also alleviates the danger that expenditures 
will be given as a quid pro quo for improper com- 
mitments from the candidate.” Id., at 47. 

Given these established principles, we do not see how 
a provision that limits a political party’s independent 
expenditures can escape their controlling effect. A 
political party’s independent expression not only re- 
flects its members’ views about the philosophical and 
governmental matters that bind them together, it also 
seeks to convince others to join those members in a 
practical democratic task, the task of creating a 
government that voters can instruct and hold re- 
sponsible for subsequent success or failure. The 
independent expression of a political party’s views is 
“core” First Amendment activity no less than is the 
independent expression of individuals, candidates, or 
other political committees. See, e.g., Eu v. San Fran- 
cisco County Democratic Central Comm., 489 U.S. 214 
(1989). 

We are not aware of any special dangers of cor- 
ruption associated with political parties that tip the 
constitutional balance in a different direction. When 
this Court considered, and held unconstitutional, limits 
that FECA had set on certain independent expendi- 
tures by PAC’s, it reiterated Buckley’s observation 
that “the absence of prearrangement and coordination” 
does not eliminate, but it does help to “alleviate,” any 
“danger” that a candidate will understand the ex- 

102a 

penditure as an effort to obtain a “quid pro quo.” See 
NCPAC, 470 U.S., at 498. The same is true of inde- 
pendent party expenditures. 

We recognize that FECA permits individuals to 
contribute more money ($20,000) to a party than to a 
candidate ($1,000) or to other political committees 
($5,000). 2 U.S.C. § 441a(a). We also recognize that 
FECA permits unregulated “soft money” contributions 
to a party for certain activities, such as electing 
candidates for state office, see § 431(8)(A)(i), or for 
voter registration and “get out the vote” drives, see 
§ 431(8)(B)(xii). But the opportunity for corruption 
posed by these greater opportunities for contributions 
is, at best, attenuated. Unregulated “soft money” con- 
tributions may not be used to influence a federal 
campaign, except when used in the limited, party- 
building activities specifically designated in the statute. 
See § 431(8)(B). Any contribution to a party that is 
earmarked for a particular campaign is considered a 
contribution to the candidate and is subject to the 
contribution limitations. § 441a(a)(8). A party may not 
simply channel unlimited amounts of even undesignated 
contributions to a candidate, since such direct transfers 
are also considered contributions and are subject to the 
contribution limits on a “multicandidate political com- 
mittee.” § 441a(a)(2). The greatest danger of corrup- 
tion, therefore, appears to be from the ability of donors 
to give sums up to $20,000 to a party which may be used 
for independent party expenditures for the benefit of a 
particular candidate. We could understand how Con- 
gress, were it to conclude that the potential for evasion 
of the individual contribution limits was a serious 
matter, might decide to change the statute’s limitations 
on contributions to political parties. Cf. California 

103a 

Medical Assn., 453 U.S., at 197-199 (plurality opinion) 
(danger of evasion of limits on contribution to candi- 
dates justified prophylactic limitation on contributions 
to PAC’s). But we do not believe that the risk of 
corruption present here could justify the “markedly 
greater burden on basic freedoms caused by” the 
statute’s limitations on expenditures. Buckley, 424 
U.S., at 44. See also id., at 46-47, 51; NCPAC, supra, at 
498. Contributors seeking to avoid the effect of the 
$1,000 contribution limit indirectly by donations to the 
national party could spend that same amount of money 
(or more) themselves more directly by making their 
own independent expenditures promoting the candi- 
date. See Buckley, supra, at 44-48 (risk of corruption 
by individuals’ independent expenditures is insufficient 
to justify limits on such spending). If anything, an 
independent expenditure made possible by a $20,000 
donation, but controlled and directed by a party rather 
than the donor, would seem less likely to corrupt than 
the same (or a much larger) independent expenditure 
made directly by that donor. In any case, the con- 
stitutionally significant fact, present equally in both 
instances, is the lack of coordination between the 
candidate and the source of the expenditure. See 
Buckley, supra, at 45-46; NCPAC, supra, at 498. This 
fact prevents us from assuming, absent convincing 
evidence to the contrary, that a limitation on political 
parties’ independent expenditures is necessary to com- 
bat a substantial danger of corruption of the electoral 
system. 

The Government does not point to record evidence or 
legislative findings suggesting any special corruption 
problem in respect to independent party expenditures. 
See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 

104a 

622, 664 (1994) (“When the Government defends a 
regulation on speech as a means to . . . prevent antici- 
pated harms, it must do more than simply posit the 
existence of the disease sought to be cured” (citation 
and internal quotation marks omitted)); NCPAC, 
supra, at 498. To the contrary, this Court’s opinions 
suggest that Congress wrote the Party Expenditure 
Provision not so much because of a special concern 
about the potentially “corrupting” effect of party 
expenditures, but rather for the constitutionally insuf- 
ficient purpose of reducing what it saw as wasteful and 
excessive campaign spending. See Buckley, supra, at 

57. In fact, rather than indicating a special fear of the 
corruptive influence of political parties, the legislative 
history demonstrates Congress’ general desire to 
enhance what was seen as an important and legitimate 
role for political parties in American elections. See 
Federal Election Comm’n v. Democratic Senatorial 
Campaign Comm., 454 U.S., at 41 (Party Expenditure 
Provision was intended to “assur[e] that political 
parties will continue to have an important role in 
federal elections”); S. Rep. No. 93-689, p. 7 (1974) 
(“[A] vigorous party system is vital to American 
politics. . . . [P]ooling resources from many small con- 
tributors is a legitimate function and an integral part of 
party politics”); id., at 7-8, 15. 

We therefore believe that this Court’s prior case law 
controls the outcome here. We do not see how a 
Constitution that grants to individuals, candidates, and 
ordinary political committees the right to make 
unlimited independent expenditures could deny the 
same right to political parties. Having concluded this, 
we need not consider the Party’s further claim that the 
statute’s “in connection with” language, and the FEC’s 

105a 

interpretation of that language, are unconstitutionally 
vague. Cf. Buckley, supra, at 40- 44. 

III 

The Government does not deny the force of the 
precedent we have discussed. Rather, it argued below, 
and the lower courts accepted, that the expenditure in 
this case should be treated under those precedents, not 
as an “independent expenditure,” but rather as a 
“coordinated expenditure,” which those cases have 
treated as “contributions,” and which those cases have 
held Congress may constitutionally regulate. See, e.g., 
Buckley, supra, at 23-38. 

While the District Court found that the expenditure 
in this case was “coordinated,” 839 F. Supp., at 1453, it 
did not do so based on any factual finding that the Party 
had consulted with any candidate in the making or 
planning of the advertising campaign in question. 
Instead, the District Court accepted the Government’s 
argument that all party expenditures should be treated 
as if they had been coordinated as a matter of law, 
“[b]ased on Supreme Court precedent and the Com- 
mission’s interpretation of the statute,” ibid. The Court 
of Appeals agreed with this legal conclusion. 59 F.3d, at 
1024. Thus, the lower courts’ “finding” of coordination 
does not conflict with our conclusion, supra, at 613-614, 
that the summary judgment record shows no actual 
coordination as a matter of fact. The question, instead, 
is whether the Court of Appeals erred as a legal matter 
in accepting the Government’s conclusive presumption 
that all party expenditures are “coordinated.” We 
believe it did. 

106a 

In support of its argument, the Government points to 
a set of legal materials, based on FEC interpretations, 
that seem to say or imply that all party expenditures 
are “coordinated.” These include: (1) an FEC regula- 
tion that forbids political parties to make any “inde- 
pendent expenditures . . . in connection with” a 
“general election campaign,” 11 CFR § 110.7(b)(4) 
(1995); (2) FEC Advisory Opinions that use the word 
“coordinated” to describe the Party Expenditure Pro- 
visions’ limitations, see, e.g., FEC Advisory Op.1984-15, 
1 CCH Fed. Election Camp. Fin. Guide ¶ 5766, p. 11,069 
(May 31, 1984) (AO 1984-15); FEC Advisory Op.1988- 
22, 2 CCH Fed. Election Camp. Fin. Guide ¶ 5932, p. 
11,471, n.4 (July 5, 1988) (AO 1988-22); (3) one FEC 
Advisory Opinion that says explicitly in a footnote that 
“coordination with candidates is presumed and ‘inde- 
pendence’ precluded,” ibid.; and (4) a statement by this 
Court that “[p]arty committees are considered in- 
capable of making ‘independent’ expenditures,” Demo- 
cratic Senatorial Campaign Comm., supra, at 28-29, 

n.1. 

The Government argues, on the basis of these materi- 
als, that the FEC has made an “empirical judgment 
that party officials will as a matter of course consult 
with the party’s candidates before funding communi- 
cations intended to influence the outcome of a federal 
election.” Brief for Respondent 27. The FEC materi- 
als, however, do not make this empirical judgment. For 
the most part those materials use the word “coordi- 
nated” as a description that does not necessarily deny 
the possibility that a party could also make inde- 
pendent expenditures. See, e.g., AO 1984-15, ¶ 5766, at 
11,069. We concede that one Advisory Opinion says, in a 
footnote, that “coordination with candidates is pre- 

107a 

sumed.” AO 1988-22, ¶ 5932, at 11,471, n.4. But this 
statement, like the others, appears without any internal 
or external evidence that the FEC means it to embody 
an empirical judgment (say, that parties, in fact, hardly 
ever spend money independently) or to represent the 
outcome of an empirical investigation. Indeed, the 
statute does not require any such investigation, for it 
applies both to coordinated and to independent ex- 
penditures alike. See § 441a(d)(3) (a “political party 

. . . may not make any expenditure” in excess of the 
limits (emphasis added)). In any event, language in 
other FEC Advisory Opinions suggests the opposite, 
namely, that sometimes, in fact, parties do make inde- 
pendent expenditures. See, e.g., AO 1984-15, ¶ 5766, at 
11,069 (“Although consultation or coordination with the 
candidate is permissible, it is not required”). In these 
circumstances, we cannot take the cited materials as an 
empirical, or experience-based, determination that, as a 
factual matter, all party expenditures are coordinated 
with a candidate. That being so, we need not hold, on 
the basis of these materials, that the expenditures here 
were “coordinated.” 

The Government does not advance any other legal 
reason that would require us to accept the FEC’s char- 
acterization. The FEC has not claimed, for example, 
that, administratively speaking, it is more difficult to 
separate a political party’s “independent,” from its 
“coordinated,” expenditures than, say, those of a PAC. 
Cf. 11 CFR § 109.1 (1995) (distinguishing between inde- 
pendent and coordinated expenditures by other politi- 
cal groups). Nor can the FEC draw significant legal 
support from the footnote in Democratic Senatorial 
Campaign Comm., 454 U.S., at 28-29, n. 1, given that 
this statement was dicta that purported to describe the 

108a 

regulatory regime as the FEC had described it in a 
brief. 

Nor does the fact that the Party Expenditure Pro- 
vision fails to distinguish between coordinated and 
independent expenditures indicate a congressional 
judgment that such a distinction is impossible or un- 
tenable in the context of political party spending. 
Instead, the use of the unmodified term “expenditure” 
is explained by Congress’ desire to limit all party 
expenditures when it passed the 1974 amendments, just 
as it had limited all expenditures by individuals, cor- 
porations, and other political groups. See 18 U.S.C. §§ 
608(e), 610 (1970 ed., Supp. IV); Buckley, 424 U.S., at 

39. 

Finally, we recognize that the FEC may have 
characterized the expenditures as “coordinated” in light 
of this Court’s constitutional decisions prohibiting 
regulation of most independent expenditures. But, if 
so, the characterization cannot help the Government 
prove its case. An agency’s simply calling an inde- 
pendent expenditure a “coordinated expenditure” can- 
not (for constitutional purposes) make it one. See, e.g., 
NAACP v. Button, 371 U.S. 415, 429 (1963) (the govern- 
ment “cannot foreclose the exercise of constitutional 
rights by mere labels”); Edwards v. South Carolina, 
372 U.S. 229, 235-238 (1963) (State may not avoid First 
Amendment’s strictures by applying the label “breach 
of the peace” to peaceful demonstrations). 

The Government also argues that the Colorado Party 
has conceded that the expenditures are “coordinated.” 
But there is no such concession in respect to the 
underlying facts. To the contrary, the Party’s “Ques- 

109a 

tions Presented” in its petition for certiorari describes 
the expenditure as one “the party has not coordinated 
with its candidate.” See Pet. for Cert. i. In the lower 
courts the Party did accept the FEC’s terminology, but 
it did so in the context of legal arguments that did not 
focus upon the constitutional distinction that we now 
consider. See Reply Brief for Petitioners 9-10, n.8 
(denying that the FEC’s labels can control consti- 
tutional analysis). The Government has not referred us 
to any place where the Party conceded away or 
abandoned its legal claim that Congress may not limit 
the uncoordinated expenditure at issue here. And, in 
any event, we are not bound to decide a matter of 
constitutional law based on a concession by the parti- 
cular party before the Court as to the proper legal 
characterization of the facts. Cf. United States Nat. 
Bank of Ore. v. Independent Ins. Agents of America, 
Inc., 508 U.S. 439, 447 (1993); Massachusetts v. United 
States, 333 U.S. 611, 623-628 (1948); Young v. United 
States, 315 U.S. 257, 259 (1942) (recognizing that “our 
judgments are precedents” and that the proper under- 
standing of matters of law “cannot be left merely to the 
stipulation of parties”). 

Finally, the Government and supporting amici argue 
that the expenditure is “coordinated” because a party 
and its candidate are identical, i.e., the party, in a sense, 
“is” its candidates. We cannot assume, however, that 
this is so. See, e.g., W. Keefe, Parties, Politics, and 
Public Policy in America 59-74 (5th ed. 1988) (describ- 
ing parties as “coalitions” of differing interests). Con- 
gress chose to treat candidates and their parties quite 
differently under the Act, for example, by regulat- 
ing contributions from one to the other. See 
§ 441a(a)(2)(B). See also 11 CFR §§ 110.2, 110.3(b) 

110a 

(1995). And we are not certain whether a metaphysical 
identity would help the Government, for in that case 
one might argue that the absolute identity of views and 
interests eliminates any potential for corruption, as 
would seem to be the case in the relationship between 
candidates and their campaign committees. Cf. Buck- 
ley, supra, at 54-59 (Congress may not limit expendi- 
tures by candidate/campaign committee); First Nat. 
Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) 
(where there is no risk of “corruption” of a candidate, 
the Government may not limit even contributions). 

IV 

The Colorado Party and supporting amici have 
argued a broader question than we have decided, for 
they have claimed that, in the special case of political 
parties, the First Amendment forbids congressional 
efforts to limit coordinated expenditures as well as 
independent expenditures. Because the expenditure 
before us is an independent expenditure we have not 
reached this broader question in deciding the Party’s 
“as applied” challenge. 

We recognize that the Party filed a counterclaim in 
which it sought to raise a facial challenge to the Party 
Expenditure Provision as a whole. But that counter- 
claim did not focus specifically upon coordinated ex- 
penditures. See App. 68-69. Nor did its summary 
judgment affidavits specifically allege that the Party 
intended to make coordinated expenditures exceeding 
the statute’s limits. See id., at 159, ¶ 4. While this lack 
of focus does not deprive this Court of jurisdiction to 
consider a facial challenge to the Party Expenditure 
Provision as overbroad or as unconstitutional in all 

111a 

applications, it does provide a prudential reason for this 
Court not to decide the broader question, especially 
since it may not be necessary to resolve the entire 
current dispute. If, in fact, the Party wants to make 
only independent expenditures like those before us, its 
counterclaim is mooted by our resolution of its “as 
applied” challenge. Cf. Renne v. Geary, 501 U.S. 312, 
323-324 (1991) (facial challenge should generally not 
be entertained when an “as-applied” challenge could re- 
solve the case); Brockett v. Spokane Arcades, Inc., 472 
U.S. 491, 503-504 (1985). 

