Filed: Sep. 10, 2010
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 10, 2010 No. 10-30080, No. 10-30146 Lyle W. Cayce Clerk In Re: ANH CAO, also know as Joseph Cao; REPUBLICAN NATIONAL COMMITTEE; REPUBLICAN PARTY OF LOUISIANA _ ANH CAO, also known as Joseph Cao; REPUBLICAN NATIONAL COMMITTEE, Plaintiffs-Appellants v. FEDERAL ELECTION COMMISSION, Defendant-Appellee On Certification and Appeal from the United States District Court for the Easter
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED September 10, 2010 No. 10-30080, No. 10-30146 Lyle W. Cayce Clerk In Re: ANH CAO, also know as Joseph Cao; REPUBLICAN NATIONAL COMMITTEE; REPUBLICAN PARTY OF LOUISIANA _ ANH CAO, also known as Joseph Cao; REPUBLICAN NATIONAL COMMITTEE, Plaintiffs-Appellants v. FEDERAL ELECTION COMMISSION, Defendant-Appellee On Certification and Appeal from the United States District Court for the Eastern..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2010
No. 10-30080, No. 10-30146 Lyle W. Cayce
Clerk
In Re:
ANH CAO, also know as Joseph Cao; REPUBLICAN NATIONAL
COMMITTEE; REPUBLICAN PARTY OF LOUISIANA
________________________
ANH CAO, also known as Joseph Cao; REPUBLICAN NATIONAL
COMMITTEE,
Plaintiffs-Appellants
v.
FEDERAL ELECTION COMMISSION,
Defendant-Appellee
On Certification and Appeal
from the United States District Court for the Eastern District of Louisiana
2:08-CV-4887
Before JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER, GARZA,
BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD,
SOUTHWICK, and HAYNES, Circuit Judges.
W. EUGENE DAVIS and FORTUNATO P. BENAVIDES, Circuit Judges:
The challenges raised in the present case require this court to decide
whether certain provisions of the Federal Election Campaign Act (“FECA” or
No. 10-30080, No. 10-30146
“the Act”) of 1971, 2 U.S.C. § 431 et seq.,1 violate the Plaintiffs’ right to free
speech under the First Amendment. Applying Supreme Court precedent, we
conclude that each of the challenged FECA provisions constitutes a
constitutionally permissible regulation of political parties’ campaign
contributions and coordinated expenditures. Accordingly, we find that none of
the challenged provisions unconstitutionally infringe upon the rights of the
Plaintiffs to engage in political debate and discussion.
I.
Plaintiff Anh “Joseph” Cao is the United States Representative for the
Second Congressional District of Louisiana, and Plaintiff Republican National
Committee (“RNC”) is the national political party committee of the Republican
Party.2 On November 13, 2008, just before the December 6, 2008 election, the
Plaintiffs filed a suit for declaratory judgment,3 asserting eight constitutional
challenges to various provisions of FECA. Generally, the Plaintiffs challenge the
statutory provisions limiting the RNC’s contributions to, and expenditures made
in coordination with, Cao’s 2008 congressional campaign.
The district court, abiding by its proper role in addressing a 2 U.S.C.
§ 437h challenge,4 identified the constitutional issues in the complaint, held
1
As amended by the Bipartisan Campaign Reform Act (“BCRA”) of 2002, Pub. L. No.
107-155, 116 Stat. 81 (2002).
2
Initially, the Republican Party of Louisiana (“LA-GOP”) was also a Plaintiff to the
action. The district court, however, determined that the LA-GOP did not have standing under
2 U.S.C. § 437h. No party has appealed this portion of the district court’s order. Accordingly,
the LA-GOP is no longer a party to the case now before the court.
3
Plaintiffs’ complaint raises claims under the First and Fifth Amendments, FECA, 2
U.S.C. § 437h, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02.
4
Section 437h provides:
The Commission, the national committee of any political party, or any
individual eligible to vote in any election for the office of President may institute
2
No. 10-30080, No. 10-30146
evidentiary hearings concerning those issues, and made necessary findings of
fact. See Khachaturian v. FEC, 980 F.2d 330, 332 (5th Cir. 1992) (en banc). In
doing so, the district court began by discussing the general contribution and
expenditure limitations FECA places on political parties. Cao v. FEC, 688 F.
Supp. 2d 498, 508-17 (E.D. La. 2010) (“Cao (District Court)”). Specifically
examining how FECA affected the RNC’s contributions and expenditures related
to the 2008 Cao campaign, the district court then found that the RNC spent all
of the $42,100 it was allowed to spend on coordinated expenditures under the
Party Expenditure Provision, 2 U.S.C. § 441a(d)(2)–(3),5 and reached its $5,000
such actions in the appropriate district court of the United States, including
actions for declaratory judgment, as may be appropriate to construe the
constitutionality of any provision of this Act. The district court immediately
shall certify all questions of constitutionality of this Act to the United States
court of appeals for the circuit involved, which shall hear the matter sitting en
banc.
5
Section 441a(d)(2)–(3) states:
(2) The national committee of a political party may not make any expenditure
in connection with the general election campaign of any candidate for President
of the United States who is affiliated with such party which exceeds an amount
equal to 2 cents multiplied by the voting age population of the United States (as
certified under subsection (e) of this section). Any expenditure under this
paragraph shall be in addition to any expenditure by a national committee of a
political party serving as the principal campaign committee of a candidate for
the office of President of the United States.
(3) The national committee of a political party, or a State committee of a
political party, including any subordinate committee of a State committee, may
not make any expenditure in connection with the general election campaign of
a candidate for Federal office in a State who is affiliated with such party which
exceeds—
(A) in the case of a candidate for election to the office Senator, or of
Representative from a State which is entitled to only one Representative,
the greater of—
(i) 2 cents multiplied by the voting age population of the State (as
certified under subsection (e) of this section); or
(ii) $20,000; and
3
No. 10-30080, No. 10-30146
contribution limit under § 441a(a)(2)(A).6 Id. at 532. Additionally, the district
court found that the RNC would have spent additional money on speech
expressly advocating the election of Cao had it been permitted to spend beyond
FECA limitations.
Id. at 532-33.
Upon hearing the evidence and making the necessary findings of fact, the
district court evaluated the Plaintiffs’ eight constitutional challenges and,
pursuant to § 437h, certified four questions to this en banc court.
Id. at 549.
The district court dismissed the Plaintiffs’ remaining four challenges as
frivolous.
Id. Subsequently, the Plaintiffs appealed the district court’s dismissal
of the non-certified, frivolous questions. For purposes of judicial economy and
efficiency, we consolidated the Plaintiffs’ appeal of the dismissal of the non-
certified questions with the court’s en banc consideration of the certified
questions.
We review the constitutionality of questions certified pursuant to § 437h
de novo. See Goland v. United States, 903 F.2d 1247, 1252 (9th Cir. 1990). We
review the district court’s dismissal of the Plaintiffs’ remaining claims as
frivolous for abuse of discretion.
Id.
II.
This appeal requires us to address the intersection of congressional
campaign finance reform with the fundamental right to free speech under the
First Amendment. Since the landmark decision of Buckley v. Valeo,
424 U.S. 1
(1976), the Supreme Court on a number of occasions has evaluated the
(B) in the case of a candidate for election to the office of Representative,
Delegate, or Resident Commissioner in any other State, $10,000.
6
Section 441a(a)(2)(A) states that “(2) No multicandidate political committee shall make
contributions—(A) to any candidate and his authorized political committees with respect to any
election for Federal office which, in the aggregate, exceed $5,000 . . . .”
4
No. 10-30080, No. 10-30146
limitations that the First Amendment imposes on the Government’s ability to
preserve the integrity of the democratic election process through its regulation
of campaign expenditures and contributions made to federal candidates. As
such, many of the Plaintiffs’ constitutional challenges raise questions the
Supreme Court has previously addressed. Thus, we begin our analysis with a
brief examination of the constitutional contours in which we find ourselves.
In Buckley, the Supreme Court determined that FECA’s “contribution and
expenditure limitations operate in an area of the most fundamental First
Amendment activities.” Id. at 14. The Buckley Court declared that the
“[d]iscussion of public issues and debate on the qualifications of candidates are
integral to the operation of the system of government established by our
Constitution.”
Id. As a result, the Buckley Court applied a strict level of
scrutiny to the Government’s restrictions “on the amount of money a person or
group can spend on political communication during a campaign [since such
restrictions] necessarily reduc[e] the quantity of expression by restricting the
number of issues discussed, the depth of their exploration, and the size of the
audience reached.”
Id. at 19.
Although the Buckley Court recognized that FECA’s limitations implicate
important First Amendment concerns, the Supreme Court’s application of strict
scrutiny did not result in the invalidation of all of FECA’s regulations. See
id.
19–21. Instead, the Buckley Court determined that some governmental
intrusions on an individual’s (or political party’s) First Amendment right to
make financial contributions to a candidate’s campaign were warranted based
on the Government’s compelling interest to prevent corruption in the election of
federal officials.
Id. at 20–21, 26–27. The Court reasoned that:
To the extent that large contributions are given to secure a political
quid pro quo from current and potential office holders, the integrity
of our system of representative democracy is undermined. Although
the scope of such pernicious practices can never be reliably
5
No. 10-30080, No. 10-30146
ascertained, the deeply disturbing examples surfacing after the
1972 election demonstrate that the problem is not an illusory one.
Id. at 26–27.7 The Buckley Court recognized that FECA’s contribution limits
were Congress’ response to the rising levels of corruption in the election of public
officials.
Id. at 26. Consequently, the Court found that the governmental
interest in preserving the integrity of our democratic system was paramount.
Id. at 27.
In addition to articulating the compelling governmental interest for
FECA’s limitations on campaign contributions, the Buckley Court also
articulated the constitutional distinction between FECA’s regulations of
contributions and expenditures, concluding that courts must apply a greater
degree of constitutional scrutiny to FECA’s regulations of expenditures. See
id.
at 23. The Court determined that FECA’s regulations on expenditures placed
greater restrictions on First Amendment rights because they “represent[ed]
substantial rather than merely theoretical restraints on the quantity and
diversity of political speech,” and consequently, the Court applied a more
exacting degree of constitutional scrutiny to expenditure limitations.
Id. at 19,
47–48. The Court further distinguished the Government’s regulation of
contributions from its regulation of expenditures, reasoning that “[b]y contrast
with a limitation upon expenditures for political expression, a limitation upon
the amount that any one person or group may contribute to a candidate or
political committee entails only a marginal restriction upon the contributor’s
ability to engage in free communication.”
Id. at 20. Accordingly, the Buckley
Court recognized that the level of constitutional scrutiny for contribution
7
In addition to actual corruption, the Buckley Court found that the Government had
a compelling interest in preventing the appearance of corruption. Id. at 27.
6
No. 10-30080, No. 10-30146
limitations was less than the level of constitution scrutiny applied to limitations
on expenditures. See id. at 29, 35, 38.
In further articulating the constitutional distinction between contributions
and expenditures, the Court carefully distinguished independent expenditures
from those expenditures that are “prearranged or coordinated” with a particular
candidate. Id. at 46–47. Following the terminology used in FECA, the Buckley
Court considered that for purposes of First Amendment scrutiny, “prearranged
or coordinated expenditures” are constitutionally equivalent to contributions.
Id. at 46. According to the Court, it followed that coordinated expenditures are
subject to the same limitations and scrutiny that apply to contributions.
Id. at
47. Although the facts of the challenge and nature of the Court’s analysis in
Buckley gave the Court no reason to specifically address the level of scrutiny for
coordinated expenditures, the Buckley Court implicitly recognized that
limitations on coordinated expenditures would be, like contribution limitations,
subject to a lower level of constitutional scrutiny than limitations on
independent expenditures.
The Buckley Court’s distinction between coordinated expenditures (or
contributions) and independent expenditures was reaffirmed in California
Medical Ass’n v. FEC, 453 U.S. 182, 195 (1981), when the Court explained that
“[t]he type of expenditures that this Court in Buckley considered constitutionally
protected were those made independently by a candidate, individual, or group in
order to engage directly in political speech.”
Id. (citation omitted) (emphasis
added). In cases thereafter, the Court continued to recognize the distinction
between a speaker’s First Amendment right to make independent versus
coordinated expenditures, and the degree to which lower courts must balance
these rights with the Government’s compelling interest to prevent corruption in
the democratic elections of our public officials. E.g., Colorado Republican Fed.
7
No. 10-30080, No. 10-30146
Campaign Comm. v. FEC, 518 U.S. 604, 613 (1996) (“Colorado I”); FEC v.
Colorado Republican Fed. Campaign Comm.,
533 U.S. 431 (2001) (“Colorado II”).
With this legal landscape in mind, we begin our examination of the
Plaintiffs’ constitutional challenges by first examining the questions the district
court found to be frivolous.
A. Frivolous Questions
1.
The district court did not certify the Plaintiffs’ second and fifth questions
in their complaint, which raise clearly related issues. Cao (District Court), 688
F. Supp. 2d at 535-39. The Plaintiffs’ second question reads as follows:
Do the Party Expenditure Provision limits at 2 U.S.C. §
441a(d)(2)–(3) violate the First and Fifth Amendment rights of one
or more plaintiffs in that they are excessively vague, overbroad, and
beyond the authority of Congress to regulate elections as applied to
coordinated expenditures other than (a) communications containing
express advocacy, (b) targeted federal election activity, (c)
disbursements equivalent to paying a candidate’s bills, and (d)
distributing a candidate’s campaign literature?
Id. at 504. The Plaintiffs’ fifth question reads as follows:
Do the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) and the
Coordinated Contribution Provision at 2 U.S.C. § 441a(a)(7)(B)(i)
(treating coordinated expenditures as in-kind ‘contributions’) violate
the First and Fifth Amendment rights of one or more of the
plaintiffs in that they are excessively vague, overbroad, and beyond
the authority of Congress to regulate elections as applied to
coordinated expenditures other than (a) communications containing
express advocacy, (b) targeted federal election activity, (c)
disbursements equivalent to paying a candidate’s bills, and (d)
distributing a candidate’s campaign literature?
8
No. 10-30080, No. 10-30146
Id. The Plaintiffs assert that §§ 441a(d)(2)–(3), 441a(a)(2)(A), and
441a(a)(7)(B)(i)8 reach speech that is not “unambiguously campaign related,” and
therefore, the provisions are overbroad and vague in violation of the Supreme
Court’s decision in Buckley. See
Buckley, 424 U.S. at 81. We do not agree.
FECA must be read in light of the FEC regulations that implement the
statute. Expenditures for a “party coordinated communication,” as defined by
11 C.F.R. § 109.37, are restricted to those which qualify as coordinated
expenditures that may be regulated under the Constitution as contributions. In
other words, the FEC regulations make it clear that a “party coordinated
communication” only encompasses speech that is campaign-related.9 Thus, §
109.37 limits the breadth of communications to which §§ 441a(d)(2)–(3),
441a(a)(2)(A), and 441a(a)(7)(B)(i) apply. Therefore, the Plaintiffs’ argument
that these statutory provisions reach speech that is not campaign-related is
without merit. Buckley does not permit non-campaign-related speech to be
regulated.
In Buckley v. Valeo, 424 U.S. 1,
96 S. Ct. 612,
46 L. Ed. 2d 659
(1976), the Supreme Court, invoking constitutional avoidance,
8
Section 441a(a)(7)(B)(i) states that “expenditures 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
. . . .”
