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 

REPLY BRIEF FOR THE PETITIONER 

LAWRENCE M. NOBLE 

General Counsel 
Federal Election Commission 
Washington, D.C. 20463 
SETH P. WAXMAN 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

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

4, 7 

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

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

3 

Missouri Republican Party v. Lamb, No. 00-1773 

(8th Cir. Sept. 11, 2000) ........................................................ 

7 

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

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

6, 7 

Constitution and statute: 

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

4, 7 

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

2, 3, 4, 6 

Miscellaneous: 

119 Cong. Rec. (1973): 

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

6 

p. 26,321 ............................................................................... 
6 

p. 26,323 ............................................................................... 
6 

pp. 26,323-26,324 .................................................................. 6 

(I) 

In the Supreme Court of the United States 

No. 00-191 

FEDERAL ELECTION COMMISSION, PETITIONER 

v. 

COLORADO REPUBLICAN FEDERAL 
CAMPAIGN COMMITTEE 

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

REPLY BRIEF FOR THE PETITIONER 

A. Respondent explains (Resp. 3) that the federal 
election laws distinguish between so-called “soft 
money,” which “is raised in unlimited amounts from 
unrestricted sources,” and “hard money,” which is 
“raised in limited amounts from restricted sources and 
fully disclosed according to law.” Respondent further 
explains (ibid.) that the instant case involves only the 
permissible uses of “hard money.” 

The petition for certiorari acknowledges (at 23) that 
“[b]ecause ‘soft money’ cannot lawfully be spent to 
influence federal elections, the party cannot (even 
under the court of appeals’ decision) use those dona- 
tions to make coordinated expenditures on behalf of 
candidates for federal office.” We thus do not contend 

(1) 

2 

that “the lower courts broadly and affirmatively estab- 
lished that parties can spend unlimited amounts from 
any sources in support of their candidates.” Resp. 3. 
And we agree that “[w]hether and how soft money 
receipts and expenditures should be regulated is not at 
issue here.” Ibid. 

As we explain in the petition, however, the absence 
of any federal limit on “soft money” donations increases 
the corruptive potential of party coordinated expendi- 
tures, even though the coordinated expenditures 
themselves are made with “hard money.” See Pet. 23- 

24. A party committee may direct its coordinated ex- 
penditures to candidates favored by a substantial “soft 
money” donor, and may use those coordinated expendi- 
tures to induce the candidate (once elected or re- 
elected) to look favorably upon that donor’s interests. 
Ibid. The existence of that danger is surely relevant to 
the question whether 2 U.S.C. 441a(d) serves the 
government’s interest in preventing the fact or appear- 
ance of political corruption.1 

1 Indeed, respondent contends that “[b]y limiting the ability of 
parties to use hard money to fund coordinated speech, [2 U.S.C. 
441a(d)] perversely drives parties toward less desirable, less 
regulated soft money activities.” Resp. 7. Respondent argues that 
“[s]triking [section 441a(d)] and allowing parties discretion to 
spend disclosed and limited hard money will reduce the role of 
‘large’ soft money contributors and alleviate the ‘corruption’ con- 
cerns voiced by the FEC.” Ibid. The government does not agree 
with respondent’s predictions regarding the likely effect of the 
court of appeals’ decision. At a more general level, however, 
respondent and the government are in accord that the absence of 
any federal cap on the permissible amount of “soft money” 
donations is likely to affect the manner in which party coordinated 
expenditures are used. The reality of unlimited “soft money” 
donations is therefore relevant in assessing the practical effects, 

3 

B. Respondent’s reliance (see Resp. 5) on California 
Democratic Party v. Jones, 120 S. Ct. 2402 (2000), is 
misplaced. Jones involved a State’s effort to regulate 
the internal processes of a political party in a sphere— 
the selection of a nominee for public office—in which 
the party’s interest in freedom of association is at its 
height. See id. at 2408 (“In no area is the political 
association’s right to exclude more important than in 
the process of selecting its nominee.”). Section 441a(d), 
by contrast, does not intrude upon respondent’s inter- 
nal processes or limit its freedom to select the can- 
didates and/or positions that it wishes to support. It 
simply limits the manner in which respondent may use 
money to achieve its objectives. Nothing in Jones 
suggests that a political party is constitutionally en- 
titled to a categorical exemption from the coordinated 
expenditure limits that apply to individuals and to 
other political committees.2 

C. As the petition explains (at 13-15), the effect of 
the court of appeals’ decision is to allow political parties 
within the Tenth Circuit to make all forms of coordi- 
nated expenditures in support of their federal candi- 
dates, including coordinated expenditures (such as the 

and the constitutional status, of the “hard money” expenditures 
that are at issue in this case. 

