W. EUGENE DAVIS and 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 "the Act") of 1971, 2 U.S.C. § 431 et seq.,
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.
The district court, abiding by its proper role in addressing a 2 U.S.C. § 437h challenge,
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.
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, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court on a number of occasions has evaluated the 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, 96 S.Ct. 612. 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, 96 S.Ct. 612.
Id. at 26-27, 96 S.Ct. 612.
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, 96 S.Ct. 612. 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, 96 S.Ct. 612. 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, 96 S.Ct. 612. Accordingly, the Buckley Court recognized that the level of constitutional scrutiny for contribution limitations was less than the level of constitution scrutiny applied to limitations on expenditures. See id. at 29, 35, 38, 96 S.Ct. 612.
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, 96 S.Ct. 612. 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, 96 S.Ct. 612. According to the Court, it followed that coordinated expenditures are subject to the same limitations
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, 101 S.Ct. 2712, 69 L.Ed.2d 567 (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. Campaign Comm. v. FEC, 518 U.S. 604, 613, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) ("Colorado I"); FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (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.
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:
Id. at 504. The Plaintiffs' fifth question reads as follows:
Id.
The Plaintiffs assert that §§ 441a(d)(2)(3), 441a(a)(2)(A), and
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.
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
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:
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.
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, 96 S.Ct. 612. 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. Sorrell, 548 U.S. 230, 248, 126 S.Ct. 2479, 165 L.Ed.2d 482 (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 PAC, 528 U.S. 377, 382, 120 S.Ct. 897, 145 L.Ed.2d 886 (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,
Consequently, we find that the district court did not abuse its discretion in finding the Plaintiffs' fourth question frivolous.
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. 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:
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 200708 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.
Having found the district court did not abuse its discretion in finding the above
The district court certified the first constitutional question as follows:
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, 101 S.Ct. 2712. 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, 96 S.Ct. 612 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 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.
The district court certified the third question as follows:
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
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 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:
Colorado II, 533 U.S. at 455, 121 S.Ct. 2351. 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, 126 S.Ct. 2479, 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, 126 S.Ct. 2479. In the present case, FECA does not impose a "suspiciously low" limitation on a political party's contribution, but rather, affords a more reasonable limitation of $5,000.
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
The district court certified the fourth question as follows:
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, 126 S.Ct. 2479. 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, 96 S.Ct. 612.
Accordingly, we find § 441a(a)(2)(A)'s $5,000 contribution limitation survives the Plaintiffs' constitutional challenge presented in the fourth certified question.
The only remaining question requires a more detailed discussion. The second question certified to the en banc court asks:
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:
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,
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, 78 S.Ct. 819, 2 L.Ed.2d 848 (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.
With respect to this certified issue, the broad "own speech" argument is the only argument the RNC raised in its complaint,
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.
Id. at 46-47, 96 S.Ct. 612 (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,
Id. at 614-16, 116 S.Ct. 2309 (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, 116 S.Ct. 2309. The Colorado I Court remanded this facial challenge because the lower courts had not considered the issue. Id. at 625, 116 S.Ct. 2309. 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, 121 S.Ct. 2351. 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, 121 S.Ct. 2351. 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, 121 S.Ct. 2351. The Court stated:
Id. at 464-65, 121 S.Ct. 2351 (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
533 U.S. at 456 n. 17, 121 S.Ct. 2351 (citations omitted). The Plaintiffs further rely on Justice Thomas' dissent, in which he states:
Id. at 469 n. 2, 121 S.Ct. 2351 (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 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, 121 S.Ct. 2351 (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:
Id. at 457, 121 S.Ct. 2351 (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
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 amount are invited" so that they can have special access to federal lawmakers.
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, 126 S.Ct. 1016, 163 L.Ed.2d 990 (2006) (holding that the plaintiff could bring an as-applied challenge to 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, 492 U.S. 302, 354, 109 S.Ct. 2934, 106 L.Ed.2d 256 (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, ___ U.S. ___, 130 S.Ct. 3544, ___ L.Ed.2d ___ (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.
The Plaintiffs further argue that the Court's recent decision in Citizens United
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.
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.