More importantly, the opinions of the lower courts, 
and the parties’ briefs in this case, did not squarely 
isolate, and address, party expenditures that in fact are 
coordinated, nor did they examine, in that context, 
relevant similarities or differences with similar ex- 
penditures made by individuals or other political 
groups. Indeed, to our knowledge, this is the first case 
in the 20-year history of the Party Expenditure 
Provision to suggest that in-fact coordinated expendi- 
tures by political parties are protected from con- 
gressional regulation by the First Amendment, even 
though this Court’s prior cases have permitted 
regulation of similarly coordinated expenditures by 
individuals and other political groups. See Buckley, 424 
U.S., at 46-47. This issue is complex. As Justice 
KENNEDY points out, post, at 629-630, party coordi- 
nated expenditures do share some of the constitution- 
ally relevant features of independent expenditures. 
But many such expenditures are also virtually 
indistinguishable from simple contributions (compare, 
for example, a donation of money with direct payment 
of a candidate’s media bills, see Buckley, supra, at 46). 
Moreover, political parties also share relevant features 

112a 

with many PAC’s, both having an interest in, and 
devoting resources to, the goal of electing candidates 
who will “work to further” a particular “political 
agenda,” which activity would benefit from coordination 
with those candidates. Post, at 630. See, e.g., NCPAC, 
470 U.S., at 490 (describing the purpose and activities of 
the National Conservative PAC); id., at 492 (coordi- 
nated expenditures by PAC’s are subject to FECA 
contribution limitations). Thus, a holding on in-fact 
coordinated party expenditures necessarily implicates a 
broader range of issues than may first appear, including 
the constitutionality of party contribution limits. 

But the focus of this litigation, and of the lower court 
opinions, has not been on such issues, but rather on 
whether the Government may conclusively deem inde- 
pendent party expenditures to be coordinated. This 
lack of focus may reflect, in part, the litigation strategy 
of the parties. The Government has denied that any 
distinction can be made between a party’s independent 
and its coordinated expenditures. The Colorado Party, 
for its part, did not challenge a different provision of 
the statute—a provision that imposes a $5,000 limit on 
any contribution by a “multicandidate political com- 
mittee” (including a coordinated expenditure) and 
which would apply to party coordinated expenditures if 
the entire Party Expenditure Provision were struck 
from the statute as unconstitutional. See §§ 441a(a)(2), 
(4), (7)(B)(i). Rather than challenging the consti- 
tutionality of this provision as well, thereby making 
clear that it was challenging Congress’ authority to 
regulate in-fact coordinated party expenditures, the 
Party has made an obscure severability argument that 
would leave party coordinated expenditures exempt 
from that provision. See Reply Brief for Petitioners 11, 

113a 

n. 9. While these strategies do not deprive the parties 
of a right to adjudicate the counterclaim, they do pro- 
vide a reason for this Court to defer consideration of 
the broader issues until the lower courts have recon- 
sidered the question in light of our current opinion. 

Finally, we note that neither the parties nor the 
lower courts have considered whether or not Congress 
would have wanted the Party Expenditure Provision’s 
limitations to stand were they to apply only to coordi- 
nated, and not to independent, expenditures. See 
Buckley, supra, at 108; NCPAC, supra, at 498. This 
nonconstitutional ground for exempting party coordi- 
nated expenditures from FECA limitations should be 
briefed and considered before addressing the consti- 
tutionality of such regulation. See United States v. 
Locke, 471 U.S. 84, 92, and n. 9 (1985). 

JUSTICE THOMAS disagrees and would reach the 
broader constitutional question notwithstanding the 
above prudential considerations. In fact, he would 
reach a great number of issues neither addressed 
below, nor presented by the facts of this case, nor 
raised by the parties, for he believes it appropriate here 
to overrule sua sponte this Court’s entire campaign 
finance jurisprudence, developed in numerous cases 
over the last 20 years. See post, at 635-644. Doing so 
seems inconsistent with this Court’s view that it is 
ordinarily “inappropriate for us to reexamine” prior 
precedent “without the benefit of the parties’ briefing,” 
since the “principles that animate our policy of stare 
decisis caution against overruling a longstanding pre- 
cedent on a theory not argued by the parties.” United 
States v. International Business Machines Corp., 517 
U.S. 843, 855, 856 (1996). In our view, given the 

114a 

important competing interests involved in campaign 
finance issues, we should proceed cautiously, consistent 
with this precedent, and remand for further pro- 
ceedings. 

For these reasons, the judgment of the Court of 
Appeals is vacated, and the case is remanded for 
further proceedings. 

It is so ordered. 

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE 
and JUSTICE SCALIA join, concurring in the judgment 
and dissenting in part. 

In agreement with JUSTICE THOMAS, post, at 631-634, 
I would hold that the Colorado Republican Party 
(Party), in its pleadings in the District Court and 
throughout this litigation, has preserved its claim that 
the constraints imposed by the Federal Election 
Campaign Act of 1971 (FECA), both on its face and as 
interpreted by the Federal Elections Commission 
(FEC), violate the First Amendment. 

In the principal opinion’s view, the FEC’s conclusive 
presumption that all political party spending relating to 
identified candidates is “coordinated” cannot be 
squared with the First Amendment. Ante, at 619-623. 
The principal opinion finds the presumption invalid, and 
I agree with much of the reasoning behind that con- 
clusion. The quarrel over the FEC’s presumption is 
beside the point, however, for under the statute it is 
both burdensome and quite unrealistic for a political 
party to attempt the expenditure of funds on a candi- 

115a 

date’s behalf (or against other candidates) without 
running afoul of FECA’s spending limitations. 

Indeed, the principal opinion’s reasoning with respect 
to the presumption illuminates the deficiencies in the 
statutory provision as a whole as it constrains the 
speech and political activities of political parties. The 
presumption is a logical, though invalid, implementation 
of the statute, which restricts as a “contribution” a 
political party’s spending “in cooperation, consultation, 
or concert, with, or at the request or suggestion of, a 
candidate, his authorized political committees, or their 
agents.” 2 U.S.C. § 441a(a)(7)(B)(i). While the statu- 
tory provision applies to any “person,” its obvious 
purpose and effect when applied to political parties, as 
the FEC’s presumption reflects, is to restrict any 
party’s spending in a specific campaign for or against a 
candidate and so to burden a party in expending its own 
money for its own speech. 

The central holding in Buckley v. Valeo, 424 U.S. 1 
(1976) (per curiam), is that spending money on one’s 
own speech must be permitted, id., at 44-58, and this is 
what political parties do when they make the ex- 
penditures FECA restricts. FECA calls spending of 
this nature a “contribution,” § 441a(a)(7)(B)(i), and it is 
true that contributions can be restricted consistent 
with Buckley, supra, at 23-38. As the principal opinion 
acknowledges, however, and as our cases hold, we can- 
not allow the Government’s suggested labels to control 
our First Amendment analysis. Ante, at 621-622. See 
also, e.g., Landmark Communications, Inc. v. Virginia, 
435 U.S. 829, 843 (1978) (“Deference to a legislative 
finding cannot limit judicial inquiry when First Amend- 
ment rights are at stake”). In Buckley, we concluded 

116a 

that contribution limitations imposed only “marginal 
restriction[s]” on the contributor’s First Amendment 
rights, 424 U.S., at 20, because certain attributes of 
contributions make them less like “speech” for First 
Amendment purposes: 

“A contribution serves as a general expression of 
support for the candidate and his views, but does 
not communicate the underlying basis for the sup- 
port. The quantity of communication by the con- 
tributor does not increase perceptibly with the size 
of his contribution, since the expression rests solely 
on the undifferentiated, symbolic act of contributing. 
At most, the size of the contribution provides a very 
rough index of the intensity of the contributor’s 
support for the candidate. A limitation on the 
amount of money a person may give to a candidate 
or campaign organization thus involves little direct 
restraint on his political communication, for it per- 
mits the symbolic expression of support evidenced 
by a contribution but does not in any way infringe 
the contributor’s freedom to discuss candidates and 
issues. While contributions may result in political 
expression if spent by a candidate or an association 
to present views to the voters, the transformation of 
contributions into political debate involves speech 
by someone other than the contributor.” Id., at 21 
(footnote omitted). 

We had no occasion in Buckley to consider possible 
First Amendment objections to limitations on spending 
by parties. Id., at 58, n.66. While our cases uphold 
contribution limitations on individuals and associations, 
see id., at 23-38; California Medical Assn. v. Federal 
Election Comm’n, 453 U.S. 182, 193-199 (1981) (plural- 
ity opinion), political party spending “in cooperation, 

117a 

consultation, or concert with” a candidate does not fit 
within our description of “contributions” in Buckley. In 
my view, we should not transplant the reasoning of 
cases upholding ordinary contribution limitations to a 
case involving FECA’s restrictions on political party 
spending. 

The First Amendment embodies a “profound national 
commitment to the principle that debate on public 
issues should be uninhibited, robust, and wide-open.” 
New York Times Co. v. Sullivan, 376 U.S. 254, 270 
(1964). Political parties have a unique role in serving 
this principle; they exist to advance their members’ 
shared political beliefs. See, e.g., Eu v. San Francisco 
County Democratic Central Comm., 489 U.S. 214 
(1989); Sweezy v. New Hampshire, 354 U.S. 234, 250 
(1957). Cf. Morse v. Republican Party of Va., 517 U.S. 
186, 250-251 (1996) (KENNEDY, J., dissenting). A party 
performs this function, in part, by “identify[ing] the 
people who constitute the association, and . . . 
limit[ing] the association to those people only.” Demo- 
cratic Party of United States v. Wisconsin ex rel. La 
Follette, 450 U.S. 107, 122 (1981). Having identified its 
members, however, a party can give effect to their 
views only by selecting and supporting candidates. A 
political party has its own traditions and principles that 
transcend the interests of individual candidates and 
campaigns; but in the context of particular elections, 
candidates are necessary to make the party’s message 
known and effective, and vice versa. 

It makes no sense, therefore, to ask, as FECA does, 
whether a party’s spending is made “in cooperation, 
consultation, or concert with” its candidate. The 
answer in most cases will be yes, but that provides 

118a 

more, not less, justification for holding unconstitutional 
the statute’s attempt to control this type of party 
spending, which bears little resemblance to the contri- 
butions discussed in Buckley. Supra, at 627-628 and this 
page. Party spending “in cooperation, consultation, or 
concert with” its candidates of necessity “communi- 
cate[s] the underlying basis for the support,” 424 U.S., 
at 21, i.e., the hope that he or she will be elected and 
will work to further the party’s political agenda. 

The problem is not just the absence of a basis in our 
First Amendment cases for treating the party’s 
spending as contributions. The greater difficulty posed 
by the statute is its stifling effect on the ability of the 
party to do what it exists to do. It is fanciful to suppose 
that limiting party spending of the type at issue here 
“does not in any way infringe the contributor’s freedom 
to discuss candidates and issues,” ibid., since it would 
be impractical and imprudent, to say the least, for a 
party to support its own candidates without some form 
of “cooperation” or “consultation.” The party’s speech, 
legitimate on its own behalf, cannot be separated from 
speech on the candidate’s behalf without constraining 
the party in advocating its most essential positions and 
pursuing its most basic goals. The party’s form of 
organization and the fact that its fate in an election is 
inextricably intertwined with that of its candidates 
cannot provide a basis for the restrictions imposed 
here. See Federal Election Comm’n v. National Con- 
servative Political Action Comm., 470 U.S. 480, 494-495 
(1985). 

We have a constitutional tradition of political parties 
and their candidates engaging in joint First Amend- 
ment activity; we also have a practical identity of 

119a 

interests between the two entities during an election. 
Party spending “in cooperation, consultation, or concert 
with” a candidate therefore is indistinguishable in 
substance from expenditures by the candidate or his 
campaign committee. We held in Buckley that the 
First Amendment does not permit regulation of the 
latter, see 424 U.S., at 54-59, and it should not permit 
this regulation of the former. Congress may have 
authority, consistent with the First Amendment, to 
restrict undifferentiated political party contributions 
which satisfy the constitutional criteria we discussed in 
Buckley, but that type of regulation is not at issue here. 

I would resolve the Party’s First Amendment claim 
in accord with these principles rather than remit the 
Party to further protracted proceedings. Because the 
principal opinion would do otherwise, I concur only in 
the judgment. 

JUSTICE THOMAS, with whom THE CHIEF JUSTICE 
and JUSTICE SCALIA join as to Parts I and III, con- 
curring in the judgment and dissenting in part. 

I agree that petitioners’ rights under the First 
Amendment have been violated, but I think we should 
reach the facial challenge in this case in order to make 
clear the circumstances under which political parties 
may engage in political speech without running afoul of 
2 U.S.C. § 441a(d)(3). In resolving that challenge, I 
would reject the framework established by Buckley v. 
Valeo, 424 U.S. 1 (1976) (per curiam), for analyzing the 
constitutionality of campaign finance laws and hold that 
§ 441a(d)(3)’s limits on independent and coordinated 
expenditures fail strict scrutiny. But even under 
Buckley, § 441a(d)(3) cannot stand, because the anti- 

120a 

corruption rationale that we have relied upon in 
sustaining other campaign finance laws is inapplicable 
where political parties are the subject of such regu- 
lation. 

I 

As an initial matter, I write to make clear that 
we should decide the Colorado Republican Party’s 
(Party’s) facial challenge to § 441a(d)(3) and thus 
address the constitutionality of limits on coordinated 
expenditures by political parties. JUSTICE BREYER’s 

reasons for not reaching the facial constitutionality of 
the statute are unpersuasive. In addition, concerns for 
the chilling of First Amendment expression counsel in 
favor of resolving that question. 

After the Federal Election Commission (FEC) 
brought this action against the Party, the Party 
counterclaimed that “the limits on its expenditures in 
connection with the general election campaign for the 
Office of United States Senator from the State of 
Colorado imposed by 2 U.S.C. § 441a(d) are unconsti- 
tutional, both facially and as applied.” App. 68. Though 
JUSTICE BREYER faults the Party for not “focus[ing] 
specifically upon coordinated expenditures,” ante, at 
623, the term “expenditures” certainly includes both 
coordinated as well as independent expenditures.1 See 
2 U.S.C. § 431(9)(A) (“The term ‘expenditure’ includes 

. . . any purchase, payment, distribution, loan, 

1 JUSTICE BREYER acknowledges as much when he asserts 
earlier in his opinion that “the unmodified term ‘expenditure’ ” 
reflects a congressional intent “to limit all party expenditures.” 
Ante, at 621 (emphasis in original). 

121a 

advance, deposit, or gift of money or anything of value, 
made by any person for the purpose of influencing any 
election for Federal office” (emphasis added)). More- 
over, at the time the Party filed its counterclaim, all 
party expenditures were treated by law as coordinated, 
see Federal Election Comm’n v. Democratic Senatorial 
Campaign Comm., 454 U.S. 27, 28-29, n.1 (1981), so a 
reference to expenditures by a party was tantamount to 
a reference to coordinated expenditures. 

