Federal Election Commission v. Colorado Republican Federal Campaign Committee

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 5 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

FEDERAL ELECTION
COMMISSION,

Plaintiff-Counter-
Defendant - Appellant,

v. No. 99-1211

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 89-N-1159)

David Kolker (Lawrence M. Noble, General Counsel, and Richard B. Bader,
Associate General Counsel, with him on the briefs), Federal Election
Commission, Washington, DC, appearing for Appellant.

Jan Witold Baran (Thomas W. Kirby, Carol A. Laham, and Kirk L. Jowers, with
him on the brief), Wiley, Rein & Fielding, Washington, DC, appearing for
Appellee.

Robert F. Bauer and Marc E. Elias, Perkins Coie, LLP, Washington, DC, filed an
amicus curiae brief for Democratic Senatorial Campaign Committee and
Democratic Congressional Campaign Committee on behalf of Appellant.

Roger M. Witten, Daniel H. Squire, and Nicholas Coleman, Wilmer, Cutler &
Pickering, Washington, DC; Fred Wertheimer, Democracy 21, Washington, DC;
and Donald J. Simon, Common Cause, Washington, DC, filed an amicus curiae
brief for Common Cause and Democracy 21 on behalf of Appellant.

Nancy Northup and Elizabeth Daniel, Brennan Center for Justice at New York
University School of Law, New York, New York, filed an amicus curiae brief on
behalf of Appellant.

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 candidates for Congress. The Federal Election Commission

(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

-2-
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 Supreme Court struck down

many of the Act’s expenditure limits as unconstitutional under the First

Amendment’s free speech and association guarantees. Buckley v. Valeo, 424 U.S.

1, 39-59 (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 Conservative Political Action Comm., 470

U.S. 480, 497 (1985) (NCPAC) (invalidating FECA provision limiting

independent expenditures by political committees).

However, the Court generally has upheld FECA’s contribution limits.

Buckley, 424 U.S. at 28, 29, 35-36 (finding constitutional the Act’s limits on the

amount individuals and political committees can contribute to a candidate for

federal office); California Med. Ass’n v. Federal Election Comm’n, 453 U.S. 182,

-3-
193-99 (1981) (upholding 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; NCPAC,

470 U.S. at 492. 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

committee” (or PAC) may contribute $5000 to a candidate with respect to any

federal election; $5000 in any calendar year to any other political committee that

is not established and maintained by a national political party; and $15,000 in any

-4-
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

Expenditure 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

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

-5-
Colorado, announced that he would seek Colorado’s open Senate 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 Expenditure 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

Expenditure Provision violated its First Amendment rights of free speech and

association. The district court narrowly interpreted § 441a(d)(3) as limiting only

those expenditures that use “‘express words of advocacy of election or defeat.’”

Federal Election Comm’n v. Colorado Republican Fed. Campaign Comm., 839 F.

Supp. 1448, 1455 (D. Colo. 1993) (quoting Buckley, 424 U.S. at 44 n.52). Under

-6-
this statutory construction, 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. Because the court resolved the dispute on statutory grounds, it did

not reach the Party’s constitutional challenge. Id. at 1457.

On appeal, the FEC argued for a broader interpretation 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 Provision. Id. at 1023. We also reached the constitutional challenge

and held that § 441a(d)(3) did not impermissibly 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 (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

-7-
other Justices joined in this judgment. Id. at 608. 2

Based on the summary judgment record before it, the plurality noted that

the Colorado Party had developed and approved the advertisement script

independent of any candidate for Federal office. Id. at 613-14. 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 expenditure,” not a “coordinated expenditure” subject to the

limits of § 441a(d)(3). Id. at 613. As such, the expenditure was entitled to full

First Amendment protection under controlling precedent. Id. at 614-15 (citing

NCPAC, 470 U.S. at 97; Buckley, 424 U.S. at 19-21).

