The Court's June 26, 1996, ruling that spending limits can't be placed on political parties making "independent" expenditures on behalf of their candidates. 1996
SUPREME COURT OF THE UNITED STATES
Syllabus
COLORADO REPUBLICAN FEDERAL CAMPAIGN
COMMITTEE ET AL.
v.
FEDERAL ELECTION COMMISSION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 95-489. Argued April 15, 1996-Decided June 26, 1996
Before the Colorado Republican Party selected its 1986 senatorial
candidate, its Federal Campaign Committee (Colorado Party), the
petitioner here, bought radio advertisements attacking the Democratic
Party's likely candidate. The Federal Election Commission (FEC)
brought suit charging that the Colorado Party had violated the "Party
Expenditure Provision" of the Federal Election Campaign Act of
1971 (FECA), 2 U. S. C. Section 441a(d)(3), which imposes dollar
limits upon political party "expenditure[s] in connection with the
general election campaign of a [congressional] candidate." The
Colorado Party defended in part by claiming that the expenditure
limitations violated the First Amendment as applied to its
advertisements, and filed a counterclaim seeking to raise a facial
challenge to the Provision as a whole. The District Court interpreted
the ``in connection with'' language narrowly and held that the
Provision did not cover the expenditure at issue. It therefore entered
summary judgment for the Colorado Party, dismissing the
counterclaim as moot. In ordering judgment for the FEC, the Court
of Appeals adopted a somewhat broader interpretation of the
Provision, which, it said, both covered this expenditure and satisfied
the Constitution.
Held: The judgment is vacated, and the case is remanded. 59 F. 3d
1015, vacated and remanded.
JUSTICE BREYER, joined by JUSTICE O'CONNOR and
JUSTICE SOUTER, concluded that the First Amendment prohibits
application of the Party Expenditure Provision to the kind of
expenditure at issue here--an expenditure that the political party has
made independently, without coordination with any candidate. Pp.
6-17.
(a) The outcome is controlled by this Court's FECA case law. After
weighing the First Amendment interest in permitting candidates (and
their supporters) to spend money to advance their political views,
against a "compelling" governmental interest in protecting the
electoral system from the appearance and reality of corruption, see,
e.g., Buckley v. Valeo, 424 U. S. 1, 14-23 (per curiam), the Court
has ruled unconstitutional FECA provisions that, inter alia, limited
the right of individuals, id., at 39-51, and political committees,
Federal Election Comm'n v. National Conservative Political Action
Comm., 470 U. S. 480, 497, to make "independent" expenditures
not coordinated with a candidate or a candidate's campaign, but has
permitted other FECA provisions that imposed contribution limits
both when an individual or political committee contributed money
directly to a candidate, and when they contributed indirectly by
making expenditures that they coordinated with the candidate, see
Buckley, supra, at 23-36, 46-48. The summary judgment record
indicates that the expenditure here at issue must be treated, for
constitutional purposes, as an "independent" expenditure entitled to
First Amendment protection, not as an indirect campaign contribution
subject to regulation. There is uncontroverted direct evidence that the
Colorado Party developed its advertising campaign independently
and not pursuant to any understanding with a candidate. Since the
Government does not point to evidence or legislative findings
suggesting any special corruption problem in respect to political
parties' independent expenditures, the Court's prior cases forbid
regulation of such expenditures.
Pp. 6-12.
(b) The Government's argument that this expenditure is not
"independent," but is rather a "coordinated expenditure" which this
Court has treated as a "contribution" that Congress may
constitutionally regulate, is rejected. The summary judgment record
shows no actual coordination with candidates as a matter of fact. The
Government's claim for deference to FEC interpretations rendering
all party expenditures "coordinated" is unpersuasive. Federal
Election Comm'n v. Democratic Senatorial Campaign Comm., 454
U. S. 27, 28-29, n. 1, distinguished. These regulations and
advisory opinions do not represent an empirical judgment by the FEC
that all party expenditures are coordinated with candidates or that
party independent and coordinated expenditures cannot be
distinguished in practice. Also unconvincing are the Government's
contentions that the Colorado Party has conceded that the expenditure
here is "coordinated," and that such coordination exists because a
party and its candidate are, in some sense, identical. Pp. 12-17.
(c) Because this expenditure is "independent," the Court need not
reach the broader question argued by the Colorado Party: whether, in
the special case of political parties, the First Amendment also forbids
congressional efforts to limit coordinated expenditures. While the
Court is not deprived of jurisdiction to consider this facial challenge
by the failure of the parties and the lower courts to focus specifically
on the complex issues involved in determining the constitutionality of
political parties' coordinated expenditures, that lack of focus provides
a prudential reason for the Court not to decide the broader question.
This is the first case to raise the question, and the Court should defer
action until the lower courts have considered it in light of this
decision. Pp. 17-20.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and
JUSTICE SCALIA, concluded that, on its face, FECA violates the
First Amendment when it restricts as a "contribution" a political
party's spending "in cooperation, consultation, or concert, with . . .
a candidate." 2 U. S. C. Section 441a(a)(7)(B)(i). The Court in
Buckley v. Valeo, 424 U. S. 1 (per curiam), had no occasion to
consider limitations on political parties' expenditures, id., at 58, n.
66, and its reasoning upholding ordinary contribution limitations
should not be extended to a case that does. Buckley's central holding
is that spending money on one's own speech must be permitted, id.,
at 44-58, and that is what political parties do when they make the
expenditures that Section 441a(a)(7)(B)(i) restricts as
"contribution[s]." Party spending "in cooperation, consultation, or
concert with" a candidate is indistinguishable in substance from
expenditures by the candidate or his campaign committee. The First
Amendment does not permit regulation of the latter, see id., at 54-59,
and it should not permit this regulation of the former. Pp. 1-5.
JUSTICE THOMAS, joined by THE CHIEF JUSTICE and
JUSTICE SCALIA, concluded in Parts I and III that 2 U. S. C.
Section 441a(d)(3) is unconstitutional not only as applied to
petitioners, but also on its face. Pp. 1-5, 16-19.
(a) The Court should decide the Party's facial challenge to Section
441a(d)(3), addressing the constitutionality of limits on coordinated
expenditures by political parties. That question is squarely before the
Court, and the principal opinion's reasons for not reaching it are
unpersuasive. In addition, concerns for the chilling of First
Amendment expression counsel in favor of resolving the question.
Reaching the facial challenge will make clear the circumstances under
which political parties may engage in political speech without running
afoul of Section 441a(d)(3). Pp. 1-5.
(b) Section 441a(d)(3) cannot withstand a facial challenge under the
framework established by Buckley v. Valeo, 424 U. S. 1 (per
curiam). The anticorruption rationale that the Court has relied on is
inapplicable in the specific context of campaign funding by political
parties, since there is only a minimal threat of corruption when a
party spends to support its candidate or to oppose his competitor,
whether or not that expenditure is made in concert with the candidate.
Parties and candidates have traditionally worked together to achieve
their common goals, and when they engage in that work, there is no
risk to the Republic. To the contrary, the danger to lies in
Government suppression of such activity. Pp. 16-19.
JUSTICE THOMAS also concluded in Part II that, in resolving the
facial challenge, the Buckley framework should be rejected because
there is no constitutionally significant difference between campaign
contributions and expenditures: both involve core expression and
basic associational rights that are central to the First Amendment.
Curbs on such speech must be strictly scrutinized. See, e.g., Federal
Election Comm'n v. National Conservative Political Action Comm.,
470 U. S. 480, 501. Section 441a(d)(3)'s limits on independent and
coordinated expenditures fail strict scrutiny because the statute is not
narrowly tailored to serve the compelling governmental interest in
preventing the fact or appearance of ``corruption,'' which this Court
has narrowly defined as a ``financial quid pro quo: dollars for
political favors,'' id., at 497. Contrary to the Court's ruling in
Buckley, supra, at 28, bribery laws and disclosure requirements
present less restrictive means of preventing corruption than does
Section 441a(d)(3), which indiscriminately covers many conceivable
instances in which a party committee could exceed spending limits
without any intent to extract an unlawful commitment from a
candidate. Pp. 11-15.
BREYER, J., announced the judgment of the Court and delivered an
opinion, in which O'CONNOR and SOUTER, JJ., joined.
KENNEDY, J., filed an opinion concurring in the judgment and
dissenting in part, in which REHNQUIST, C. J., and SCALIA, J.,
joined. THOMAS, J., filed an opinion concurring in the judgment
and dissenting in part, in which REHNQUIST, C. J., and SCALIA,
J., joined as to Parts I and III. STEVENS, J., filed a dissenting
opinion, in which GINSBURG, J., joined.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may be
made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 95-489
COLORADO REPUBLICAN FEDERAL CAMPAIGN
COMMITTEE AND DOUGLAS JONES, TREASURER,
PETITIONERS
v.
FEDERAL ELECTION COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
[June 26, 1996]
JUSTICE BREYER announced the judgment of the Court and
delivered an opinion, in which JUSTICE O'CONNOR and
JUSTICE SOUTER join.
In April 1986, before the Colorado Republican Party had selected its
senatorial candidate for the fall's election, that Party's Federal
Campaign Committee bought radio advertisements attacking Timothy
Wirth, the Democratic Party's likely candidate. The Federal Election
Commission (FEC) charged that this "expenditure" exceeded the
dollar limits that a provision of the Federal Election Campaign Act of
1971 (FECA) imposes upon political party "expenditure[s] in
connection with" a "general election campaign" for congressional
office. 90 Stat. 486, as amended, 2 U. S. C. Section 441a(d)(3).
This case focuses upon the constitutionality of those limits as applied
to this case. We conclude that the First Amendment prohibits the
application of this provision to the kind of expenditure at issue here--
an expenditure that the political party has made independently,
without coordination with any candidate.
To understand the issues and our holding, one must begin with
FECA as it emerged from Congress in 1974. That Act sought both
to remedy the appearance of a "corrupt" political process (one in
which large contributions seem to buy legislative votes) and to level
the electoral playing field by reducing campaign costs. See Buckley
v. Valeo, 424 U. S. 1, 25-27 (1976) (per curiam). It consequently
imposed limits upon the amounts that individuals, corporations,
"political committees" (such as political action committees, or
PAC's), and political parties could contribute to candidates for
federal office, and it also imposed limits upon the amounts that
candidates, corporations, labor unions, political committees, and
political parties could spend, even on their own, to help a candidate
win election. See 18 U. S. C. Sections 608, 610 (1970 ed., Supp.