Given the liberal nature of the rules governing civil 
pleading, see Fed. Rule Civ. Proc. 8, the Party’s 
straightforward allegation of the unconstitutionality of 
§ 441a(d)(3)’s expenditure limits clearly suffices to raise 
the claim that neither independent nor coordinated 
expenditures may be regulated consistently with the 
First Amendment. Indeed, that is precisely how the 
Court of Appeals appears to have read the counter- 
claim. The court expressly said that it was “analyzing 
the constitutionality of limits on coordinated expendi- 
tures by political committees,” 59 F.3d 1015, 1024 (CA 
10 1995), under § 441a(d)(3). 

For the same reasons, the fact that the Party’s sum- 
mary judgment affidavits did not “specifically allege,” 
ante, at 623, that the Party intended to make coordi- 
nated expenditures is also immaterial. The affidavits 
made clear that, but for § 441a(d)(3), the Party would 
spend in excess of the limits imposed by that statute, 
see App. 159 (“[T]he State Party intends to pay 
for communications within the spending limits of 
[§ 441]. . . . However, the State Party would also like 

to pay for communications which costs [sic] exceed the 
spending limits of [§ 441a(d) ], but will not do so due to 
the deterrent and chilling effect of the statute”), as did 

122a 

the Party’s brief in this Court, see Brief for Petitioners 
23-24 (“The Colorado Party is ready, willing and able to 
make expenditures expressly advocating the election or 
defeat of candidates for federal office that would exceed 
the limits imposed by § 441a(d), but it has been de- 
terred from doing so by the obvious and credible threat 
of FEC enforcement actions”). 

Finally, though JUSTICE BREYER notes that this is 
the first Federal Election Campaign Act of 1971 
(FECA) case to raise the constitutional validity of 
limits on coordinated expenditures, see ante, at 624, 
that is, at best, an argument against granting certiorari. 
It is too late for arguments like that now. The case is 
here, and we needlessly protract this litigation by re- 
manding this important issue to the Court of Appeals. 
Nor is the fact that the “issue is complex,” ibid., a good 
reason for avoiding it. We do not sit to decide only easy 
cases. And while it may be true that no court has ever 
asked whether expenditures that are “in fact” coordi- 
nated may be regulated under the First Amendment, 
see ibid., I do not see how the existence of an “in fact” 
coordinated expenditure would change our analysis of 
the facial constitutionality of § 441a(d)(3), since courts 
in facial challenges under the First Amendment rou- 
tinely consider applications of the relevant statute 
other than the application before the court. See 
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 
Whether or not there are facts in the record to support 
the finding that this particular expenditure was 
actually coordinated with a candidate, we are not, 
contrary to the suggestion of JUSTICE BREYER, in- 
capable of considering the Government’s interest in 

123a 

regulating such expenditures and testing the fit 
between that end and the means used to achieve it.2 

The validity of § 441a(d)(3)’s controls on coordinated 
expenditures is an open question that, if left un- 
answered, will inhibit the exercise of legitimate First 
Amendment activity nationwide. All JUSTICE BREYER 
resolves is that when a political party spends money in 
support of a candidate (or against his opponent) and the 
Government cannot thereafter prove any coordination 
between the party and the candidate, the party cannot 
be punished by the Government for that spending. This 
settles little, if anything. Parties are left to wonder 
whether their speech is protected by the First 
Amendment when the Government can show— 
presumably with circumstantial evidence—a link 
between the party and the candidate with respect to 
the speech in question. And of course, one of the main 
purposes of a political party is to support its candidates 
in elections. 

2 JUSTICE BREYER’S remaining arguments for avoiding the 
facial challenge are straw men. See ante, at 625 (if § 441a(d)(3) 
were invalidated in its entirety, other FECA provisions that the 
Party has not challenged might apply to coordinated party 
expenditures); ibid. (if § 441a(d)(3) were upheld as to coordinated 
expenditures but invalidated as to independent expenditures, 
issues of severability would be raised). That resolution of the 
primary question in this case (the constitutionality of § 441a(d)(3) 
with respect to all expenditures) might generate issues not pre- 
viously considered (such as severability) is no reason for not 
deciding the question itself. Without suggesting that remand is 
the only appropriate way to deal with possible corollary matters in 
this case or that these arguments have merit, I point out that we 
can, of course, decide the central question without ruling on the 
issues that concern JUSTICE BREYER. 

124a 

The constitutionality of limits on coordinated ex- 
penditures by political parties is squarely before us. 
We should address this important question now, instead 
of leaving political parties in a state of uncertainty 
about the types of First Amendment expression in 
which they are free to engage. 

II 

A 

Critical to JUSTICE BREYER’S reasoning is the 
distinction between contributions3 and independent 
expenditures that we first drew in Buckley v. Valeo, 
424 U.S. 1 (1976) (per curiam). Though we said in 
Buckley that controls on spending and giving “operate 
in an area of the most fundamental First Amendment 
activities,” id., at 14, we invalidated the expenditure 
limits of FECA and upheld the Act’s contribution 
limits. The justification we gave for the differing 
results was this: “The expenditure limitations . . . 
represent substantial rather than merely theoretical re- 
straints on the quantity and diversity of political 
speech,” id., at 19, whereas “limitation[s] upon the 
amount that any one person or group may contribute to 
a candidate or political committee entai[l] only a 
marginal restriction upon the contributor’s ability to 
engage in free communication,” id., at 20-21. This 
conclusion was supported mainly by two assertions 

3 Coordinated expenditures are by statute categorized as 
contributions. See 2 U.S.C. § 441a(a)(7)(B)(i) (“[E]xpenditures 
made by any person in cooperation, consultation, or concert, with, 
or at the request or suggestion of, a candidate, his authorized 
political committees, or their agents, shall be considered to be a 
contribution to such candidate”). 

125a 

about the nature of contributions: First, though 
contributions may result in speech, that speech is by 
the candidate and not by the contributor; and second, 
contributions express only general support for the 
candidate but do not communicate the reasons for that 
support. Id., at 21. Since Buckley, our campaign 
finance jurisprudence has been based in large part on 
this distinction between contributions and expendi- 
tures. See, e.g., Federal Election Comm’n v. Massa- 
chusetts Citizens for Life, Inc. (MCFL), 479 U.S. 
238, 259-260, 261-262 (1986); Federal Election Comm’n 

v. National Conservative Political Action Comm. 
(NCPAC), 470 U.S. 480, 497 (1985); California Medical 
Assn. v. Federal Election Comm’n, 453 U.S. 182, 196, 
(1981) (plurality opinion). 

In my view, the distinction lacks constitutional signi- 
ficance, and I would not adhere to it. As Chief Justice 
Burger put it: “[C]ontributions and expenditures are 
two sides of the same First Amendment coin.” Buckley 

v. Valeo, 424 U.S., at 241 (concurring in part and dis- 
senting in part).4 Contributions and expenditures both 
involve core First Amendment expression because they 
further the “[d]iscussion of public issues and debate on 

4 Three Members of the Buckley Court thought the distinction 
untenable at the time, see 424 U.S., at 241 (Burger, C. J., 
concurring in part and dissenting in part); id., at 261 (White, J., 
concurring in part and dissenting in part); id., at 290 (Blackmun, J., 
concurring in part and dissenting in part), and another Member 
disavowed it subsequently, see Federal Election Comm’n v. 
NCPAC, 470 U.S. 480, 518-521 (1985) (Marshall, J., dissenting). Cf. 
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 678 
(1990) (STEVENS, J., concurring) (stating that distinction “should 
have little, if any, weight in reviewing corporate participation in 
candidate elections”). 

126a 

the qualifications of candidates . . . integral to the 
operation of the system of government established by 
our Constitution.” Id., at 14. When an individual 
donates money to a candidate or to a partisan organi- 
zation, he enhances the donee’s ability to communicate 
a message and thereby adds to political debate, just as 
when that individual communicates the message him- 
self. Indeed, the individual may add more to political 
discourse by giving rather than spending, if the donee 
is able to put the funds to more productive use than can 
the individual. The contribution of funds to a candidate 
or to a political group thus fosters the “free discussion 
of governmental affairs,” Mills v. Alabama, 384 U.S. 
214, 218 (1966), just as an expenditure does.5 

Giving and spending in the electoral process also 
involve basic associational rights under the First 
Amendment. See BeVier, Money and Politics: A Per- 
spective on the First Amendment and Campaign 
Finance Reform, 73 Calif. L. Rev. 1045, 1064 (1985) 
(hereinafter BeVier). As we acknowledged in Buckley, 
“ ‘[e]ffective advocacy of both public and private points 
of view, particularly controversial ones, is undeniably 
enhanced by group association.’ ” 

424 U.S., at 15 
(quoting NAACP v. Alabama ex rel. Patterson, 357 
U.S. 449, 460 (1958)). Political associations allow 

5 See H. Alexander, Money in Politics 234 (1972): “The 
constitutional arguments against limiting campaign spending also 
apply against limiting contributions; specifically, it is the right of 
an individual to spend his money to support a congenial viewpoint. 

. . . 

Some views are heard only if interested individuals are 

willing to support financially the candidate or committee voicing 
the position. To be widely heard, mass communications may be 
necessary, and they are costly. By extension, then, the contri- 
bution of money is a contribution to freedom of political debate.” 

127a 

citizens to pool their resources and make their advocacy 
more effective, and such efforts are fully protected by 
the First Amendment. Federal Election Comm’n v. 
NCPAC, supra, at 494. If an individual is limited in the 
amount of resources he can contribute to the pool, he is 
most certainly limited in his ability to associate for 
purposes of effective advocacy. See Citizens Against 
Rent Control/Coalition for Fair Housing v. Berkeley, 
454 U.S. 290, 296 (1981) (“To place a . . . limit . . . on 
individuals wishing to band together to advance their 
views . . . is clearly a restraint on the right of 
association”). And if an individual cannot be subject to 
such limits, neither can political associations be limited 
in their ability to give as a means of furthering their 
members’ viewpoints. As we have said, “[a]ny inter- 
ference with the freedom of a party is simultaneously 
an interference with the freedom of its adherents.” 
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) 
(plurality opinion).6 

6 To illustrate the point that giving and spending in the politi- 
cal process implicate the same First Amendment values, I note 
that virtually everything JUSTICE BREYER says about the 
importance of free independent expenditures applies with equal 
force to coordinated expenditures and contributions. For instance, 
JUSTICE BREYER states that “[a] political party’s independent 
expression not only reflects its members’ views about the 
philosophical and governmental matters that bind them together, 
it also seeks to convince others to join those members in a practical 
democratic task, the task of creating a government that voters can 
instruct and hold responsible for subsequent success or failure.” 
Ante, at 615-616. “Coordinated” expression by political parties, of 
course, shares those precise attributes. The fact that an ex- 
penditure is prearranged with the candidate—presumably to make 
it more effective in the election—does not take away from its 
fundamental democratic purposes. 

128a 

Turning from similarities to differences, I can discern 
only one potentially meaningful distinction between 
contributions and expenditures. In the former case, the 
funds pass through an intermediary—some individual 
or entity responsible for organizing and facilitating the 
dissemination of the message—whereas in the latter 
case they may not necessarily do so. But the practical 
judgment by a citizen that another person or an organi- 
zation can more effectively deploy funds for the good of 
a common cause than he can ought not deprive that 
citizen of his First Amendment rights. Whether an 
individual donates money to a candidate or group who 
will use it to promote the candidate or whether the 
individual spends the money to promote the candidate 
himself, the individual seeks to engage in political 
expression and to associate with like-minded persons. 
A contribution is simply an indirect expenditure; 
though contributions and expenditures may thus differ 
in form, they do not differ in substance. As one com- 
mentator cautioned, “let us not lose sight of the 
speech.” Powe, Mass Speech and the Newer First 
Amendment, 1982 S. Ct. Rev. 243, 258. 

Echoing the suggestion in Buckley that contributions 
have less First Amendment value than expenditures 
because they do not involve speech by the donor, see 
424 U.S., at 21, the Court has sometimes rationalized 
limitations on contributions by referring to contri- 
butions as “speech by proxy.” See, e.g., California 
Medical Assn. v. Federal Election Comm’n, 453 U.S., 
at 196 (Marshall, J.) (plurality opinion). The “speech by 
proxy” label is, however, an ineffective tool for distin- 
guishing contributions from expenditures. Even in the 
case of a direct expenditure, there is usually some go- 
between that facilitates the dissemination of the 

129a 

spender’s message—for instance, an advertising agency 
or a television station. See Powe, supra, at 258-259. To 
call a contribution “speech by proxy” thus does little to 
differentiate it from an expenditure. See Buckley v. 
Valeo, supra, at 243-244, and n. 7 (Burger, C. J., con- 
curring in part and dissenting in part). The only 
possible difference is that contributions involve an 
extra step in the proxy chain. But again, that is a 
difference in form, not substance. 

Moreover, we have recently recognized that where 
the “proxy” speech is endorsed by those who give, that 
speech is a fully protected exercise of the donors’ asso- 
ciational rights. In Federal Election Comm’n v. 
NCPAC, we explained: 

“[T]he ‘proxy speech’ approach is not useful . . . 
[where] the contributors obviously like the message 
they are hearing from [the] organizatio[n] and want 
to add their voices to that message; otherwise they 
would not part with their money. To say that their 
collective action in pooling their resources to am- 
plify their voices is not entitled to full First Amend- 
ment protection would subordinate the voices of 
those of modest means as opposed to those suffi- 
ciently wealthy to be able to buy expensive media 
ads with their own resources.” 470 U.S., at 495. 

The other justification in Buckley for the proposition 
that contribution caps only marginally restrict speech— 
that is, that a contribution signals only general support 
for the candidate but indicates nothing about the 
reasons for that support—is similarly unsatisfying. 
Assuming the assertion is descriptively accurate (which 
is certainly questionable), it still cannot mean that 
giving is less important than spending in terms of the 

130a 

First Amendment. A campaign poster that reads 
simply “We support candidate Smith” does not seem to 
me any less deserving of constitutional protection than 
one that reads “We support candidate Smith because 
we like his position on agriculture subsidies.” Both 
express a political opinion. Even a pure message of 
support, unadorned with reasons, is valuable to the 
democratic process. 

In sum, unlike the Buckley Court, I believe that 
contribution limits infringe as directly and as seriously 
upon freedom of political expression and association as 
do expenditure limits. The protections of the First 
Amendment do not depend upon so fine a line as that 
between spending money to support a candidate or 
group and giving money to the candidate or group to 
spend for the same purpose. In principle, people and 
groups give money to candidates and other groups for 
the same reason that they spend money in support of 
those candidates and groups: because they share social, 
economic, and political beliefs and seek to have those 
beliefs affect governmental policy. I think that the 
Buckley framework for analyzing the constitutionality 
of campaign finance laws is deeply flawed. Accordingly, 
I would not employ it, as JUSTICE BREYER and JUSTICE 
KENNEDY do. 

B 

Instead, I begin with the premise that there is no 
constitutionally significant difference between cam- 
paign contributions and expenditures: Both forms of 
speech are central to the First Amendment. Curbs on 
protected speech, we have repeatedly said, must be 

131a 

strictly scrutinized. See Federal Election Comm’n v. 
NCPAC, supra, at 501; Citizens Against Rent Control/ 
Coalition for Fair Housing v. Berkeley, 454 U.S., at 
294; First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 
786 (1978).7 I am convinced that under traditional strict 
scrutiny, broad prophylactic caps on both spending and 
giving in the political process, like § 441a(d)(3), are 
unconstitutional. 