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 coordinated expenditures by

political parties. Id. at 623. 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

2
The four Justices who concurred in the judgment also dissented in part,
urging the Court to resolve the Party’s facial challenge to § 441a(d)(3). Colorado
I, 518 U.S. at 626 (Kennedy, J., concurring in the judgment and dissenting in
part); id. at 631 (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.

-8-
coordinated expenditures by political parties are protected from congressional

regulation by the First Amendment.” Id. at 624.

On remand, the parties compiled an extensive record, focusing exclusively

on the novel constitutional question highlighted in Colorado I. On cross motions

for summary judgment, the district court concluded that the FEC had “failed to

offer evidence which demonstrates the compelling need for limits on political

party coordinated expenditures.” Colorado Republican Fed. Campaign Comm. v.

Federal Election Comm’n, 41 F. Supp.2d 1197, 1213 (D. Colo. 1999). 3 The court

therefore declared the Party Expenditure Provision unconstitutional 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,

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. 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.
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.

-9-
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, 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, 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 (internal quotation marks and

citation omitted). In Colorado I, the plurality concluded that the government

must demonstrate a “compelling” interest to restrict the First Amendment

freedoms of candidates and their supporters. 518 U.S. at 609. Such language

suggests “strict scrutiny” of campaign finance regulation in general.

However, the Supreme Court most recently revisited the standard of

- 10 -
scrutiny as to campaign contribution limits in particular. See Nixon v. Shrink

Mo. Gov’t PAC, 120 S. Ct. 897 (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 challenge. 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 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 (1986) (“We have consistently held that

restrictions on contributions 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 contribution 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). 4

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”),

- 11 -
 In this case, we must determine whether the FEC can justify § 441a(d)(1)’s

limit on coordinated expenditures 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, 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. 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 measure, speak for

their political parties. 5 We therefore question whether the

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’”).
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,

- 12 -
contribution/expenditure dichotomy 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.

IV.

The Buckley court recognized the “prevention of corruption and the

appearance of corruption” as “constitutionally sufficient justification[s]” for the

regulation of campaign contributions. 424 U.S. at 25, 26. “[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 appearance 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
legitimately conclude that the avoidance of the appearance of improper
influence “is also critical . . . if confidence in the system of representative
Government is not to be eroded to a disastrous extent.”

Id. at 26-27 (quoting United States Civil Serv. Comm’n v. National Ass’n of

will not assume any “metaphysical identity” between party and candidate. We
simply make the common 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.

- 13 -
Letter Carriers, 413 U.S. 548, 565 (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. While corruption or the appearance thereof are constitutionally

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 marketplace, but its popularity in

the political marketplace.” See Massachusetts Citizens for Life, 479 U.S. at 259.

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 reasoning 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 Transformation of Political Parties

in America 18 (1995). From the birth of this republic into the 21st century,

- 14 -
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 without politics, and no politics without parties. . . .”).

Political speech and association, unfettered by unnecessary 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 recognized the importance of

parties. See H.R. Conf. Rep. No. 94-1057, at 58 (1976) (acknowledging that

political parties fulfill a “unique role in the political process”), S Rep. No. 93-

689, at 3,7 (1974) (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

(1989), Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-15 (1986); see

also Davis v. Bandemer, 478 U.S. 109, 144-45 (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,

- 15 -
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 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. 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 coordinated expenditures by political parties, let alone

removes them from the Act’s more restrictive limits. At a minimum, Congress

- 16 -
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 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 Committee. 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

- 17 -
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

demonstrate that parties undermine the integrity of the electoral 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 (1982) (“[FECA] reflects 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 organized by such corporations are subject to strict dollar

limits, id. § 441a(a)(2).

The FEC may find these limits inadequate to eliminate 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

(“Where at all possible, government must curtail speech only to the degree

- 18 -
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 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 individuals and PACs in

conformity with the FECA limits outlined in the opening section. Parties may use

- 19 -
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” contributions. 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 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 appearance of soft money excess to justify a limit on hard money

- 20 -
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 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

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 admissibility 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 inadmissible evidence in the record . . . .”). It appears to us
that the district court considered all the submitted evidence, while acknowledging
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
generic public dissatisfaction to support the restriction of political speech. See
NCPAC, 470 U.S. at 499-500 (concluding 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).