IV).
This Court subsequently examined several of the Act's provisions in
light of the First Amendment's free speech and association
protections. See Federal Election Comm'n v. Massachusetts Citizens
for Life, Inc., 479 U. S. 238 (1986); Federal Election Comm'n v.
National Conservative Political Action Comm., 470 U. S. 480
(1985) (NCPAC); California Medical Assn. v. Federal Election
Comm'n, 453 U. S. 182 (1981); Buckley, supra. In these cases, the
Court essentially weighed the First Amendment interest in permitting
candidates (and their supporters) to spend money to advance their
political views, against a "compelling" governmental interest in
assuring the electoral system's legitimacy, protecting it from the
appearance and reality of corruption. See Massachusetts Citizens for
Life, supra, at 256-263; NCPAC, supra, at 493-501; California
Medical Assn., supra, at 193-199; Buckley, supra, at 14-23. After
doing so, the Court found that the First Amendment prohibited some
of FECA's provisions, but permitted others.
Most of the provisions this Court found unconstitutional imposed
expenditure limits. Those provisions limited candidates' rights to
spend their own money, Buckley, supra, at 51-54, limited a
candidate's campaign expenditures, 424 U. S., at 54-58, limited the
right of individuals to make "independent" expenditures (not
coordinated with the candidate or candidate's campaign), id., at 39-
51, and similarly limited the right of political committees to make
"independent" expenditures, NCPAC, supra, at 497. The provisions
that the Court found constitutional mostly imposed contribution
limits--limits that apply both when an individual or political
committee contributes money directly to a candidate and also when
they indirectly contribute by making expenditures that they coordinate
with the candidate, Section 441a(a)(7)(B)(i). See Buckley, supra, at
23-36. See also 424 U. S., at 46-48; California Medical Assn.,
supra, at 193-199 (limits on contributions to political committees).
Consequently, for present purposes, the Act now prohibits
individuals and political committees from making direct, or indirect,
contributions that exceed the following limits:
(a) For any "person": $1,000 to a candidate "with respect to any
election"; $5,000 to any political committee in any year; $20,000 to
the national committees of a political party in any year; but all within
an overall limit (for any individual in any year) of $25,000. 2 U. S.
C. Sections 441a(a)(1), (3).
(b) For any "multicandidate political committee": $5,000 to a
candidate "with respect to any election"; $5,000 to any political
committee in any year; and $15,000 to the national committees of a
political party in any year. Section 441a(a)(2).
FECA also has a special provision, directly at issue in this case, that
governs contributions and expenditures by political parties. Section
441a(d). This special provision creates, in part, an exception to the
above contribution limits. That is, without special treatment, political
parties ordinarily would be subject to the general limitation on
contributions by a "multicandidate political committee" just
described. See Section 441a(a)(4). That provision, as we said in (b)
above, limits annual contributions by a "multicandidate political
committee" to no more than $5,000 to any candidate. And as also
mentioned above, this contribution limit governs not only direct
contributions but also indirect contributions that take the form of
coordinated expenditures, defined as "expenditures made . . . in
cooperation, consultation, or concert, with, or at the request or
suggestion of, a candidate, his authorized political committees, or
their agents." Section 441a(a)(7)(B)(i). Thus, ordinarily, a party's
coordinated expenditures would be subject to the $5,000 limitation.
However, FECA's special provision, which we shall call the "Party
Expenditure Provision," creates a general exception from this
contribution limitation, and from any other limitation on
expenditures. It says:
"Notwithstanding any other provision of law with respect to
limitations on expenditures or limitations on contributions, . . .
political party [committees] . . . may make expenditures in
connection with the general election campaign of candidates for
Federal office . . . ." Section 441a(d)(1) (emphasis added).
After exempting political parties from the general contribution and
expenditure limitations of the statute, the Party Expenditure Provision
then imposes a substitute limitation upon party "expenditures" in a
senatorial campaign equal to the greater of $20,000 or "2 cents
multiplied by the voting age population of the State," Section
441a(d)(3)(A)(i), adjusted for inflation since 1974, Section 441a(c).
The Provision permitted a political party in Colorado in 1986 to
spend about $103,000 in connection with the general election
campaign of a candidate for the United States Senate. See FEC
Record, vol. 12, no. 4, p. 1 (Apr. 1986). (A different provision, not
at issue in this case, Section 441a(d)(2), limits party expenditures in
connection with presidential campaigns. Since this case involves only
the provision concerning congressional races, we do not address
issues that might grow out of the public funding of Presidential
campaigns).
In January 1986, Timothy Wirth, then a Democratic Congressman,
announced that he would run for an open Senate seat in November.
In April, before either the Democratic primary or the Republican
convention, the Colorado Republican Federal Campaign Committee
(Colorado Party), the petitioner here, bought radio advertisements
attacking Congressman Wirth. The State Democratic Party
complained to the Federal Election Commission. It pointed out that
the Colorado Party had previously assigned its $103,000 general
election allotment to the National Republican Senatorial Committee,
leaving it without any permissible spending balance. See Federal
Election Comm'n v. Democratic Senatorial Campaign Comm., 454
U. S. 27 (1981) (state party may appoint national senatorial
campaign committee as agent to spend its Party Expenditure
Provision allotment). It argued that the purchase of radio time was
an "expenditure in connection with the general election campaign of a
candidate for Federal office," Section 441a(d)(3), which,
consequently, exceeded the Party Expenditure Provision limits.
The FEC agreed with the Democratic Party. It brought a complaint
against the Colorado Republican Party, charging a violation. The
Colorado Party defended in part by claiming that the Party
Expenditure Provision's expenditure limitations violated the First
Amendment--a charge that it repeated in a counterclaim that said the
Colorado Party intended to make other "expenditures directly in
connection with" senatorial elections, App. 68, Paragraph 48, and
attacked the constitutionality of the entire Party Expenditure
Provision. The Federal District Court interpreted the Provision's
words " `in connection with' the general election campaign of a
candidate" narrowly, as meaning only expenditures for advertising
using " `express words of advocacy of election or defeat.' " 839 F.
Supp. 1448, 1455 (Colo. 1993) (quoting Buckley, 424 U. S., at 46,
n. 52). See also Massachusetts Citizens for Life, 479 U. S., at 249.
As so interpreted, the court held, the provision did not cover the
expenditures here. The court entered summary judgment for the
Colorado Party and dismissed its counterclaim as moot.
Both sides appealed. The Government, for the FEC, argued for a
somewhat broader interpretation of the statute--applying the limits to
advertisements containing an "electioneering message" about a
"clearly identified candidate," FEC Advisory Op. 1985-14, 2 CCH
Fed. Election Camp. Fin. Guide Paragraph 5819, p. 11,185 (May
30, 1985) (AO 1985-14)--which, it said, both covered the
expenditure and satisfied the Constitution. The Court of Appeals
agreed. It found the Party Expenditure Provision applicable, held it
constitutional, and ordered judgment in the FEC's favor. 59 F. 3d
1015, 1023-1024 (CA10 1995).
We granted certiorari primarily to consider the Colorado Party's
argument that the Party Expenditure Provision violates the First
Amendment "either facially or as applied." Pet. for Cert. i. For
reasons we shall discuss in Part IV below, we consider only the latter
question--whether the Party Expenditure Provision as applied here
violates the First Amendment. We conclude that it does.
The summary judgment record indicates that the expenditure in
question is what this Court in Buckley called an "independent"
expenditure, not a "coordinated" expenditure that other provisions of
FECA treat as a kind of campaign "contribution." See Buckley,
supra, at 36-37, 46-47, 78; NCPAC, 470 U. S., at 498. The record
describes how the expenditure was made. In a deposition, the
Colorado Party's Chairman, Howard Callaway, pointed out that, at
the time of the expenditure, the Party had not yet selected a senatorial
nominee from among the three individuals vying for the nomination.
App. 195-196. He added that he arranged for the development of the
script at his own initiative, id., at 200, that he, and no one else,
approved it, id., at 199, that the only other politically relevant
individuals who might have read it were the party's executive director
and political director, ibid., and that all relevant discussions took
place at meetings attended only by party staff, id., at 204.
Notwithstanding the above testimony, the Government argued in
District Court--and reiterates in passing in its brief to this Court,
Brief for Respondent 27, n. 20--that the deposition showed that the
Party had coordinated the advertisement with its candidates. It
pointed to Callaway's statement that it was the practice of the party to
"coordinat[e] with the candidate" "campaign strategy," App. 195,
and for Callaway to be "as involved as [he] could be" with the
individuals seeking the Republican nomination, ibid., by making
available to them "all of the assets of the party," id., at 195-196.
These latter statements, however, are general descriptions of party
practice. They do not refer to the advertising campaign at issue here
or to its preparation. Nor do they conflict with, or cast significant
doubt upon, the uncontroverted direct evidence that this advertising
campaign was developed by the Colorado Party independently and
not pursuant to any general or particular understanding with a
candidate. We can find no "genuine" issue of fact in this respect.
Fed. Rule Civ. Proc. 56(e); Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U. S. 574, 586-587 (1986). And we therefore
treat the expenditure, for constitutional purposes, as an
"independent" expenditure, not an indirect campaign contribution.
So treated, the expenditure falls within the scope of the Court's
precedents that extend First Amendment protection to independent
expenditures. Beginning with Buckley, the Court's cases have
found a "fundamental constitutional difference between money spent
to advertise one's views independently of the candidate's campaign
and money contributed to the candidate to be spent on his campaign."
NCPAC, supra, at 497. This difference has been grounded in the
observation that restrictions on contributions impose "only a marginal
restriction upon the contributor's ability to engage in free
communication," Buckley, supra, at 20-21, because the symbolic
communicative value of a contribution bears little relation to its size,
424 U. S., at 21, and because such limits leave "persons free to
engage in independent political expression, to associate actively
through volunteering their services, and to assist to a limited but
nonetheless substantial extent in supporting candidates and
committees with financial resources." Id., at 28. At the same time,
reasonable contribution limits directly and materially advance the
Government's interest in preventing exchanges of large financial
contributions for political favors. Id., at 26-27.