The formula for strict scrutiny is, of course, well 
established. It requires both a compelling govern- 
mental interest and legislative means narrowly tailored 
to serve that interest. In the context of campaign 
finance reform, the only governmental interest that we 
have accepted as compelling is the prevention of cor- 
ruption or the appearance of corruption, see Federal 
Election Comm’n v. NCPAC, 470 U.S., at 496-497, and 
we have narrowly defined “corruption” as a “financial 
quid pro quo: dollars for political favors,” id., at 497.8 

7 In Buckley v. Valeo, 424 U.S. 1 (1976), the Court purported 
to scrutinize strictly the contribution provisions as well as the 
expenditure rules. See id., at 23 (FECA’s contribution and ex- 
penditures limits “both implicate fundamental First Amendment 
interests”); id., at 25 (contribution limits, like expenditure limits, 
are “ ‘subject to the closest scrutiny’ “ (citation omitted)). It has 
not gone unnoticed, however, that we seemed more forgiving in 
our review of the contribution provisions than of the expenditure 
rules. See, e.g., California Medical Assn. v. Federal Election 
Comm’n, 453 U.S. 182, 196 (1981) (plurality opinion) (contributions 
are “not the sort of political advocacy that this Court in Buckley 
found entitled to full First Amendment protection”). But see id., 
at 201-202 (Blackmun, J., concurring in part and concurring in 
judgment) (under Buckley, there is no lesser standard of review 
for contributions as opposed to expenditures). 

8 As I explain in Part III, infra, the interest in preventing cor- 
ruption is inapplicable when the subject of the regulation is a 

132a 

As for the means-ends fit under strict scrutiny, we have 
specified that “[w]here at all possible, government must 
curtail speech only to the degree necessary to meet the 
particular problem at hand, and must avoid infringing 
on speech that does not pose the danger that has 
prompted regulation.” Federal Election Comm’n v. 
MCFL, 479 U.S., at 265. 

In Buckley, we expressly stated that the means 
adopted must be “closely drawn to avoid unnecessary 
abridgment” of First Amendment rights. 424 U.S., at 

25. But the Buckley Court summarily rejected the 
argument that, because less restrictive means of pre- 
venting corruption existed—for instance, bribery laws 
and disclosure requirements—FECA’s contribution 
provisions were invalid. Bribery laws, the Court said, 
“deal with only the most blatant and specific attempts 
of those with money to influence governmental action,” 
id., at 28, suggesting that those means were inadequate 
to serve the governmental interest. With respect to 
disclosure rules, the Court admitted that they serve 
“many salutary purposes” but said that Congress was 
“entitled to conclude that disclosure was only a partial 
measure, and that contribution ceilings were a neces- 
sary legislative concomitant.” Ibid. Finally, the Court 
noted that contribution caps leave people free to en- 
gage in independent political speech, to volunteer their 
services, and to contribute money to a “limited but 
nonetheless substantial extent.” Ibid. 

political party. My analysis here is more general, however, and 
applies to all individuals and entities subject to campaign finance 
limits. 

133a 

In my opinion, FECA’s monetary caps fail the 
narrow tailoring test. Addressing the constitutionality 
of FECA’s contribution caps, the Buckley appellants 
argued: 

“If a small minority of political contributions are 
given to secure appointments for the donors or 
some other quid pro quo, that cannot serve to 
justify prohibiting all large contributions, the vast 
majority of which are given not for any such pur- 
pose but to further the expression of political views 
which the candidate and donor share. Where First 
Amendment rights are involved, a blunderbuss 
approach which prohibits mostly innocent speech 
cannot be held a means narrowly and precisely 
directed to the governmental interest in the small 
minority of contributions that are not innocent.” 
Brief for Appellants in Buckley v. Valeo, O.T.1975, 
Nos. 75-436 and 75-437, pp. 117-118. 

The Buckley appellants were, to my mind, correct. 
Broad prophylactic bans on campaign expenditures and 
contributions are not designed with the precision re- 
quired by the First Amendment because they sweep 
protected speech within their prohibitions. 

Section 441a(d)(3), in particular, suffers from this 
infirmity. It flatly bans all expenditures by all national 
and state party committees in excess of certain dollar 
limits, without any evidence that covered committees 
who exceed those limits are in fact engaging, or likely 
to engage, in bribery or anything resembling it. See 
Austin v. Michigan Chamber of Commerce, 494 U.S. 
652, 689 (1990) (SCALIA, J., dissenting) (where statute 
“extends to speech that has the mere potential for 
producing social harm” it should not be held to satisfy 

134a 

the narrow tailoring requirement (emphasis in 
original)). Thus, the statute indiscriminately covers the 
many conceivable instances in which a party committee 
could exceed the spending limits without any intent to 
extract an unlawful commitment from a candidate. Cf. 
Schaumburg v. Citizens for a Better Environment, 444 
U.S. 620, 637 (1980) (State may not, in effort to stop 
fraud in charitable solicitations, “lump” truly charitable 
organizations “with those that in fact are using the 
charitable label as a cloak for profitmaking and refuse 
to employ more precise measures to separate one kind 
from the other”). As one commentator has observed: 
“[I]t must not be forgotten that a large number of 
contributions are made without any hope of specific 
gain: for the promotion of a program, because of 
enthusiasm for a candidate, or to promote what the 
giver vaguely conceives to be the national interest.” L. 
Overacker, Money in Elections 192 (1974). 

In contrast, federal bribery laws are designed to 
punish and deter the corrupt conduct the Government 
seeks to prevent under FECA, and disclosure laws 
work to make donors and donees accountable to the 
public for any questionable financial dealings in which 
they may engage. Cf. Schaumburg v. Citizens for a 
Better Environment, supra, at 637-638 (explaining that 
“less intrusive” means of preventing fraud in charitable 
solicitation are “the penal laws [that can be] used to 
punish such conduct directly” and “disclosure of the 
finances of charitable organizations”). In light of these 
alternatives, wholesale limitations that cover contri- 
butions having nothing to do with bribery—but 
with speech central to the First Amendment—are not 
narrowly tailored. 

135a 

Buckley’s rationale for the contrary conclusion, see 
supra, at 641-642, is faulty. That bribery laws are not 
completely effective in stamping out corruption is no 
justification for the conclusion that prophylactic con- 
trols on funding activity are narrowly tailored. The 
First Amendment limits Congress to legislative mea- 
sures that do not abridge the Amendment’s guaranteed 
freedoms, thereby constraining Congress’ ability to 
accomplish certain goals. Similarly, that other modes of 
expression remain open to regulated individuals or 
groups does not mean that a statute is the least re- 
strictive means of addressing a particular social 
problem. A statute could, of course, be more restrictive 
than necessary while still leaving open some avenues 
for speech.9 

9 JUSTICE STEVENS submits that we should “accord special 
deference to [Congress’] judgment on questions related to the 
extent and nature of limits on campaign spending,” post, at 650, a 
stance that the Court of Appeals also adopted, see 59 F.3d 1015, 
1024 (CA 10 1995). This position poses great risk to the First 
Amendment, in that it amounts to letting the fox stand watch over 
the henhouse. There is good reason to think that campaign reform 
is an especially inappropriate area for judicial deference to 
legislative judgment. See generally BeVier 1074-1081. What the 
argument for deference fails to acknowledge is the potential for 
legislators to set the rules of the electoral game so as to keep 
themselves in power and to keep potential challengers out of it. 
See id., at 1075 (“ ‘Courts must police inhibitions on . . . political 
activity because we cannot trust elected officials to do so’ “ 
(emphasis deleted)) (quoting J. Ely, Democracy and Distrust 106 
(1980)). See also R. Winter, Political Financing and the Consti- 
tution, 486 Annals Am. Acad. Pol. & Soc. Sci. 34, 40, 48 (1986). 
Indeed, history demonstrates that the most significant effect of 
election reform has been not to purify public service, but to protect 
incumbents and increase the influence of special interest groups. 
See BeVier 1078-1080. When Congress seeks to ration political 

136a 

III 

Were I convinced that the Buckley framework rested 
on a principled distinction between contributions and 
expenditures, which I am not, I would nevertheless 
conclude that § 441a(d)(3)’s limits on political parties 
violate the First Amendment. Under Buckley and its 
progeny, a substantial threat of corruption must exist 
before a law purportedly aimed at the prevention of 
corruption will be sustained against First Amendment 
attack. 

10 Just as some of the monetary limits in the 
Buckley line of cases were held to be invalid because 
the Government interest in stemming corruption was 

expression in the electoral process, we ought not simply acquiesce 
in its judgment. 

10 See Buckley v. Valeo, 424 U.S., at 45-47 (striking down limits 
on independent expenditures because the “advocacy restricted by 
the provision does not presently appear to pose dangers of real or 
apparent corruption”); Federal Election Comm’n v. MCFL, 479 
U.S. 238, 263, (1986) (invalidating caps on campaign expenditures 
by incorporated political associations because spending by such 
groups “does not pose [any] threat” of corruption); Federal 
Election Comm’n v. NCPAC, 470 U.S., at 498 (striking down limits 
on independent expenditures by political action committees 
because “a quid pro quo for improper commitments” in that 
context was a “hypothetical possibility”); Citizens Against Rent 
Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 297 
(1981) (stating that “Buckley does not support limitations on con- 
tributions to committees formed to favor or oppose ballot mea- 
sures” because anticorruption rationale is inapplicable); First Nat. 
Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (concluding that 
limits on referendum speech by corporations violate First Amend- 
ment because “[t]he risk of corruption . . . simply is not pre- 
sent”). 

137a 

inadequate under the circumstances to justify the 
restrictions on speech, so too is § 441a(d)(3) invalid. 

11 

The Government asserts that the purpose of 
§ 441a(d)(3) is to prevent the corruption of candidates 
and elected representatives by party officials. The 
Government does not explain precisely what it means 
by “corruption,” however; 

12 the closest thing to an 
explanation the Government offers is that “corruption” 
is “ ‘the real or imagined coercive influence of large 
financial contributions on candidates’ positions and on 
their actions if elected to office.’ ” Brief for Respondent 
35 (quoting Buckley v. Valeo, 424 U.S., at 25). We so 
defined corruption in Buckley for purposes of reviewing 
ceilings on giving or spending by individuals, groups, 
political committees, and candidates. See id., at 23, 35, 

39. But we did not in that case consider the First 
Amendment status of FECA’s provisions dealing with 
political parties. See id., at 58, n. 66, 59, n.67. 

As applied in the specific context of campaign fund- 
ing by political parties, the anti-corruption rationale 
loses its force. See Nahra, Political Parties and the 
Campaign Finance Laws: Dilemmas, Concerns and 
Opportunities, 56 Ford. L.Rev. 53, 105-106 (1987). 
What could it mean for a party to “corrupt” its candi- 

11 While JUSTICE BREYER chides me for taking the position 
that I would not adhere to Buckley, see ante, at 626, and suggests 
that my approach to this case is thus insufficiently “cautiou[s],” 
ibid., he ignores this Part of my opinion, in which I explain why 
limits on coordinated expenditures are unconstitutional even under 
the Buckley line of precedent. 

12 Nor, for that matter, does JUSTICE BREYER explain what 
sorts of quid pro quos a party could extract from a candidate. Cf. 
ante, at 615. 

138a 

date or to exercise “coercive” influence over him? The 
very aim of a political party is to influence its candi- 
date’s stance on issues and, if the candidate takes office 
or is reelected, his votes. When political parties achieve 
that aim, that achievement does not, in my view, con- 
stitute “a subversion of the political process.” Federal 
Election Comm’n v. NCPAC, 470 U.S., at 497. For 
instance, if the Democratic Party spends large sums of 
money in support of a candidate who wins, takes office, 
and then implements the Party’s platform, that is not 
corruption; that is successful advocacy of ideas in the 
political marketplace and representative government in 
a party system. To borrow a phrase from Federal 
Election Comm’n v. NCPAC: “The fact that candidates 
and elected officials may alter or reaffirm their own 
positions on issues in response to political messages 
paid for by [political groups] can hardly be called cor- 
ruption, for one of the essential features of democracy is 
the presentation to the electorate of varying points of 
view.” Id., at 498. Cf. Federal Election Comm’n v. 
MCFL, 479 U.S., at 263 (suggesting that “[v]oluntary 
political associations do not . . . present the specter of 
corruption”). 

The structure of political parties is such that the 
theoretical danger of those groups actually engaging in 
quid pro quos with candidates is significantly less than 
the threat of individuals or other groups doing so. See 
Nahra, supra, at 97-98 (citing F. Sorauf, Party Politics 
in America 15-18 (5th ed. 1984)). American political 
parties, generally speaking, have numerous members 
with a wide variety of interests, Nahra, supra, at 98, 
features necessary for success in majoritarian elections. 
Consequently, the influence of any one person or the 
importance of any single issue within a political party is 

139a 

significantly diffused. For this reason, as the Party’s 
amici argue, see Brief for Committee for Party Re- 
newal et al. as Amicus Curiae 16, campaign funds 
donated by parties are considered to be some of “the 
cleanest money in politics.” J. Bibby, Campaign 
Finance Reform, 6 Commonsense 1, 10 (Dec.1983). 
And, as long as the Court continues to permit Congress 
to subject individuals to limits on the amount they can 
give to parties, and those limits are uniform as to all 
donors, see 2 U.S.C. § 441a(a)(1), there is little risk that 
an individual donor could use a party as a conduit for 
bribing candidates. 

In any event, the Government, which bears the 
burden of “demonstrat[ing] that the recited harms 
are real, not merely conjectural,” Turner Broadcasting 
System, Inc. v. FCC, 512 U.S. 622, 664 (1994), has 
identified no more proof of the corrupting dangers of 
coordinated expenditures than it has of independent 
expenditures. Cf. ante, at 618 (“The Government does 
not point to record evidence or legislative findings sug- 
gesting any special corruption problem in respect to 
independent party expenditures”). And insofar as 
it appears that Congress did not actually enact 
§ 441a(d)(3) in order to stop corruption by political 
parties “but rather for the constitutionally insufficient 
purpose of reducing what it saw as wasteful and 
excessive campaign spending,” ibid. (citing Buckley v. 
Valeo, supra, at 57), the statute’s ceilings on coordi- 
nated expenditures are as unwarranted as the caps on 
independent expenditures. 

In sum, there is only a minimal threat of “cor- 
ruption,” as we have understood that term, when a 
political party spends to support its candidate or to 

140a 

oppose his competitor, whether or not that expenditure 
is made in concert with the candidate. Parties and 
candidates have traditionally worked together to 
achieve their common goals, and when they engage in 
that work, there is no risk to the Republic. To the 
contrary, the danger to the Republic lies in Govern- 
ment suppression of such activity. Under Buckley and 
our subsequent cases, § 441a(d)(3)’s heavy burden on 
First Amendment rights is not justified by the threat of 
corruption at which it is assertedly aimed. 

* * * 

To conclude, I would find § 441a(d)(3) unconsti- 
tutional not just as applied to petitioners, but also on its 
face. Accordingly, I concur only in the Court’s judg- 
ment. 

JUSTICE STEVENS, with whom JUSTICE GINSBURG 
joins, dissenting. 

In my opinion, all money spent by a political party to 
secure the election of its candidate for the office of 
United States Senator should be considered a “contri- 
bution” to his or her campaign. I therefore disagree 
with the conclusion reached in Part III of the principal 
opinion. 