- 21 -
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’ positions, gravely

misunderstands the role of political parties in our democracy. 7

To state the matter with utmost simplicity: political parties, with all their
well-known human and structural shortcomings, are the only devices thus

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 important and legitimate role for political parties in
American elections.” 518 U.S. at 618.
The object of our criticism is the FEC. Defying this clear congressional
intent, the FEC argued before this court that Congress limited a party’s
coordinated expenditures out of a fear of corruption. 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. 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 reminders on this count.
However, such deference must ultimately give way to our constitutional
obligation.

- 22 -
 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

recognized 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 (1996) (No. 95-489).

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.

C.

- 23 -
 Finally, the FEC contends that the Party Expenditure 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; Buckley, 424 U.S. at

38. We agree with the FEC that if an individual used the party as a conduit to

channel money to specified candidates, this would certainly threaten the integrity

of the individual contribution limit. However, Congress evidently foresaw 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 “designation, 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

- 24 -
 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

party as contributions. However, in this case, a simple cubbyholing of

constitutional values under the labels “contribution” and “expenditure” cheapens the

currency. See, e.g., National Ass’n for the Advancement of Colored People v.

Button, 371 U.S. 415, 429 (1963) (stating that the government “cannot foreclose the

existence of constitutional rights by mere labels”). We also recognize that the

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.

- 25 -
Buckley court was concerned about the “real or imagined coercive influence of large

financial contributions on candidates’ positions.” Id. at 25. But the Buckley court

so defined corruption for the purpose of reviewing limits upon giving and spending

by individuals, 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. 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 (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 (internal quotation marks and citation omitted). This

interference effects more than a “marginal restriction upon the [parties’] ability to

engage in free communication.” Id. at 20. The FEC has not demonstrated on

remand that coordinated spending by political parties corrupts, or creates the

- 26 -
appearance of corrupting, the electoral process. 9 Therefore, § 441a(d)(3)’s limit on

party spending is not “closely drawn” to the recognized governmental interest but

instead constitutes an “unnecessary abridgment” of First Amendment freedoms. 10

9
The dissent contends that we betray the evidentiary threshold applied in
Shrink Missouri. As the dissent accurately recounts, the Shrink Missouri court
did caution against too rigorous an evidentiary standard in the context of
campaign finance. However, 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
ultimately 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 obligation. Id. at 907.
However, the Court did indicate that there might be “need for a more extensive
evidentiary documentation if petitioners 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 reference 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 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 restrictive 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. 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

- 27 -
Id. at 25.

AFFIRMED.

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 (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 challenged provision).

- 28 -
No. 99-1211, Federal Election Commission v. Colorado Republican Federal
Campaign Committee

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

determination 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 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 substantiate

congressional concerns, and by relying instead on evidence the Court has expressly

discounted. Accordingly, I respectfully dissent.

I

As originally enacted, the Federal Election Campaign Act (FECA or the Act),

2 U.S.C. §§ 431-455, placed limits on both political contributions and expenditures.

The primary interest to be served by these limitations was “the prevention of

corruption and the appearance of corruption spawned by the real or imagined
coercive influence of large financial contributions on candidates’ positions and on

their actions if elected to office.” Buckley v. Valeo, 424 U.S. 1, 25 (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 expenditures 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 committee for any single election, id. at 23-35, the $5000 limit on

contributions by a political committee to a single candidate, id. at 35-36, and the

$25,000 limit on total annual contributions by an individual, id. at 38.