In contrast, the Court has said that restrictions on independent
expenditures significantly impair the ability of individuals and groups
to engage in direct political advocacy and "represent substantial . . .
restraints on the quantity and diversity of political speech." Id., at
19. And at the same time, the Court has concluded that limitations on
independent expenditures are less directly related to preventing
corruption, since "[t]he absence of prearrangement and coordination
of an expenditure with the candidate . . . not only undermines the
value of the expenditure to the candidate, but also alleviates the
danger that expenditures will be given as a quid pro quo for improper
commitments from the candidate." Id., at 47.
Given these established principles, we do not see how a provision
that limits a political party's independent expenditures can escape
their controlling effect. A political party's independent expression
not only reflects its members' views about the philosophical and
governmental matters that bind them together, it also seeks to
convince others to join those members in a practical democratic task,
the task of creating a government that voters can instruct and hold
responsible for subsequent success or failure. The independent
expression of a political party's views is "core" First Amendment
activity no less than is the independent expression of individuals,
candidates, or other political committees. See, e.g., Eu v. San
Francisco County Democratic Central Comm., 489 U. S. 214
(1989).
We are not aware of any special dangers of corruption associated
with political parties that tip the constitutional balance in a different
direction. When this Court considered, and held unconstitutional,
limits that FECA had set on certain independent expenditures by
political action committees, it reiterated Buckley's observation that
"the absence of prearrangement and coordination" does not eliminate,
but it does help to "alleviate," any "danger" that a candidate will
understand the expenditure as an effort to obtain a "quid pro quo."
See NCPAC, 470 U. S., at 498. The same is true of independent
party expenditures.
We recognize that FECA permits individuals to contribute more
money ($20,000) to a party than to a candidate ($1,000) or to other
political committees ($5,000). 2 U. S. C. Section 441a(a). We also
recognize that FECA permits unregulated "soft money" contributions
to a party for certain activities, such as electing candidates for state
office, see Section 431(8)(A)(i), or for voter registration and "get out
the vote" drives, see Section 431(8)(B)(xii). But the opportunity for
corruption posed by these greater opportunities for contributions is,
at best, attenuated. Unregulated "soft money" contributions may not
be used to influence a federal campaign, except when used in the
limited, party-building activities specifically designated in the statute.
See Section 431(8)(B). Any contribution to a party that is earmarked
for a particular campaign, is considered a contribution to the
candidate and is subject to the contribution limitations. Section
441a(a)(8). A party may not simply channel unlimited amounts of
even undesignated contributions to a candidate, since such direct
transfers are also considered contributions and are subject to the
contribution limits on a "multicandidate political committee." Section
441a(a)(2). The greatest danger of corruption, therefore, appears
to be from the ability of donors to give sums up to $20,000 to a party
which may be used for independent party expenditures for the benefit
of a particular candidate. We could understand how Congress, were
it to conclude that the potential for evasion of the individual
contribution limits was a serious matter, might decide to change the
statute's limitations on contributions to political parties. Cf.
California Medical Assn., 453 U. S., at 197-199 (plurality opinion)
(danger of evasion of limits on contribution to candidates justified
prophylactic limitation on contributions to PAC's). But we do not
believe that the risk of corruption present here could justify the
"markedly greater burden on basic freedoms caused by" the statute's
limitations on expenditures. Buckley, supra, at 44. See also 424 U.
S., at 46-47, 51; NCPAC, supra, at 498. Contributors seeking to
avoid the effect of the $1,000 contribution limit indirectly by
donations to the national party could spend that same amount of
money (or more) themselves more directly by making their own
independent expenditures promoting the candidate. See Buckley,
supra, at 44-48 (risk of corruption by individuals' independent
expenditures is insufficient to justify limits on such spending). If
anything, an independent expenditure made possible by a $20,000
donation, but controlled and directed by a party rather than the donor,
would seem less likely to corrupt than the same (or a much larger)
independent expenditure made directly by that donor. In any case,
the constitutionally significant fact, present equally in both instances,
is the lack of coordination between the candidate and the source of
the expenditure. See Buckley, supra, at 45-46; NCPAC, supra, at
498. This fact prevents us from assuming, absent convincing
evidence to the contrary, that a limitation on political parties'
independent expenditures is necessary to combat a substantial danger
of corruption of the electoral system.
The Government does not point to record evidence or legislative
findings suggesting any special corruption problem in respect to
independent party expenditures. See Turner Broadcasting System,
Inc. v. FCC, 512 U. S. __, __ (1994) (slip. op., at 40-41) ("When
the Government defends a regulation on speech as a means to . . .
prevent anticipated harms, it must do more than simply posit the
existence of the disease sought to be cured") (citation and internal
quotation marks omitted); NCPAC, supra, at 498. To the contrary,
this Court's opinions suggest that Congress wrote the Party
Expenditure Provision not so much because of a special concern
about the potentially "corrupting" effect of party expenditures, but
rather for the constitutionally insufficient purpose of reducing what it
saw as wasteful and excessive campaign spending. See Buckley,
supra, at 57. In fact, rather than indicating a special fear of the
corruptive influence of political parties, the legislative history
demonstrates Congress' general desire to enhance what was seen as
an important and legitimate role for political parties in American
elections. See Federal Election Comm'n v. Democratic Senatorial
Campaign Comm., 454 U. S., at 41 (Party Expenditure Provision
was intended to "assure that political parties will continue to have an
important role in federal elections"); S. Rep. No. 93-689, p. 7
(1974) ("[A] vigorous party system is vital to American politics....
[P]ooling resources from many small contributors is a legitimate
function and an integral part of party politics"); id., at 7-8, 15.
We therefore believe that this Court's prior case law controls the
outcome here. We do not see how a Constitution that grants to
individuals, candidates, and ordinary political committees the right to
make unlimited independent expenditures could deny the same right
to political parties. Having concluded this, we need not consider the
Party's further claim that the statute's "in connection with" language,
and the FEC's interpretation of that language, are unconstitutionally
vague. Cf. Buckley, supra, at 40-44.
The Government does not deny the force of the precedent we have
discussed. Rather, it argued below, and the lower courts accepted,
that the expenditure in this case should be treated under those
precedents, not as an "independent expenditure," but rather as a
"coordinated expenditure," which those cases have treated as
"contributions," and which those cases have held Congress may
constitutionally regulate. See, e.g., Buckley, supra, at 23-38.
While the District Court found that the expenditure in this case was
"coordinated," 839 F. Supp., at 1453, it did not do so based on any
factual finding that the Party had consulted with any candidate in the
making or planing of the advertising campaign in question. Instead,
the District Court accepted the Government's argument that all party
expenditures should be treated as if they had been coordinated as a
matter of law, "[b]ased on Supreme Court precedent and the
Commission's interpretation of the statute," ibid. The Court of
Appeals agreed with this legal conclusion. 59 F. 3d, at 1024. Thus,
the lower courts' "finding" of coordination does not conflict with our
conclusion, infra, at 6-8, that the summary judgment record shows
no actual coordination as a matter of fact. The question, instead, is
whether the Court of Appeals erred as a legal matter in accepting the
Government's conclusive presumption that all party expenditures are
"coordinated." We believe it did.
In support of its argument, the Government points to a set of legal
materials, based on FEC interpretations, that seem to say or imply
that all party expenditures are "coordinated." These include: (1) an
FEC regulation that forbids political parties to make any "independent
expenditures . . . in connection with" a "general election campaign,"
11 CFR Section 110.7(b)(4) (1995); (2) Commission Advisory
Opinions that use the word "coordinated" to describe the Party
Expenditure Provisions' limitations, see, e.g., FEC Advisory Op.
1984-15, 1 CCH Fed. Election Camp. Fin. Guide Paragraph 5766,
p. 11,069 (May 31, 1984) (AO 1984-15); FEC Advisory Op. 1988-
22, 2 CCH Fed. Election Camp. Fin. Guide Paragraph 5932, p.
11,471 n. 4 (July 5, 1988) (AO 1988-22); (3) one Commission
Advisory Opinion that says explicitly in a footnote that "coordination
with candidates is presumed and `independence' precluded," ibid.;
and (4) a statement by this Court that "[p]arty committees are
considered incapable of making `independent' expenditures," FEC v.
Democratic Senatorial Campaign Comm., supra, at 28-29, n. 1.
The Government argues, on the basis of these materials, that the FEC
has made an "empirical judgment that party officials will as a matter
of course consult with the party's candidates before funding
communications intended to influence the outcome of a federal
election." Brief for Respondent 27. The FEC materials, however, do
not make this empirical judgment. For the most part those materials
use the word "coordinated" as a description that does not necessarily
deny the possibility that a party could also make independent
expenditures. See, e.g., AO 1984-15 Paragraph 5766, p. 11,069.
We concede that one Advisory Opinion says, in a footnote, that
"coordination with candidates is presumed." AO 1988-22 Paragraph
5932, p. 11,471 n. 4. But this statement, like the others, appears
without any internal or external evidence that the FEC means it to
embody an empirical judgment (say, that parties, in fact, hardly ever
spend money independently) or to represent the outcome of an
empirical investigation. Indeed, the statute does not require any such
investigation, for it applies both to coordinated and to independent
expenditures alike. See Section 441a(d)(3) (a "political party . . .
may not make any expenditure" in excess of the limits) (emphasis
added). In any event, language in other FEC Advisory Opinions
suggests the opposite, namely that sometimes, in fact, parties do
make independent expenditures. See, e.g., AO 1984-15, Paragraph
5766, p. 11,069 ("Although consultation or coordination with the
candidate is permissible, it is not required"). In these circumstances,
we cannot take the cited materials as an empirical, or experience-
based, determination that, as an factual matter, all party expenditures
are coordinated with a candidate. That being so, we need not hold,
on the basis of these materials, that the expenditures here were
"coordinated." The Government does not advance any other legal
reason that would require us to accept the Commission's
characterization. The Commission has not claimed, for example,
that, administratively speaking, it is more difficult to separate a
political party's "independent," from its "coordinated," expenditures
than, say, those of a PAC. Cf. 11 CFR Section 109.1 (1995)
(distinguishing between independent and coordinated expenditures
by other political groups). Nor can the Commission draw significant
legal support from the footnote in Democratic Senatorial Campaign
Comm., 454 U. S., at 28-29, n. 1, given that this statement was
dicta that purported to describe the regulatory regime as the FEC had
described it in a brief.