I am persuaded that three interests provide a consti- 
tutionally sufficient predicate for federal limits on 
spending by political parties. First, such limits serve 
the interest in avoiding both the appearance and the 
reality of a corrupt political process. A party shares a 
unique relationship with the candidate it sponsors 
because their political fates are inextricably linked. 

141a 

That interdependency creates a special danger that the 
party—or the persons who control the party—will 
abuse the influence it has over the candidate by virtue 
of its power to spend. The provisions at issue are 
appropriately aimed at reducing that threat. The fact 
that the party in this case had not yet chosen its 
nominee at the time it broadcast the challenged ad- 
vertisements is immaterial to the analysis. Although 
the Democratic and Republican nominees for the 1996 
Presidential race will not be selected until this summer, 
current advertising expenditures by the two national 
parties are no less contributions to the campaigns of the 
respective frontrunners than those that will be made in 
the fall. 

Second, these restrictions supplement other spending 
limitations embodied in the Federal Election Campaign 
Act of 1971, which are likewise designed to prevent 
corruption. Individuals and certain organizations are 
permitted to contribute up to $1,000 to a candidate. 2 
U.S.C. § 441a(a)(1)(A). Since the same donors can give 
up to $5,000 to party committees, § 441a(a)(1)(C), if 
there were no limits on party spending, their contri- 
butions could be spent to benefit the candidate and 
thereby circumvent the $1,000 cap. We have re- 
cognized the legitimate interest in blocking similar 
attempts to undermine the policies of the Act. See 
California Medical Assn. v. Federal Election Com m’n, 
453 U.S. 182, 197-199 (1981) (plurality opinion) (approv- 
ing ceiling on contributions to political action com- 
mittees to prevent circumvention of limitations on 
individual contributions to candidates); id., at 203 
(Blackmun, J., concurring in part and concurring in 
judgment); Buckley v. Valeo, 424 U.S. 1, 38 (1976) (per 
curiam) (approving limitation on total contributions by 

142a 

an individual in connection with an election on same 
rationale). 

Finally, I believe the Government has an important 
interest in leveling the electoral playing field by 
constraining the cost of federal campaigns. As Justice 
White pointed out in his opinion in Buckley, “money is 
not always equivalent to or used for speech, even in the 
context of political campaigns.” Id., at 263 (opinion 
concurring in part and dissenting in part). It is quite 
wrong to assume that the net effect of limits on 
contributions and expenditures—which tend to protect 
equal access to the political arena, to free candidates 
and their staffs from the interminable burden of fund- 
raising, and to diminish the importance of repetitive 30- 
second commercials—will be adverse to the interest in 
informed debate protected by the First Amendment. 
See id., at 262-266. 

Congress surely has both wisdom and experience in 
these matters that is far superior to ours. I would 
therefore accord special deference to its judgment on 
questions related to the extent and nature of limits on 
campaign spending.* Accordingly, I would affirm the 
judgment of the Court of Appeals. 

* One irony of the case is that both the Democratic National 
Party and the Republican National Party have sided with 
petitioners in challenging a law that Congress has the obvious 
power to change. See Brief for Democratic National Committee as 
Amicus Curiae; Brief for Republican National Committee as 
Amicus Curiae. 

143a 

APPENDIX D 

UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

Nos. 93-1433, 93-1434 

FEDERAL ELECTION COMMISSION, 

PLAINTIFF/COUNTER-DEFENDANT/APPELLEE/ 
CROSS-APPELLANT 

v. 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE, DOUGLAS JONES, 

DEFENDANTS/COUNTER-CLAIMANTS/APPELLANTS/ 
CROSS-APPELLEES 

[Filed: June 23, 1995 
Rehearing Denied: Sept. 6, 1995] 

Before HENRY and LOGAN, Circuit Judges, and 
REED, District Judge.* 

LOGAN, Circuit Judge. 

The Federal Election Commission (FEC) appeals 
from the dismissal on the merits of its underlying suit 
filed against the Colorado Republican Federal Cam- 
paign Committee and its treasurer, Douglas L. Jones 
(collectively the Committee) alleging violations of the 
Federal Election Campaign Act of 1971 (FECA), 2 
U.S.C. §§ 431-442. The Committee cross-appeals from 

* The Honorable Edward L. Reed, Jr., Senior United States 
District Judge for the District of Nevada, sitting by designation. 

144a 

the dismissal as moot of its counterclaim challenging 
the constitutionality of the FECA expenditure limita- 
tions. We hold that the Committee expenditures at 
issue did violate the coordinated expenditure limitation 
in 2 U.S.C. § 441a(d)(3). We also reach the constitu- 
tional issue and hold that § 441a(d)(3) does not violate 
the Committee’s First Amendment rights. 

This action stems from the 1986 United States 
senatorial campaign in Colorado, and pre-election 
spending by the Committee. In January 1986, then- 
Congressman Timothy E. Wirth had registered with 
the FEC as a candidate for the Democratic nomination 
for the U.S. Senate. Several months later, but before 
either political party had nominated senatorial 
candidates, the Committee spent $15,000 for a radio 
advertisement directed at Wirth’s announced candidacy 
(“Wirth Facts # 1”).1 This spending prompted the 

1 Wirth Facts # 1 read: 

Paid for by the Colorado Republican State Central Committee. 

Here in Colorado we’re used to politicians who let you know 

where they stand, and I thought we could count on Tim Wirth 
to do the same. But the last few weeks have been a real eye- 
opener. I just saw some ads where Tim Wirth said he’s for a 
strong defense and a balanced budget. But according to his 
record, Tim Wirth voted against every major new weapon 
system in the last five years. And he voted against the 
balanced budget amendment. 

Tim Wirth has a right to run for the Senate, but he doesn’t 
have a right to change the facts. 

I Jt. App. 95-96. 

145a 

Colorado Democratic Party’s administrative complaint 
with the FEC alleging that it was an “expenditure in 
connection with” the general election campaign of a 
candidate for federal office in violation of the spending 
limits set out in FECA § 441a(d)(3). 

The FEC made a probable cause determination that 
the Committee violated the FECA. When the parties 
were unable to reach a settlement the FEC filed suit. 
The FEC alleged that the Committee failed to report 
the amount spent on the anti-Wirth publicity as an 
“expenditure in connection with” the general election 
campaign, in violation of FECA §§ 434(b)(4)(H)(iv), 
434(b)(6)(B)(iv), and 441a(f ). The Committee counter- 
claimed, alleging that the FECA was an unconstitu- 
tional infringement on its First Amendment rights. In 
ruling on the parties’ cross motions for summary judg- 
ment, the district court dismissed the underlying action 
after finding no FECA violation, and dismissed the 
counterclaim as mooted by its merits ruling. These 
appeals followed. 

I 

We first address whether the district court correctly 
concluded that the Committee did not violate the 
FECA. We review de novo a district court’s grant of 
summary judgment using the same legal standards as 
the district court. Clark v. Haas Group, Inc., 953 F.2d 
1235, 1237 (10th Cir.), cert. denied, 506 U.S. 832, 113 S. 
Ct. 98, 121 L.Ed.2d 58 (1992). 

A 

The FECA regulates contributions made to federal 
candidates and political parties, and expenditures made 

146a 

by persons and political committees. It also imposes 
recordkeeping and reporting requirements. The 
Committee acknowledges that it is subject to the 
FECA as a federally registered committee of the Colo- 
rado Republican Party. 

The statute limits monetary contributions and expen- 
ditures by state and national political party committees 
as follows: 

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

. . . . . 

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

147a 

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

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

(ii) $20,000. 

2 U.S.C. § 441a(d)(1) and (3). A state political party 
committee may assign to a designated agent (including 
a national party committee) the right to make the 
expenditures the state party could have made. See 
FEC v. Democratic Senatorial Campaign Committee, 
454 U.S. 27, 41-43, 102 S.Ct. 38, 46-48, 70 L.Ed.2d 23 
(1981) (DSCC ). Here the Committee expended funds 
on the anti-Wirth publicity after assigning to the 
National Republican Senatorial Committee the author- 
ity to make all of the expenditures—$103,248—it was 
allowed under § 441a(d)(3) for the 1986 U.S. Senate 
election. See I Jt.App. 4, 14; II id. 473. The Committee 
did not report the $15,000 anti-Wirth publicity expense 
under 2 U.S.C. § 434(b)(4)(H)(iv),2 instead characteriz- 

2 2 U.S.C. § 434(b)(4)(H)(iv) reads in part: 

(b) Contents of reports 

Each report under this section shall disclose— 

. . . . . . 

(4) for the reporting period and the calendar year, the total 

amount of all disbursements, and all disbursements in the 
following categories: 

. . . . . . 

148a 

ing it as an expense for “Voter Information to Colorado 
Voters—Advertising.” II App. 478, ¶ A. The narrow 
issue is whether the anti-Wirth publicity expense was 
an “expenditure in connection with the general election 
campaign” pursuant to § 441a(d)(3) and should have 
been reported accordingly. If so, the Committee ex- 
ceeded the § 441a(d)(3) monetary ceiling. 

As relevant here, the FECA addresses two types of 
campaign expenditures: independent and coordinated.3 
A coordinated expenditure is one made “in cooperation 
with or with the consent of a candidate, his agents, or 
an authorized committee of the candidate.” Buckley v. 
Valeo, 424 U.S. 1, 47 n. 53, 96 S. Ct. 612, 648 n. 53, 46 
L.Ed.2d 659 (1976). See also 11 C.F.R. §110.7(b)(4). 
Because political parties are considered incapable of 
making independent expenditures, the district court 
correctly found that the anti-Wirth publicity expense 
was a coordinated expenditure. See DSCC, 454 U.S. at 
29 n. 1, 102 S. Ct. at 41 n. 1. If that spending was an 
“expenditure [ ] in connection with” the campaign it 

(H) for any political committee other than an authorized 
committee— 

(i) contributions made to other political committees; 

(ii) loans made by the reporting committees; 

(iii) independent expenditures; 

(iv) expenditures made under section 441a(d) of this title; and 

(v) any other disbursements. 

3 An independent expenditure is “made without cooperation or 
consultation with any candidate, or any authorized committee or 
agent of such candidate, and which is 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); see also 
§ 441a(a)(7)(A)-(B). 

149a 

was subject to the monetary limitations at § 441a(d). 
Id. The district court concluded that the Committee’s 
coordinated expenditure on the anti-Wirth publicity 
was not made in connection with the 1986 Colorado 
senatorial campaign, and therefore was not subject to 
the § 441a(d)(3) limits. 

B 

The FECA does not clearly manifest the meaning 
Congress intended to attach to the “expenditures in 
connection with” language in § 441a(d)(3). Acknowledg- 
ing that there were no controlling or persuasive cases 
interpreting that section, the district court relied upon 
FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 
107 S. Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL ), and its 
interpretation of FECA § 441b. Section 441b4 restricts 

4 2 U.S.C. § 441b provides in relevant part as follows: 

(a) It is unlawful for any national bank, or any cor- 
poration organized by authority of any law of Congress, to 
make a contribution or expenditure in connection with any 
election to any political office, or in connection with any 
primary election or political convention or caucus held to select 
candidates for any political office, or for any corporation what- 
ever, or any labor organization, to make a contribution or 
expenditure in connection with any election at which presiden- 
tial and vice presidential electors or a Senator or Represen- 
tative in, or a Delegate or Resident Commissioner to, Con- 
gress are to be voted for, or in connection with any primary 
election or political convention or caucus held to select candi- 
dates for any of the foregoing offices, or for any candidate, 
political committee, or other person knowingly to accept or 
receive any contribution prohibited by this section, or any 
officer or any director of any corporation or any national bank 
or any officer of any labor organization to consent to any 
contribution or expenditure by the corporation, national bank, 

150a 

the contributions and expenditures of national banks, 
corporations, or labor organizations. The Supreme 
Court in MCFL considered whether Massachusetts 
Citizens for Life, Inc., a nonprofit, nonstock corpora- 
tion, by financing a newsletter urging voter support for 
identified pro-life candidates, violated the “independent 
spending” limitations in § 441b. Id. at 241, 107 S. Ct. at 
619. Interpreting the term “expenditure in connection 
with any election” the Court held that the expenditure 
“must constitute ‘express advocacy’ in order to be 

or labor organization, as the case may be, prohibited by this 
section. 

. . . . 

(b)(2) For purposes of this section and section 79l (h) of 

Title 15, the term “contribution or expenditure” shall include 
any direct or indirect payment, distribution, loan, advance, 
deposit, or gift of money, or any services, or anything of value 
(except a loan of money by a national or State bank made in 
accordance with the applicable banking laws and regulations 
and in the ordinary course of business) to any candidate, cam- 
paign committee, or political party or organization, in con- 
nection with any election to any of the offices referred to in 
this section, but shall not include (A) communications by a 
corporation to its stockholders and executive or administrative 
personnel and their families or by a labor organization to its 
members and their families on any subject; (B) nonpartisan 
registration and get-out-the-vote campaigns by a corporation 
aimed at its stockholders and executive or administrative 
personnel and their families, or by a labor organization aimed 
at its members and their families; and (C) the establishment, 
administration, and solicitation of contributions to a separate 
segregated fund to be utilized for political purposes by a cor- 
poration, labor organization, membership organization, coop- 
erative, or corporation without capital stock. 

151a 

subject to the prohibition of § 441b.” Id. at 249, 107 S. 
Ct. at 623. 

MCFL relied upon the Buckley opinion’s interpreta- 
tion of a limitation on independent expenditures 
“relative to” a clearly identifiable candidate. To avoid 
invalidating on vagueness grounds what was then 
FECA § 608(e)(1), the Buckley Court held the term 
encompassed only “expenditures for communications 
that in express terms advocate the election or defeat of 
a clearly identified candidate for federal office.” 
Buckley, 424 U.S. at 44, 96 S. Ct. at 646-47. The opinion 
clarified in a footnote that this construction would 
restrict the application to “communications containing 
express words of advocacy of election or defeat, such as 
‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith 
for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’ ” Id. n. 52. 
MCFL adopted the same definition, referencing the 
same footnote, for purposes of § 441b’s independent 
spending limitation. 479 U.S. at 249, 107 S. Ct. at 623. 

The district court, noting the identity of the “expen- 
ditures in connection with” language in § 441b and in 
§ 441a(d)(3), concluded that the anti-Wirth publicity 
was not express advocacy and therefore not governed 
by the § 441a(d)(3) limitations. The district court relied 
in part on a common law rule of statutory construction 
that identical words used in different sections of the 
same statute generally should be given the same 
meaning. However, the Supreme Court has also stated 
that “the presumption readily yields to the controlling 
force of the circumstance that words, though in the 
same act, are found in such dissimilar connections as to 
warrant the conclusion that they were employed in the 
different parts of the act with different intent.” Helver- 

152a 

ing v. Stockholms Enskilda Bank, 293 U.S. 84, 87, 55 S. 
Ct. 50, 51, 79 L.Ed. 211 (1934). 