9
Section 109.37 defines “party coordinated communications” as those communications
that are (1) paid for by the party, (2) satisfy a particular content standard, and (3) coordinated
with the candidate as defined by § 109.21(d)(1)–(6). The content standards set forth in §
109.37 require that the communication be either “[a] public communication that disseminates,
distributes, or republishes, in whole or in part, campaign materials prepared by a candidate,
the candidate’s authorized committee, or an agent of any of the foregoing,” or “[a] public
communication that expressly advocates the election or defeat of a clearly identified candidate
for Federal office,” or a “public communication [that] refers to a clearly identified House or
Senate candidate and is publicly distributed . . . in the clearly identified candidate’s jurisdiction
90 days or fewer before the clearly identified candidate’s general, special, or runoff election, or
primary or preference election, or nominating convention or caucus.” Section 109.37(a)(2)(iii)(B)
provides a similar 120 day time period for public communications referring to a Presidential
or Vice Presidential candidate.
9
No. 10-30080, No. 10-30146
construed FECA’s limitation on expenditures to apply only to
funding of communications that “express[ly] . . . advocate the
election or defeat of a clearly identified candidate for federal office,”
i.e., those that contain phrases such as “‘vote for,’ ‘elect,’ ‘support,’
‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [or]
‘reject.’” Id. at 43–44 & n.52.
Shays v. FEC,
528 F.3d 914, 917 (D.C. Cir. 2008). The FEC regulations make
abundantly clear that the only coordinated expenditures captured by the
statutory reach of FECA are campaign-related expenditures which Buckley
recognized that Congress could regulate as contributions.
Plaintiffs argued to the district court that the FEC’s promulgation of the
above regulation constitutes an acknowledgment that some line exists between
speech which may be regulated and speech which may not be regulated. See Cao
(District Court), 688 F. Supp. 2d at 536. This acknowledgment, Plaintiffs
argued, “demonstrates a constitutionally deficient ambiguity in the current
statutory language.”
Id. We know of no authority, and Plaintiffs cite to no
authority, that requires the content of FEC regulations be included in statute or
that prohibits a statute’s reach to be narrowed by regulations. Accordingly, we
find that the district court did not abuse its discretion in denying the
certification of the Plaintiffs’ second and fifth questions.
2.
The district court also found the Plaintiffs’ fourth question frivolous and
denied its certification. Cao (District Court), 688 F. Supp. 2d at 542-43. The
Plaintiffs’ fourth constitutional challenge reads as follows:
Do the limits on coordinated expenditures at 2 U.S.C. § 441a(d)(3)
violate the First Amendment rights of one or more plaintiffs? (a) Do
all but the highest limits violate such rights because any lower rates
are unsupported by the necessary anti-corruption interest? (b) Is 2
U.S.C. § 441a(d)(3) facially unconstitutional because lower rates
cannot be severed from higher rates and the voting-age-population
formula is substantially overbroad and inherently unconstitutional?
10
No. 10-30080, No. 10-30146
(c) Is the highest limit for expenditures coordinated with
Representatives unconstitutionally low?
Id. at 504.
The Plaintiffs argue that the multiple limits contained in § 441a(d)(3)
mean that the Congress acknowledges that the higher limits are sufficient to
accommodate any interest in preventing corruption, and thus the lower limits
are automatically unnecessary to advance that anti-corruption interest.10 This
argument leads the Plaintiffs to conclude that any lower limits within a
multiple-limit scheme are inherently unconstitutional.
The Supreme Court rejected this argument in Buckley when the Court
declared that “Congress’ failure to engage in such fine tuning does not invalidate
the legislation.” Buckley, 424 U.S. at 30. Although there may be variances
within a statute’s limitations on contributions or expenditures, so long as the
Government can establish “that some limit . . . is necessary, a court has no
scalpel to probe . . . .” or parse through the varying degrees of limitations.
Id.
(quotations and citations omitted). “In practice, the legislature is better
equipped to make such empirical judgments, as legislators have [the] ‘particular
expertise’” necessary to assess what limits will adequately prevent corruption
in the democratic election of their peers. Randall v. Sorell,
548 U.S. 230, 248
(2006).
Plaintiffs also assert that § 441a(d)(3) is unconstitutional because the
limitations imposed on contributions to different candidates vary depending on
the voting age population in their respective districts. This challenge is
similarly frivolous as it is foreclosed by Nixon v. Shrink Missouri Government
10
For example, under § 441a(d)(3), the RNC may make expenditures of up to $20,000
in connection with a candidate for U.S. Senate, but may only make expenditures of up to
$10,000 in connection with a candidate for the U.S. House of Representatives. Plaintiffs
argument is that because § 441a(d)(3)(A)(ii) allows for expenditures of up to $20,000 for Senate
candidates, the $10,000 restriction for House candidates is unconstitutionally low.
11
No. 10-30080, No. 10-30146
PAC, 528 U.S. 377, 382 (2000), in which the Court upheld the constitutionality
of a “statute impos[ing] contribution limits ranging from $250 to $1,000,
depending on specified state office or size of constituency.”
Finally, in regards to the Plaintiffs’ challenge that the highest limit for
expenditures coordinated with Representatives is unconstitutionally low, the
Plaintiffs have failed to provide the court with any evidence upon which we could
conclude that the limits impose too stringent of a burden on political speech. See
Buckley, 424 U.S. at 21 (explaining that whether a contribution limitation is
unconstitutionally low in part depends on whether the limitation prevents the
candidate from “amassing the resources necessary for effective [campaign]
advocacy . . . .”); see also
Khachaturian, 980 F.2d at 331 (“To present a colorable
constitutional question in [an] as applied challenge, [the Plaintiff] must
demonstrate that the [Act’s] limit had a serious adverse effect on the initiation
and scope of his candidacy.”). Thus, in arguing that the challenged limits are
unconstitutionally low, the Plaintiffs have failed to provide evidence
demonstrating that the limits preclude federal candidates from effectively
amassing the resources necessary to wage an effective campaign.11
Consequently, we find that the district court did not abuse its discretion
in finding the Plaintiffs’ fourth question frivolous.
3.
Although the district court certified question 8(a), it found 8(b) and 8(c) to
be frivolous. Plaintiffs offer no argument or authority in their briefs to assert
that the district court erred in dismissing question 8(b). “When an appellant
fails to advance arguments in the body of its brief in support of an issue it has
raised on appeal, we consider such issues abandoned.” Justiss Oil Co., Inc. v.
11
Quite to the contrary, the evidentiary record reveals that Cao has had no difficulty
amassing an impressive amount of resources for his campaigns. During the 2008 cycle,
then-candidate Cao’s congressional campaign had receipts of $242,531. As of June 30, 2009,
he had reported $516,957 in total receipts.
12
No. 10-30080, No. 10-30146
Kerr-McGee Refining Corp., 75 F.3d 1057, 1067 (5th Cir. 1996). Accordingly, we
find the Plaintiffs have waived their appeal of question 8(b).
The Plaintiffs’ eighth question in 8(c) states:
Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A)
facially violate the First Amendment rights of one or more plaintiffs
[because] . . . (c) [t]he limit is simply too low to allow political parties
to fulfill their historic and important role in our democratic
republic?
Cao (District Court), 688 F. Supp. 2d at 504.
The Plaintiffs contend that § 441a(a)(2)(A)’s $5,000 contribution limitation
is unconstitutionally low because it prohibits political parties from fulfilling their
historic role in “our democratic republic.” While the Plaintiffs offer powerful
rhetoric in support of this position, the record does not support the rhetoric. As
the district court found, during the 2007–08 election cycle, the national parties
raised more money than they raised in the election cycles before the effective
date of the BCRA when the parties were also able to raise “soft” money, i.e.
money that was not subject to the limitation or prohibitions of FECA. See Cao
(District Court), 688 F. Supp. 2d at 517.12 Because Plaintiffs evidence failed to
support their argument, the district court did not abuse its discretion in
concluding that subsection (c) of the Plaintiffs’ eighth question is frivolous.
B. Certified Questions
Having found the district court did not abuse its discretion in finding the
above questions frivolous, we now turn to the questions certified to the en banc
court.
12
The district court’s factual findings further support the district court’s conclusion that
the $5,000 limitation does not preclude parties from fulfilling their roles in funding the
campaigns of federal candidates. As the district court noted, “[i]n the 2008 election cycle,
parties supported their federal candidates with a total of $529,262 in contributions,
$31,256,379 in coordinated expenditures, and $54,563,499 in independent expenditures.” Cao
(District Court), 688 F. Supp. 2d at 549.
13
No. 10-30080, No. 10-30146
1.
The district court certified the first constitutional question as follows:
Has each of the plaintiffs alleged sufficient injury to constitutional
rights enumerated in the following questions to create a
constitutional ‘case or controversy’ within the judicial power of
Article III?
Cao (District Court), 688 F. Supp. 2d at 504.
As the Supreme Court observed, “[a] party seeking to invoke § 437h must
have standing to raise the constitutional claim.” California Med. Ass’n, 453 U.S.
at 193 n.14. This requires us to decide “whether appellants have the ‘personal
stake in the outcome of the controversy’ necessary to meet the requirements of
Art. III.”
Buckley, 424 U.S. at 11 (quoting Baker v. Carr,
369 U.S. 186, 204
(1962)). “Standing requires, at a minimum, three elements: injury in fact, a
‘fairly traceable’ causal link between that injury and the defendant’s conduct,
and the likelihood that the injury will be ‘redressed by a favorable decision.’”
Cadle Co. v. Neubauer,
562 F.3d 369, 371 (5th Cir. 2009) (quoting Lujan v.
Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)).
In the present case, the Plaintiffs have met their Article III burden. First,
the complaint alleges an injury that is concrete, not hypothetical. The complaint
establishes that the RNC spent all of its $42,100 in expenditures on Cao’s
election campaign allotted under the Party Expenditure Provision and reached
its $5,000 contribution limit. Furthermore, the complaint alleges that during
the course of Cao’s campaign, the RNC wanted to make additional expenditures,
and but for the $42,100 Party Expenditure Provision making it illegal to do so,
the RNC would have made these expenditures. This injury is not conjectural,
but rather, is sufficiently concrete to satisfy the requirements of Article III.
Moreover, the Plaintiffs’ alleged injury is fairly traceable to the FEC’s
conduct, as it is the FEC’s implementation of the Act and its regulations that
render the Plaintiffs’ desired speech illegal. The Plaintiffs also satisfy Lujan’s
14
No. 10-30080, No. 10-30146
third requirement, redressability, since a favorable ruling by this en banc court
would permit the Plaintiffs to make further monetary contributions and carry
out their desired coordinated speech acts—without any fear that the
Government would regulate their coordinated expenditures pursuant to FECA.
Therefore, Plaintiffs have demonstrated sufficient Article III standing to
bring their constitutional claims.
2.
The district court certified the third question as follows:
Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A) violate
the First Amendment rights of one or more plaintiffs as applied to
a political party’s in-kind and direct contributions because it
imposes the same limits on parties as on political action
committees?
Cao (District Court), 688 F. Supp. 2d at 504.
In the third certified question, the Plaintiffs claim that § 441a(a)(2)(A)’s
limitation violates the First Amendment because it imposes the same
contribution limitations on parties as it does on political action committees
(“PACs”). The Plaintiffs raise three arguments in support of this proposition:
first, that the Supreme Court’s decisions in Buckley and Colorado I support the
notion that political parties’ political speech deserves a higher degree of
protection than the political speech of PACs; second, that the $5,000 contribution
limitation violates Randall; and third, that the Supreme Court’s decision in
Citizens United v. FEC, 130 S. Ct. 876, 899 (2010), should alter the analysis of
contribution limits FECA places on political parties and PACs. These arguments
are without merit.
First, the Plaintiffs misconstrue the principal holdings in Buckley and
Colorado I. Although the Court in both Buckley and Colorado I acknowledged
the important historic role that political parties have played in the democratic
election of this Nation’s public officials, the Court simultaneously acknowledged
15
No. 10-30080, No. 10-30146
that it is this precise role that political parties fill that gives rise to the
Government’s compelling interest in regulating their coordinated expenditures
and contributions. Notably, the Colorado II Court effectively rejected the
argument Plaintiffs now make, reasoning that:
The Party’s arguments for being treated differently from other
political actors subject to limitation on political spending under the
Act do not pan out. . . . In reality, parties . . . function for the benefit
of donors whose object is to place candidates under obligation, a fact
that parties cannot escape. Indeed, parties’ capacity to concentrate
power to elect is the very capacity that apparently opens them to
exploitation as channels for circumventing contribution and
coordinated spending limits binding on other political players.
Colorado II, 533 U.S. at 455. Thus, to the extent that the Plaintiffs attempt to
argue that Buckley and Colorado I support the proposition that the Government
cannot place the same restrictive contribution limitations on political parties
that it places on PACs, that argument is foreclosed by Colorado II—where the
Supreme Court’s analysis fully supports the Government’s differential treatment
of political parties—because of what Colorado II recognized as a political party’s
unique susceptibility to corruption.
Second, the Plaintiffs misread Randall when they argue that the Court’s
decision turned on the fact that PACs and political parties were treated equally.
In Randall, the Court struck down the State of Vermont’s Act 64 requiring “that
political parties abide by exactly the same low contribution limits that apply to
other contributors,” 548 U.S. at 256, because the contribution limitations were
“suspiciously low” and would seriously impair political parties’ ability to
effectively participate in the political process.
Id. at 257, 261. In the present
case, FECA does not impose a “suspiciously low” limitation on a political party’s
16
No. 10-30080, No. 10-30146
contribution, but rather, affords a more reasonable limitation of $5,000.13
Consequently, the Supreme Court’s invalidation of Act 64 in Randall is entirely
inapposite to the present constitutional challenge, and therefore does not
support Plaintiffs’ challenge to § 441a(a)(2)(A).
Third, we do not read Citizens United as changing how this court should
evaluate contribution limits on political parties and PACs. In Citizens United,
the Court held that corporations and labor unions had the right under the First
Amendment to make independent campaign expenditures. 130 S. Ct. at 913.
This conclusion—that independent expenditures may not be restricted—has
been the rule for political parties since Colorado I. See Colorado
II, 533 U.S. at
455 (“[U]nder Colorado I, [a political party has had the ability] to spend money
in support of a candidate without legal limit so long as it spends independently.
A party may spend independently every cent it can raise wherever it thinks its
candidate will shine, on every subject and any viewpoint.”).14 Thus, the Supreme
Court’s decision in Citizens United—regarding a corporation’s right to make
independent expenditures—provides no reason to change our analysis of the
validity of the contribution limits FECA places on political parties and PACs.
For the above reasons, we find that § 441a(a)(2)(A)’s $5,000 contribution
limitation is constitutional. The fact that the Government’s “closely drawn”
contribution limitation applies equally to both political parties and PACs is of
no constitutional moment.
3.
13
The Randall Court provided two additional reasons for finding Act 64
unconstitutional: first, the state statute provided no generous additional limit for coordinated
party expenditures, and second, each limit applied to all national, state, and local affiliates of
a party combined, as well as both the primary and general elections combined. See id. at 257,
249, 259. These factors are noticeably absent from the Plaintiffs’ present challenge.
14
Notably, in the 2008 election cycle, political parties made $280,873,688 in
independent expenditures. Cao (District Court), 688 F. Supp. 2d at 518.
17
No. 10-30080, No. 10-30146
The district court certified the fourth question as follows:
Does the $5,000 contribution limit at 2 U.S.C. § 441a(a)(2)(A)
facially violate the First Amendment rights of one or more plaintiffs
because it is not adjusted for inflation?
Cao (District Court), 688 F. Supp. 2d at 504.
In fashioning their argument that the $5,000 contribution limit is
unconstitutional because it is not adjusted for inflation, the Plaintiffs rely
heavily on the Supreme Court’s decision in Randall v. Sorrell. While the failure
to index for inflation was one reason the Court struck down Vermont’s
contribution limitation, the Randall Court reasoned that “[a] failure to index
limits means that limits which are already suspiciously low . . . will almost
inevitably become too low over time.” 548 U.S. at 261. The Court’s statement
does not, in turn, mean that all contribution limits not indexed for inflation are
automatically “suspiciously low” and unconstitutional. In the present case,
FECA’s $5,000 limitation in § 441a(a)(2)(A) is not comparable to Vermont’s
$200–$400 limitation. Consequently, we are not presented with circumstances
in which the failure to index for inflation is coupled with a contribution
limitation so “suspiciously low” that it warrants this court’s judicial supervision
to prevent the limitation from becoming “too low over time.”