2 Respondent contends (Resp. 5) that Section 441a(d) 
“require[s] political parties to separate themselves from their 
candidates as a condition of engaging in political speech during an 
election.” The choice is hardly as stark as respondent suggests, 
however, since Section 441a(d) allows political parties to make 
coordinated expenditures in amounts far in excess of the limits 
that apply to other potential supporters of the candidate. See Pet. 
5-6, 17-18. And respondent is, of course, permitted to make 
unlimited independent expenditures in support of the party’s 
candidates. 

4 

direct payment of the candidate’s bills) that are the 
functional and constitutional equivalent of direct 
monetary contributions.3 Respondent correctly ob- 
serves (Resp. 6) that Section 441a(d) also limits the 
party’s ability to spend money, in coordination with the 
candidate, on the dissemination of communicative mate- 
rials to voters.4 Respondent does not, however, make 
any effort to refute our contention that the court of 
appeals’ decision gives political parties a First Amend- 
ment right to pay their candidates’ bills.5 Nor does 

3 The petition explains that some coordinated expenditures— 
and, in particular, a supporter’s direct payment of the favored 
candidate’s bills—are “functionally and constitutionally indistin- 
guishable from direct contributions” (Pet. 14) even though they “do 
not involve a transfer of funds to the candidate herself” (Pet. 4). 
Contrary to respondent’s contention (Resp. 5), those statements 
are in no way inconsistent. Indeed, when this case was previously 
before the Court, the plurality observed that “many [coordinated] 
expenditures are * * * virtually indistinguishable from simple 
contributions (compare, for example, a donation of money with 
direct payment of a candidate’s media bills).” Pet. App. 111a (518 
U.S. at 624) (citing Buckley v. Valeo, 424 U.S. 1, 46 (1976)). For 
that reason, the plurality explained, “a holding on in-fact coordi- 
nated party expenditures necessarily implicates a broader range of 
issues than may first appear, including the constitutionality of 

party contribution limits.” Pet. App. 112a (518 U.S. at 625). 

4 That a particular party expenditure finances the dissemina- 
tion of written materials to voters does not necessarily mean that 
the party’s own expressive rights are implicated. If the party 
disseminates materials whose content is wholly dictated by the 
candidate, payments made in connection with that effort are not 
meaningfully different from direct contributions. 

5 Respondent asserts that “[t]he undisputed record shows that 
political parties have their own messages to disseminate and that 
90% of the spending that is curtailed by [Section 441a(d)] histori- 
cally has been devoted to advertising and mail, i.e., pure speech.” 
Resp. 6. Respondent does not identify, and we are unaware of, any 

5 

respondent suggest any basis on which such payments 
might be distinguished, for constitutional purposes, 
from direct contributions of money. 

D. Contrary to respondent’s assertion (Resp. 7), the 
pertinent legislative history reflects congressional 
concern about the potential corruptive effects of cam- 
paign spending by political parties—and, in particular, 
the danger that large party contributions could be used 
as a means of evading statutory limits on individual 
donations. That concern was expressed during Senate 
debate in 1973 on a predecessor bill to the one finally 
enacted in 1974. Senator Mathias explained: 

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

But what this amendment really goes to is one of 
the areas which is not controlled, and that is from 
the party to the candidate. That, of course, is a wide 
open avenue. An [individual] who could contribute 
$100,000 to a party could well envision that that 
money, by some arrangement, would be directed to 
a candidate. Such arrangements are not unknown. 
They may be informal, but earmarking would be 
possible. This amendment would prevent that kind 
of indirect contribution of $100,000 to a single 

record material(s) that would support the 90% figure. Respondent 
also states that “[t]he Petition (at 14) inaccurately portrays a po- 
litical party as a ‘simple expedient’ for candidate bill paying.” 
Resp. 6. Even a cursory examination of page 14 makes clear that 
the petition says no such thing. 