The Court reached a different result with respect to limits on expenditures and

held unconstitutional the $1000 limit on independent expenditures for

communications advocating the election or defeat of an identified candidate. Id. at

39-51. The Court also struck down the ceiling on a candidate’s personal

expenditures as unsupported by the governmental interest in preventing actual and

apparent corruption, id. at 51-54, and invalidated that section of the Act limiting

overall campaign expenditures by candidates for federal office, id. at 54-58.

As indicated by Buckley, FECA regulates two types of expenditures: those

that are coordinated with a candidate and those that are made independently.

-2-
Coordinated expenditures are considered contributions under section

441a(a)(7)(B)(i) and therefore may be subject to limits not permissible with respect

to independent expenditures. Prior to the Supreme Court ruling in this case, see

Colorado Republican Fed. Campaign Comm. v. Federal Election Comm’n, 518 U.S.

604 (1996), the FEC had construed FECA as requiring that all party expenditures be

deemed coordinated.

The instant appeal concerns section 441a(d)(3), 1 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

1
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).

-3-
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 Republican candidate had been

nominated at the time. Nonetheless the court ruled that the expenditure did not

violate the Act, holding that because it did not constitute express advocacy, it was

not made “in connection 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 involved a clearly identified candidate and an

electioneering 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. Campaign Comm., 518 U.S. 604. 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.

-4-
In so doing, the plurality emphasized “the fundamental constitutional difference”

between independent expenditures and contributions to a candidate to be spent on

his campaign. Id. at 614-15. 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, observing 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 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 abandonment 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 evidence 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

-5-
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] 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 constitute 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 suspicions of influence peddling

tending to undermine citizens’ confidence ‘in the integrity of . . . government.’”

-6-
Nixon v. Shrink Missouri Gov’t PAC, 120 S. Ct. 897, 902 (2000) (quoting 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

relevant 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 standard 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. Significantly, as the

majority grudgingly acknowledges, the Court reaffirmed and expanded on Buckley’s

distinction

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 contribution limit involving ‘significant

interference’ with associational rights could survive if the Government

-7-
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 abridgement of the associational right, pointing out that

“[c]orruption 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.” Shrink Missouri,

120 S. Ct. at 905 (quoting Federal Election Comm’n v. National Right to Work

Comm., 459 U.S. 197, 208 (1982)) (emphasis added).

In speaking of “improper influence” and “opportunities for
abuse” in addition to “quid pro quo arrangements,” we recognized a
concern not confined to bribery of public officials, but extending to the
broader threat from politicians too compliant with the wishes of large
contributors. These were the obvious points behind 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). 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

-8-
evidence of actually corrupt practices or of a perception among Missouri voters that

unrestricted contributions must have been exerting a covertly corrosive influence.”

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 contribution 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 plausibility of the justification raised. Buckley
demonstrates 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
surfacing 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). 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

-9-
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 acknowledged 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
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

assessments 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

- 10 -
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 Amendment challenge and imposing its own political judgments. A

court owes “deference to a congressional determination of the need for a

prophylactic rule where the evil of potential corruption had long been recognized.”

Shrink Missouri, 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). “[T]he legislature understands the problem–the threat to electoral

integrity, the need for democratization–better than do we. We should defer to its

political 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 evidentiary support for the limit, that in

imposing the limit Congress “gravely misunderst[ood] the role of political parties in

our democracy,” maj. op. at 22, that the provision cannot be supported as a

necessary component in the overall regulatory scheme, and that the same result can

- 11 -
be obtained by the less intrusive reporting 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 immunizing political parties from contribution limits

designed to prevent corruption, the majority ignores the Court’s 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 14.

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. 2

2
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.

- 12 -
 In formulating contribution limits, Congress did in fact recognize the role

political parties play in American politics and accorded them special treatment by

permitting them to make coordinated expenditures on behalf of their federal

candidates far in excess of the limits imposed on others, 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

Congressional recognition that parties play a unique role in the political process.