Further, we cannot overlook a significant distinction 
between Buckley and MCFL and the instant case. The 
Buckley opinion distinguished between independent 
expenditures—regulated by then FECA § 608(e)(1)— 
and coordinated expenditures. The Buckley opinion 
unequivocally stated that controlled or coordinated 
expenditures are treated as “contributions rather than 
expenditures” under the FECA.5 424 U.S. at 46-47 & n. 
53, 96 S. Ct. at 648 & n. 53. Although Buckley found the 
ceiling on independent expenditures failed to serve sub- 
stantial enough government interests to be constitu- 
tional, it reached the opposite conclusion as to the 
limitations on expenditures by national or state political 
parties. Id. at 55-59 & n. 67, 96 S. Ct. at 652-54 & n. 67 
(“Does 18 U.S.C. § 608(f) (1970 ed., Supp. IV) violate 
[constitutional] rights, in that it limits the expenditures 
of national or state committees of political parties in 
connection with general election campaigns for federal 
office? Answer: NO, as to the Fifth Amendment chal- 
lenge advanced by appellants.”). Buckley accepted the 
FECA’s treatment of expenditures by national and 
state committees of political parties as contributions, as 
have subsequent opinions of the Supreme Court. See 
DSCC, 454 U.S. 27, 29 n.1, 102 S. Ct. 38, 41 n. 1 (1981) 
(“Party committees are considered incapable of making 
‘independent’ expenditures in connection with the 
campaigns of their party’s candidates. The Commission 
has, by regulation, forbidden such ‘independent’ expen- 

5 Coordinated expenditures are treated as campaign contribu- 
tions that must be reported pursuant to § 441a(a)(7)(B)(i). 

153a 

ditures by the national and state party committees.”). 
Similarly, MCFL made the same distinction when 
interpreting the meaning of independent expenditure 
limits in § 441b. MCFL, 479 U.S. at 259-60, 107 S. Ct. at 
628-29. 

Subsequent amendments to the FECA include 
“expressly advocating” into the definition of indepen- 
dent expenditures. See 2 U.S.C. § 431(17). Coordinated 
expenditures of political parties, however, are not 
defined in this manner. See id. § 431(9)(B)(ix); cf. id. 
§ 431(8)(B)(v), (x), (xii) (what is not a contribution). 
This is some evidence of congressional intent that the 
phrases are not intended to have the same meaning. 

The distinction between independent expenditures 
and political party expenditures that are deemed to be 
contributions, and their different treatment by the 
Supreme Court, negates the necessity that “expendi- 
tures in connection with” be construed identically in 
different sections of the FECA. However, the meaning 
of “expenditures in connection with” is not perfectly 
clear, else the Court in MCFL would not have had to 
cabin its meaning under § 441b in the manner it did. 
The question then becomes whether we must construe 
the phrase as narrowly as the Supreme Court did in 
MCFL in order to uphold its validity. 

C 

The FEC has issued advisory opinions interpreting 
the “expenditures in connection with” phrase in § 
441a(d)(3) in a manner different than that adopted by 
the district court and urged upon us by the Committee. 
We believe this is an appropriate circumstance in which 
to follow the Supreme Court’s admonishment that “if 

154a 

the statute is silent or ambiguous with respect to the 
specific issue, the question for the court is whether the 
agency’s answer is based on a permissible construction 
of the statute.” Chevron, U.S.A., Inc. v. Natural 
Resources Defense Council, 467 U.S. 837, 843, 104 S. Ct. 
2778, 2782, 81 L.Ed.2d 694 (1984) (footnote omitted); see 
also DSCC, 454 U.S. at 37, 102 S. Ct. at 44-45 (the FEC, 
a bipartisan body, is “precisely the type of agency to 
which deference should presumptively be afforded”).6 

FEC Advisory Opinion 1984-15 addressed questions 
raised by the Republican Party regarding spending for 
a series of television ads denigrating the potential 
Democratic presidential candidates, relating to an 
upcoming election. The FEC responded to a specific 
question whether such spending was within the 
limitations of § 441a(d). 

These advertisements effectively advocate the 
defeat of a clearly identified candidate in connection 
with that election and thus have the purpose of 
influencing the outcome of the general election for 
President of the United States. See generally 
Advisory Opinion 1978-46. Therefore, expenditures 
for these advertisements benefit the eventual 
Republican presidential candidate and are made 

6 We note that one of the reasons the Buckley opinion gave for 
its “express advocacy” restrictive interpretation of § 608(e)(1)’s 
“relative to” language was that most who were subject to the stat- 
ute’s criminal sanctions had no right to obtain an advisory opinion 
of the FEC. See 424 U.S. at 40 n.47, 96 S. Ct. at 645 n.47. It noted 
that only candidates, federal office holders and political commit- 
tees had that right. Id. Section 441a(d), at issue before us, applies 
only to political committees; thus all to whom it applies can secure 
advisory opinions from the FEC. 

155a 

with respect to the presidential general election and 
in connection with the presidential general election 
campaign. 

A.O. 1984-15, Fed. Elec. Campaign Fin. Guide (CCH) ¶ 
5766 (May 31, 1984) (footnote omitted). The opinion 
then concluded that the spending in question was a 
coordinated expenditure subject to the limitations in § 
441a(d)(2). 

Advisory Opinion 1985-14 responded to questions 
from a Democratic Congressional Campaign Committee 
regarding proposed publicity focusing on a number of 
congressmen, not all with announced opposition 
candidates. A.O. 1985-14, Fed. Elec. Campaign Fin. 
Guide (CCH) ¶ 5819 (May 30, 1985). The opinion en- 
dorsed Advisory Opinion 1984-15 with its construction 
of § 441a(d) as regulating expenditures that “both (1) 
depicted a clearly identified candidate and (2) conveyed 
an electioneering message.”7 

The FEC has “primary and substantial responsibility 
for administering and enforcing” the FECA. Buckley, 
424 U.S. at 109, 96 S. Ct. at 677-78. The FEC argues 
that its construction of § 441a(d) as regulating political 
committee expenditures depicting a clearly identified 
candidate and conveying an electioneering message is a 
reasonable one to which we must defer. Viewing the 

7 Advisory Opinion 1978-46 appears more restrictive; it can be 
read to adopt the express advocacy position. A.O. 1978-46, Fed. 
Elec. Campaign Fin. Guide (CCH) ¶ 5348 (Sept. 5, 1978). But even 
if the more recent decisions represent a change in position by the 
FEC we must still give the current view deference if the current 
construction is reasonable. Rust v. Sullivan, 500 U.S. 173, 186-87, 
111 S. Ct. 1759, 1768-69, 114 L.Ed.2d 233 (1991). 

156a 

party expenditures as contributions, as we must, we 
agree. 

“[T]he primary interest served by the Act is the 
prevention of corruption and the appearance of corrup- 
tion spawned by the real or imagined coercive influence 
of large financial contributions on candidates’ positions 
and on their actions if elected to office.” DSCC, 454 
U.S. at 41, 102 S. Ct. at 47. The Supreme Court cases 
have distinguished between the potential for corruption 
that attaches to contributions and coordinated expen- 
ditures, and those that might develop from independent 
expenditures, finding less inherent risk in the latter. 
Our analysis, therefore, with respect to controls on 
coordinated expenditures and contributions under § 
441a is different than that required for § 441b. 

Section § 441a(d) addresses the concern that large 
contributors to political parties will exert undue 
influence on a candidate if elected to office. The mone- 
tary ceiling on coordinated expenditures by political 
organizations diminishes the potential of such undue 
influence but preserves the important role of political 
parties. See DSCC, 454 U.S. at 41, 102 S. Ct. at 46-47. 
In contrast, the purpose behind § 441b is to prevent 
corporate and labor expenditures from effectively 
acting as “political war chests” on behalf of candidates, 
because these organizations could use funds “amassed 
in the economic marketplace . . . [for] unfair 
advantage in the political marketplace.” MCFL, 479 
U.S. at 257, 107 S. Ct. at 627. The FECA thus provides 
different regulations tailored to different perceived 

157a 

evils.8 Independent expenditures are theoretically 
unlimited but such expenditures in excess of low limits 
must be reported, along with identification of those who 
contributed more than $200. Contribution limits still 
apply. Giving deference to the FEC’s interpretation, we 
hold that § 441a(d)(3) applies to coordinated spending 
that involves a clearly identified candidate and an 
electioneering message, without regard to whether that 
message constitutes express advocacy. 

D 

The Committee does not seriously contest that the 
anti-Wirth publicity was directed at a clearly identified 
candidate. “Wirth Facts # 1” referenced Wirth’s sena- 
torial aspirations and challenged his personal integrity 
and campaign statements in the context of the current 
election.9 Wirth was not yet the Democratic nominee, 
but the FECA regulates coordinated expenditures 
made before the primary election. A.O. 1984-15, Fed. 
Elec. Campaign Fin. Guide (CCH) ¶ 5766. The Com- 
mittee’s objective to elect the eventual Republican 
candidate is not diminished because a Democratic 
nominee has not emerged. See Buckley, 424 U.S. at 79, 

8 We have already discussed how subsequent FECA amend- 
ments have adopted the “express advocacy” criteria to differenti- 
ate between independent and coordinated expenditures. 

9 See also 2 U.S.C. § 431(18) which reads: 

The term “clearly identified” means that— 

(A) the name of the candidate involved appears; 

(B a photograph or drawing of the candidate appears; or 

(C) the identity of the candidate is apparent by 
unambiguous reference. 

158a 

96 S. Ct. at 663 (major purpose of expenditures by can- 
didates and political committees “is the nomination or 
election of a candidate”). 

We next consider whether “Wirth Facts # 1” con- 
tained an electioneering message. 

10 Advisory Opinion 
1984-15 examined proposed television advertising by 
the Republican National Committee that would “ques- 
tion or challenge the candidate’s statements, position, 
or record.” The FEC concluded that the 

clear import and purpose of these proposed adver- 
tisements is to diminish support for any Democratic 
Party presidential nominee and to garner support 
for whoever may be the eventual Republican Party 
nominee. These advertisements relate primarily, if 
not solely, to the office of President of the United 
States and seek to influence a voter’s choice be- 
tween the Republican Party presidential candidate 
and any Democratic Party nominee in such a way as 
to favor the choice of the Republican candidate. . . . 

These advertisements effectively advocate the 
defeat of a clearly identified candidate in connection 
with that election and thus have the purpose of 
influencing the outcome of the general election for 
President of the United States. Therefore, expendi- 
tures for these advertisements benefit the eventual 
Republican presidential candidate and are made 

10 We agree with the district court that the message in “Wirth 
Facts # 1” would not constitute express advocacy within the 
narrow definition of Buckley and MCFL. It lacks the express 
words “vote for” or “vote against,” or words of similar import, al- 
though it comes close when the ad suggests that an identified can- 
didate distorted his voting record. 

159a 

with respect to the presidential general election and 
in connection with the presidential general election 
campaign. 

A.O. 1984-15, Fed. Elec. Campaign Fin. Guide (CCH) ¶ 
5766 (citation and footnotes omitted). The next year, 
the FEC relied upon that construction in rendering 
Advisory Opinion 1985-14 to the Democratic Congres- 
sional Campaign Committee stating that “[e]lectioneer- 
ing messages include statements ‘designed to urge the 
public to elect a certain candidate or party.’ ” 

A.O. 
1985-14, Fed. Elec. Campaign Fin. Guide (CCH) ¶ 5819 
(quoting United States v. United Auto Workers, 352 
U.S. 567, 587, 77 S. Ct. 529, 539, 1 L.Ed.2d 563 (1957)). 

Any reasonable reading of “Wirth Facts # 1,” which 
included the notation of Republican Party sponsorship, 
would leave the reader (or listener) with the impression 
that the Republican Party sought to “diminish” public 
support for Wirth and “garner support” for the un- 
named Republican nominee. “Wirth Facts # 1” unques- 
tionably contained an electioneering message. We con- 
clude that the anti-Wirth publicity was an “expenditure 
in connection with” the 1986 Colorado senatorial elec- 
tion because it named both a clearly identifiable can- 
didate and contained an electioneering message. The 
Committee, therefore, violated the FECA by making a 
§ 441a(d)(3) expenditure after delegating to the 
National Republican Senatorial Committee the author- 
ity to spend all of the Committee’s available funding for 
the 1986 Colorado Senate race. 

II 

We next consider the Committee’s constitutional 
challenges to the FECA. The Committee asserts that 

160a 

the monetary caps in § 441a(d)(3) violate its First 
Amendment guarantees of freedom of speech and 
association. The Committee focuses on the alleged 
absence of a compelling governmental interest served 
by the restrictions in § 441a(d)(3) and also asserts that 
the statute discriminates based upon content. The 
FEC’s position is that Buckley and later cases endorse 
distinctions between independent expenditures and 
contributions, and that other FECA contribution 
ceilings have consistently been upheld as constitutional 
by the Supreme Court. We agree with the FEC that § 
441a(d)(3) is a permissible burden on speech and 
association. 

The primary purpose of the contribution and expen- 
diture caps in the FECA are to prevent corruption or 
the appearance of corruption. Buckley 424 U.S. at 25- 
26, 96 S. Ct. at 637-38. The FECA starts from the pre- 
mise that political committees may make only minimal 
expenditures in connection with campaigns, § 441a(a) 
(dollar limits on contributions), then creates one excep- 
tion at § 441a(d)(3) (coordinated expenditure limits for 
certain political committees made in connection with 
federal election campaigns). DSCC, 454 U.S. at 28-29 n. 
1, 102 S. Ct. at 40-41 n. 1; 11 C.F.R. § 110.7(b); see also 2 
U.S.C. § 431(14)-(16). This exception allows for greater 
monetary support by political parties than would 
otherwise be permitted by § 441a(a). The coordinated 
expenditures permitted by § 441a(d)(3) are treated for 
purposes of reporting and monetary limitations as con- 
tributions from the political committee to the candidate, 
§ 441a(a)(7)(B)(i); see also § 434(b)(4)(H)(iv), and fall 
within the contribution ceilings contained in § 441a(a). 
See Buckley, 424 U.S. at 46, 96 S. Ct. at 647-48; FEC v. 

161a 

National Political Action Committee, 470 U.S. 480, 492, 
105 S. Ct. 1459, 1466, 84 L.Ed.2d 455 (1985) (NCPAC ). 

The same reasoning the Supreme Court used to 
uphold the constitutionality of other contribution limi- 
tations applies when analyzing the constitutionality of 
limits on coordinated expenditures by political com- 
mittees. 

11 The opportunity for abuse is greater when 
the contributions (or in the instant case, coordinated 
expenditures) derive from sources inherently aligned 
with the candidate, rather than with independent 
expenditures. See Buckley, 424 U.S. at 26-27, 96 S. Ct. 
at 638-39; NCPAC, 470 U.S. at 497, 105 S. Ct. at 1468- 

69. The Committee, stressing the benefits of party 
discipline and the broad interests of party success, 
argues that the dangers of domination of candidates by 
large individual donors do not apply to party expen- 
ditures. But party expenditures, particularly pre-pri- 
mary, often are controlled by incumbent officeholders. 
We cannot say the dangers of domination that underlay 
the Supreme Court’s acceptance of the constitutionality 
of contribution limits are not present in political party 
expenditures. The members of Congress who enacted 
this law were surviving veterans of the election 
campaign process, and all were members of organized 

11 We acknowledge that Buckley upheld then 18 U.S.C. § 608(f) 
as constitutional when challenged as discriminatory under the 
Fifth Amendment, and not the First Amendment, which is the 
basis for the Committee's constitutional challenge here. Buckley, 
424 U.S. at 59 n. 67, 96 S. Ct. at 654 n. 67. However, MCFL 
adopted much of the reasoning in Buckley in analyzing the First 
Amendment challenges to § 441b. We do not, therefore, discount 
the importance of Buckley in the context of our First Amendment 
analysis. 