Furthermore, the Plaintiffs’ argument that this court should invalidate §
441a(a)(2)(A) based on its failure to index for inflation alone overlooks the
Supreme Court’s decision in Buckley, where the Court recognized that “Congress’
failure to engage in such fine tuning does not invalidate the legislation.”
Buckley, 424 U.S. at 30.15 So long as the Government can establish “that some
limit on contributions is necessary, a court has no scalpel to probe, whether, say,
a $2,000 ceiling might not serve as well as $1,000.”
Id. (quotations and citations
15
It is worth noting that no court has ever invalidated a contribution limitation based
solely on its failure to index for inflation.
18
No. 10-30080, No. 10-30146
omitted). As this Court does not possess the “particular expertise” attributable
to legislators who are “better equipped to make such empirical judgments,” we
decline the opportunity to “determine with any degree of exactitude the precise
restriction necessary to carry out the statute’s legitimate objectives.” Randall,
548 U.S. at 248.
Accordingly, we find § 441a(a)(2)(A)’s $5,000 contribution limitation
survives the Plaintiffs’ constitutional challenge presented in the fourth certified
question.
III.
The only remaining question requires a more detailed discussion. The
second question certified to the en banc court asks:
Do the expenditure and contribution limits and contribution
provision in 2 U.S.C. §§ 441a(a)(2–3), 441a(a)(2)(A), and
441a(a)(7)B)(i) violate the First Amendment rights of one or more of
[the] plaintiffs as applied to coordinated communications that
convey the basis for the expressed support?
Cao (District Court), 688 F. Supp. 2d at 504.
This question arose out of the RNC’s desire to spend in excess of the
amount allowed for coordinated campaign expenditures under the Party
Expenditure Provision. Particularly, the RNC wanted to expend its funds to run
a radio advertisement in support of Cao (hereinafter “the Cao ad”). The
proposed Cao ad said:
Why We Support Cao
The Republican National Committee has long stood for certain
core principles, which we believe are the fundamentals of good
government. When it comes to the issues of lower taxes, individual
freedoms and a strong national defense, we need leaders who will
stand with the American people and defend those issues.
We need leaders who understand that our economy is in a
recession, our individual freedoms are constantly under attack and
19
No. 10-30080, No. 10-30146
we continue to fight the global war on terrorism to keep our families
safe.
Joseph Cao understands and fights for those issues. And, that
is why we ask you to join us in supporting him on December 6. It’s
important for Louisiana and important for the country.
Id. at 532. The RNC wanted to coordinate with the Cao campaign as to the “best
timing” for the Cao ad. See Joint Stipulation of Fact ¶ 32. However, as the RNC
readily admitted at oral argument before the en banc court and its 28(j) letter
to the court, the RNC’s involvement with the Cao campaign amounted to
coordination,16 and the RNC already had spent the entire amount it was allowed
to spend on coordinated campaign expenditures under FECA. Therefore, the
RNC concluded that it could not coordinate with the Cao campaign to run the
Cao ad without violating FECA. Ultimately, the RNC chose to not expend its
16
The following exchange took place at oral argument:
Judge Davis: When the party allowed the candidate to, consult the candidate
on timing, and apparently that’s all we know and that’s all that’s
knowable because nothing took place, why is that not coordinated
...
Plaintiffs’ Counsel: It is.
Judge Davis: . . . under the regulations it probably would be . . .
Plaintiffs’ Counsel: It is.
Judge Davis: . . . why is it not?
Plaintiffs’ Counsel: It is. Absolutely. To consult with the timing it means
that it is coordinated. Now, they would rather talk about,
you know, what happens if the candidate, you know,
wrote the ad and gave it to the party. Well there’s no like
degree of being pregnant. It’s either coordinated or not
coordinated . . . .
Plaintiffs’ counsel further stated in response to a question from Judge Owen that “. . .
[O]ur argument is if it is our speech it doesn’t make it independent. We acknowledge that the
Cao ad, and they [the FEC] acknowledge that the Cao ad, is coordinated.”
20
No. 10-30080, No. 10-30146
funds to air the Cao ad and brought this challenge to FECA’s restrictions on
coordinated expenditures.
Because we are a court of error and only decide issues the parties bring to
us, it is important at the outset to identify the RNC’s sole argument on this
certified question. See Sherman v. United States, 356 U.S. 369, 376 (1958) (“We
do not ordinarily decide issues not presented by the parties . . . .”). The RNC
argues—and only argues—that §§ 441a(d)(2)–(3), 441a(a)(2)(A), and
441a(a)(7)(B)(i) violate its First Amendment rights because the provisions
regulate the RNCs “own speech.” The RNC asserts that its own speech may not
be regulated, regardless of whether the speech is coordinated.17 “Own speech”
is defined by the RNC as speech that is “attributable” to the RNC and includes
speech the candidate writes and decides how the speech is to be disseminated.
In other words, the RNC argues that speech it adopts is attributed to it and
therefore exempt from regulation regardless of the extent of coordination with
the candidate.
With respect to this certified issue, the broad “own speech” argument is
the only argument the RNC raised in its complaint,18 the only argument the
district court addressed,19 the only argument the RNC raised in its briefs to the
en banc court,20 and the only argument the RNC’s counsel was willing to make
17
Presumably this argument would apply to any person’s or entity’s “own speech.”
18
See Second Amended Complaint, ¶¶ 43–44, 83–85.
19
See Cao (District Court), 688 F. Supp. 2d at 539-42.
20
See Plaintiffs-Appellants Brief at 11–25. The Plaintiffs’ state in their brief that “[in
this certified question], Plaintiffs-Appellants challenged whether a party’s ‘own speech’ may
be deemed a contribution.” Id. at 11. “A political party’s ‘own speech’ is speech that is
attributable to it, even if input on the speech—as to details such as content, media, and
timing—was received from others, such as a party’s media consultants, script writers, pollsters,
officials, constituency, ideological allies, and candidates.”
Id. at 16 (footnote omitted).
“Attribution belongs to the entity that pays for and adopts the speech.”
Id. “Cao Ad is clearly
RNC’s own speech because it would be attributable to RNC and bear a disclaimer showing that
21
No. 10-30080, No. 10-30146
at oral argument before the en banc court. In response to friendly questions
from the en banc bench, the RNC’s counsel declined the opportunity to argue
that the level of involvement between the RNC and the candidate with respect
to the Cao ad did not amount to coordination. More broadly stated, counsel for
the RNC refused to adopt the position that the level of coordination should affect
whether an expenditure may be regulated. Instead, counsel steadfastly insisted
that the proposed expenditure was coordinated and that his sole argument was
that Congress could not regulate the RNC’s “own speech.” For example, the
following exchange occurred at oral argument:
Judge Jolly: . . . [Y]our own argument is that as long as
it is your speech, there are no further
concerns about it. Is that . . .
Plaintiffs’ Counsel: That is correct.
Judge Jolly: But, on the other hand, you have admitted
also that if you run it and it becomes, you
run it so often and so much and with such
degree of coordination that it becomes their
speech.
Plaintiffs’ Counsel: No, the degree of coordination does not
affect whose speech it is at all.
Judge Jolly: In other words, you can sit down and
discuss with them the degree of
coordination on fifty ads, and you can keep
running that ad and running that ad on
their time, and it, and you are running a
number of ads, and it still is your speech
notwithstanding the “Nth” degree of
coordination that you have in running
them?
RNC paid for the ad.” Id. at 17. This “own speech” argument is the sole argument Plaintiffs
make to the en banc court on this issue.
22
No. 10-30080, No. 10-30146
Plaintiffs’ Counsel: That’s right. There is no degree of being
pregnant. You’re either or not.
Thus the record unambiguously reflects that the RNC’s sole challenge in this
case with regard to the Cao ad is whether Congress may regulate a party’s own
speech, meaning speech that is paid for by the party and adopted by the party
regardless of coordination with the candidate. We therefore examine only that
argument.
To evaluate the merit of the Plaintiffs’ expansive “own speech” argument,
we return to Buckley v. Valeo, the first case to discuss coordinated expenditures
under FECA. In Buckley, the Supreme Court examined, inter alia, then-18
U.S.C. § 608(e)(1) which limited individuals’ ability to make independent
expenditures.21 424 U.S. at 39–51. The Government argued that Congress could
restrict independent expenditures because independent expenditures could be
used to circumvent contribution limits. The Buckley Court rejected the
Government’s argument. In finding that independent expenditures could not be
regulated, the Court compared § 608(e)(1) with § 608(b), the provision that
regulated expenditures coordinated with a candidate. The Buckley Court stated:
. . . [C]ontrolled or coordinated expenditures are treated as
contributions rather than expenditures under the Act. Section
608(b)’s contribution ceilings rather than § 608(e)(1)’s independent
expenditure limitation prevent attempts to circumvent the Act
through prearranged or coordinated expenditures amounting to
disguised contributions. By contrast, § 608(e)(1) limits expenditures
for express advocacy of candidates made totally independently of the
candidate and his campaign. Unlike contributions, such
independent expenditures may well provide little assistance to the
candidate’s campaign and indeed may prove counterproductive. The
absence of prearrangement and coordination of an expenditure with
the candidate or his agent not only undermines the value of the
21
By its terms, § 608(e)(1) did not apply to national political parties. Since Buckley, §
608(e)(1) has been repealed and replaced with similar provisions in 2 U.S.C. § 441a.
23
No. 10-30080, No. 10-30146
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 46–47 (footnote omitted). Thus, the Buckley Court concluded that
although Congress was unable to regulate individuals’ independent
expenditures, Congress could regulate individuals’ coordinated expenditures.
Building on and embracing its analysis in Buckley, the Court in Colorado
I and Colorado II further examined the limitations on coordinated and
independent expenditures as applied to political parties. In Colorado I, the
Colorado Republican Party (“CRP”) brought an as-applied challenge to the Party
Expenditure Provision arguing that restricting a party’s independent
expenditures was unconstitutional. The Colorado I Court followed the Buckley
rationale and found that “the constitutionally significant fact . . . is the lack of
coordination between the candidate and the source of the expenditure.”
Colorado I, 518 U.S. at 617. In holding that the restraint on an independent
expenditure was unconstitutional, the Court distinguished between coordinated
expenditures and independent expenditures, stating:
. . . [T]he 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.” . . . [R]easonable
contribution limits directly and materially advance the
Government’s interest in preventing exchanges of large financial
contributions for political favors.
. . . [L]imitations on independent expenditures are less
directly related to preventing corruption, since “the 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.”
24
No. 10-30080, No. 10-30146
Id. at 614–16 (citations omitted). Thus, the Colorado I Court found that the
Party Expenditure Provision was unconstitutional as applied to the CRP’s
independent expenditures.
In Colorado I, the CRP also raised a facial challenge to the application of
the Party Expenditure Provision to coordinated expenditures. Id. at 623. The
Colorado I Court remanded this facial challenge because the lower courts had
not considered the issue.
Id. at 625. The remanded issue of whether Congress
could restrict coordinated expenditures reached the Supreme Court five years
later as Colorado II. After analyzing its precedents in Buckley and Colorado I,
the Colorado II Court found that “a party’s coordinated expenditures, unlike
expenditures truly independent, may be restricted to minimize circumvention
of contribution
limits.” 533 U.S. at 465. In examining whether coordinated
expenditures could be restricted, the Court applied the intermediate scrutiny
standard announced in Buckley: the restriction must be closely drawn to match
a important government interest.
Id. at 456. The Court found that Congress
could regulate coordinated expenditures as contributions because of the
sufficiently important governmental interest in preventing the potential for
political corruption by circumvention of campaign finance laws.
Id. at 459–60.
The Court stated:
There is no significant functional difference between a party’s
coordinated expenditure and a direct party contribution to the
candidate, and there is good reason to expect that a party’s right of
unlimited coordinated spending would attract increased
contributions to parties to finance exactly that kind of spending.
Coordinated expenditures of money donated to a party are
tailor-made to undermine contribution limits. Therefore the choice
here is not, as in Buckley and Colorado I, between a limit on pure
contributions and pure expenditures. The choice is between limiting
contributions and limiting expenditures whose special value as
expenditures is also the source of their power to corrupt. Congress
is entitled to its choice.
25
No. 10-30080, No. 10-30146
Id. at 464–65 (footnotes omitted).
Though the Colorado II Court unambiguously found the application of the
Party Expenditure Provision to coordinated expenditures to be facially
constitutional, the Plaintiffs argue that “Colorado II expressly left open the as-
applied question of whether parties’ own speech may be limited as
contributions.” Plaintiffs-Appellants’ Brief at 12 (footnote omitted). This
argument is based on a footnote in the majority opinion of Colorado II that
states:
Whether a different characterization, and hence a different type of
scrutiny, could be appropriate in the context of an as-applied
challenge focused on application of the limit to specific expenditures
is a question that, as JUSTICE THOMAS notes, we need not reach
in this facial challenge.
The Party appears to argue that even if the Party Expenditure
Provision is justified with regard to coordinated expenditures that
amount to no more than payment of the candidate’s bills, the
limitation is facially invalid because of its potential application to
expenditures that involve more of the party’s own speech. But the
Party does not tell us what proportion of the spending falls in one
category or the other, or otherwise lay the groundwork for its facial
overbreadth claim.
533 U.S. at 456 n.17 (citations omitted). The Plaintiffs further rely on Justice
Thomas’ dissent, in which he states:
To the extent the Court has not defined the universe of coordinated
expenditures and leaves open the possibility that there are such
expenditures that would not be functionally identical to direct
contributions, the constitutionality of the Party Expenditure
Provision as applied to such expenditures remains unresolved. At
oral argument, the Government appeared to suggest that the Party
Expenditure Provision might not reach expenditures that are not
functionally identical to contributions.
Id. at 469 n.2 (Thomas, J., dissenting).
Assuming that the Colorado II Court left open the possibility for an as-
applied challenge to the Party Expenditure Provision’s application to coordinated
26
No. 10-30080, No. 10-30146
spending, the facts and arguments in the instant case do not present this court
with that question. Acceptance of the Plaintiffs’ “own speech” argument would
effectively eviscerate the Supreme Court’s holding in Colorado II, which dealt
only with coordinated expenditures. The Court in Colorado II expressly
recognized that Congress has the power to regulate coordinated expenditures in
order to combat circumvention of the contribution limits and political corruption.
Id. at 456 (majority opinion) (“We accordingly apply to a party’s coordinated
spending limitation the same scrutiny we have applied to the other political
actors, that is, scrutiny appropriate for a contribution limit, enquiring whether
the restriction is ‘closely drawn’ to match what we have recognized as the
‘sufficiently important’ government interest in combating political corruption.”).
The Colorado II Court stated:
. . . [T]he question is whether experience under the present law
confirms a serious threat of abuse from the unlimited coordinated
party spending as the Government contends. It clearly does.
Despite years of enforcement of the challenged limits, substantial
evidence demonstrates how candidates, donors, and parties test the
limits of the current law, and it shows beyond serious doubt how
contribution limits would be eroded if inducement to circumvent
them were enhanced by declaring parties’ coordinated spending
wide open.
Id. at 457 (citation and footnote omitted).