Nor does the fact that the Party Expenditure Provision fails to
distinguish between coordinated and independent expenditures
indicate a congressional judgment that such a distinction is
impossible or untenable in the context of political party spending.
Instead, the use of the unmodified term "expenditure" is explained by
Congress' desire to limit all party expenditures when it passed the
1974 amendments, just as it had limited all expenditures by
individuals, corporations, and other political groups. See 18 U. S.
C. Sections 608(e), 610 (1970 ed., Supp. IV); Buckley, 424 U. S.,
at 39.
Finally, we recognize that the FEC may have characterized the
expenditures as "coordinated" in light of this Court's constitutional
decisions prohibiting regulation of most independent expenditures.
But, if so, the characterization cannot help the Government prove its
case. An agency's simply calling an independent expenditure a
"coordinated expenditure" cannot (for constitutional purposes) make
it one. See, e.g., NAACP v. Button, 371 U. S. 415, 429 (1963)
(the government "cannot foreclose the exercise of constitutional
rights by mere labels"); Edwards v. South Carolina, 372 U. S. 229,
235-238 (1963) (State may not avoid First Amendment's strictures
by applying the label "breach of the peace" to peaceful
demonstrations).
The Government also argues that the Colorado Party has conceded
that the expenditures are "coordinated." But there is no such
concession in respect to the underlying facts. To the contrary, the
Party's "Questions Presented" in its petition for certiorari describes
the expenditure as one "the party has not coordinated with its
candidate." See Pet. for Cert. i. In the lower courts the Party did
accept the FEC's terminology, but it did so in the context of legal
arguments that did not focus upon the constitutional distinction that
we now consider. See Reply Brief for Petitioners 9-10, n. 8
(denying that the FEC's labels can control constitutional analysis).
The Government has not referred us to any place where the Party
conceded away or abandoned its legal claim that Congress may not
limit the uncoordinated expenditure at issue here. And, in any event,
we are not bound to decide a matter of constitutional law based on a
concession by the particular party before the Court as to the proper
legal characterization of the facts. Cf. United States Nat. Bank of
Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439,
447 (1993); Massachusetts v. United States, 333 U. S. 611, 623-
628 (1948); Young v. United States, 315 U. S. 257, 259 (1942)
(recognizing that "our judgments are precedents" and that the proper
understanding of matters of law "cannot be left merely to the
stipulation of parties").
Finally, the Government and supporting amici argue that the
expenditure is "coordinated" because a party and its candidate are
identical, i.e., the party, in a sense, "is" its candidates. We cannot
assume, however, that this is so. See, e.g., W. Keefe, Parties,
Politics, and Public Policy in America 59-74 (5th ed. 1988)
(describing parties as "coalitions" of differing interests). Congress
chose to treat candidates and their parties quite differently under the
Act, for example, by regulating contributions from one to the other.
See Section 441a(a)(2)(B). See also 11 CFR Sections 110.2,
110.3(b) (1995). And we are not certain whether a metaphysical
identity would help the Government, for in that case one might argue
that the absolute identity of views and interests eliminates any
potential for corruption, as would seem to be the case in the
relationship between candidates and their campaign committees. Cf.
Buckley, 424 U. S., at 54-59 (Congress may not limit expenditures
by candidate/campaign committee); First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 790 (1978) (where there is no risk of
"corruption" of a candidate, the Government may not limit even
contributions).
The Colorado Party and supporting amici have argued a broader
question than we have decided, for they have claimed that, in the
special case of political parties, the First Amendment forbids
congressional efforts to limit coordinated expenditures as well as
independent expenditures. Because the expenditure before us is an
independent expenditure we have not reached this broader question in
deciding the Party's "as applied" challenge.
We recognize that the Party filed a counterclaim in which it sought to
raise a facial challenge to the Party Expenditure Provision as a whole.
But that counterclaim did not focus specifically upon coordinated
expenditures. See App. 68-69. Nor did its summary judgment
affidavits specifically allege that the Party intended to make
coordinated expenditures exceeding the statute's limits. See App.
159, Paragraph 4. While this lack of focus does not deprive this
Court of jurisdiction to consider a facial challenge to the Party
Expenditure Provision as overbroad or as unconstitutional in all
applications, it does provide a prudential reason for this Court not to
decide the broader question, especially since it may not be necessary
to resolve the entire current dispute. If, in fact, the Party wants to
make only independent expenditures like those before us, its
counterclaim is mooted by our resolution of its "as applied"
challenge. Cf. Renne v. Geary, 501 U. S. 312, 323-324 (1991)
(facial challenge should generally not be entertained when an "as-
applied" challenge could resolve the case); Brockett v. Spokane
Arcades, Inc., 472 U. S. 491, 503-504 (1985).
More importantly, the opinions of the lower courts, and the parties'
briefs in this case, did not squarely isolate, and address, party
expenditures that in fact are coordinated, nor did they examine, in
that context, relevant similarities or differences with similar
expenditures made by individuals or other political groups. Indeed,
to our knowledge, this is the first case in the 20-year history of the
Party Expenditure Provision to suggest that in-fact coordinated
expenditures by political parties are protected from congressional
regulation by the First Amendment, even though this Court's prior
cases have permitted regulation of similarly coordinated expenditures
by individuals and other political groups. See Buckley, supra, at 46-
47. This issue is complex. As JUSTICE KENNEDY points out,
post, at 4-5, party coordinated expenditures do share some of the
constitutionally relevant features of independent expenditures. But
many such expenditures are also virtually indistinguishable from
simple contributions (compare, for example, a donation of money
with direct payment of a candidate's media bills, see Buckley, supra,
at 46). Moreover, political parties also share relevant features with
many PAC's, both having an interest in, and devoting resources to,
the goal of electing candidates who will "work to further" a particular
"political agenda," which activity would benefit from coordination
with those candidates. Post, at 4. See, e.g., NCPAC, 470 U. S., at
490 (describing the purpose and activities of the National
Conservative PAC); id., at 492 (coordinated expenditures by PAC's
are subject to FECA contribution limitations). Thus, a holding on in-
fact coordinated party expenditures necessarily implicates a broader
range of issues than may first appear, including the constitutionality
of party contribution limits.
But the focus of this litigation, and the lower court opinions, has not
been on such issues, but rather on whether the Government may
conclusively deem independent party expenditures to be coordinated.
This lack of focus may reflect, in part, the litigation strategy of the
parties. The Government has denied that any distinction can be made
between a party's independent and its coordinated expenditures. The
Colorado Party, for its part, did not challenge a different provision of
the statute--a provision that imposes a $5,000 limit on any
contribution by a "multicandidate political committee" (including a
coordinated expenditure) and which would apply to party coordinated
expenditures if the entire Party Expenditure Provision were struck
from the statute as unconstitutional. See Sections 441a(a)(2), (4),
(7)(B)(i). Rather than challenging the constitutionality of this
provision as well, thereby making clear that it was challenging
Congress' authority to regulate in-fact coordinated party
expenditures, the Party has made an obscure severability argument
that would leave party coordinated expenditures exempt from that
provision. See Reply Brief for Petitioners 11, n. 9. While these
strategies do not deprive the parties of a right to adjudicate the
counterclaim, they do provide a reason for this Court to defer
consideration of the broader issues until the lower courts have
reconsidered the question in light of our current opinion.
Finally, we note that neither the parties nor the lower courts have
considered whether or not Congress would have wanted the Party
Expenditure Provisions limitations to stand were they to apply only
to coordinated, and not to independent, expenditures. See Buckley,
424 U. S., at 108; NCPAC, supra, at 498. This non-constitutional
ground for exempting party coordinated expenditures from FECA
limitations should be briefed and considered before addressing the
constitutionality of such regulation. See United States v. Locke, 471
U. S. 84, 92, and n. 9 (1985).
JUSTICE THOMAS disagrees and would reach the broader
constitutional question notwithstanding the above prudential
considerations. In fact, he would reach a great number of issues
neither addressed below, nor presented by the facts of this case, nor
raised by the parties, for he believes it appropriate here to overrule
sua sponte this Court's entire campaign finance jurisprudence,
developed in numerous cases over the last 20 years. See post, at 5-
15. Doing so seems inconsistent with this Court's view that it is
ordinarily "inappropriate for us to reexamine" prior precedent
"without the benefit of the parties' briefing," since the "principles that
animate our policy of stare decisis caution against overruling a
longstanding precedent on a theory not argued by the parties." United
States v. International Business Machines Corp., 517 U. S. _, _
(1996) (slip. op., at 12, 13). In our view, given the important
competing interests involved in campaign finance issues, we should
proceed cautiously, consistent with this precedent, and remand for
further proceedings.
For these reasons, the judgment of the Court of Appeals is vacated,
and the case is remanded for further proceedings.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 95-489
COLORADO REPUBLICAN FEDERAL CAMPAIGN
COMMITTEE AND DOUGLAS JONES, TREASURER,
PETITIONERS
v.
FEDERAL ELECTION COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
[June 26, 1996]
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and
JUSTICE SCALIA join, concurring in the judgment and dissenting
in part.
In agreement with JUSTICE THOMAS, post, at 1-5, I would hold
that the Colorado Republican Party, in its pleadings in the District
Court and throughout this litigation, has preserved its claim that the
constraints imposed by the Federal Election Campaign Act of 1971
(FECA), both on its face and as interpreted by the Federal Elections
Commission (FEC), violate the First Amendment.
In the plurality's view, the FEC's conclusive presumption that all
political party spending relating to identified candidates is
"coordinated" cannot be squared with the First Amendment. Ante, at
12-17. The plurality finds the presumption invalid, and I agree with
much of the reasoning behind that conclusion. The quarrel over the
FEC's presumption is beside the point, however, for under the
statute it is both burdensome and quite unrealistic for a political party
to attempt the expenditure of funds on a candidate's behalf (or against
other candidates) without running afoul of FECA's spending
limitations.