6 

candidate by a single contributor. I think it is a 
loophole which needs to be looked at very carefully. 

119 Cong. Rec. 26,321 (1973).6 Senators Kennedy and 
Pastore observed, based on their prior experience as 
legislators, that through unspoken understandings 
donors could achieve the result that Senator Mathias 
described—i.e., using the party as a conduit for large 
contributions to candidates without any explicit ear- 
marking of funds. See id. at 26,323, 26,323-26,324. 
Although the provisions ultimately enacted in 1974 
differed in some respects from those debated during the 
previous year, the 1973 debate casts significant light on 
the interests that Section 441a(d) was intended to 
serve. 

E. As respondent points out (Resp. 8), this Court’s 
decision in Nixon v. Shrink Missouri Government 
PAC, 120 S. Ct. 897 (2000), did not involve limits on the 
campaign spending of political parties. But while 
Shrink Missouri does not control this case, its rea- 
soning bears directly on the question presented here. 
Shrink Missouri reaffirms the legislature’s power to 
enact reasonable contribution limits in order to address 
the “improper influence” and “opportunities for abuse” 
that may result when an elected official becomes unduly 

6 The amendment to which Senator Mathias referred was 
offered by Senator Stevenson (see 119 Cong. Rec. at 26,320) and 
would have had the effect of subjecting party committees to the 
same spending limits as other political committees. See id. at 
26,321 (Senator Stevenson states that the amendment would “have 
the effect of equalizing the amount to party political committees 
and all other political committees”). The bill ultimately enacted in 
1974 permits political parties to make substantially larger coor- 
dinated expenditures in support of federal candidates than other 
political committees are allowed to make. See 2 U.S.C. 441a(d); 
Pet. 5-6, 17-18. 

7 

dependent on financial support from a single source. 
See id. at 905 (quoting Buckley v. Valeo, 424 U.S. 1, 28 
(1976)); Pet. 24-25. If (as we contend) Congress may 
reasonably determine that the same concerns are impli- 
cated by large party coordinated expenditures, then 
Shrink Missouri substantially supports the consti- 
tutionality of Section 441a(d). 

F. Respondent agrees (Resp. 2-3) that the petition 
for a writ of certiorari should be granted. As respon- 
dent explains, “[a] definitive ruling is needed” (Resp. 2): 
the court of appeals’ decision creates significant un- 
certainty regarding the spending practices in which 
political parties may engage, and it impedes the uniorm 
application of the federal campaign finance laws.7 For 
those reasons, and because the court of appeals has held 
a provision of an Act of Congress to be unconstitutional, 
review by this Court is warranted. 

7 In Missouri Republican Party v. Lamb, No. 00-1773 (8th Cir. 
Sept. 11, 2000), a divided panel of the Eighth Circuit recently held 
that a state-law limitation on cash and in-kind contributions by 
political parties to candidates violates the party’s First Amend- 
ment rights. The court rejected Missouri’s contention that the 
contribution limit serves to prevent actual or apparent political 
corruption, stating that “it is not easy to see how a party could 
‘corrupt’ one of its own candidates, since, on account of their 
general unity of purpose, they are committed, in the main, to the 
same aims and principles.” Slip op. 5. The court relied in part on 
the Tenth Circuit’s decision in the instant case. See id. at 5, 6. The 
dissenting judge would have upheld the law on the ground that 
“contributions made by a political party are no different than 
contributions made by individuals or other groups.” Id. at 13 (John 
R. Gibson, J., concurring and dissenting). He concluded that 
“[b]ecause Missouri’s limits on cash contributions that a party may 
make to a candidate are closely drawn to meet a sufficiently 
important governmental interest, they do not violate the First 
Amendment.” Ibid. 

8 

* * * * * 

For the reasons stated above, and in the petition for a 
writ of certiorari, the petition should be granted. 

Respectfully submitted. 

LAWRENCE M. NOBLE 

General Counsel 
Federal Election Commission 
SETH P. WAXMAN 

Solicitor General 

SEPTEMBER 2000