162a 

political parties. They should be considered uniquely 
qualified to evaluate the risk of actual corruption or 
appearance of corruption from large coordinated expen- 
ditures by political parties. This case is, therefore, 
ideally postured for deference to the congressional will. 

The Supreme Court has endorsed the government’s 
interest in curtailing large campaign contributions as 
legitimate. In addition to preventing corruption or the 
appearance of corruption, these restrictions “equalize 
the relative ability of all citizens to affect the outcome 
of elections,” Buckley, 424 U.S. at 26, 96 S. Ct. at 638, 
and to a degree cap campaign costs and increase acces- 
sibility to our political system. Id. The Court has dis- 
tinguished between restrictions on contributions and 
restrictions on independent expenditures and then in- 
validated spending restrictions while upholding contri- 
bution limits. Id. at 58-59, 96 S. Ct. at 653-54. 

By treating coordinated expenditures as contri- 
butions, the FECA effectively precludes political com- 
mittees from literally or in appearance, “secur[ing] a 
political quid pro quo from current and potential office 
holders.” Id. at 26-27, 96 S. Ct. at 638. Contribution 
limits regulate the quantity of political speech, but do 
not foreclose speech or political association. We do not 
see this monetary cap as content based; it is rather a 
consequence of the funding source. We uphold as con- 
stitutional, against the Committee’s First Amendment 
challenge, the spending limits in § 441a(d)(3). 

We REVERSE and REMAND with instructions that 
the district court enter judgment in favor of the FEC, 
and for a determination under 2 U.S.C. § 437g(a)(6) of 
the appropriate civil penalty. 

163a 

APPENDIX E 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO 

CIV. A. NO. 89 N 1159 

FEDERAL ELECTION COMMISSION, PLAINTIFF 

v. 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE, ET AL., DEFENDANTS 

[Filed: Aug. 30, 1993] 

ORDER AND MEMORANDUM OF DECISION 

NOTTINGHAM, District Judge. 

This case involves alleged violations of the Federal 
Elections Campaign Act of 1971, as amended, 2 
U.S.C.A. §§ 431-456 (West 1985) (the “Act”). Plaintiff 
Federal Election Commission sued Defendant Colorado 
Republican Federal Campaign Committee and its treas- 
urer, Douglas L. Jones, claiming that defendants had 
failed to report a certain payment as an “expenditure,” 
as required by 2 U.S.C.A. § 441a(d)(3). Plaintiff seeks 
declaratory, civil, and injunctive relief under the Act. 
The matter comes before the court on (1) “Defendants’ 
Motion for Summary Judgment” filed May 15, 1990, and 

164a 

(2) “Plaintiff’s Motion for Summary Judgment” filed 
July 6, 1990. Jurisdiction is based on 28 U.S.C.A. § 1345 
(West 1976). 

FACTS 

Defendant Colorado Republican Federal Campaign 
Committee (the “Committee”) is an unincorporated 
political association. It works to advance the goals and 
values of the Republican Party in the State of Colorado. 
(Defs.’ Statement of Undisputed Facts and Supp. Exs. 
¶1 [filed May 15, 1990] [hereinafter “Defs.’ Statement”], 
admitted at Pl. Fed. Election Comm’n’s Resp. to Defs.’ 
Statement of Undisputed Facts and Supp. Exs. ¶1 [filed 
July 6, 1990] [hereinafter “Pl.’s Resp. to Defs.’ State- 
ment”].) It is the federally-registered committee for 
the Republican Party in Colorado and is therefore (as it 
acknowledges) subject to the Act. 

Section 441a(d)(3) of the Act limits the amount which 
such a committee may expend “in connection with the 
general election campaign of a candidate for federal 
office.” 2 U.S.C.A. § 441a(d)(3). In 1986, the Commit- 
tee assigned its yearly right to make expenditures 
under the Act to the National Republican Senatorial 
Committee. (Defs.’ Statement ¶16, Ex. 4 [Defs.’ Resp. 
to Pl.’s Req. for Admis.], admitted at Pl.’s Resp. to 
Defs.’ Statement ¶¶15-16.) The Committee thereafter 
paid $15,000 for a radio advertisement, entitled “Wirth 
Facts # 1” [hereinafter “the Advertisement”], the text 
of which follows: 

Paid for by the Colorado Republican State Central 
Committee 

165a 

Here in Colorado we’re used to politicians who let 
you know where they stand, and I thought we could 
count on Tim Wirth to do the same. But the last few 
weeks have been a real eye-opener. I just saw some 
ads where Tim Wirth said he’s for a strong defense 
and a balanced budget. But according to his record, 
Tim Wirth voted against every new weapon system 
in the last five years. And he voted against the 
balanced budget amendment. 

Tim Wirth has a right to run for the Senate, but he 
doesn’t have a right to change the facts. 

(Defs.’ Statement ¶ 7, admitted at Pl.’s Resp. to Defs.’ 
Statement ¶¶ 4-7.) 

The Committee devised “Wirth Facts # 1” as a re- 
sponse to a series of television advertisements fea- 
turing then-Congressman Wirth. These advertise- 
ments were sponsored by the Committee for Tim 
Wirth, Inc. (Pl. Fed. Election Comm’n’s Mem. of P. & A. 
in Supp. of Pl.’s Mot. for Summ. J. and in Opp’n to Defs.’ 
Summ. J. Mot. at 6 [filed July 6, 1990] [hereinafter “Pl.’s 
Mot.”].) The Advertisement ran between April 4 and 
13, 1986, four months before the August Democratic 
primary and seven months before the November gen- 
eral election. (Defs.’ Statement ¶¶ 4-6, admitted at Pl.’s 
Resp. to Defs.’ Statement ¶¶ 4-7.) 

The Committee is required by section 
434(b)(4)(H)(iv) to make quarterly or monthly reports 
which must contain any section 441a(d)(3) expenditures. 
See 2 U.S.C.A. § 434(a)(4)(A)(i). In the Committee’s 
quarterly report, it listed the $15,000 paid for the 
Advertisement as an operating expense—not as a 
section 441a(d)(3) expenditure—and identified it as 

166a 

“voter information to Colorado voters—advertising.” 
(Defs.’ Statement, Ex. 12 at 3 [Defs.’ Br. for Fed. 
Election Comm’n Proceedings].) On June 12, 1986, the 
Colorado Democratic Party filed an administrative com- 
plaint with the Federal Election Commission (“Com- 
mission”), alleging, inter alia, that defendants’ expen- 
diture for the Advertisement violated the Act. On 
January 10, 1989, the Commission determined there 
was probable cause to believe defendants had violated 
sections 434(b)(4)(H)(iv), 434(b)(6)(B)(iv), and 441a(f ) of 
the Act. When settlement negotiations failed, the 
Commission instituted this civil action. 

The parties filed cross-motions for summary judg- 
ment on plaintiff’s claim that defendants failed to 
comply with the Act. Defendants maintain section 
441a(d)(3) does not apply to the money paid for the 
Advertisement because it was not an expenditure “in 
connection with” the general election of a candidate for 
federal office. (Defs.’ Mem. in Supp. of Defs.’ Mot. for 
Summ. J. at 6-7 [filed May 15, 1990] [hereinafter “Defs.’ 
Mot.”].) Defendants also assert a counterclaim alleging 
that section 441a(d)(3) is unconstitutional. No material 
facts are in dispute. Because I find that plaintiff has 
failed to demonstrate the Advertisement was “in con- 
nection with” the general election of a candidate for 
federal office, I grant defendants’ motion for summary 
judgment and deny plaintiff’s motion. I therefore need 
not, and do not, reach defendants’ challenge to section 
441a(d)(3)’s constitutionality. 

ANALYSIS 

Pursuant to rule 56(c) of the Federal Rules of Civil 
Procedure, summary judgment may be granted where 
there is “no genuine issue as to any material fact and 

167a 

the . . . moving party is entitled to judgment as a 
matter of law.” Anderson v. Liberty Lobby, Inc., 477 
U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 
(1986). The burden of establishing the nonexistence of a 
genuine issue of material fact is on the moving party. 
Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S. Ct. 
2548, 2552, 91 L.Ed.2d 265 (1986). In a case where a 
party moves for summary judgment on an issue on 
which he would not bear the burden of persuasion at 
trial, his initial burden of production may be satisfied by 
showing the court that there is an absence of evidence 
in the record to support the nonmoving party’s case. 
Id., 477 U.S. at 321, 106 S. Ct. at 2552. Once the moving 
party has met this initial burden of production, the 
burden shifts to the nonmoving party to establish that 
there is a triable issue of fact. A triable issue of 
material fact exists only where “there is sufficient 
evidence favoring the nonmoving party for a jury to 
return a verdict for that party.” Merrick v. Northern 
Natural Gas Co., 911 F.2d 426, 429 (10th Cir. 1990). If 
the nonmoving party cannot muster sufficient evidence 
to make out a triable issue of fact on his claim, a trial 
would be useless and the moving party is entitled to 
summary judgment as a matter of law. Anderson, 477 
U.S. at 250, 106 S. Ct. 2511. 

Section 441(d)(3) of the Act is at the center of this 
dispute. It provides: 

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 Fed- 

168a 

eral 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 . . ., the greater of— 

(i) 2 cents multiplied by the voting age 
population of the State . . .; or 

(ii) $20,000. . . . 

2 U.S.C.A. § 441a(d)(3) (emphasis added). Because the 
Committee assigned the full amount of expenditures 
permitted by section 441a(d)(3) to the National Re- 
publican Senatorial Committee, see Federal Election 
Comm’n v. Democratic Senatorial Campaign Comm., 
454 U.S. 27, 39-40, 102 S. Ct. 38, 46, 70 L.Ed.2d 23 (1981) 
[hereinafter DSCC ], it no longer had the right to make 
section 441a(d)(3) expenditures. As a consequence, the 
Committee’s expenditure of $15,000 for the Advertise- 
ment, if made “in connection with” the general election 
campaign, was a violation of the spending limits estab- 
lished by section 441a(d)(3). 

Two types of expenditures are regulated under the 
Act: coordinated and independent. A coordinated 
expenditure is one made in cooperation with, or with 
the consent of, a candidate, his agents, or an authorized 
committee of a candidate. Buckley v. Valeo, 424 U.S. 1, 
47 n. 53, 96 S. Ct. 612, 647 n. 53, 46 L.Ed.2d 659 (1976). 
An independent expenditure is one made without the 
knowledge or permission of a candidate, his agent, or 
his campaign committee. Id. See 2 U.S.C.A. § 431(17). 
Coordinated expenditures are considered “contribu- 
tions” under section 441a(a)(7)(B)(i); as such, they may 
be more freely limited than independent expenditures. 

169a 

Buckley, 424 U.S. at 48, 96 S. Ct. at 647-48; Federal 
Election Comm’n v. National Conservative Political 
Action Comm., 470 U.S. 480, 491, 105 S. Ct. 1459, 1466, 
84 L.Ed.2d 455 (1985) [hereinafter NCPAC]. In 
Buckley, the Court upheld as constitutional the limita- 
tions on contributions to candidates and struck down as 
unconstitutional limitations on independent expendi- 
tures. NCPAC, 470 U.S. at 491, 105 S. Ct. at 1465. See 
also Federal Election Comm’n v. Massachusetts Citi- 
zens for Life, Inc., 479 U.S. 238, 260, 107 S. Ct. 616, 630, 
93 L.Ed.2d 539 (1986) [hereinafter MCFL ] (“We have 
consistently held that restrictions on contributions 
require less compelling justification than restrictions on 
independent spending.”); California Medical Ass’n v. 
Federal Election Comm’n, 453 U.S. 182, 194, 196-97, 
101 S. Ct. 2712, 2720, 2724-25, 69 L.Ed.2d 567 (1981) 
(same). 

Expenditures by party committees are considered to 
be coordinated expenditures subject to the monetary 
limits of section 441a(d). DSCC, 454 U.S. at 27 n.1, 102 
S. Ct. at 40 n.1.1 Party committees have been deemed 
incapable of making independent expenditures in 
connection with the campaigns of their party’s can- 

1 Defendants point to a passage in Buckley which classifies 2 
U.S.C.A. § 608(f ) (West 1970) (recodified as section 441a[d]) as an 
“expenditure ceiling,” as opposed to a contribution limitation. Ac- 
cording to defendants, this reference suggests the Court consid- 
ered section 441a(d) to regulate independent expenditures. It is 
unclear how referring to section 441a(d) as an “expenditure” 
limitation necessarily suggests the section regulates independent 
expenditures. In light of the Court and Commission’s other pro- 
nouncements, and the fact that this reference is dicta, see Buckley, 
424 U.S. at 58 n.66-67, 96 S. Ct. at 653 n. 66-67, I do not find this 
singular reference persuasive. 

170a 

didates. DSCC, 454 U.S. at 27 n. 1, 102 S. Ct. at 40 n. 1. 
See also FEC Advisory Opinion 1985-14, 1 Fed. Elec- 
tion Campaign Fin. Guide (CCH) ¶ 5819 (July 18, 1985); 
FEC Advisory Opinion 1984-15, 1 Fed. Election Cam- 
paign Fin. Guide (CCH) ¶ 5766 (Aug. 16, 1984). 

The Commission has the “primary and substantial 
responsibility for administering and enforcing the Act,” 
and has “extensive rulemaking and adjudicative 
powers.” Buckley, 424 U.S. at 109-10, 96 S. Ct. at 677- 

78. When interpreting the Act, the Commission’s inter- 
pretation is presumptively entitled to deference. DSCC, 
454 U.S. at 38, 102 S. Ct. at 45. The Commission has, by 
regulation, forbidden independent expenditures by 
national and state party committees. See 11 C.F.R. 
§ 110.7(B)(4) (1981). 

Defendants suggest that because no Republican 
candidate had been nominated, the expenditure was 
necessarily “independent,” not “coordinated.” How- 
ever, for purposes of determining whether an expen- 
diture is coordinated or independent, it is irrelevant 
whether a candidate has been nominated at the time 
the expenditure is made. See FEC Advisory Opinion 
1984-15, 1 Fed.Election Campaign Fin. Guide (CCH) ¶ 
5766 (Aug. 16, 1984). “[N]othing in the Act, its legis- 
lative history, Commission regulations, or court deci- 
sions indicates that coordinated party expenditures 
must be restricted to the time period between nomina- 
tion and the general election.” Id. Organizations whose 
major purpose is the nomination or election of a can- 
didate “are, by definition, campaign related,” Buckley, 
424 U.S. at 80, 96 S. Ct. at 663, regardless of whether a 
specific candidate has been nominated. Based on Su- 
preme Court precedent and the Commission’s interpre- 

171a 

tation of the statute, I find that the Committee’s 
expenditure was coordinated. It was made on behalf of 
the Republican candidate, whomever that might be; and 
it is irrelevant that no particular person had been 
designated. 