If this court were to accept the Plaintiffs’ exceedingly broad argument, we
would be reaching a conclusion inconsistent with the Colorado II Court’s
teaching that coordinated expenditures may be restricted. The RNC’s sole
argument throughout has been that there is no limit to its claim that Congress
cannot regulate a party’s own speech regardless of the degree of coordination
with the candidate. The district court succinctly identified the Plaintiffs’
argument: “Plaintiffs claim that a party coordinated communication disclosed
as paid for by the party is the party’s ‘own speech’ even if a candidate indicates
27
No. 10-30080, No. 10-30146
in the communication that he has approved the message.” Cao (District Court),
688 F. Supp. 2d at 531. Moreover, “Plaintiffs claim that a party coordinated
communication disclosed as having been paid for by the party is the party’s ‘own
speech’ even if the candidate or her campaign actually creates the
communication and passes it along to the party.”
Id. at 530. Thus, under the
Plaintiffs’ standard, all coordinated expenditures paid for and adopted by the
party would be considered a party’s own speech and not subject to restriction.22
As demonstrated above, the Colorado II Court, as well as the Court’s earlier
cases, clearly held that coordinated expenditures may be restricted to prevent
circumvention and corruption.
We find the Colorado II Court’s concern with corruption particularly
important since, in the present case, the Plaintiffs admit that they themselves
have already taken steps to circumvent the Act’s individual donor contribution
limits. The district court found that “[t]he RNC encourages its candidates to tell
their ‘maxed out’ donors to contribute to the RNC.” Cao (District Court), 688 F.
Supp. 2d at 526. Representative Cao confirmed in his deposition this behavior
by the RNC. “Congressman Cao has personally suggested to donors who had
given the maximum amount to his campaign that they could also contribute to
the party.” Id. Furthermore, the district court found that “the party has shared
[its] donor list” with its federal candidates, and that “[t]he sharing of information
also happens in the other direction[, since the party] receives information from
federal candidates about who has contributed to their campaigns.”
Id. at 523.
The district court also found that “the RNC organizes ‘fulfillment’ events to
which individuals who have made a large contribution to the RNC of a specified
22
The district court stated that “[t]he only type of party-coordinated communication
that plaintiffs believe is not a party’s ‘own speech’ and therefore may be constitutionally
limited is one that a campaign airs and for which the party merely pays the bill.” Cao, 688 F.
Supp. 2d at 531. However, under Plaintiffs’ argument even this type of communication would
be considered the party’s own speech if the party adopted the ad as its own.
28
No. 10-30080, No. 10-30146
amount are invited” so that they can have special access to federal lawmakers.23
Id. The Colorado II Court warned that “[i]f the effectiveness of party spending
could be enhanced by limitless coordination, the ties of straitened candidates to
prosperous ones and, vicariously, to large donors would be reinforced as well.”
Colorado
II, 533 U.S. at 460 n.23. The above facts demonstrate the potential
corruption and abuse that concerned Colorado II.
Id. at 456. At oral argument,
the en banc court gave counsel every opportunity to address the concern that the
Plaintiffs’ argument conflicts with the Supreme Court’s controlling precedent.24
In response, Plaintiffs’ counsel reiterated that the challenge was an as-applied
challenge, whereas Colorado II was a facial challenge. Colorado II, the Plaintiffs
assert, left open the possibility of their as-applied challenge.
Colorado II certainly left open the possibility for an as-applied challenge
to the Party Expenditure Provision as it applies to coordinated expenditures; it
is well-established that the facial upholding of a law does not prevent future as-
applied challenges. E.g., Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410,
411–12 (2006) (holding that the plaintiff could bring an as-applied challenge to
23
The district court found the following:
The RNC has created tiers of donors with specified benefits based on levels of
annual giving: For example, donors who give $15,000 receive intimate
luncheons, dinners, and meetings with key policymakers; donors who give
$30,400 enjoy exclusive private functions with elected Republican leaders; and
donors who commit to raising $60,800 receive at least one . . . exclusive event
during the year, as well as other intimate events with key GOP policymakers.
Cao (District Court), 688 F. Supp. 2d at 523 (internal quotation marks omitted).
24
Chief Judge Jones questioned RNC’s counsel in this regard:
[T]he Court has always very often said ‘well, coordinated expenditures are
different.’ Now they haven’t delineated the line between speech and
coordination, but it seems to me you are trying to pretty much shatter that
barrier. And the second thing is, Colorado I would have been decided in the way
that you advocate if the Court had accepted your position. So what has changed
since Colorado I?
29
No. 10-30080, No. 10-30146
BCRA despite the Court upholding the statute on its face). However, simply
characterizing the challenge as an as-applied challenge does make it one. “While
rejection of a facial challenge to a statute does not preclude all as-applied
attacks, surely it precludes one resting upon the same asserted principle of law.”
Penry v. Lynaugh, 493 U.S. 302, 354 (1989) (Scalia, J., dissenting). See also
RNC v. FEC,
698 F. Supp. 2d 150, 157 (D.D.C. 2010) (“In general, a plaintiff
cannot successfully bring an as-applied challenge to a statutory provision based
on the same factual and legal arguments the Supreme Court expressly
considered when rejecting a facial challenge to that provision. Doing so is not
so much an as-applied challenge as it is an argument for overruling a
precedent.”), summ. aff’d, RNC v. FEC,
130 S. Ct. 3543 (2010).
The argument raised by the Plaintiffs in this case rests not on a
sufficiently developed factual record, but rather, on the same general principles
rejected by the Court in Colorado II, namely the broad position that coordinated
expenditures may not be regulated.25 Finding for the Plaintiffs would require us
to hold that Congress cannot limit a party’s expenditures on a campaign ad, the
content of which the party adopts, regardless of the degree of coordination with
the candidate.26 Because such a conclusion would effectually overrule all
25
The Plaintiffs’ Second Amended Complaint raises further concern that this is merely
an attempt to overturn Colorado II because the Plaintiffs chiefly rely on the rationale of the
Colorado II dissenting opinion. See Second Amended Complaint, ¶¶ 43–44, 83–85.
26
Chief Judge Jones posits that we conclude the Cao Ad is a “coordinated” expenditure
simply because the government claims it is. She writes: “This court is not bound by the
government’s simply labeling the speech ‘coordinated’ . . . . ‘An agency’s simply calling an
independent expenditure a “coordinated expenditure” cannot (for constitutional purposes) make
it one.’” Jones Dissent at 17 (quoting Colorado I, 518 U.S. at 621–22). True enough. We note,
however, that we are not relying on the government’s claim that the Cao Ad is coordinated, but
rather, we place our reliance on the Plaintiffs’ admissions as to the extent of the coordination
and Plaintiffs’ labeling of their own claim. Notably, in their Rule 28(j) letter to the court, the
Plaintiffs once again confirmed that the proposed Cao Ad amounted to coordination: “RNC
provides a specific ad, a specific coordinating candidate, and specific detail as to coordination
nature (timing, with content awareness).”
30
No. 10-30080, No. 10-30146
restrictions on coordinated expenditures, the RNC’s argument must fail in light
of Colorado II.
The Plaintiffs further argue that the Court’s recent decision in Citizens
United has signaled a change in the law in this area. Undoubtedly, Citizens
United altered the legal landscape with respect to corporations and labor unions,
because the Supreme Court held that these entities may make independent
campaign expenditures free of Congressional limitations. See 130 S. Ct. at 913.
However, as we discussed earlier, the Supreme Court’s decision in Citizens
United has no bearing on whether Congress has the power to restrict political
parties’ coordinated expenditures. Citizens United addresses only independent
expenditures and simply does not address coordinated expenditures. Regardless,
the holding of Citizens United—that the restrictions on independent
expenditures by corporations and labor unions violated the First Amendment—is
entirely consistent with the Court’s decision in Colorado I, in which the Court
held that Congress could not regulate the independent expenditures of a party.
See Colorado
I, 518 U.S. at 617. Thus, as we have previously stated, there is no
reason for us to conclude that Citizens United undermines Colorado II’s holding
that Congress can regulate a party’s coordinated expenditures.27
The Plaintiffs have offered much rhetoric regarding the Party Expenditure
Provision’s “suppression” of their speech, yet as the district court noted in its
factual findings, “party committees like the RNC rarely reach their legal limit
for coordinated expenditures in a particular House or Senate race.” Cao (District
Court), 688 F. Supp. 2d at 520.28 Overall, “[i]n the 2008 election cycle, the major
27
See also RNC v. FEC, 698 F. Supp. 2d at 153 (noting that Citizens United did not
disturb prior decisions that found limits on contributions to political parties to be
constitutional).
28
“Although there are at least 468 federal elections each cycle, Republican committees
reached the maximum amount of coordinated expenditures in only seven congressional races
in 2008, and in two races in 2006.” Cao (District Court), 688 F. Supp. 2d at 520.
31
No. 10-30080, No. 10-30146
national party committees (RNC and DNC) supported their federal candidates
with a total of $529,262 in contributions, $31,256,379 in coordinated
expenditures, and $54,563,499 in independent expenditures.” Id. at 517. Thus,
the Party Expenditure Provision hardly amounts to a ban on free speech.
Instead, the Act’s cap on coordinated expenditures seems a small price to pay to
preserve “the integrity of our system of representative democracy.”
Buckley, 424
U.S. at 26.
The Plaintiffs’ “own speech” argument cannot be reconciled with Colorado
II. As such, we find that the expenditure and contribution limits and
contribution provision in 2 U.S.C. §§ 441a(a)(2)–(3), 441a(a)(2)(A), and
441a(a)(7)B)(I) do not violate the First Amendment rights of one or more of the
Plaintiffs as applied to coordinated communications that convey the basis for the
party’s expressed support.
IV.
The principal disagreement we have with the dissents is over the scope of
Plaintiffs’ argument with respect to the constitutionality of contribution
restrictions relative to coordinated expenditures. Based on the record, briefs and
oral argument, we have explained above why we conclude that the only issue
Plaintiffs presented to us for decision is whether the RNC’s “own speech” is
subject to regulation and restriction under FECA. As we read Chief Judge
Jones’s dissent, she agrees that Colorado II answers this question and
authorizes regulation of RNC’s own speech generally. Chief Judge Jones’s
principal argument is that Plaintiffs also presented for decision whether the Act
can constitutionally restrict expenditures for the Cao Ad involved in this case
when that ad was coordinated between the RNC and the candidate as to “timing
only.”
Contrary to the position outlined above, Chief Judge Jones’s dissent
asserts first that the Plaintiffs raised this latter “narrow” issue in its brief. To
32
No. 10-30080, No. 10-30146
support this assertion, Chief Judge Jones relies on two sources in Plaintiffs’
briefs. First, she relies on recitations of Joint Stipulation of Fact ¶ 32, which
states that “RNC intends to coordinate the RNC Cao Ad with Joseph Cao as to
the best timing for the Ad, but otherwise the Ad would not be coordinated with
Cao.” The recitation of a stipulation of fact does not present an issue on appeal.
The only other passage in the Plaintiffs’ briefs that the Chief Judge relies on to
support her view that Plaintiffs wish to present this as an issue on appeal is in
a footnote in the Plaintiffs’ reply brief. The law is clear in this circuit that we do
not consider arguments made for the first time in an appellant’s reply brief.
Woods v. Johnson, 75 F.3d 1017, 1035 n. 24 (5th Cir. 1996) (“[W]e do not consider
issues raised for the first time in a reply brief.”); Cavallini v. State Farm Mt.
Auto Ins. Co.,
44 F.3d 256, 260 n. 9 (5th Cir. 1995); see also Cinel v. Connick,
15
F.3d 1338, 1345 (5th Cir. 1994) (“A party who inadequately briefs an issue is
considered to have abandoned the claim.”) (citing Villanueva v. CNA Ins. Cos.,
868 F.2d 684, 687 n. 5 (5th Cir. 1989)). Moreover, we read this footnote as an
attempt by Plaintiffs to explain the legal question Colorado II left open,
particularly Justice Thomas’ view of the open question which he articulated in
his dissent. This passage notes that Colorado II left open “whether some other
speech communications may not be regulated because coordination is de minimis
(e.g., just timing) . . .” See Jones Dissent at 5-6 (citing footnote 5 in Plaintiffs-
Appellants’ Reply Brief). Plaintiffs, however, make no argument that
coordination of the Cao Ad (with timing plus knowledge of content) is de
minimis. Notably, this is the only passage referring to “de minimis” coordination
in either of Plaintiffs’ briefs. That Plaintiffs never intended to make the de
minimis argument is further supported by the fact (as we will discuss below)
that counsel repeatedly disclaimed an intent to raise this narrow issue on
appeal.
33
No. 10-30080, No. 10-30146
Even if we accept that the argument in Plaintiffs’ reply brief properly
raised this issue for our consideration, it is clear to us that counsel for Plaintiffs
at oral argument abandoned this issue. We have quoted at length above
counsel’s persistent disclaimers that he is relying on the fact that the
coordination between the candidate and the party was de minimis. He
consistently argues that once the speech is determined to be the party’s “own
speech,” then regulation or restrictions on that speech is unconstitutional. All
of the responses given by counsel to questions from the court disclaiming that
he is making this narrow argument cannot be explained as agreeing that the
Cao Ad may amount to coordination under the regulation but failing to concede
that the Cao Ad amounts to coordination for purposes of our constitutional
analysis of Plaintiffs’ claim. See Jones Dissent at 8 n. 5.
Even if we further consider that Plaintiffs made and did not abandon the
argument that the coordination between the candidate and the party was de
minimis, based on the stipulation and admission of counsel the coordination
cannot be considered de minimis. At oral argument, Plaintiffs’ counsel conceded
that the RNC intended to coordinate the Cao Ad with Cao not only with regard
to timing, but also by providing Cao with advance knowledge of the Cao Ad’s
content.29 Plaintiffs’ counsel expressly repeated this concession in a
supplemental Rule 28(j) letter filed with the court after oral argument stating
that “RNC provides a specific ad, a specific coordinating candidate, and specific
detail as to coordination nature (timing, with content awareness).” (emphasis
added).30 These concessions by counsel are consistent with the allegations of the
29
Upon questioning by Judge Owen, counsel stated “I think that is part of the facts,
that they knew what the Cao Ad said,” and again confirmed that content knowledge is “part
of the fact pattern.”
30
FEC counsel’s own supplemental Rule 28(j) letter to the court correctly observed that
the admission by Plaintiffs’ counsel at oral argument “clarified for the first time that Cao not
only planned to coordinate as to timing, but also would be aware of the content of the
34
No. 10-30080, No. 10-30146
Plaintiffs’ Second Amended Complaint, which recites the specific text of the Cao
Ad, necessarily indicating that Plaintiffs intended to provide Cao with advance
knowledge of the Cao Ad’s content. See Second Amended Complaint ¶ 44.31
This “content awareness” stipulation has significance that the dissents
completely overlook. For instance, given advance knowledge of the Cao Ad’s
content, if Cao approved of the content and found it favorable to his campaign,
he may have told or requested the RNC to run the ad frequently during prime
hours. If Cao disapproved of the Cao Ad’s content and found it unfavorable to
his campaign, he may have told or requested the party to run it infrequently
during off hours, or perhaps not at all. This degree of coordination of campaign
expenditures contrasts sharply with the Supreme Court’s functional definition
of independent expenditures. Whereas the Supreme Court has explained that
an independent expenditure representing the party’s own views may at times
work against the candidate’s interests,32 timing-plus-content-awareness
coordination may ensure that a party’s message virtually always works in the
candidate’s favor.33 See Buckley, 424 U.S. at 47; Colorado
II, 533 U.S. at 464.
advertisement.”
31
The full text of the Cao Ad appearing in the Second Amended Complaint also appears
in ¶ 43 of Plaintiffs’ First Amended Complaint filed December 4, 2008, two days before the
election. Thus, Cao knew of the Cao Ad’s content at least two days before the election, and if
relief had been immediately granted the coordination would have taken place with his
knowledge of the Cao Ad’s content.
32
Cao’s experience with the RNC’s previous independent expenditures confirms this
distinction. He testified that some of the RNC’s prior independent expenditures harmed his
election chances. Deposition of Anh “Joseph” Cao (“Cao Dep.”) at 42 (FEC Exh. 4 to Proposed
Findings of Fact).