Indeed, the plurality's reasoning with respect to the presumption
illuminates the deficiencies in the statutory provision as a whole as it
constrains the speech and political activities of political parties. The
presumption is a logical, though invalid, implementation of the
statute, which restricts as a "contribution" a political party's spending
"in cooperation, consultation, or concert, with, or at the request or
suggestion of, a candidate, his authorized political committees, or
their agents." 2 U. S. C. Section 441a(a)(7)(B)(i). While the
statutory provision applies to any "person," its obvious purpose and
effect when applied to political parties, as the FEC's presumption
reflects, is to restrict any party's spending in a specific campaign for
or against a candidate and so to burden a party in expending its own
money for its own speech.
The central holding in Buckley v. Valeo, 424 U. S. 1 (1976) (per
curiam), is that spending money on one's own speech must be
permitted, id., at 44-58, and this is what political parties do when
they make the expenditures FECA restricts. FECA calls spending of
this nature a "contribution," Section 441a(a)(7)(B)(i), and it is true
that contributions can be restricted consistent with Buckley, supra, at
23-38. As the plurality acknowledges, however, and as our cases
hold, we cannot allow the Government's suggested labels to control
our First Amendment analysis. Ante, at 15. See also, e. g.,
Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 843
(1978) ("Deference to a legislative finding cannot limit judicial
inquiry when First Amendment rights are at stake"). In Buckley, we
concluded that contribution limitations imposed only "marginal
restriction[s]" on the contributor's First Amendment rights, 424 U.
S., at 20, because certain attributes of contributions make them less
like "speech" for First Amendment purposes:
"A contribution serves as a general expression of support for the
candidate and his views, but does not communicate the underlying
basis for the support. The quantity of communication by the
contributor does not increase perceptibly with the size of his
contribution, since the expression rests solely on the undifferentiated,
symbolic act of contributing. At most, the size of the contribution
provides a very rough index of the intensity of the contributor's
support for the candidate. A limitation on the amount of money a
person may give to a candidate or campaign organization thus
involves little direct restraint on his political communication, for it
permits the symbolic expression of support evidenced by a
contribution but does not in any way infringe the contributor's
freedom to discuss candidates and issues. While contributions may
result in political expression if spent by a candidate or an association
to present views to the voters, the transformation of contributions
into political debate involves speech by someone other than the
contributor." Id., at 21 (footnote omitted).
We had no occasion in Buckley to consider possible First
Amendment objections to limitations on spending by parties. Id., at
58, n. 66. While our cases uphold contribution limitations on
individuals and associations, see id., at 23-38; California Medical
Assn. v. Federal Election Comm'n, 453 U. S. 182, 193-199 (1981)
(plurality opinion), political party spending "in cooperation,
consultation, or concert with" a candidate does not fit within our
description of "contributions" in Buckley. In my view, we should
not transplant the reasoning of cases upholding ordinary contribution
limitations to a case involving FECA's restrictions on political party
spending.
The First Amendment embodies a "profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide-open." New York Times Co. v. Sullivan, 376 U.
S. 254, 270 (1964). Political parties have a unique role in serving
this principle; they exist to advance their members' shared political
beliefs. See, e. g., Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214 (1989); Sweezy v. New Hampshire, 354 U.
S. 234, 250 (1957). Cf. Morse v. Republican Party of Va., 517 U.
S. ___, ___ (1996) (slip op., at 3-4) (KENNEDY, J., dissenting).
A party performs this function, in part, by "identify[ing] the people
who constitute the association, and . . . limit[ing] the association to
those people only." Democratic Party of United States v. Wisconsin
ex rel. La Follette, 450 U. S. 107, 122 (1981). Having identified its
members, however, a party can give effect to their views only by
selecting and supporting candidates. A political party has its own
traditions and principles that transcend the interests of individual
candidates and campaigns; but in the context of particular elections,
candidates are necessary to make the party's message known and
effective, and vice versa.
It makes no sense, therefore, to ask, as FECA does, whether a
party's spending is made "in cooperation, consultation, or concert
with" its candidate. The answer in most cases will be yes, but that
provides more, not less, justification for holding unconstitutional the
statute's attempt to control this type of party spending, which bears
little resemblance to the contributions discussed in Buckley. Supra,
at 2-3. Party spending "in cooperation, consultation, or concert
with" its candidates of necessity "communicate[s] the underlying
basis for the support," 424 U. S., at 21, i. e., the hope that he or she
will be elected and will work to further the party's political agenda.
The problem is not just the absence of a basis in our First
Amendment cases for treating the party's spending as contributions.
The greater difficulty posed by the statute is its stifling effect on the
ability of the party to do what it exists to do. It is fanciful to suppose
that limiting party spending of the type at issue here "does not in any
way infringe the contributor's freedom to discuss candidates and
issues," ibid., since it would be impractical and imprudent, to say the
least, for a party to support its own candidates without some form of
"cooperation" or "consultation." The party's speech, legitimate on its
own behalf, cannot be separated from speech on the candidate's
behalf without constraining the party in advocating its most essential
positions and pursuing its most basic goals. The party's form of
organization and the fact that its fate in an election is inextricably
intertwined with that of its candidates cannot provide a basis for the
restrictions imposed here. See Federal Election Comm'n v. National
Conservative Political Action Comm., 470 U. S. 480, 494-495
(1985).
We have a constitutional tradition of political parties and their
candidates engaging in joint First Amendment activity; we also have a
practical identity of interests between the two entities during an
election. Party spending "in cooperation, consultation, or concert
with" a candidate therefore is indistinguishable in substance from
expenditures by the candidate or his campaign committee. We held
in Buckley that the First Amendment does not permit regulation of
the latter, see 424 U. S., at 54-59, and it should not permit this
regulation of the former. Congress may have authority, consistent
with the First Amendment, to restrict undifferentiated political party
contributions which satisfy the constitutional criteria we discussed in
Buckley, but that type of regulation is not at issue here.
I would resolve the Party's First Amendment claim in accord with
these principles rather than remit the Party to further protracted
proceedings. Because the plurality would do otherwise, I concur
only in the judgment.
SUPREME COURT OF THE UNITED STATES
No. 95-489
COLORADO REPUBLICAN FEDERAL CAMPAIGN
COMMITTEE AND DOUGLAS JONES, TREASURER,
PETITIONERS
v.
FEDERAL ELECTION COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
[June 26, 1996]
JUSTICE THOMAS, concurring in the judgment and dissenting in
part, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join in Parts I and III.
I agree that petitioners' rights under the First Amendment have been
violated, but I think we should reach the facial challenge in this case
in order to make clear the circumstances under which political parties
may engage in political speech without running afoul of 2 U. S. C.
Section 441a(d)(3). In resolving that challenge, I would reject the
framework established by Buckley v. Valeo, 424 U. S. 1 (1976) (per
curiam), for analyzing the constitutionality of campaign finance laws
and hold that Section 441a(d)(3)'s limits on independent and
coordinated expenditures fail strict scrutiny. But even under
Buckley, Section 441a(d)(3) cannot stand, because the anti-
corruption rationale that we have relied upon in sustaining other
campaign finance laws is inapplicable where political parties are the
subject of such regulation.
As an initial matter, I write to make clear that we should decide the
Party's facial challenge to Section 441a(d)(3) and thus address the
constitutionality of limits on coordinated expenditures by political
parties. JUSTICE BREYER's reasons for not reaching the facial
constitutionality of the statute are unpersuasive. In addition,
concerns for the chilling of First Amendment expression counsel in
favor of resolving that question.
After the Federal Election Commission (FEC) brought this action
against the Party, the Party counterclaimed that "the limits on its
expenditures in connection with the general election campaign for the
Office of United States Senator from the State of Colorado imposed
by 2 U. S. C. Section 441a(d) are unconstitutional, both facially and
as applied." App. 68. Though JUSTICE BREYER faults the Party
for not "focus[ing] specifically upon coordinated expenditures," ante,
at 17, the term "expenditures" certainly includes both coordinated as
well as independent expenditures.1 See 2 U. S. C. Section
431(9)(A) ("The term `expenditure' includes . . . any purchase,
payment, distribution, loan, advance, deposit, or gift of money or
anything of value, made by any person for the purpose of influencing
any election for Federal office") (emphasis added). Moreover, at the
time the Party filed its counterclaim, all party expenditures were
treated by law as coordinated, see Federal Election Comm'n v.
Democratic Senatorial Campaign Comm., 454 U. S. 27, 28-29, n. 1
(1981), so a reference to expenditures by a party was tantamount to a
reference to coordinated expenditures.
Given the liberal nature of the rules governing civil pleading, see
Fed. Rule Civ. Proc. 8, the Party's straightforward allegation of the
unconstitutionality of Section 441a(d)(3)'s expenditure limits clearly
suffices to raise the claim that neither independent nor coordinated
expenditures may be regulated consistently with the First
Amendment. Indeed, that is precisely how the Court of Appeals
appears to have read the counterclaim. The court expressly said that
it was "analyzing the constitutionality of limits on coordinated
expenditures by political committees," 59 F. 3d 1015, 1024 (CA10
1995), under Section 441a(d)(3).
For the same reasons, the fact that the Party's summary judgment
affidavits did not "specifically allege," ante, at 17, that the Party
intended to make coordinated expenditures is also immaterial. The
affidavits made clear that, but for Section 441a(d)(3), the Party
would spend in excess of the limits imposed by that statute, see App.
159 ("[T]he State Party intends to pay for communications within the
spending limits of [Section 441]. . . . However, the State Party
would also like to pay for communications which costs [sic] exceed
the spending limits of [Section 441a(d)], but will not do so due to the
deterrent and chilling effect of the statute"), as did the Party's brief in
this Court, see Brief for Petitioners 23-24 ("The Colorado Party is
ready, willing and able to make expenditures expressly advocating
the election or defeat of candidates for federal office that would
exceed the limits imposed by Section 441a(d), but it has been
deterred from doing so by the obvious and credible threat of FEC
enforcement action").