The Committee’s expenditure would nevertheless not 
be subject to section 441a(d)(3) limitations unless the 
expenditure was made “in connection with” the general 
election campaign of a candidate for federal office. No 
controlling or persuasive authority has interpreted the 
phrase “in connection with” in the context of section 
441a(d)(3). The Court, however, has interpreted the 
phrase “in connection with” in the context of section 
441b, which, like section 441a(d)(3), regulates contribu- 
tions and expenditures. In MCFL, the Court held that 
“an expenditure must constitute ‘express advocacy’ in 
order to be subject to the prohibition of § 441b.” 
MCFL, 479 U.S. at 249, 107 S. Ct. at 623. See also 
Buckley, 424 U.S. at 80, 96 S. Ct. at 663. “The normal 
rule of statutory construction assumes that identical 
words used in different parts of the same act are in- 
tended to have the same meaning.” See Sullivan v. 
Stroop, 496 U.S. 478, 484, 110 S. Ct. 2499, 2504, 110 
L.Ed.2d 438 (1990); Sorenson v. Secretary of Treasury 
of the United States, 475 U.S. 851, 860, 106 S. Ct. 1600, 
1606, 89 L.Ed.2d 855 (1986); Barnson v. United States, 
816 F.2d 549 (10th Cir.), cert. denied, 484 U.S. 896, 108 
S. Ct. 229, 98 L.Ed.2d 188 (1987) (when the same words 
are used in different sections of the same law, they will 
be given the same meaning). 

This rule of statutory construction is usually followed 
where different parts of the same act have a similar 
purpose, as do sections 441a(d)(3) and 441b. Both sec- 

172a 

tions 441a(d)(3) and 441b are intended to regulate con- 
tributions and expenditures of multi-person organiza- 
tions. While section 441a(d) regulates expenditures by 
national committees, state committees, or subordinate 
committees of the state committees, section 441b regu- 
lates expenditures by national banks, corporations, or 
labor organizations. Since I examine the statute as a 
whole, I find the Court’s interpretation of “in connec- 
tion with” in the context of section 441b to be persua- 
sive of my interpretation of the same words in section 
441a(d)(3). 

Plaintiff urges the court to adopt the Commission’s 
interpretation of “in connection with” which would 
require the Advertisement to contain a “clearly identi- 
fied candidate” and an “electioneering message.” FEC 
Advisory Opinion 1985-14, 1 Fed. Election Campaign 
Fin.Guide (CCH) ¶5819 (July 18, 1985). According to 
plaintiff, section 441b differs significantly from section 
441a(d)(3), in that 441b regulates independent expendi- 
tures, whereas section 441a(d)(3) regulates coordinated 
expenditures. Although Buckley acknowledges that 
coordinated expenditures may be more freely regulated 
than independent expenditures, it does not follow that 
the identical words, when used with reference to 
coordinated expenditures, should be given a more 
expansive interpretation. 

The Supreme Court’s decision in Buckley suggests 
just the opposite. When examining the intrusiveness of 
the statute’s regulations on first amendment freedoms, 
the Court found that a limitation on coordinated 
expenditures was justified in order to stem “the reality 
or appearance of corruption in the electoral process.” 
Buckley, 424 U.S. at 46, 96 S. Ct. at 647-48. Although 

173a 

the Court found the justification for regulating coordi- 
nated expenditures outweighed the infringement on the 
First Amendment, this conclusion does not create a 
carte blanche for expansive regulation of coordinated 
expenditures. On the contrary, the fact that section 
441a(d)(3) implicates first amendment freedoms argues 
for adoption of the more narrowly defined “express 
advocacy” interpretation in order to minimize intru- 
sions.2 Moreover, as Buckley notes, the limitation on 
contributions by state political committees, “[r]ather 
than undermining freedom of association, . . . 
enhances the opportunity of bona fide groups to 
participate in the election process.” Buckley, 424 U.S. 
at 33, 96 S. Ct. at 642. Given that the effect of the regu- 
lation is to enhance the political freedom of committees, 
I find that the “express advocacy” standard, which is a 
less intrusive limitation on a committee’s freedom, is 
consistent with the Act’s purpose. I do not find any 
compelling justification within the Commission’s advi- 
sory opinion, nor in plaintiff’s argument, for expanding 
Buckley’s carefully circumscribed exception to its 
prohibition against regulation of freedom of speech. 

2 A narrow interpretation of the words “in connection with” 
also addresses the constitutional concerns raised by defendants. 
Defendants contend that if all expenditures by state committees 
were deemed contributions subject to section 441a(d)(3), then they 
would not be free to speak in favor of their candidates. (Defs.’ 
Mem. in Opp’n to Pl.’s Mot. for Summ. J. and in Reply to Pl.’s 
Opp’n to Defs.’ Mot. for Summ. J. at 4 [filed July 25, 1990] 
[hereinafter “Defs.’ Reply”].) By adopting a more narrowly defined 
interpretation of “in connection with,” state political committees 
remain free to engage in speech which does not expressly advocate 
the election of its candidates. 

174a 

The Commission does not point to any other section 
of the statute where the courts have given the language 
“in connection with” the expansive interpretation the 
Commission advocates in this case. In fact, the courts 
have consistently interpreted “in connection with” as 
requiring “express advocacy.” See Federal Election 
Comm’n v. Furgatch, 807 F.2d 857, 864 (9th Cir.), cert. 
denied, 484 U.S. 850, 108 S. Ct. 151, 98 L.Ed.2d 106 
(1987); Federal Election Comm’n v. Central Long 
Island Tax Reform, 616 F.2d 45, 53 (2nd Cir. 1980).3 In 
Orloski v. Federal Election Commission, 795 F.2d 156 
(D.C. Cir. 1986), the Commission itself advocated the 
adoption of the “express advocacy” interpretation of “in 
connection with” in the context of section 441b(a). In 
adopting the Commission’s interpretation, the D.C. 
Circuit noted: 

[T]he FEC’s interpretation is consistent with 
Buckley, in which the Supreme Court held that 
under the first amendment, the phrases “for the 

3 In United States v. International Union UAW-CIO, 352 U.S. 
567, 587, 77 S. Ct. 529, 550, 1 L.Ed.2d 563 (1957), the Court inter- 
preted “in connection with” in the context of a predecessor to the 
current Act, which prohibited corporate or union contributions or 
expenditures to be used “in connection with” any election for 
federal office. Id., 352 U.S. at 568, 77 S. Ct. at 530. The Court held 
that the “in connection with” found in the statute was understood 
to proscribe “the expenditure of union dues to pay for commercial 
broadcasts that are designed to urge the public to elect a certain 
candidate or party.” Id., 352 U.S. at 587, 77 S. Ct. at 550. It is 
unclear from this language whether the Court was adopting a 
different interpretation of “in connection with” or merely applying 
the “express advocacy” standard. Plaintiff does not explain how 
this language differs materially from the “express advocacy” stan- 
dard. Since no court has subsequently adopted the language used 
in International Union UAW-CIO, I decline to do so in this case. 

175a 

purposes of influencing any election” and “in 
connection with any election” must be defined as the 
“express advoca[cy] [of] the election or defeat of a 
clearly-identifiable candidate,” a definition that was 
subsequently incorporated into the Act. See 2 
U.S.C. § 431(17). To be sure, the Court limited 
these definitions to those provisions curtailing or 
prohibiting independent expenditures. This defini- 
tion is not constitutionally required for those statu- 
tory provisions limiting contributions, see Buckley, 
424 U.S. at 78-80, 96 S. Ct. at 663-64. Nonetheless 
the fact that the Court in Buckley formulated these 
definitions for this statutory language demonstrates 
that the FEC’s similar interpretation of the same 
language is logical, reasonable, and consistent with 
the overall statutory framework. The fact that the 
FEC adopted this interpretation for all relevant 
statutory provisions, even where not constitution- 
ally required, only adds to its reasonableness for it 
enhances the consistency and evenhandedness with 
which the FEC ultimately administers the Act. 

Orloski, 795 F.2d at 166-67 (emphasis added). See also 
FEC Advisory Opinion 1978-46, 1 Fed. Election Cam- 
paign Fin. Guide (CCH) ¶ 5348 (Oct. 5, 1978) (suggest- 
ing that section 441a(d) requires “express advocacy”). 

The “thoroughness, validity, and consistency of an 
agency’s reasoning are factors that bear upon the 
amount of deference to be given an agency’s ruling.” 
DSCC, 454 U.S. at 35, 102 S. Ct. at 44; Adamo Wreck- 
ing Co. v. United States, 434 U.S. 275, 287 n.5, 98 S. Ct. 
566, 573 n.5, 54 L.Ed.2d 538 (1978). I do not find the 
Commission’s suggested interpretation of “in con- 
nection with” to be entitled to deference where it is 

176a 

neither thorough nor consistent with either its own 
previous rulings or the courts’ holdings. I conclude that 
“express advocacy” is required in order for a coor- 
dinated expenditure to be “in connection with” the 
general election campaign of a candidate for federal 
office under section 441a(d)(3). 

Having made this determination, I must decide 
whether the Advertisement constituted “express advo- 
cacy.” The Court has adopted a bright-line test for 
identifying speech which constitutes “express advo- 
cacy,” recognizing that: 

[T]he distinction between discussion of issues and 
candidates and advocacy of election or defeat of 
candidates may often dissolve in practical applica- 
tion. Candidates, especially incumbents, are 
intimately tied to public issues involving legislative 
proposals and governmental actions. Not only do 
candidates campaign on the basis of their positions 
on various issues, but campaigns themselves 
generate issues of public interest. 

Buckley, 424 U.S. at 42, 96 S. Ct. at 645. See Furgatch, 
807 F.2d at 860; Federal Election Comm’n v. National 
Organization for Women, 713 F. Supp. 428, 432 (D.D.C. 
1989). The Court defined “express advocacy” as “ex- 
press words of advocacy of election or defeat, such as 
‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith 
for Congress,’ ‘vote against,’ ‘defeat,’ or ‘reject.’ ” Buck- 
ley, 424 U.S. at 46 n.52, 96 S. Ct. at 647 n.52. Speech is 
“advocacy” if it “presents a clear plea for specific action, 
and . . . it must be clear what action is advocated.” 
Furgatch, 807 F.2d at 864. Speech which is merely 
informative would not be considered “advocacy.” Id. 
When determining whether speech constitutes “ex- 

177a 

press advocacy,” the focus is on the actual wording 
used. Buckley, 424 U.S. at 42, 96 S. Ct. at 646. 

The Advertisement does not contain any words 
which expressly advocate action. At best, as plaintiff 
suggests, the Advertisement contains an indirect plea 
for action. The Advertisement concludes with “Tim 
Wirth has the right to run for the Senate, but he 
doesn’t have the right to change the facts.” Even 
assuming the Advertisement indirectly discourages 
voters from supporting Wirth, it does not contain the 
direct plea for specific action required by Buckley and 
Furgatch. 

According to plaintiff, the surrounding circumstances 
suggest the Advertisement was, in fact, a plea for 
action. The Advertisement identified Wirth by name 
and position, referred to his senate candidacy, re- 
sponded to Wirth’s own campaign advertisements, and 
said “paid for by the Colorado Republican State Central 
Committee.” (Pl.’s Mot. at 15.) At the time the 
Advertisement ran, plaintiff maintains, Wirth was the 
only credible announced Democratic candidate for 
Senate. Id. In addition, the public “knew” the sponsor 
of the Advertisement, i.e., the Republican party, would 
eventually nominate a candidate. Thus, the Adver- 
tisement implicitly urged the public both to vote 
against Wirth and to support whomever the Republican 
candidate would be. Plaintiff also points to contem- 
poraneous press statements of Howard “Bo” Callaway, 
then Chairman of the Colorado Republican Party, con- 
cerning the state committee’s general purpose which 
allegedly leave “no doubt that the intent of the ad was 
to attack Mr. Wirth’s candidacy for the Senate.” (Pl.’s 
Mot. at 10-11, 17-18.) 

178a 

I do not believe this type of indirect urging con- 
stitutes “express advocacy” under the Buckley analy- 
sis. Buckley adopted a bright-line test that expendi- 
tures must “in express terms advocate the election or 
defeat of a candidate” in order to be subject to 
limitation. Faucher v. Federal Election Comm’n, 928 
F.2d 468, 471 (1st Cir. 1991). In adopting a bright-line 
approach, the Court noted the difficulty in interpreting 
the meaning and effects of words: 

[W]hether words intended and designed to fall short 
of invitation would miss that mark is a question both 
of intent and of effect. No speaker, in such 
circumstances, safely could assume that anything he 
might say upon the general subject would not be 
understood by some as an invitation. In short, the 
supposedly clear-cut distinction between discussion, 
laudation, general advocacy, and solicitation puts 
the speaker in these circumstances wholly at the 
mercy of the varied understanding of his hearers 
and consequently of whatever inferences may be 
drawn to his intent and meaning. Such a distinction 
offers no security for free discussion. In these 
conditions it blankets with uncertainty whatever 
may be said. It compels the speaker to hedge and 
trim. 

Buckley, 424 U.S. at 43, 96 S. Ct. at 646 (quoting 
Thomas v. Collins, 323 U.S. 516, 535, 65 S. Ct. 315, 325, 
89 L.Ed. 430 [1945]). In adopting the “express advo- 
cacy” standard, the Court sought to protect issue 
advocacy. “In a republic where the people are 
sovereign, the ability of the citizenry to make informed 
choices among candidates for office is essential. . . . 

Discussion of public issues and debate on the quali- 

179a 

fications of candidates are integral to the operation of 
the system of government established by our Const- 
itution.” Buckley, 424 U.S. at 14-15, 96 S. Ct. at 632. 
Trying to determine whether the surrounding circum- 
stances, coupled with the implications of the Advertise- 
ment, constitute “express advocacy” leads to the type 
of semantic dilemma which the Court sought to avoid 
by adopting a bright-line rule. I decline to blur 
Buckley’s bright-line rule by interpreting the Adver- 
tisement’s criticism of Wirth as “express advocacy.” 
Viewing the facts in the light most favorable to 
plaintiff, I find that the Advertisement does not call for 
the type of “express advocacy” required by Buckley. 
Because I conclude that no reasonable trier of fact could 
find for plaintiff on the basis of the evidence presented, 
defendants are entitled to summary judgment as a 
matter of law. Matsushita Elec. Indus. Co. v. Zenith 
Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 
L.Ed.2d 538 (1986). 

With regard to plaintiff ’s motion for summary 
judgment, the analysis of whether the Advertisement 
constitutes “express advocacy” is the same. Defen- 
dants allege that the Advertisement neither contains a 
direct plea for action, nor conveys support for a par- 
ticular candidate. According to defendants, the Adver- 
tisement simply informed the public about the political 
record of an incumbent Colorado congressman; it did 
not advocate voting for or against any political can- 
didate. (Defs.’ Mot. at 7.) In addition, the Advertise- 
ment was broadcast seven months before the general 
election—before either party had chosen its candidate. 
(Defs.’ Reply at 10.) Defendants claim Wirth’s senate 
candidacy was referenced in the Advertisement only 
for the purpose of identifying his statements. (Defs.’ 

180a 

Reply at 9.) Plaintiff fails to adequately rebut these 
claims. Accordingly, plaintiff ’s motion for summary 
judgment is denied. 

Conclusion 

Because I find that the expenditure for the Adver- 
tisement was not “in connection with” the general 
election of a candidate for federal office, it was not 
subject to section 441a(d)(3) limitations and did not 
violate the Act. Since I am able to resolve the dispute 
on statutory grounds, I do not reach defendants’ 
challenge to the constitutionality of section 441a(d)(3). 
Defendants cannot avoid this result by posturing the 
constitutional issue as an independent counterclaim. It 
is therefore 

ORDERED as follows: 

(1) Plaintiff ’s motion for summary judgment is 

DENIED; and 

(2) Defendants’ motion for summary judgment is 

GRANTED. All claims against defendants are dis- 
missed. Defendants’ counterclaim is DISMISSED as 
moot.