33
This is consistent with Cao’s understanding of the nature of the intended
coordination. At deposition, he testified as to the following:
I would like to know the contents of those ads . . . . And so if we were allowed to
coordinate it with them, I would have loved to have their fundings and their
support and – and to basically coordinate how the ads should be read or – what
the ads should say. What our focus – what we want to focus on.
35
No. 10-30080, No. 10-30146
For these reasons we cannot agree with Chief Judge Jones’s conclusion
that “there is no functional difference between the Cao Ad and a constitutionally
protected independent expenditure.” Jones Dissent at 20. As we have explained
above, knowledge of content plus timing coordination makes a huge difference
relative to the benefit of the ad to the candidate that the dissent fails to
recognize—namely, the candidate’s ability to direct approved content for
maximum impact and redirect disapproved content for minimum impact on his
campaign.34
This type of coordinated activity, moreover, implicates the same corruption
and circumvention concerns of the Colorado II Court. As discussed above, the
court is particularly concerned with Plaintiffs’ admissions that they have already
taken steps to circumvent the Act’s individual donor contribution limits.
Furthermore, to quote Judge Clement’s dissent, if Cao were asked “to provide
input on its content” or “asked to provide his consent to run the ad . . . that
would indeed raise a suspicion that the parties were attempting to circumvent
the rules against coordination so that the RNC could pay the bill for Cao’s
speech—the evil at which the coordination rules are aimed.” Clement Dissent
at 3. This is exactly the scenario that is contemplated by the coordination of
timing with the addition of advance content awareness, which both dissents
refuse to acknowledge. Therefore, based on what we know of the extent of the
proposed coordination on this scant record, it is reasonable to infer that the
coordination of the Cao Ad between the candidate and the party as to timing
Cao Dep. at 42.
34
Consideration of the “content awareness” element of Plaintiffs’ allegations
demonstrates the error in many of the dissents’ conclusions, including Chief Judge Jones’s
assertions that “[t]here is no evidence that he or his campaign . . . provided their views on its
content,” that “[t]he candidate will not know whether the ad is effective,” and that “[c]ontent,
however, is not at issue in this case.” Jones Dissent at 5, 20, 27.
36
No. 10-30080, No. 10-30146
with the candidate’s prior knowledge of the of the ad’s content would amount to
a coordinated expenditure subject to restriction under Colorado II.
In the absence of additional facts as to the actual extent of the
coordination, all the Court is left with is the obligation to give reasonable
inferences to the evidence that was produced. And it is the Plaintiffs’ burden in
an as-applied challenge of this nature to produce the facts upon which he bases
his challenge. Khachaturian, 980 F.2d at 331. In other words, a plaintiff
seeking an injunction in an as-applied challenge generally has the burden to
allege enough facts for the Court to decide the constitutional claim while
avoiding “‘premature interpretation of statutes’” requiring speculation or
conjecture on a “‘factually barebones record.’” Milavetz, Gallop & Milavetz, P.A.
v. United States,
130 S. Ct. 1324, 1344 (2010) (Thomas, J., concurring in part
and concurring in the judgment) (quoting Washington State Grange v.
Washington State Republican Party,
552 U.S. 442, 450 (2008)). The Supreme
Court “generally disapprove[s] of such challenges.”
Id. “When forced to
determine the constitutionality of a statute based solely on such conjecture, we
will uphold the law if there is any ‘conceivable’ manner in which it can be
enforced consistent with the First Amendment.”
Id. at 1345.35
In sum, we are satisfied that the de minimis coordination issue was not
presented to the court for decision. Indeed, we find it strange that the dissents
take an argument not made in the district court, nor presented to us on
appeal—and wholly disavowed by Plaintiffs’ counsel during oral argument—and
attempt to raise it like a Phoenix from the ashes. However, as a court comprised
of Article III judges, our role is not to create arguments for adjudication—but
35
This is especially true in the context of a preenforcement as-applied action. Id.; see
also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2722 (2010) (Denying a
preenforcement as-applied First Amendment challenge to the material support provisions of
federal anti-terrorism law because plaintiffs did not provide any “specific articulation of the
degree to which they seek to coordinate their advocacy.”).
37
No. 10-30080, No. 10-30146
rather, our role is to adjudicate those arguments with which we are presented.
Thus, we should decline the dissents’ invitation to serve as advocates for the
Plaintiffs and arbiters of our own engendered claims. Nonetheless, for the sake
of completeness, even if the court were to conclude that this issue was presented,
it is clear to us that an expenditure for an ad advocating the election of the
candidate coordinated as to timing, when the candidate has knowledge of the
content of the ad, amounts to a coordinated expenditure that may be
constitutionally regulated under Colorado II.
We also disagree with the position advocated by Chief Judges Jones and
Judge Clement that the WRTL analysis applies to this case. In WRTL, the
Court considered whether the government could regulate an independent
expenditure under § 203 of BCRA for payment of an “issue advocacy” ad. 551
U.S. at 455. No question was raised that the ad was coordinated with the
candidate. The Court applied strict scrutiny to the statute and held that BCRA
as applied to this ad did not pass constitutional muster. This holding is not
inconsistent with Buckley, Colorado I, and Colorado II, all of which make it clear
that strict scrutiny applies to regulation of independent expenditures for
political speech.36
V.
For the foregoing reasons, we answer the questions certified to the en banc
court as follows. First, the Plaintiffs do have standing to bring their claims.
Second, § 441a(a)(2)(A)’s $5,000 contribution limit is constitutional even though
it imposes the same limits on parties as on PACs and is not adjusted for
inflation. Third, §§ 441a(a)(2)–(3), 441a(a)(2)(A), and 441a(a)(7)(B)(i) are not
36
Under WRTL, it is clear that the Cao Ad is an express advocacy ad. The Cao Ad
affirmatively asks the reader to join the party in supporting Cao on election day. This meets
the requirements of an express advocacy ad. See WRTL, 551 U.S. at 469. Additionally, the
Plaintiffs’ themselves characterize the Cao Ad as “a specific express advocacy communication
that RNC intends to make . . . .” Joint Stipulation of Facts ¶ 31.
38
No. 10-30080, No. 10-30146
unconstitutional as applied to the Plaintiffs. Moreover, we find that the district
court did not abuse its discretion in dismissing the frivolous claims. Accordingly,
we remand this case to the district court for entry of judgment consistent with
this opinion.
39
No. 10-30080, No. 10-30146
E. GRADY JOLLY, Circuit Judge, concurring in result:
I concur in the result reached by the majority because I agree that it
reflects the more accurate and realistic way the case has been presented for
decision. There is much to admire in Chief Judge Jones’s dissent, and if I agreed
that the argument she addresses was the question that plaintiffs were actually
presenting for decision, I would concur in her opinion. Judge Clement has
written clearly but broadly. In my view, she does not merely challenge the
statute’s express provisions that effectively bar a Party from coordinating its
efforts with the campaign of a candidate, but also the Supreme Court’s ruling
that essentially upholds this provision. Both she and Chief Judge Jones
ultimately may be correct. But, in my opinion, not today.
40
No. 10-30080, No. 10-30146
EDITH H. JONES, Chief Judge, with SMITH, CLEMENT, ELROD, and
HAYNES, Circuit Judges concurring in part and dissenting in part:
The first object of the First Amendment is to protect robust political debate
that underpins free citizens’ ability to govern ourselves. “Speech is an essential
mechanism of democracy, for it is the means to hold officials accountable to the
people. . . . The First Amendment has its fullest and most urgent application to
speech uttered during a campaign for political office.” Citizens United v. FEC,
__ U.S. __,130 S. Ct. 876, 898 (2010) (internal citations and quotations omitted).
Yet the majority hold that Congress may forbid a political party from
broadcasting an advertisement explaining why the party supports its own
congressional candidate merely because the advertisement was coordinated with
the candidate as to timing.
We dissent. The Cao Ad cannot be suppressed by the FEC on the facts
before us.1
The majority’s errors are procedural as well as substantive. Taking a most
unorthodox approach to First Amendment adjudication, they assert that the
“sole” issue before the court is “whether Congress may regulate a party’s own
speech, meaning speech that is paid for by the party and adopted by the party
1
While this dissent considers the narrow issue whether timing-only coordination of a
political party’s campaign speech with the candidate it supports may be prohibited by the
FECA, Judge Clement’s opinion carries the implications of recent Supreme Court decisions
further to protect political party “speech that is not the functional equivalent of a campaign
contribution.” Our approaches are harmonious, reflecting different levels of generality.
41
No. 10-30080, No. 10-30146
regardless of coordination with the candidate.” This is not the “sole” issue. The
record clearly presents a narrower controversy—timing-only coordination. The
majority opinion ignores the stipulated facts and argument presenting the Cao
Ad dispute just as it ignores the FEC’s concession in oral argument that this
dispute touches the outer boundary of the agency’s regulatory authority. The
usual path of constitutional adjudication is first to consider the fact-based issue
and to reach broader constitutional questions only if they are inescapably
presented. Citizens United, __ U.S. __, 130 S. Ct. at 918 (Roberts, C.J.,
concurring). The majority stand this tradition on its head.
Substantively, the majority analysis, flawed by its overbroad premises,
ultimately begs the primary question before us—at what point does
“coordination” between a candidate and a political party transform the party’s
communicative speech into a mere “contribution” subject to strict dollar limits?
This question was left open by the Supreme Court. FEC v. Colorado Republican
Fed. Campaign Comm., 533 U.S. 431, 456, n.17,
121 S. Ct. 2351, 2366 n.17
(2001) (“Colorado II”). In light of subsequent Supreme Court decisions, courts
must begin to deal with it.2
2
The majority “reads” this dissent as agreeing that Colorado II “authorizes regulation
of RNC’s own speech generally.” Not so. We read Colorado II to acknowledge that
expenditures coordinated between a party and a federal candidate range along a spectrum of
expressiveness — less-“expressive” party donations like copying equipment clearly fall within
the coordinated expenditure limits. More expressive forms of support by the party, however,
enjoy stronger constitutional protection. The FEC itself admitted that the Cao Ad lies along
the expressive side of the spectrum
42
No. 10-30080, No. 10-30146
Because the majority fail to join issue with the stipulated facts, their
opinion cannot defend against the party’s as-applied challenge to 2 U.S.C.
§§ 441a(d)(2), (3), and (a)(2)(A). But for the issue of “coordination” with the
candidate as to its broadcast, the Cao Ad would be speech by the RNC fully
protected by the First Amendment. Cf. FEC v. Wisconsin Right to Life, Inc.,
551 U.S. 449, 467,
127 S. Ct. 2652, 2665 n.4 (2007) (“WRTL”); Citizens United,
__ U.S. __, 130 S. Ct. at 908-10. In this as-applied challenge, the government
had the burden to show that this expressive but minimally coordinated speech
may be subjected to the strict limits reserved for monetary contributions.
WRTL, 551 U.S. at 467, 127 S. Ct. at 2665 n.4. I conclude, after performing the
necessary analysis, that the government may not infringe the party’s right to
speak in this manner.
The foregoing propositions are elaborated in three steps. First, I will
restate the obvious, that a narrower, fact-based challenge was presented to the
court. Second, according to well settled precedent, the narrower issue ought to
be decided. Third, I address the as-applied challenge on its merits, placing the
burden on the government.3
I. A Narrow Fact-Based Challenge Is Before The Court
3
I concur in the rest of the majority opinion because the other issues are controlled by
Supreme Court authority. This dissent concerns the majority’s disposition of certified
questions 3 and 6.
43
No. 10-30080, No. 10-30146
The majority state that “the record unambiguously reflects that the RNC’s
sole challenge in this case with regards to the Cao Ad is whether Congress may
regulate a party’s own speech, meaning speech that is paid for by the party and
adopted by the party regardless of coordination with the candidate.” Indeed, the
majority devote nearly as much discussion to justifying their “sole challenge”
approach as they do to rejecting the challenge. Despite the majority’s
contentions, the court is obliged to address the facts that have actually been
presented— specifically, whether this particular ad can be regulated as a de facto
contribution even though the coordination regarded solely the timing of its
broadcast.4
It is important to stress just how minimal was the level of coordination.
When the Supreme Court has interpreted the term “coordinated expenditures,”
it described a spectrum, at one end of which political parties would simply foot
the candidate’s bills. Colorado II, 533 U.S. at 439,
460, 121 S. Ct. at 2357, 2368.
The present scenario stands at the other end. The Republican Party
sought to broadcast this ad supporting Congressman Cao before the 2008
election:
4
Responding to these facts, the majority contends that (a) Cao’s counsel really
disclaimed the narrower approach taken by this dissent and (b) counsel conceded not only
timing but “content awareness” underlay the proposed coordination. This dissent responds
fully to the former contention. As to the latter, after the past several years in litigation Cao
would have to admit his awareness of the ad! In any event, it is the assertion of “content
awareness” that first appeared in en banc oral argument and post-argument briefing. Timing-
only is the only stipulation in the district court and therefore the only “fact” before us.
44
No. 10-30080, No. 10-30146
Why We Support Cao
The Republican National Committee has long stood for certain core
principles, which we believe are the fundamentals of good
government. When it comes to the issues of lower taxes, individual
freedoms and a strong national defense, we need leaders who will
stand with the American people and defend those issues.
We need leaders who understand that our economy is in a recession,
our individual freedoms are constantly under attack and we
continue to fight the global war on terrorism to keep our families
safe.
Joseph Cao understands and fights for those issues. And, that is
why we ask you to join us in supporting him on December 6. It’s
important for Louisiana and important for the country.
Stipulated Facts ¶ 31.
The ad was produced and approved by the RNC, on its own initiative,
without any input from Cao. Cao and the RNC intended to cooperate only as to
the timing of the ad. Timing constituted the only coordination. Stipulated Facts
¶ 32. There is no evidence that Cao suggested, instigated or requested the ad.
There is no evidence that he or his campaign wrote it or provided their views on
its content. There is no evidence that the ad might have caused Cao to spend his
campaign funds any differently. Thus, whether or not such de minimis
coordination allows the Cao Ad to be banned as a “coordinated expenditure” is
before the court for decision.
The plaintiffs raised this precise issue in their briefing. They assert that
“[i]f the degree [of coordination] matters, FEC must concede that as applied to
the Cao Ad coordination is de minimis and non-cognizable.” (emphasis added).
Their contentions are best summed up as follows:
45
No. 10-30080, No. 10-30146
The open question in Colorado-II asks both (a) whether some
own-speech communications may not be regulated because
coordination is de minimis (e.g., just timing) and (b) whether all
such communications are too much like independent expenditures
to be limited regardless of coordination degree. Under the former,
degree matters and expenditures for the Cao Ad may not be treated
as contributions. Under the latter, degree does not matter and none
of RNC’s proposed own-speech activities may be so treated.
Reply Brief, at 10.
Lest there be doubt, the plaintiffs’ desire to run the Cao Ad without fear
of prosecution or investigation permeates their initial brief to this court as it did
their arguments in the district court. The plaintiffs’ statement of facts asserts:
“Specifically, the RNC intended to make an expressive advocacy radio ad (‘Cao
Ad’), if legally permitted by the judicial relief sought in this case. (R.278-79).
The RNC intended to coordinate the Cao Ad with Cao as to the best timing for
it, but otherwise it would not be coordinated with Cao.”5
Plaintiffs’ brief goes on to explain their theory about the distinction
between political contributions, which the Supreme Court has held are amenable
to government regulation as symbolic expressions of political support, and
expenditures, which the Court considers fully protected under the First
Amendment because they “communicate the underlying basis for support.” See
Buckley v. Valeo, 424 U.S. 1, 19-21,
96 S. Ct. 612, 634-35 (1976). The Federal
Election Campaign Act treats all “coordinated expenditures” between third
5
The majority opinion is simply inaccurate in asserting that plaintiffs raised an as-
applied challenge only in their reply brief.