See H.R. C ONF . R EP . N O . 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.R EP . N O . 93-689 (1974),

reprinted in 1974 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 electorate, and increasing party resources for important

- 13 -
party operations between elections. See id. at 5593-94. Indeed, Amici Democratic

Senatorial Campaign Committee and Democratic Congressional Campaign

Committee 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 expenditures, which in turn

encourage parties to deploy their resources in other party-building functions that

ultimately 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. 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

- 14 -
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 large part

through its identified candidates.” 3 Maj. op. at 12. 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

In focusing on the speech a party can allegedly only make through its
3

candidate, the majority blurs the very line it wishes to draw between limits on
speech and limits on associational rights.

- 15 -
under the Act, for example, by regulating contributions from one to the other.”

Colorado Republican Comm., 518 U.S. at 623-24 (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 unconstitutional, 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. 4 The Supreme Court addressed the quantum of evidence required to

support this interest in Shrink Missouri, 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 implausible.” 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

In addition, the majority requires that Congress’ determination be
4

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 enacted measures aimed at promoting that role as well as
strengthening parties in general. The majority thus “double counts” the
importance of protecting political parties and improperly substitutes its balancing
of the competing values at issue here for that of Congress.

- 16 -
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

corrupt practices or the public perception of a corrupting influence. The Supreme

Court disagreed and expanded on the dangers flowing from large contributions

generally.

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

Shrink Missouri, 120 S. Ct. at 905 (quoting Buckley, 424 U.S. at 28). 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 candidates 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

- 17 -
 appointees engage in activities which arouse suspicions of malfeasance
and corruption.”

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 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 election financing, many of which were addressed to the

evils arising from large contributions to political parties that put the parties in

political debt to the donors, debts which were often paid by the parties’ candidates.

In United States v. International Union UAW-CIO, 352 U.S. 567 (1957), for

example, 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 connection 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:

- 18 -
 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 interest. It is unquestionably an evil
which ought to be dealt with, and dealt with intelligently and
effectively.

Id. at 576-77 (quoting remarks by “Senator Robinson, one of the leaders of the

Senate”). “We all know that money is the chief source of corruption. 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 (quoting Senator Bankhead offering 1940 amendments to the Hatch

Act restricting contributions to federal elections).

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 (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.

- 19 -
 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 challenged 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 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 candidate is

illegal, this prohibition is circumvented through “understandings” regarding what

donors give what amounts to the party, which candidates are to receive what funds

from the party, and what interests particular donors are seeking to promote. See,

- 20 -
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. 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 colleague 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

- 21 -
furthered the donor’s business interests. 5 See generally id. at 250-89. Given the

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

5
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
21 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).
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.

[T]he constitutionally significant fact . . . is the lack of
coordination 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 Capaign Comm., 518 U.S. at 617-18 (citing Buckley, 424
U.S. at 45-46; Federal election Comm’n v. National Conservative Political Action
Comm., 470 U.S. 480, 498 (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.

- 22 -
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 15 (quoting Colorado Republican

Fed. Campaign Comm., 518 U.S. at 616). This remark was not directed to

contribution limits on party donations. Rather, it referred to limits on a party’s

independent expenditures which, unlike contributions, are not deemed to be

coordinated and therefore pass constitutional muster due to the absence of

prearrangement 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 Republicans Fed. Campaign Comm. with respect to

government’s evidentiary burden).

Next the majority takes issue with Congress’ decision 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

- 23 -
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 (court “has no scalpel” to probe Congressional 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 the legislative process.

The majority posits that in adopting this theory, Congress “gravely misunderstands

the role of political parties in our democracy.” Maj. op. at 22. 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

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 22 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.

- 24 -
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

believes that enforcement of the disclosure requirements 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 invalidating 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

See 518 U.S. at 616-18. As I have previously pointed out, see supra at 22-23 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. 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.

- 25 -
 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 (citations omitted).

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 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 supported

its argument that limits on coordinated expenditures by political parties serve the

public interest in preventing both corruption and the appearance 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

- 26 -
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 conclusion 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 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.

- 27 -