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
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 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 438 (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.
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 438 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
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,
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 445. 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
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 452. 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 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, ___ U.S. ___, 130 S.Ct. 1324, 1344, 176 L.Ed.2d 79 (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, 128 S.Ct. 1184, 170 L.Ed.2d 151 (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.
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
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, 127 S.Ct. 2652. 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.
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 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.
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.
EDITH H. JONES, Chief Judge, with JERRY E. SMITH, EDITH BROWN CLEMENT, JENNIFER WALKER 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
We dissent. The Cao Ad cannot be suppressed by the FEC on the facts before us.
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 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, 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, 150 L.Ed.2d 461 (2001) ("Colorado II"). In light of subsequent Supreme Court decisions, courts must begin to deal with it.
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, 168 L.Ed.2d 329 (2007)
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.
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.
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:
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:
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."
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, 46 L.Ed.2d 659 (1976). The Federal Election Campaign Act treats all "coordinated expenditures" between third parties and their favored candidates as contributions, and therefore subject to rigid dollar limits.
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:
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 waiver
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, 80 L.Ed. 688 (1936) (Brandeis, J.) (quoting Liverpool, N.Y. & Philadelphia Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (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.
The Supreme Court,
The majority's overbreadth is even more disturbing because the Supreme Court proceeded with constitutional caution in the political contribution cases 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, 135 L.Ed.2d 795 (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:
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 contributor's basis for supporting a candidate. See also Colorado II, 533 U.S. at 468, 121 S.Ct. at 2373 (Thomas, J. dissenting).
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:
Citizens United, 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, 130 S.Ct. at 893. But it is also true that courts have the authority to re-frame these arguments to subserve judicial restraint
This court has the duty to decide the case on stipulated facts brought properly before us.
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, 127 S.Ct. at 2659 ("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, 46 L.Ed.2d 659 (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, 130 S.Ct. at 890-91), or a functional contribution. This court is not bound by the government's simply labeling the speech "coordinated":
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:
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.
At the opposite end of the coordination spectrum are instances in which a party
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.
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, 130 S.Ct. 876 (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, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (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:
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 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
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, 770-71, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (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, 157 L.Ed.2d 491 (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 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
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.
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.
"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."
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-applied challenges. If the Cao Ad must be banned
The constitutional rules governing campaign finance law are presently in a state of flux, see Green Party of Conn. v. Garfield, 616 F.3d 189, 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, 611 F.3d 669 (10th Cir.2010).
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 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:
WRTL, 551 U.S. at 482, 127 S.Ct. at 2674.
We respectfully dissent.
EDITH BROWN CLEMENT, Circuit Judge, with EDITH H. JONES, Chief Judge, and JERRY E. SMITH and JENNIFER WALKER ELROD, Circuit Judges, concurring in part and dissenting in part:
I join the Chief Judge's dissent because I believe the Party Expenditure Provision
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, 121 S.Ct. 2351, 150 L.Ed.2d 461 (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, 127 S.Ct. 2652, 168 L.Ed.2d 329 (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, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Court has also identified the goal of the anti-coordination rules: preventing circumvention of the contribution limits by expenditures that amount to simply paying a candidate's bills. See Buckley, 424 U.S. at 47 n. 53, 96 S.Ct. 612 (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, 121 S.Ct. 2351 (describing circumvention); Colo. Republican Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 624, 116 S.Ct. 2309, 135 L.Ed.2d 795 (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, 127 S.Ct. 2652. 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
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 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
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, 127 S.Ct. 2652. 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, 96 S.Ct. 612 ("[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 explicitly acknowledged that coordinated expenditures "share some of the constitutionally relevant features of independent expenditures." Colorado I, 518 U.S. at 624, 116 S.Ct. 2309. 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.
Cao (District Court), 688 F.Supp.2d at 523 (internal quotation marks omitted).
Cao Dep. at 42.
Colorado II, 533 U.S. at 438, 121 S.Ct. at 2356-57.
(emphasis added). Counsel conceded only FEC's regulatory interpretation of the consequences of timing-only coordination, not the constitutionality of that interpretation.
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:
Id. at 905 n. 17.