46
No. 10-30080, No. 10-30146
parties and their favored candidates as contributions, and therefore subject to
rigid dollar limits.6 Plaintiffs, however, would have this court acknowledge the
constitutional protection of “coordinated expenditures” that represent
communicative statements of their reasons for supporting a candidate. Thus,
they asserted broadly in their brief that communicative activities attributable
to and paid for by the RNC become its “own speech” irrespective of coordination
with Cao. But they also more narrowly assert that the Cao Ad is attributable to
the RNC:
[The Cao Ad] communicates the underlying basis for support for the
candidate and his views, i.e., it is not merely symbolic expression of
support. Coordination with Rep. Cao as to timing would in no way
alter the fact that this ad would be RNC’s own speech. The ad is
plainly more in the nature of a party’s own speech than in the
nature of merely paying a candidate’s bills. Disbursements for it
would be expenditures, not contributions. They may not be limited
as if they were contributions.
Finally, plaintiffs’ brief returns to the Cao Ad in the course of asserting
that the government cannot sustain its burden of justifying this limit on
coordinated expenditures that embody a party’s political speech:
6
Justice Souter explained in Colorado II that expenditures coordinated with a
candidate are contributions under FECA:
The simplicity of the distinction [between contributions and expenditures] is
qualified, however, by the Act's provision for a functional, not formal, definition
of “contribution,” which includes “expenditures 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,” 2 U.S.C.
§ 441a(a) (7)(B)(i).
Colorado II, 533 U.S. at 438, 121 S. Ct. at 2356-57.
47
No. 10-30080, No. 10-30146
Another reason it was difficult was that RNC couldn’t have written
the Cao Ad if it were an independent expenditure because, to create
the necessary independence, “this would have had to have been
made through an outside consultant . . . .
At the time RNC wanted to speak through the Cao Ad, it was not
practically possible to firewall off RNC staff in order to do an
independent expenditure . . . .
For all the majority’s quotations intended to support their characterization
of plaintiffs’ broader argument as the “sole challenge,” resting entirely on
hypothetical grounds, there is not a word of waiver7 by plaintiffs of any ground
of relief generated by their case.8 That plaintiffs’ oral argument before this court
is broadly phrased is hardly a novel tactic, especially when the line between
facial and as-applied challenges to statutes is “not so well defined that it has
7
To waive an issue, a party must have “the intention of forgoing it.” BLACK’S LAW
DICTIONARY (8th ed. 2004); Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (“[W]aiver is the
‘intentional relinquishment or abandonment of a known right.’”(quoting United States v.
Olano,
507 U.S. 725, 773,
113 S. Ct. 1770, 1777 (1993))).
8
The majority make too much of an exchange during oral argument in which plaintiffs’
counsel stated that the Cao Ad was “coordinated.” The majority imply that the plaintiffs
conceded that the Cao Ad was a “coordinated expenditure” under Colorado II, and therefore
Colorado II controls this case. This is inaccurate. When the plaintiffs stated that the Cao Ad
was “coordinated,” they were referring to the FEC regulations:
Judge Jolly: In other words you can sit down and discuss with them
the degree of coordination on fifty ads and you can keep
running that ad and running that ad on their time. And
you're running a number of ads and still it's your speech
notwithstanding the nth degree of coordination that you
had.
Plaintiff’s Counsel: That's right. There's no degree of being pregnant. You're
either or not, and under their regulations, it is . . . .
(emphasis added). Counsel conceded only FEC’s regulatory interpretation of the consequences
of timing-only coordination, not the constitutionality of that interpretation.
48
No. 10-30080, No. 10-30146
some automatic effect or that it must always control the pleadings and
disposition in every case involving a constitutional challenge.” Citizens United,
__ U.S. __, 130 S. Ct. at 893. The district court, however, was well aware that
plaintiffs’ object is to obtain a ruling that defines, or begins to define, where
certain coordinated activities of the RNC with Congressman Cao lie along the
spectrum running from “functional monetary contributions” to full-throated
political advocacy.9 The specifically defined activity here was the production and
planned broadcast of the Cao Ad. Having raised this issue in the district court
and to this court, the plaintiffs are entitled to an answer.
II. The Court Must Address Narrow Issues First
The majority hardly need reminding of the cardinal principle of
constitutional adjudication that a court should address the case presented by the
facts before it rather than broad, hypothetical scenarios. Courts should neither
“anticipate a question of constitutional law in advance of the necessity of
deciding it” nor “formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied.” Ashwander v. TVA,
297 U.S. 288, 346-47,
56 S. Ct. 466, 483 (1936) (Brandeis, J.) (quoting Liverpool,
9
Judge Berrigan’s order cites both Colorado II’s majority opinion and Justice Thomas’s
dissent, explaining that several “coordinated” activities are not equivalent to de facto
contributions, but instead are genuine expenditures with only a minimal amount of
coordination. Cao v. FEC, 688 F. Supp. 2d 498, 539-540 (E.D. La. 2010). Relying on this
discussion, the order rejects the FEC’s motion for summary judgment, stating that “where a
coordinated expenditure explicitly conveys that underlying basis, it arguably becomes less
symbolic and begins to look more like a ‘direct restraint on . . . political communication.’”
Id.
at 541 (quoting
Buckley, 424 U.S. at 21, 96 S. Ct. at 636.)
49
No. 10-30080, No. 10-30146
N.Y. & Philadelphia Steamship Co. v. Emigration Commissioners, 113 U.S. 33,
39,
5 S. Ct. 352, 355 (1885)); Wash. State Grange v. Wash. State Rep. Party,
552 U.S. 442, 450-51
128 S. Ct. 1184, 1191 (2008). Going beyond our “case or
controversy” limits spawns advisory opinions that are likely to be ill-informed.
The majority opinion falls into this trap. Rather than address the
stipulated facts about the Cao Ad, which have been fairly “passed upon” in the
parties’ briefs and by the district court, the majority considers the application of
Colorado II to all “speech” “adopted by a political party.” The majority propose
an answer to the broadest possible question before the court, extending the reach
of their decision well beyond the factual record. Their overbroad approach leads
to at least one serious mistake as they conflate the plaintiffs’ “own speech”
argument with every conceivable “expenditure” whose “coordination” is deemed
by FECA to be the functional equivalent of a simple monetary contribution.
Thus, they conclude, adopting the “own speech” argument would “effectually
overrule” the Supreme Court’s decision in Colorado II that facially upheld dollar
limits on coordinated expenditures. This is plainly wrong.
50
No. 10-30080, No. 10-30146
The Supreme Court,10 the district court,11 the plaintiffs 12 and the FEC13
all recognize that “coordinated expenditures” range on a spectrum from those
that are more independently communicative of a supporter’s views to those more
like money contributions, which Buckley v. Valeo characterizes as mere symbolic
expression. The majority employs a meat cleaver instead of a scalpel in the most
sensitive constitutional area of political speech.
The majority’s overbreadth is even more disturbing because the Supreme
Court proceeded with constitutional caution in the political contribution cases
10
Colorado II, 533 U.S. at 445, 121 S. Ct. at 2360 (“Coordinated spending by a party,
in other words, covers a spectrum of activity, as does coordinated spending by other political
actors.”);
Id. at 467-68, 121 S. Ct. at 2372-73 (Thomas, J. dissenting) (“This definition covers
a broad array of conduct, some of which is akin to an independent expenditure.”).
11
Cao, 688 F. Supp. 2d at 539-540.
12
Appellants’ Reply Brief, at 10.
13
The FEC conceded that the Cao Ad would be at the outer reaches of the FEC’s
regulatory authority:
Judge [Clement]: Where do you think the Cao ad falls on the spectrum of
coordinated expenditures, with respect to first amendment
rights?
FEC Counsel: Well, I think in terms of-
Judge [Clement]: Is it within the heartland or is it-
FEC Counsel: I think it's towards the outer boundary, because timing is-
Judge [Clement]: Which outer boundary?
FEC Counsel: The outer boundary of what would be regulable. Because
obviously, if it's just about timing there are other things
that would make it even more valuable to a candidate
such as being able to control more specifically the message
itself.
51
No. 10-30080, No. 10-30146
that concern us here. In Colorado I, the Court, rejecting the FEC’s meat cleaver
approach that would have deemed all political party expenditures as
“coordinated” with candidates, upheld an as-applied challenge allowing
independent expenditures. Colorado Republican Campaign Comm. v. FEC,
518 U.S. 604, 623-24,
116 S. Ct. 2309, 2319 (1996) (“Colorado I”). The Court
then remanded for fuller consideration of the party’s facial challenge to FECA’s
coordinated expenditure provision.
Id. at 625-26, 116 S. Ct. at 2320-21. When
the Court later took up and rejected the facial challenge in Colorado II, it
nonetheless acknowledged a potential for future as-applied attacks:
Whether a different characterization, and hence a different type of
scrutiny, could be appropriate in the context of an as-applied
challenge focused on application of the limit to specific expenditures
is a question that, as Justice Thomas notes, post, at 468, n.2, we
need not reach in this facial challenge. Cf. Brief for Petitioner 9, n.5
(noting that the FEC has solicited comments regarding possible
criteria for identifying coordinated expenditures).
The Party appears to argue that even if the Party Expenditure
Provision is justified with regard to coordinated expenditures that
amount to no more than payment of the candidate's bills, the
limitation is facially invalid because of its potential application to
expenditures that involve more of the party's own speech. Brief for
Respondent 48-49. But the Party does not tell us what proportion of
the spending falls in one category or the other, or otherwise lay the
groundwork for its facial over breadth claim. Cf. Broadrick v.
Oklahoma, 413 U.S. 601 (1973) (overbreadth must be substantial to
trigger facial invalidation).
Colorado II, 533 U.S. at 456, 121 S. Ct. at 2366 n.17.
Thus, the Court majority expressly recognized, as did the dissent, the
potential for as-applied challenges to coordinated expenditures that express the
52
No. 10-30080, No. 10-30146
contributor’s basis for supporting a candidate. See also Colorado II, 533 U.S. at
468, 121 S. Ct. at 2373 (Thomas, J. dissenting).14 The litigation history of the
Colorado case demonstrates the Court’s methodical migration from a narrow to
a broader challenge of the FECA provision.
The Court took a similar approach in Citizens United. It first analyzed the
plaintiffs’ arguments that Hillary: The Movie did not fall within statutory
prohibitions on corporate electioneering communications and, only after
rejecting those, reached the ultimate constitutionality of the ban. Chief
Justice Roberts explained:
It is only because the majority rejects Citizens United’s statutory
claim that it proceeds to consider the group’s various constitutional
arguments, beginning with its narrowest claim (that Hillary is not
the functional equivalent of express advocacy) and proceeding to is
broadest claim (that Austin v. Michigan Chamber of Commerce,
494 U.S. 652,
110 S. Ct. 1391,
108 L. Ed. 2d 652 (1990) should be
overruled). This is the same order of operations followed by the
controlling opinion in Federal Election Comm’n v. Wisconsin Right
to Life, Inc., 551 U.S. 449,
127 S. Ct. 2652,
168 L. Ed. 2d 329 (2007)
(WRTL). There the appellant was able to prevail on its narrowest
constitutional argument because its broadcast ads did not qualify as
14
Justice Thomas explained:
The Court makes this very assumption. See ante, at 464 (“There is no significant
functional difference between a party's coordinated expenditure and a direct
party contribution to the candidate”). To the extent the Court has not defined
the universe of coordinated expenditures and leaves open the possibility that
there are such expenditures that would not be functionally identical to direct
contributions, the constitutionality of the Party Expenditure Provision as
applied to such expenditures remains unresolved. See, e.g., ante, at 456, n. 17.
At oral argument, the Government appeared to suggest that the Party
Expenditure Provision might not reach expenditures that are not functionally
identical to contributions. See Tr. of Oral Arg. 15 (stating that the purpose of the
Party Expenditure Provision is simply to prevent someone “from making
contributions in the form of paying the candidate's bills”).
53
No. 10-30080, No. 10-30146
the functional equivalent of express advocacy; there was thus no
need to go on to address the broader claim that McConnell v.
Federal Election Comm’n, 540 U.S. 93,
124 S. Ct. 619,
157 L. Ed. 2d
491 (2003), should be overruled.
WRTL, 551 U.S., at 482,
127 S. Ct.
2652;
id., at 482-483, 127 S. Ct. 2652 (ALITO, J., concurring). This
case is different—not, as the dissent suggests, because the approach
taken in WRTL has been deemed a “failure,” post, at 935, but
because, in the absence of any valid narrower ground of decision,
there is no way to avoid Citizen United’s broader constitutional
argument.
Citizens United, __ U.S. __, 130 S. Ct. at 918 (Roberts, C.J., concurring). The
Chief Justice also noted that the WRTL decision rested on a narrower
constitutional basis.
The majority’s approach cannot be salvaged by their re-characterization
of the plaintiffs’ “own speech” argument as a “facial attack” no different from the
one rejected by the Supreme Court in Colorado II. It is true that the line
between facial and as-applied constitutional challenges is not well defined.
Citizens United, __ U.S. __, 130 S. Ct. at 893. But it is also true that courts have
the authority to re-frame these arguments to subserve judicial restraint15 and
in recognition that the distinction “goes to the breadth of the remedy employed
by the Court, not what must be pleaded in a complaint.” Id. (Kennedy J.) (citing
United States v. Nat Treas. Emp’s Union,
513 U.S. 454, 477-78, 115 S. Ct.1003,
15
Citizens United, __ U.S. __, 130 S. Ct. at 918 (“If there were a valid basis for deciding
this statutory claim in Citizens United’s favor (and thereby avoiding constitutional
adjudication), it would be proper to do so.”).
54
No. 10-30080, No. 10-30146
1018-19 (1995)).16 It follows from these principles that the parties “cannot enter
into a stipulation that prevents the Court from considering certain remedies if
those remedies are necessary to resolve a claim that has been presented.”
Citizens United, Id. at 893.17 Thus, it is improper for the majority to conclude
that plaintiffs have somehow pled or argued themselves out of court.
16
The courts of appeals have followed this approach, focusing on the factual allegations
underlying the challenge. The Second Circuit explained in Ramos v. Town of Vernon, 353 F.3d 171
(2d Cir. 2003):
The present case has never been explicitly characterized as either facial or as-applied.
Rather, plaintiffs' complaint without specificity alleges the ways the ordinance has
infringed on their rights in their specific circumstances, and then asks for relief. While
some of the claims plaintiffs raise are logically analyzed as facial challenges, e.g., the
challenges for overbreadth and vagueness, the equal protection claim is more logically
viewed “as-applied” given the statements in the complaint. Even if a facial challenge
was intended, a facial challenge in the context of the present equal protection claim
would logically include within it an as-applied challenge, and thus we cannot ignore
the constitutional violation simply because the words “as-applied” were not used.
Id. at 174 n.1 (citation omitted).
Similarly, in Jacobs v. Florida Bar,
50 F.3d 901 (11th Cir. 1995), the Eleventh Circuit explicitly
recharacterized a challenge based on the facts before it where the appellants were unable to carry a
broader facial attack on rules restricting attorney advertising:
We recognize that Appellants characterized their claim as a facial challenge. We are
not, however, bound by Appellants’ designation of their claims, as the complaint sets
forth a cause of action for an as-applied challenge to the rules. See McKinney v.
Pate, 20 F.3d 1550, 1560 (11th Cir.1994) (en banc) (“Our responsibility, however,
is to examine [plaintiff’s] cause of action for what it actually is, not for what [plaintiff]
would have it be,” and thus court looks to complaint to determine what claim
plaintiff’s allegations support) . . .
Id. at 905 n.17.