Finally, though JUSTICE BREYER notes that this is the first Federal
Election Campaign Act of 1971 (FECA) case to raise the
constitutional validity of limits on coordinated expenditures, see ante,
at 18, that is, at best, an argument against granting certiorari. It is
too late for arguments like that now. The case is here, and we
needlessly protract this litigation by remanding this important issue to
the Court of Appeals. Nor is the fact that the "issue is complex,"
ante, at 18, a good reason for avoiding it. We do not sit to decide
only easy cases. And while it may be true that no court has ever
asked whether expenditures that are "in fact" coordinated may be
regulated under the First Amendment, see ante, at 18, I do not see
how the existence of an "in fact" coordinated expenditure would
change our analysis of the facial constitutionality of Section
441a(d)(3), since courts in facial challenges under the First
Amendment routinely consider applications of the relevant statute
other than the application before the court. See Broadrick v.
Oklahoma, 413 U. S. 601, 612 (1973). Whether or not there are
facts in the record to support the finding that this particular
expenditure was actually coordinated with a candidate, we are not,
contrary to the suggestion of JUSTICE BREYER, incapable of
considering the Government's interest in regulating such
expenditures and testing the fit between that end and the means used
to achieve it.2
The validity of Section 441a(d)(3)'s controls on coordinated
expenditures is an open question that, if left unanswered, will inhibit
the exercise of legitimate First Amendment activity nationwide. All
JUSTICE BREYER resolves is that when a political party spends
money in support of a candidate (or against his opponent) and the
Government cannot thereafter prove any coordination between the
Party and the candidate, the Party cannot be punished by the
Government for that spending. This settles little, if anything. Parties
are left to wonder whether their speech is protected by the First
Amendment when the Government can show--presumably with
circumstantial evidence--a link between the Party and the candidate
with respect to the speech in question. And of course, one of the
main purposes of a political party is to support its candidates in
elections.
The constitutionality of limits on coordinated expenditures by
political parties is squarely before us. We should address this
important question now, instead of leaving political parties in a state
of uncertainty about the types of First Amendment expression in
which they are free to engage.
Critical to JUSTICE BREYER's reasoning is the distinction between
contributions3 and independent expenditures that we first drew in
Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). Though we said
in Buckley that controls on spending and giving "operate in an area
of the most fundamental First Amendment activities," id., at 14, we
invalidated the expenditure limits of FECA and upheld the Act's
contribution limits. The justification we gave for the differing results
was this: "The expenditure limitations . . . represent substantial rather
than merely theoretical restraints on the quantity and diversity of
political speech," id., at 19, whereas "limitation[s] upon the amount
that any one person or group may contribute to a candidate or
political committee entai[l] only a marginal restriction upon the
contributor's ability to engage in free communication," id., at 20-21.
This conclusion was supported mainly by two assertions about the
nature of contributions: first, though contributions may result in
speech, that speech is by the candidate and not by the contributor;
and second, contributions express only general support for the
candidate but do not communicate the reasons for that support. Id.,
at 21. Since Buckley, our campaign finance jurisprudence has been
based in large part on this distinction between contributions and
expenditures. See, e.g., Federal Election Comm'n v. Massachusetts
Citizens for Life, Inc. (MCFL), 479 U. S. 238, 259-260, 261-262
(1986); Federal Election Comm'n v. National Conservative Political
Action Comm. (NCPAC), 470 U. S. 480, 497 (1985); California
Medical Assn. v. Federal Election Comm'n, 453 U. S. 182, 196
(1981) (plurality opinion).
In my view, the distinction lacks constitutional significance, and I
would not adhere to it. As Chief Justice Burger put it:
"[C]ontributions and expenditures are two sides of the same First
Amendment coin." Buckley v. Valeo, supra, 424 U. S., at 241
(concurring in part and dissenting in part).4 Contributions and
expenditures both involve core First Amendment expression because
they further the "[d]iscussion of public issues and debate on the
qualifications of candidates . . . integral to the operation of the
system of government established by our Constitution." 424 U. S.,
at 14. When an individual donates money to a candidate or to a
partisan organization, he enhances the donee's ability to communicate
a message and thereby adds to political debate, just as when that
individual communicates the message himself. Indeed, the individual
may add more to political discourse by giving rather than spending, if
the donee is able to put the funds to more productive use than can the
individual. The contribution of funds to a candidate or to a political
group thus fosters the "free discussion of governmental affairs,"
Mills v. Alabama, 384 U. S. 214, 218 (1966), just as an expenditure
does.5 Giving and spending in the electoral process also involve
basic associational rights under the First Amendment. See BeVier,
Money and Politics: A Perspective on the First Amendment and
Campaign Finance Reform, 73 Calif. L. Rev. 1045, 1064 (1985)
(hereinafter BeVier). As we acknowledged in Buckley, "`[e]ffective
advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association.'"
424 U. S., at 15 (quoting NAACP v. Alabama ex rel. Patterson, 357
U. S. 449, 460 (1958)). Political associations allow citizens to pool
their resources and make their advocacy more effective, and such
efforts are fully protected by the First Amendment. Federal Election
Comm'n v. NCPAC, supra, at 494. If an individual is limited in the
amount of resources he can contribute to the pool, he is most
certainly limited in his ability to associate for purposes of effective
advocacy. See Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley, 454 U. S. 290, 296 (1981) ("To place a . . .
limit . . . on individuals wishing to band together to advance their
views . . . is clearly a restraint on the right of association"). And if
an individual cannot be subject to such limits, neither can political
associations be limited in their ability to give as a means of furthering
their members' viewpoints. As we have said, "[a]ny interference
with the freedom of a party is simultaneously an interference with the
freedom of its adherents." Sweezy v. New Hampshire, 354 U. S.
234, 250 (1957) (plurality opinion).6
Turning from similarities to differences, I can discern only one
potentially meaningful distinction between contributions and
expenditures. In the former case, the funds pass through an
intermediary--some individual or entity responsible for organizing
and facilitating the dissemination of the message--whereas in the
latter case they may not necessarily do so. But the practical judgment
by a citizen that another person or an organization can more
effectively deploy funds for the good of a common cause than he can
ought not deprive that citizen of his First Amendment rights.
Whether an individual donates money to a candidate or group who
will use it to promote the candidate or whether the individual spends
the money to promote the candidate himself, the individual seeks to
engage in political expression and to associate with likeminded
persons. A contribution is simply an indirect expenditure; though
contributions and expenditures may thus differ in form, they do not
differ in substance. As one commentator cautioned, "let us not lose
sight of the speech." Powe, Mass Speech and the Newer First
Amendment, 1982 S. Ct. Rev. 243, 258.
Echoing the suggestion in Buckley that contributions have less First
Amendment value than expenditures because they do not involve
speech by the donor, see 424 U. S., at 21, the Court has sometimes
rationalized limitations on contributions by referring to contributions
as "speech by proxy." See, e.g., California Medical Assn. v.
Federal Election Comm'n, 453 U. S., at 196 (Marshall, J.) (plurality
opinion). The "speech by proxy" label is, however, an ineffective
tool for distinguishing contributions from expenditures. Even in the
case of a direct expenditure, there is usually some go-between that
facilitates the dissemination of the spender's message--for instance,
an advertising agency or a television station. See Powe, supra, at
258-259. To call a contribution "speech by proxy" thus does little to
differentiate it from an expenditure. See Buckley v. Valeo, supra, at
243- 244, and n. 7 (Burger, C. J., concurring in part and dissenting
in part). The only possible difference is that contributions involve an
extra step in the proxy chain. But again, that is a difference in form,
not substance.
Moreover, we have recently recognized that where the "proxy"
speech is endorsed by those who give, that speech is a fully-
protected exercise of the donors' associational rights. In Federal
Election Comm'n v. NCPAC, we explained that "the `proxy speech'
approach is not useful . . . [where] the contributors obviously like
the message they are hearing from [the] organizatio[n] and want to
add their voices to that message; otherwise they would not part with
their money. To say that their collective action in pooling their
resources to amplify their voices is not entitled to full First
Amendment protection would subordinate the voices of those of
modest means as opposed to those sufficiently wealthy to be able to
buy expensive media ads with their own resources." 470 U. S., at
495.
The other justification in Buckley for the proposition that contribution
caps only marginally restrict speech-- that is, that a contribution
signals only general support for the candidate but indicates nothing
about the reasons for that support--is similarly unsatisfying.
Assuming the assertion is descriptively accurate (which is certainly
questionable), it still cannot mean that giving is less important than
spending in terms of the First Amendment. A campaign poster that
reads simply "We support candidate Smith" does not seem to me any
less deserving of constitutional protection than one that reads "We
support candidate Smith because we like his position on agriculture
subsidies." Both express a political opinion. Even a pure message
of support, unadorned with reasons, is valuable to the democratic
process.
In sum, unlike the Buckley Court, I believe that contribution limits
infringe as directly and as seriously upon freedom of political
expression and association as do expenditure limits. The protections
of the First Amendment do not depend upon so fine a line as that
between spending money to support a candidate or group and giving
money to the candidate or group to spend for the same purpose. In
principle, people and groups give money to candidates and other
groups for the same reason that they spend money in support of
those candidates and groups: because they share social, economic,
and political beliefs and seek to have those beliefs affect
governmental policy. I think that the Buckley framework for
analyzing the constitutionality of campaign finance laws is deeply
flawed. Accordingly, I would not employ it, as JUSTICE BREYER
and JUSTICE KENNEDY do.
Instead, I begin with the premise that there is no constitutionally
significant difference between campaign contributions and
expenditures: both forms of speech are central to the First
Amendment. Curbs on protected speech, we have repeatedly said,
must be strictly scrutinized. See Federal Election Comm'n v.
NCPAC, supra, at 501; Citizens Against Rent Control/Coalition for
Fair Housing v. Berkeley, 454 U. S., at 294; First Nat. Bank of
Boston v. Bellotti, 435 U. S. 765, 786 (1978).7 I am convinced
that under traditional strict scrutiny, broad prophylactic caps on both
spending and giving in the political process, like Section 441a(d)(3),
are unconstitutional.