17
In Citizens United, the Court ignored the plaintiffs’ stipulation foreswearing an attack
on the corporate contribution ban. __ U.S. __, 130 S. Ct. at 892-93.
55
No. 10-30080, No. 10-30146
Recharacterizing the plaintiffs’ position as a facial attack cannot eliminate the
narrower issue concerning the Cao Ad.
This court has the duty to decide the case on stipulated facts brought
properly before us.
III. Evaluating Cao’s As-Applied Challenge
In this as-applied attack on the coordinated expenditure limit that would
ban broadcast of the Cao Ad, this court must first determine the appropriate
level of scrutiny and then evaluate the evidence concerning the government’s
regulation. WRTL, 551 U.S. at 456, 121 S. Ct. at 2366 (“With the standard [of
scrutiny] thus settled, the issue remains whether adequate evidentiary grounds
exist to sustain the limit under that standard[.]”). Two levels of scrutiny govern
campaign finance regulations: strict scrutiny and, unique to campaign finance
jurisprudence, “closely drawn” scrutiny. Buckley v. Valeo,
424 U.S. 1, 25,
96 S. Ct. 612, 638 (1976). The former has been applied to candidates’ speech and
independent expenditures, while the latter applies to contributions and facially
to “coordinated expenditures.” Which standard pertains to the government’s
regulation of the Cao Ad depends on whether the ad is core political speech (see
Citizens United, __ U.S. __, 130 S. Ct. at 890-91), or a functional contribution.
This court is not bound by the government’s simply labeling the speech
“coordinated”:
56
No. 10-30080, No. 10-30146
[W]e 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).
Colorado I, 518 U.S. at 621–22, 116 S. Ct. at 2319 (emphasis added).
Buckley held that contributions to a candidate may be regulated, because
contributions, unlike communicative independent expenditures, express merely
a general support for a candidate. Buckley, 424 U.S. at 21, 96 S. Ct. at 635. The
FECA defines contributions as including “expenditures made by any person in
cooperation, consultation, or concert, with, or at the request or suggestion of, a
candidate.” 2 U.S.C. § 441a(a)(7)(B)(i). While the Supreme Court has placed
great importance on whether speech is coordinated, and thus regarded as a
contribution, it has offered no guidance except to acknowledge that the sweeping
term “coordinated expenditures” covers a wide range of activities with varying
constitutional attributes:
The principal opinion in Colorado I noted that coordinated
expenditures “share some of the constitutionally relevant features
of independent expenditures.” 518 U.S., at 624. But it also
observed that “many [party coordinated expenditures] are . . .
virtually indistinguishable from simple contributions.” Ibid.
Coordinated spending by a party, in other words, covers a spectrum
of activity, as does coordinated spending by other political actors.
57
No. 10-30080, No. 10-30146
Colorado II, 533 U.S. at 444–45, 121 S. Ct. at 2361.
There is no doubt that, standing alone, the Cao Ad is core political speech.
The Cao Ad is more than “a general expression of support for the candidate.”
Buckley, 424 U.S. at 21, 96 S. Ct. at 635; see also Citizens
United, 130 S. Ct. at
890 (“[T]here is no reasonable interpretation of Hillary [the movie] other than
as an appeal to vote against Senator Clinton, . . . [T]he film qualifies as express
advocacy.”). The ad expressly advocates for Cao, “communicate[s] the underlying
basis for [the RNC’s] support,” and increases “the quantity of communication.”
Buckley, 424 U.S. at 21, 96 S. Ct. at 635.
Further, the ad hews closely to the independent expenditure side of the
spectrum. The RNC independently produced the Cao Ad without input from
Cao; the RNC created the ad at its own initiative; the RNC planned the ad’s
message; the RNC produced the ad; the RNC approved the final version of the
ad; and the RNC decided to air the ad. Like the ads in Colorado I, the Cao Ad
“was developed by the [party] independently and not pursuant to any general or
particular understanding with a candidate.” Colorado I, 518 U.S. at 614,
116 S. Ct. at 2315.18 It unambiguously “reflects [the RNC’s] members’ views
18
Colorado I listed several features of an “independent expenditure” which pertain to
this inquiry: (1) Whether the party independently decided to create the ad on its own
initiative; (2) Whether the party independently developed the ad; (3) Whether the party’s
leadership independently approved the ad; (4) Whether the party independently decided to
circulate the ad; (5) Whether the party claims ownership of the ad within the ad itself;
(6) Whether, when viewed objectively, the ad is appears to be the party’s own. Colorado I,
518 U.S. at 613–14, 116 S. Ct. at 2315.
58
No. 10-30080, No. 10-30146
about the philosophical and governmental matters that bind them together [and]
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.” Id. at 615–16, 116 S. Ct. at 2316.
At the opposite end of the coordination spectrum are instances in which
a party simply pays its candidate’s bills. See Buckley, 424 U.S. at 46, 96 S. Ct.
at 648 n.53; see also Colorado
I, 518 U.S. at 624, 116 S. Ct. at 2320. Apparently
rejecting the spectrum approach, the FEC asserts that the Cao Ad is functionally
the same as a cash contribution to the candidate. This is inaccurate. The critical
differences between the Cao Ad and a direct contribution or “footing the
candidate’s bills” include the ad’s initiator, message, quality, ultimate source of
approval, and decision to air. The Cao Ad is not “virtually identical” to one that
Cao might produce. See
Cao, 688 F. Supp. 2d at 533 (explaining that Cao found
many independent expenditures to be counterproductive and harmful). Further,
despite the timing coordination, the ads “may well provide little assistance to the
candidate’s campaign and indeed may prove counterproductive.”
Buckley,
424 U.S. at 47, 96 S. Ct. at 648. Because the party decides to create and air the
ad of its own initiative, the candidate cannot depend on it. The candidate will
not know whether the ad is effective. If the ad is useful to the candidate, then
it is useful only because the interests of the party and the candidate coincide.
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No. 10-30080, No. 10-30146
On all these grounds, there is no significant functional difference between the
Cao Ad and a constitutionally protected independent expenditure.
Compared with the Colorado II pronouncement that the coordinated
expenditure limits are facially valid, this case presents the narrow question
whether de minimis coordination transforms otherwise constitutionally
protected core political speech into something less. We believe it does not.
Because the Cao Ad represents core political speech, it should be evaluated
under the traditional strict scrutiny test. See Colorado II, 533 U.S. at 443–44,
121 S. Ct. at 2360; Colorado
I, 518 U.S. at 614-15, 116 S. Ct. at 2315;.
Alternatively, even if “closely drawn” scrutiny is required because of Colorado
II, the Cao Ad cannot be subjected to dollar limits.
A. Applying Strict Scrutiny
That a statute has been held facially valid does not answer whether it may
be constitutionally applied in a specific circumstance. WRTL, 551 U.S. at 464,
127 S. Ct. at 2663–64. Instead “[a] court applying strict scrutiny must ensure
that a compelling interest supports each application of a statute restricting
speech.”
WRTL, 551 U.S. at 464-65, 127 S. Ct. at 2664;
id. at 477-78, 127 S. Ct.
at 267; See also Citizens
United, 130 S. Ct. at 898 (justifying regulation of
speech “requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” (internal
quotation marks omitted)); First Nat’l. Bank of Boston v. Bellotti,
435 U.S. 765,
60
No. 10-30080, No. 10-30146
786, 98 S. Ct. 1407, 1421 (1978). Moreover, the government bears the burden to
demonstrate that the law is constitutional as applied to plaintiffs’ speech.
WRTL, 557 U.S. at
464, 127 S. Ct. at 2663.
The government contends that regulating timing-only coordination
furthers its compelling interest in preventing corruption or its appearance or
circumvention of the contribution limits. The FEC also argues that an expansive
definition of “coordination” is necessary to ensure that it can regulate all
coordinated expenditures that truly are de facto contributions. But because the
Cao Ad represents expressive political speech, the government’s position cannot
be squared with WRTL:
This Court has long recognized “the governmental interest in
preventing corruption and the appearance of corruption” in election
campaigns. Buckley, 424 U.S., at 45, 96 S. Ct 612. This interest has
been invoked as a reason for upholding contribution limits. As
Buckley explained, “[t]o the extent that large contributions are given
to secure a political quid pro quo from current and potential office
holders, the integrity of our system of representative democracy is
undermined.” Id., at 26-27, 96 S. Ct. 612. We have suggested that
this interest might also justify limits on electioneering expenditures
because it may be that, in some circumstances, “large independent
expenditures pose the same dangers of actual or apparent quid pro
quo arrangements as do large contributions.” Id., at 45, 96 S. Ct.
612.
McConnell arguably applied this interest—which this Court had
only assumed could justify regulation of express advocacy—to ads
that were the “functional equivalent” of express advocacy. See
540 U.S. at 204-206,
124 S. Ct. 619. But to justify regulation of
WRTL’s ads, this interest must be stretched yet another step to ads
that are not the functional equivalent of express advocacy. Enough
is enough. Issue ads like WRTL’s are by no means equivalent to
contributions, and the quid-pro-quo corruption interest cannot
61
No. 10-30080, No. 10-30146
justify regulating them. To equate WRTL’s ads with contributions
is to ignore their value as political speech.
Appellants argue that an expansive definition of “functional
equivalent” is needed to ensure that issue advocacy does not
circumvent the rule against express advocacy, which in turn helps
protect against circumvention of the rule against contributions. Cf.
McConnell, supra, at 205, 124 St. Ct. 619 (“[R]ecent cases have
recognized that certain restrictions on corporate electoral
involvement permissibly hedge against circumvention of [valid]
contributions limits” (internal quotation marks omitted; brackets in
original)). But such a prophylaxis-upon-prophylaxis approach to
regulating expression is not consistent with strict scrutiny.
WRTL, 551 U.S. at 478-79, 127 S. Ct. at 2672.
The import of WRTL is clear. Even if the record afforded some support for
regulating timing-only coordination, which it does not, discussed infra, it clearly
does not support treating the Cao Ad as the “functional equivalent” of a mere
monetary contribution. The expressive content of the ad prevents that. In
addition, the risk of circumvention of campaign contribution limits is not
appreciably greater here than it is with “independent” expenditures. The
candidate lacks control or influence over the initiation, production, and content
of the party ad. The party decides whether or not an ad will be made, what it
will say, what it will look like, and whether it will air. The candidate may or
may not approve of the ad or find it useful.
Consequently, this expenditure will be useful to the candidate only to the
extent that his and the party’s interests coincide. Should the candidate
“encourage” donors to give money to the party, he cannot be certain whether
62
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these party donations will be more useful to him than an independent
expenditure. Without some link of candidate control or influence, neither the
quid pro quo corruption nor appearance of corruption that justifies contribution
limits can occur. Colorado II, 533 U.S. at 464, 121 S. Ct. at 2370 (discussing a
“link in a chain of corruption by-conduit”); Citizens United
130 S. Ct. 876, 908
(preventing corruption or its appearance is the government’s only valid interest
in limiting political speech).
The FEC essentially argues, as it did in WRTL, that expansive definitions
of coordination and coordinated expenditures are needed to ensure that
coordinating solely the broadcast timing of the party’s ad does not circumvent
the rule against coordinated expenditures which in turn helps to prevent
circumvention of contribution limits which culminates in preventing quid pro
quo corruption or the appearance of such corruption. This is no more than the
“prophylaxis-upon-prophylaxis” speculation rejected by WRTL, 551 U.S. at 479,
127 S. Ct. at 2672. It is an overly broad approach that here sweeps up protected
speech. And the government’s logic, that the greater coordination includes the
lesser (this coordination), is unambiguously rejected by WRTL: “This
greater-includes-the-lesser approach is not how strict scrutiny works . . . . A
court applying strict scrutiny must ensure that a compelling interest supports
63
No. 10-30080, No. 10-30146
each application of a statute restricting speech.” 551 U.S. at 477-78, 127 S. Ct.
at 2671.19
B. Applying “Closely Drawn” Scrutiny
Even if the regulation of the Cao Ad must be evaluated under Buckley’s
“closely drawn” standard because of its de minimis coordination, the government
still must affirmatively demonstrate some sufficiently important
interest—preventing corruption, the appearance of corruption, or circumvention.
Buckley, 424 U.S. at 25, 96 S. Ct. at 638 (contribution limits may be upheld only
if the “[s]tate demonstrates a sufficiently important interest and employs means
closely drawn to avoid unnecessary abridgment of associational freedoms”
(emphasis added)); Edenfield v. Fane,
507 U.S. 761, 770-771,
113 S. Ct. 1792,
1800 (1993) (when regulating speech under intermediate scrutiny, the
government must “demonstrate that the harms it recites are real” and that
standard is “not satisfied by mere speculation or conjecture.”) The government
remains obliged to present evidence that the interest applies to the facts before
us. McConnell v. FEC,
540 U.S. 93, 144, 185 n.72,
124 S. Ct. 619, 661,
684(2003); Colorado
II, 533 U.S. at 457, 121 S. Ct. at 2367. Not to require some
level of proof by the government would allow censorship of the party’s ad based
19
In a case concerning the criminalization of virtual child pornography, a subject
deserving far less First Amendment scrutiny, the Court rejected a similar contention, stating,
“[T]hat protected speech may be banned as a means to ban unprotected speech . . . . turns the
First Amendment upside down.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255,
122 S. Ct. 1389, (2002).
64
No. 10-30080, No. 10-30146
on nothing more than the general proof offered to sustain the statute’s facial
validity in Colorado II.
The FEC offered no evidence or argument that coordination of the Cao Ad
as to broadcast timing will appreciably increase the risk or appearance of
corruption or circumvention of contribution limits. The record contains fifty-nine
exhibits spanning thousands of pages, much of which was part of the record in
Colorado II or McConnell. There are academic studies, expert testimony before
Congress, invitations to various events put on by political parties, and many
affidavits by politicians, former politicians, and political advisors. Overall, the
record evidence proves that money plays a primary role in political campaigns,
that parties and party leaders are significantly involved in political fund-raising,
and that independent groups have played an increasing role in recent years.
More money than ever is being raised, and election advertising has become more
important and more of a science than ever before. Frequently, this money,
whether it travels through campaigns, parties, or independent groups, opens up
opportunities for access to candidates and politicians. In short, despite FECA,
as amended by McCain-Feingold, money and politics remain inextricably linked,
and may be more entangled than they were at the time of FECA’s passage.20
20
The majority is “shocked” to note that the major political parties spent well over $100
million apiece on independent expenditures during the 2008 election. To the contrary, this is
not an exorbitant sum. To put this amount in perspective, consider that a mere 24 individuals
contributed a total of $142 million to tax-exempt 527 organizations in 2004 and that 527 and
501(c) groups spent more than $400 million in the 2008 federal elections. S. Weissman and
R. Hassan, BCRA and the 527 Groups, in THE ELECTION AFTER REFORM 79, 92-96 (M. Malbin
65
No. 10-30080, No. 10-30146
None of this, however, demonstrates that the specific type of coordination
at issue in this case, concerning the timing of otherwise-independent
expenditures, has any propensity to increase quid pro quo corruption or the
appearance of corruption or to promote circumvention of contribution limits.
Indeed, the voluminous evidentiary record contains only a few, incidental
references to timing coordination. For example, a campaign finance expert
opines that “Giving candidates a direct say in whether, when, and how often a
party’s speech is broadcast essentially gives them a direct say in the content of
what the voters get to hear.” Content, however, is not at issue in this case. A
former politician states that party advertisements in the final days of a
campaign can make the difference between winning and losing. Coordination
is hardly necessary to draw that conclusion. One campaign consultant
complained that “the clutter on television during the last few weeks of the
campaign really prevented our message from getting through as clearly as we
would have liked.” No doubt. What is absent from the record is any discussion
or evaluation (let alone evidence) on whether timing coordination increases the
risk of corruption or its appearance. Instead, the record simply includes blanket
conclusions that any coordination increases the risk.
ed. 2006); Press Release, Campaign Finance Inst., Soft Money Political Spending by 501(c)
Nonprofits Tripled in 2008 Election (Feb. 25, 2009), available at
http://www.cfinst.org/Press.aspx. Even this amount of money is a trifle in the world of
marketing. A single corporation, Procter & Gamble, annually spends $2.7 billion on
advertising to promote its products in the United States. Suzanne Vranica & San Schechner,
P&J Signs Ad Deal, WALL ST. J., April 22, 2010, at B6.
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In contrast, the general evidence demonstrating risks of circumvention
presented in Colorado II involved situations where the candidate retained real
control over the party’s coordinated expenditures. Candidates controlled the
message and its presentation and, ultimately, approved of those coordinated
expenditures. See 533 U.S. at 457-60, 121 S. Ct. at 2367-68. Here, Cao had no
influence over the RNC’s speech save what time it would air. The candidate does
not even have input into whether or on what stations the ad will air, only when
it will air, and he cannot be certain that the party will heed his advice. If there
is any heightened possibility of corruption or circumvention in this arrangement,
the government has not pointed to it, and we ought not to invent some
conceivable interest that the government itself is unable to articulate or prove.
Nor, in this instance, are entirely uncoordinated expenditures an adequate
alternative to minimally coordinated speech. The record demonstrates that
FEC’s coordination-regulation regime prevents party leaders from exercising any
degree of control over their party’s advertisements in support of a candidate.21
21
The district court found:
49. Because the RNC has a continuous and ongoing relationship with its candidates, special
measures must be taken to do independent expenditures regarding its candidates. The RNC
has extensive discussions with its candidates about their needs, activities and strategy. As a
result, activities by the RNC about its candidates may be deemed to be coordinated with its
candidates, subjecting these activities to the FECA’s coordinated expenditure and contribution
limits. In order to engage in any independent expenditure supporting one of its candidates,
the RNC may hire an outside consulting group to do the independent expenditures but neither
the RNC nor any of its officers, employees or agents may have any involvement in the
independent expenditure in order for it to be truly independent. In fact, neither the chairman
of the RNC nor any of the RNC’s officers, employees or agents has control over the message of
an independent expenditure yet the RNC bears responsibility for that message. The RNC
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Because party leaders inevitably associate with candidates, to avoid the taint of
coordination parties must establish “independent expenditure programs” staffed
by hired consultants who are responsible for all aspects of the party’s
communications, from polling and research to writing the scripts, but for the
topline budget. In effect, a party has no control over its own message. The party
leaders must make a Hobson’s choice between talking to their own candidates
and controlling their own party’s message. The government justifies this regime
by reference to the risk of “circumvention.” But by prohibiting speech subject to
de minimis coordination, the FEC severely abridges parties’ constitutionally
protected right to engage in independent expenditures—in other words, to speak
in public in support of their own candidates. After Citizens United, a party is
more constrained in its ability to engage in political speech than a run-of-the-
mill business or corporation.
“Closely drawn” scrutiny has to mean something when applied to
censorship of core political speech. Where the government cannot demonstrate
a compelling interest, and the effect of regulation in this case is to ban the Cao
Ad, the regulation cannot be “closely drawn.”
makes its independent expenditures in this way out of a belief that there is no way to have a
true “firewall policy.” (Emphasis added).
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IV. The Majority Opinion
Even taking the majority on their own terms, Colorado II does not
foreclose the plaintiffs’ broader “own speech” argument. As we have noted, the
majority’s analysis of the plaintiffs’ “own speech” argument simply misses the
point: it is speech, not pencils, that the RNC has paid for. The spectrum of
expenditures that may be coordinated with a candidate is potentially limitless.
Coordinated expenditures that are functionally like monetary contributions, and
are only symbolically expressive according to Buckley’s dichotomy, continue to
fall comfortably within the range in which monetary limits must be upheld to
prevent quid pro quo corruption or the appearance of such corruption.
Consequently, the majority’s fear that the bottom would fall out of FEC
regulation of coordinated expenditures if RNC succeeds here is groundless.
Second, because the Cao Ad is undeniably core political speech, the
majority is incorrect to dismiss the two most recent cases in which the Supreme
Court has addressed whose communicative speech may be constitutionally
limited and in what way. Neither Citizens United nor WRTL controls the
present case, but both are informative; their bedrock defense of core political
speech and their systematic approach to First Amendment standards of review
cannot be waved away by reciting differences in degree, not kind, between the
speakers and types of speech at issue. Finally, the majority’s treatment of
plaintiffs’ “own speech” argument erases the distinction between facial and as-
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applied challenges. If the Cao Ad must be banned as a coordinated expenditure,
despite its provenance and character as core political speech, the majority
opinion “eviscerates” both the acknowledgment in Colorado I and II of the wide
spectrum of potentially coordinated expenditures and the recognition in
Colorado II that as-applied challenges were foreseeable. In short, the plaintiffs
may have reached beyond the grasp of judicial power by promoting a largely
hypothetical “own speech” position. The majority, however, seriously abdicated
their responsibility to protect First Amendment political speech and to apply
governing Supreme Court authorities.
V. Conclusion
The constitutional rules governing campaign finance law are presently in
a state of flux, see Green Party of Conn. v. Garfield, ___ F.3d ___, 2010 WL
2737134 (2d Cir. July 13, 2010), but there is a clear trend favoring the protection
of political speech. Beginning with WRTL, the Supreme Court has, in measured
steps, protected political speech while leaving the scaffolding of Buckley in place.
It has cast aside both recently enacted speech restrictions, see WRTL, and
decades-old speech restrictions, see Citizens United. Lower courts have
conformed to this trend. SpeechNow.org v. FEC,
599 F.3d 686 (D.C. Cir. 2010);
N.M. Youth Organized v. Herrera, ___ F.3d ___,
2010 WL 2598314 (10th Cir.
June 30, 2010).
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In each of those instances, the Supreme Court has demanded, to justify
banning speech, that the government provide strong evidence of a compelling
interest in preventing the appearance or occurrence of corruption. Where there
is uncertainty about the government’s interest, “the First Amendment requires
us to err on the side of protecting political speech rather than suppressing it.”
WRTL, 551 U.S. at 457, 127 S. Ct. at 2659. Like Wisconsin Right to Life’s issue
ads or Citizen United’s Hillary: The Movie, the Cao Ad is core political speech.
The RNC wishes to coordinate with Cao on its broadcast timing, but the
Supreme Court has never spoken on what degree of contact makes expressive
political speech “coordinated” such that it may be suppressed. The Supreme
Court’s recent decisions demand much more from the government than it has
presented here—essentially nothing. Even if the government were to meet its
burden, it seems inconceivable that in this country founded on the hope and
reality of free and open political debate, otherwise independent political speech
could be banned because its speakers have asked a candidate, “When do we air
the ad?”
It is not our place to revisit whether the government may generally
regulate coordinated expenditures. Still less is it our place to approve the
banning of a specific political ad simply because the Court has held that when
coordinated expenditures are generally analogous to paying the candidates’s
bills, they may be regulated. But when it comes to defining what speech
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qualifies as coordinated expenditures subject to such regulation—the issue we
do have to decide—we should follow Chief Justice Roberts’s admonition in
WRTL:
[W]e give the benefit of the doubt to speech, not censorship. The
First Amendment’s command that “Congress shall make no law
. . . abridging the freedom of speech” demands at least that.
WRTL, 551 U.S. at 482, 127 S. Ct. at 2674.
We respectfully dissent.
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EDITH BROWN CLEMENT, Circuit Judge, with JONES, Chief Judge, and
SMITH and ELROD, Circuit Judges, concurring in part and dissenting in part.
I join the Chief Judge’s dissent because I believe the Party Expenditure
Provision cannot be constitutionally applied to the Cao ad. I write separately to
note that I would go further than the Chief Judge in fashioning a standard that
protects political speech that is not the functional equivalent of a campaign
contribution.
The Chief Judge and I agree on much. We agree that this as-applied
challenge is not, as the majority erroneously assumes, foreclosed by Federal
Election Commission v. Colorado Republican Campaign Committee, 533 U.S. 431
(2001) (“Colorado II”). We also agree that the court’s task is to fashion a
standard for determining whether a coordinated expenditure is the functional
equivalent of a contribution, and that Federal Election Commission v. Wisconsin
Right to Life, Inc.,
551 U.S. 449 (2007) (“WRTL”), provides guidance about what
that standard ought to look like. We agree that coordination merely as to timing
does not make the Cao ad the functional equivalent of a contribution and that
the ad is accordingly protected by strict scrutiny. Finally, we agree that the
government’s asserted interest in banning this ad does not survive such
scrutiny.
However, I see no reason that timing alone makes any difference in the
constitutional analysis, and question whether a de minimis standard provides
a line bright enough to avoid chilling protected speech through the threat of an
enforcement action. The Supreme Court has drawn the relevant distinction
between an expenditure and a contribution: a contribution “serves as a general
expression of support for the candidate and his views,” while an expenditure
“communicate[s] the underlying basis for the support.” Buckley v. Valeo, 424
U.S. 1, 21 (1976). The Court has also identified the goal of the anti-coordination
rules: preventing circumvention of the contribution limits by expenditures that
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amount to simply paying a candidate’s bills. See Buckley, 424 U.S. at 47 n.53
(noting that an expenditure is not coordinated if it is “incurred without the
request or consent of a candidate or his agent”) (citing H.R. REP. No. 93-1239 at
6 (1974)); see also Colorado
II, 533 U.S. at 457-60 (describing circumvention);
Colo. Republican Campaign Comm. v. Fed. Election Comm’n,
518 U.S. 604, 624
(1996) (“Colorado I”) (describing expenditures that are “virtually
indistinguishable from simple contributions”). A “timing only” standard does
nothing to capture the difference between these two constitutionally distinct
forms of communication. The same could be said of other standards based on the
manner of coordination, such as medium (radio versus television); venue (the
local Spanish-language channel versus the soft rock channel); or region (the
Lower Ninth Ward versus Uptown New Orleans).
Likewise, a de minimis standard is difficult to apply and interpret. The
FEC would be required to develop extensive regulations drawing lines between
de minimis and prohibited coordination. Courts attempting to adjudicate the
application of these regulations to specific factual situations would find
themselves drawn into similar hair splitting. Litigants would be forced to
respond to extensive discovery on the substance of their contacts with the
candidate. A speaker contemplating engaging in speech such as the Cao ad
would face a “burdensome, expert-driven inquiry, with an indeterminate result.”
WRTL, 551 U.S. at 469. Despite the best intentions of such a standard, “it will
unquestionably chill a substantial amount of political speech.”
Id.
What does make a difference in the constitutional analysis, however, is
coordination as to the content of the ad. The Cao ad is the RNC’s own speech,
expressing its views on political issues, and identifying Cao as a candidate who
supports those views. Cao did not provide input on its content and was not asked
to provide his consent to run the ad. If he had, that would indeed raise a
suspicion that the parties were attempting to circumvent the rules against
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coordination so that the RNC could pay the bill for Cao’s speech—the evil at
which the coordination rules are aimed.1
Accordingly, I would propose a two-pronged standard that is “content-
driven,” rather than one that turns on the degree of coordination. Specifically,
I would propose the following: An advertisement is functionally identical to a
contribution only if it is susceptible of no other reasonable interpretation than
as a general expression of support for the candidate, and the ad was not
generated by the candidate. Under this standard, the speaker could only take
refuge in the safe harbor of a content-driven standard if the speech conveys the
underlying basis of the support, and was not merely adopted speech
indistinguishable from paying a candidate’s advertising bills. This approach
shares all the characteristics of the standard the Court adopted in WRTL: it is
clear, objective, and content-driven, and because it is relatively simple for both
speakers and regulators to understand and apply, will not chill speech through
the threat of litigation. It limits discovery to a factual issue that is relatively
easy to ascertain, i.e., whether the ad was generated by or its content approved
by the candidate or the political party. It references the fundamental distinction
the Court drew between contributions and expenditures in Buckley, and exempts
from its protection expenditures that amount to a party merely paying a
candidate’s bills. The standard would also align more closely than other possible
standards with the actual definition of a coordinated expenditure, which
1
The majority argues that what it calls “timing-plus-content-awareness coordination”
raises “exactly” the same circumvention concerns as if Cao had provided input on the content
of the ad or given his permission for the ad to run. Maj. Op. at 35–36. This is not the case.
Once again, the majority refuses to analyze this ad along the lines the Court demands:
whether it is merely a general expression of support for the candidate versus one that
communicates the underlying basis for the support. Buckley, 424 U.S. at 21. Such analysis
distinguishes the Cao ad from a communication generated by Cao that the RNC pays to have
broadcast. Furthermore, the majority’s approach is precisely that rejected by the Court in
WRTL: the “prophylaxis-upon-prophylaxis” approach of banning protected speech because that
makes it easier to ban unprotected
speech. 551 U.S. at 479. To quote the Court: “Enough is
enough.”
Id. at 478.
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prohibits spending “at the request or suggestion of, a candidate.” 2 U.S.C. §
441a(a)(7)(B)(I) (emphasis added).
Applying this standard, the Cao ad is not functionally identical to a
campaign contribution. The ad was generated by the RNC. It expresses not
merely the kind of generalized sentiment—“Vote for Joseph Cao”—that the
Court has described as the hallmark of a contribution, but expresses the RNC’s
view on important matters of public concern and urges a vote for Cao because he
shares the same views. While the “takeaway” message of this advertisement may
be one urging support for Cao, the message is anchored and inspired not by the
RNC’s support for Cao, but by Cao’s support for the views expressed by the RNC.
The ad thus communicates the underlying basis for the support, making it more
like an expenditure protected by strict scrutiny. This is far from the archetypal
coordination described in Buckley: effectively paying a candidate’s advertising
bills. The Cao ad can reasonably be interpreted as something other than a
general expression of support for a candidate and was not generated by Cao, and
as such, strict scrutiny should apply to laws regulating this ad.
Most importantly, this standard is faithful to what I take to be the central
lesson of WRTL: that “[w]here the First Amendment is implicated, the tie goes
to the speaker, not the censor.” 551 U.S. at 474. Like the advertisements in
WRTL, the Cao ad is indisputably political expression, one that in any other
context would merit the highest degree of protection. See
Buckley, 424 U.S. at 48
(“[T]he First Amendment right to ‘speak one’s mind . . . on all public institutions’
includes the right to engage in ‘vigorous advocacy’ no less than ‘abstract
discussion.’ Advocacy of the election or defeat of candidates for federal office is
no less entitled to protection under the First Amendment than the discussion of
political policy generally or advocacy of the passage or defeat of legislation.”)
(quotations omitted) (ellipsis in original)). The Court has emphasized that
political parties have the First Amendment right to speak on political issues and
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explicitly acknowledged that coordinated expenditures “share some of the
constitutionally relevant features of independent expenditures.” Colorado I, 518
U.S. at 624. Speech that articulates a set of political views and explains the
speaker’s support of a candidate in terms of that candidate’s endorsement of
those views—i.e., speech that conveys the underlying basis of support—is speech
that implicates the strongest and most compelling First Amendment interests.
In any case dealing with campaign finance law it is easy to mystify
oneself—and one’s audience—with talk of “coordination,” “circumvention,”
“functional equivalent,” and the like. These bland phrases mask the import of
the absolutist position the majority has taken today. The standard I have
proposed makes distinctions and is consistent with the Court’s often difficult
precedents in this area, but it proceeds from a fairly simple impulse: If the First
Amendment means anything, it means that political speech is not the same
thing as paying a candidate’s bills for travel, or salaries, or for hamburgers and
balloons. In this case, a group of citizens has banded together to express their
views on important public matters. Congress has abridged their freedom to do
so. This the Constitution does not permit. I respectfully dissent.
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