The formula for strict scrutiny is, of course, well-established. It
requires both a compelling governmental interest and legislative
means narrowly tailored to serve that interest. In the context of
campaign finance reform, the only governmental interest that we have
accepted as compelling is the prevention of corruption or the
appearance of corruption, see Federal Election Comm'n v. NCPAC,
470 U. S., at 496-497, and we have narrowly defined "corruption"
as a "financial quid pro quo: dollars for political favors," id., at
497.8 As for the means-ends fit under strict scrutiny, we have
specified that "[w]here at all possible, government must curtail
speech only to the degree necessary to meet the particular problem at
hand, and must avoid infringing on speech that does not pose the
danger that has prompted regulation." Federal Election Comm'n v.
MCFL, 479 U. S., at 265.
In Buckley, we expressly stated that the means adopted must be
"closely drawn to avoid unnecessary abridgment" of First
Amendment rights. 424 U. S., at 25. But the Buckley Court
summarily rejected the argument that, because less restrictive means
of preventing corruption existed--for instance, bribery laws and
disclosure requirements-FECA's contribution provisions were
invalid. Bribery laws, the Court said, "deal with only the most
blatant and specific attempts of those with money to influence
governmental action," id., at 28, suggesting that those means were
inadequate to serve the governmental interest. With respect to
disclosure rules, the Court admitted that they serve "many salutary
purposes" but said that Congress was "entitled to conclude that
disclosure was only a partial measure, and that contribution ceilings
were a necessary legislative concomitant." Ibid. Finally, the Court
noted that contribution caps leave people free to engage in
independent political speech, to volunteer their services, and to
contribute money to a "limited but nonetheless substantial extent."
Ibid.
In my opinion, FECA's monetary caps fail the narrow tailoring test.
Addressing the constitutionality of FECA's contribution caps, the
Buckley appellants argued: "If a small minority of political
contributions are given to secure appointments for the donors or
some other quid pro quo, that cannot serve to justify prohibiting all
large contributions, the vast majority of which are given not for any
such purpose but to further the expression of political views which
the candidate and donor share. Where First Amendment rights are
involved, a blunderbuss approach which prohibits mostly innocent
speech cannot be held a means narrowly and precisely directed to the
governmental interest in the small minority of contributions that are
not innocent." Brief for Appellants in Buckley v. Valeo, O. T. 1975,
Nos. 75-436 and 75-437, pp. 117-118.
The Buckley appellants were, to my mind, correct. Broad
prophylactic bans on campaign expenditures and contributions are
not designed with the precision required by the First Amendment
because they sweep protected speech within their prohibitions.
Section 441a(d)(3), in particular, suffers from this infirmity. It flatly
bans all expenditures by all national and state party committees in
excess of certain dollar limits, see Section 441a(d)(3), without any
evidence that covered committees who exceed those limits are in fact
engaging, or likely to engage, in bribery or anything resembling it.
See Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 689
(1990) (SCALIA, J., dissenting) (where statute "extends to speech
that has the mere potential for producing social harm" it should not be
held to satisfy the narrow tailoring requirement) (emphasis in
original). Thus, the statute indiscriminately covers the many
conceivable instances in which a party committee could exceed the
spending limits without any intent to extract an unlawful commitment
from a candidate. Cf. Schaumburg v. Citizens for a Better
Environment, 444 U. S. 620, 637 (1980) (state may not, in effort to
stop fraud in charitable solicitations, "lump" truly charitable
organizations "with those that in fact are using the charitable label as
a cloak for profitmaking and refuse to employ more precise measures
to separate one kind from the other"). As one commentator has
observed, "it must not be forgotten that a large number of
contributions are made without any hope of specific gain: for the
promotion of a program, because of enthusiasm for a candidate, or to
promote what the giver vaguely conceives to be the national interest."
L. Overacker, Money in Elections 192 (1974).
In contrast, federal bribery laws are designed to punish and deter the
corrupt conduct the Government seeks to prevent under FECA, and
disclosure laws work to make donors and donees accountable to the
public for any questionable financial dealings in which they may
engage. Cf. Schaumburg v. Citizens for a Better Environment,
supra, at 637-638 (explaining that "less intrusive" means of
preventing fraud in charitable solicitation are "the penal laws [that can
be] used to punish such conduct directly" and "disclosure of the
finances of charitable organizations"). In light of these alternatives,
wholesale limitations that cover contributions having nothing to do
with bribery--but with speech central to the First Amendment--are not
narrowly tailored.
Buckley's rationale for the contrary conclusion, see supra, at 14, is
faulty. That bribery laws are not completely effective in stamping out
corruption is no justification for the conclusion that prophylactic
controls on funding activity are narrowly tailored. The First
Amendment limits Congress to legislative measures that do not
abridge the Amendment's guaranteed freedoms, thereby constraining
Congress' ability to accomplish certain goals. Similarly, that other
modes of expression remain open to regulated individuals or groups
does not mean that a statute is the least restrictive means of
addressing a particular social problem. A statute could, of course, be
more restrictive than necessary while still leaving open some avenues
for speech.9
Were I convinced that the Buckley framework rested on a principled
distinction between contributions and expenditures, which I am not, I
would nevertheless conclude that Section 441a(d)(3)'s limits on
political parties violate the First Amendment. Under Buckley and its
progeny, a substantial threat of corruption must exist before a law
purportedly aimed at the prevention of corruption will be sustained
against First Amendment attack.10 Just as some of the monetary
limits in the Buckley line of cases were held to be invalid because the
government interest in stemming corruption was inadequate under the
circumstances to justify the restrictions on speech, so too is Section
441a(d)(3) invalid.11
The Government asserts that the purpose of Section 441a(d)(3) is to
prevent the corruption of candidates and elected representatives by
party officials. The Government does not explain precisely what it
means by "corruption," however;12 the closest thing to an
explanation the Government offers is that "corruption" is "`the real or
imagined coercive influence of large financial contributions on
candidates' positions and on their actions if elected to office.'" Brief
for Respondent 35 (quoting Buckley v. Valeo, 424 U. S., at 25).
We so defined corruption in Buckley for purposes of reviewing
ceilings on giving or spending by individuals, groups, political
committees (PACs), and candidates. See id., at 23, 35, 39. But we
did not in that case consider the First Amendment status of FECA's
provisions dealing with political parties. See id., at 58, n. 66, 59, n.
67.
As applied in the specific context of campaign funding by political
parties, the anti-corruption rationale loses its force. See Nahra,
Political Parties and the Campaign Finance Laws: Dilemmas,
Concerns and Opportunities, 56 Ford. L. Rev. 53, 105-106 (1987).
What could it mean for a party to "corrupt" its candidate or to
exercise "coercive" influence over him? The very aim of a political
party is to influence its candidate's stance on issues and, if the
candidate takes office or is reelected, his votes. When political parties
achieve that aim, that achievement does not, in my view, constitute "a
subversion of the political process." Federal Election Comm'n v.
NCPAC, 470 U. S., at 497. For instance, if the Democratic Party
spends large sums of money in support of a candidate who wins,
takes office, and then implements the Party's platform, that is not
corruption; that is successful advocacy of ideas in the political
marketplace and representative government in a party system. To
borrow a phrase from Federal Election Comm'n v. NCPAC, "[t]he
fact that candidates and elected officials may alter or reaffirm their
own positions on issues in response to political messages paid for by
[political groups] can hardly be called corruption, for one of the
essential features of democracy is the presentation to the electorate of
varying points of view." Id., at 498. Cf. Federal Election Comm'n
v. MCFL, 479 U. S., at 263 (suggesting that "[v]oluntary political
associations do not . . . present the specter of corruption").
The structure of political parties is such that the theoretical danger of
those groups actually engaging in quid pro quos with candidates is
significantly less than the threat of individuals or other groups doing
so. See Nahra, supra, at 97-98 (citing F. Sorauf, Party Politics in
America 15-18 (5th ed. 1984)). American political parties, generally
speaking, have numerous members with a wide variety of interests,
Nahra, supra, at 98, features necessary for success in majoritarian
elections. Consequently, the influence of any one person or the
importance of any single issue within a political party is significantly
diffused. For this reason, as the Party's amici argue, see Brief for
Committee for Party Renewal et al. as Amicus Curiae 16, campaign
funds donated by parties are considered to be some of "the cleanest
money in politics." J. Bibby, Campaign Finance Reform, 6
Commonsense 1, 10 (Dec. 1983). And, as long as the Court
continues to permit Congress to subject individuals to limits on the
amount they can give to parties, and those limits are uniform as to all
donors, see 2 U. S. C. Section 441a(a)(1), there is little risk that an
individual donor could use a party as a conduit for bribing
candidates.
In any event, the Government, which bears the burden of
"demonstrat[ing] that the recited harms are real, not merely
conjectural," Turner Broadcasting System, Inc. v. FCC, 512 U. S.
___ (1994) (slip op., at 41), has identified no more proof of the
corrupting dangers of coordinated expenditures than it has of
independent expenditures. Cf. ante, at 11 ("The Government does
not point to record evidence or legislative findings suggesting any
special corruption problem in respect to independent party
expenditures"). And insofar as it appears that Congress did not
actually enact Section 441a(d)(3) in order to stop corruption by
political parties "but rather for the constitutionally insufficient
purpose of reducing what it saw as wasteful and excessive campaign
spending," ante, at 11 (citing Buckley v. Valeo, supra, at 57), the
statute's ceilings on coordinated expenditures are as unwarranted as
the caps on independent expenditures.
In sum, there is only a minimal threat of "corruption," as we have
understood that term, when a political party spends to support its
candidate or to oppose his competitor, whether or not that
expenditure is made in concert with the candidate. Parties and
candidates have traditionally worked together to achieve their
common goals, and when they engage in that work, there is no risk
to the Republic. To the contrary, the danger to the Republic lies in
Government suppression of such activity. Under Buckley and our
subsequent cases, Section 441a(d)(3)'s heavy burden on First
Amendment rights is not justified by the threat of corruption at which
it is assertedly aimed.
To conclude, I would find Section 441a(d)(3) unconstitutional not
just as applied to petitioners, but also on its face. Accordingly, I
concur only in the Court's judgment.
SUPREME COURT OF THE UNITED STATES
No. 95-489
COLORADO REPUBLICAN FEDERAL CAMPAIGN
COMMITTEE AND DOUGLAS JONES, TREASURER,
PETITIONERS
v.
FEDERAL ELECTION COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE TENTH CIRCUIT
[June 26, 1996]
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
In my opinion, all money spent by a political party to secure the
election of its candidate for the office of United States Senator should
be considered a "contribution" to his or her campaign. I therefore
disagree with the conclusion reached in Part III of the Court's
opinion.
I am persuaded that three interests provide a constitutionally
sufficient predicate for federal limits on spending by political parties.
First, such limits serve the interest in avoiding both the appearance
and the reality of a corrupt political process. A party shares a unique
relationship with the candidate it sponsors because their political fates
are inextricably linked. That interdependency creates a special danger
that the party--or the persons who control the party--will abuse the
influence it has over the candidate by virtue of its power to spend.
The provisions at issue are appropriately aimed at reducing that
threat. The fact that the party in this case had not yet chosen its
nominee at the time it broadcast the challenged advertisements is
immaterial to the analysis. Although the Democratic and Republican
nominees for the 1996 Presidential race will not be selected until this
summer, current advertising expenditures by the two national parties
are no less contributions to the campaigns of the respective
frontrunners than those that will be made in the fall.
Second, these restrictions supplement other spending limitations
embodied in the Act, which are likewise designed to prevent
corruption. Individuals and certain organizations are permitted to
contribute up to $1,000 to a candidate. 2 U. S. C. Section
441a(a)(1)(A). Since the same donors can give up to $5,000 to party
committees, Section 441a(a)(1)(C), if there were no limits on party
spending, their contributions could be spent to benefit the candidate
and thereby circumvent the $1,000 cap. We have recognized the
legitimate interest in blocking similar attempts to undermine the
policies of the Act. See California Medical Assn. v. Federal Election
Comm'n, 453 U. S. 182, 197-199 (1981) (plurality opinion)
(approving ceiling on contributions to political action committees to
prevent circumvention of limitations on individual contributions to
candidates); id., at 203 (Blackmun, J., concurring in part and
concurring in judgment); Buckley v. Valeo, 424 U. S. 1, 38 (1976)
(per curiam) (approving limitation on total contributions by an
individual in connection with an election on same rationale).
Finally, I believe the Government has an important interest in
leveling the electoral playing field by constraining the cost of federal
campaigns. As Justice White pointed out in his opinion in Buckley,
"money is not always equivalent to or used for speech, even in the
context of political campaigns." 424 U. S., at 263 (opinion
concurring in part and dissenting in part). It is quite wrong to
assume that the net effect of limits on contributions and expenditures-
-which tend to protect equal access to the political arena, to free
candidates and their staffs from the interminable burden of fund-
raising, and to diminish the importance of repetitive 30-second
commercials--will be adverse to the interest in informed debate
protected by the First Amendment. See id., at 262-266.
Congress surely has both wisdom and experience in these matters
that is far superior to ours. I would therefore accord special
deference to its judgment on questions related to the extent and nature
of limits on campaign spending.* Accordingly, I would affirm the
judgment of the Court of Appeals.
*One irony of the case is that both the Democratic National Party and
the Republican National Party have sided with petitioners in
challenging a law that Congress has the obvious power to change.
See Brief for Democratic National Committee as Amicus Curiae;
Brief for Republican National Committee as Amicus Curiae.
ENDNOTES FOR JUSTICE THOMAS CONCURRING AND
DISSENTING IN PART
1 JUSTICE BREYER acknowledges as much when he asserts earlier
in his opinion that "the unmodified term `expenditure'" reflects a
Congressional intent "to limit all party expenditures." Ante, at 15
(emphasis in original).
2 JUSTICE BREYER's remaining arguments for avoiding the facial
challenge are straw men. See ante, at 19 (if Section 441a(d)(3) were
invalidated in its entirety, other FECA provisions that the Party has
not challenged might apply to coordinated party expenditures); ante,
at 19 (if Section 441a(d)(3) were upheld as to coordinated
expenditures but invalidated as to independent expenditures, issues
of severability would be raised). That resolution of the primary
question in this case (the constitutionality of Section 441a(d)(3) with
respect to all expenditures) might generate issues not previously
considered (such as severability) is no reason for not deciding the
question itself. Without suggesting that remand is the only
appropriate way to deal with possible corollary matters in this case or
that these arguments have merit, I point out that we can, of course,
decide the central question without ruling on the issues that concern
JUSTICE BREYER.
3 Coordinated expenditures are by statute categorized as
contributions. See 2 U. S. C. Section 441a(a)(7)(B)(i)
("[E]xpenditures made by any person in cooperation, consultation, or
concert, with, or at the request or suggestion of, a candidate, his
authorized political committees, or their agents, shall be considered to
be a contribution to such candidate").
4 Three Members of the Buckley Court thought the distinction
untenable at the time, see 424 U. S., at 241 (Burger, C. J.,
concurring in part and dissenting in part); id., at 261 (White, J.,
concurring in part and dissenting in part); id., at 290 (Blackmun, J.,
concurring in part and dissenting in part), and another Member
disavowed it subsequently, see Federal Election Comm'n v. National
Conservative Political Action Comm., 470 U. S. 480, 518-521
(1985) (Marshall, J., dissenting). Cf. Austin v. Michigan Chamber
of Commerce, 494 U. S. 652, 678 (1990) (STEVENS, J.,
concurring) (stating that distinction "should have little, if any, weight
in reviewing corporate participation in candidate elections").
5 See H. Alexander, Money in Politics 234 (1972): "The
constitutional arguments against limiting campaign spending also
apply against limiting contributions; specifically, it is the right of an
individual to spend his money to support a congenial viewpoint . . . .
Some views are heard only if interested individuals are willing to
support financially the candidate or committee voicing the position.
To be widely heard, mass communications may be necessary, and
they are costly. By extension, then, the contribution of money is a
contribution to freedom of political debate."
6 To illustrate the point that giving and spending in the political
process implicate the same First Amendment values, I note that
virtually everything JUSTICE BREYER says about the importance
of free independent expenditures applies with equal force to
coordinated expenditures and contributions. For instance, JUSTICE
BREYER states that "[a] political party's independent expression not
only reflects its members' views about the philosophical and
governmental matters that bind them together, it also seeks to
convince others to join those members in a practical democratic task,
the task of creating a government that voters can instruct and hold
responsible for subsequent success or failure." Ante, at 9.
"Coordinated" expression by political parties, of course, shares those
precise attributes. The fact that an expenditure is prearranged with
the candidate--presumably to make it more effective in the election--
does not take away from its fundamental democratic purposes.
7 In Buckley v. Valeo, 424 U. S. 1 (1976), the Court purported to
scrutinize strictly the contribution provisions as well the expenditures
rules. See id., at 23 (FECA's contribution and expenditures limits
"both implicate fundamental First Amendment interests"); id., at 25
(contributions limits, like expenditure limits, are "`subject to the
closest scrutiny'") (citation omitted). It has not gone unnoticed,
however, that we seemed more forgiving in our review of the
contribution provisions than of the expenditure rules. See, e.g.,
California Medical Assn. v. Federal Election Comm'n, 453 U. S.
182, 196 (1981) (plurality opinion) (contributions are "not the sort of
political advocacy that this Court in Buckley found entitled to full
First Amendment protection"). But see id., at 201-202 (Blackmun,
J., concurring in part and concurring in judgment) (under Buckley,
there is no lesser standard of review for contributions as opposed to
expenditures).
8 As I explain in Part III, infra, the interest in preventing corruption
is inapplicable when the subject of the regulation is a political party.
My analysis here is more general, however, and applies to all
individuals and entities subject to campaign finance limits.
9 JUSTICE STEVENS submits that we should "accord special
deference to [Congress'] judgment on questions related to the extent
and nature of limits on campaign spending," post, at 3, a stance that
the Court of Appeals also adopted, see 59 F. 3d 1015, 1024 (CA10
1995). This position poses great risk to the First Amendment, in that
it amounts to letting the fox stand watch over the henhouse. There is
good reason to think that campaign reform is an especially
inappropriate area for judicial deference to legislative judgment. See
generally BeVier 1074-1081. What the argument for deference fails
to acknowledge is the potential for legislators to set the rules of the
electoral game so as to keep themselves in power and to keep
potential challengers out of it. See id., at 1075 ("`Courts must police
inhibitions on . . . political activity because we cannot trust elected
officials to do so'") (emphasis omitted) (quoting J. Ely, Democracy
and Distrust 106 (1980)). See also R. Winter, Political Financing
and the Constitution, 486 Annals Am. Acad. Pol. & Soc. Sci. 34,
40, 48 (1986). Indeed, history demonstrates that the most significant
effect of election reform has been not to purify public service, but to
protect incumbents and increase the influence of special interest
groups. See BeVier 1078-1080. When Congress seeks to ration
political expression in the electoral process, we ought not simply
acquiesce in its judgment.
10 See Buckley v. Valeo, 424 U. S., at 45-47 (striking down limits
on independent expenditures because the "advocacy restricted by the
provision does not presently appear to pose dangers of real or
apparent corruption"); Federal Election Comm'n v. MCFL, 479 U.
S. 238, 263 (1986) (invalidating caps on campaign expenditures by
incorporated political associations because spending by such groups
"does not pose . . . [any] threat" of corruption); Federal Election
Comm'n v. NCPAC, 470 U. S., at 498 (striking down limits on
independent expenditures by political action committees because "a
quid pro quo for improper commitments" in that context was a
"hypothetical possibility"); Citizens Against Rent Control/Coalition
for Fair Housing v. Berkeley, 454 U. S. 290, 297 (1981) (stating
that "Buckley does not support limitations on contributions to
committees formed to favor or oppose ballot measures" because anti-
corruption rationale is inapplicable); First Nat. Bank of Boston v.
Bellotti, 435 U. S. 765, 790 (1978) (concluding that limits on
referendum speech by corporations violate First Amendment because
"[t]he risk of corruption . . . simply is not present").
11 While JUSTICE BREYER chides me for taking the positition that
I would not adhere to Buckley, see ante, at 19-20, and suggests that
my approach to this case is thus insufficiently "cautious," ante, at 20,
he ignores this Part of my opinion, in which I explain why limits on
coordinated expenditures are unconstitutional even under the Buckley
line of precedent.
12 Nor, for that matter, does JUSTICE BREYER explain what sorts
of quid pro quos a party could extract from a candidate. Cf. ante, at
9.
