Fec v. Colorado Republican Federal Campaign Committee

Fec v. Colorado Republican Federal Campaign Committee

By: Nardy Bickel & Casey Jones, Medill News ServiceQuestions presented

Whether a political party has a 1st Amendment right to make unlimited campaign expenditures in coordination with the party's congressional candidates, notwithstanding the limits on such coordinated expenditures imposed by the Federal Election Campaign Act of 1971.

Brief

"Here in Colorado," the radio advertisement said, "we're used to politicians who let you know where they stand, and I thought we could count on Tim Wirth to do the same. But the last few weeks have been a real eye-opener."

That ad was paid for by the Colorado Republican Federal Campaign Committee. It ran in 1986 shortly after Wirth, then a Democratic Congressman from Colorado, announced that he would seek Colorado's open Senate seat later that year. At the time, there was not yet a Republican nominee for the Senate seat.

"I just saw some ads where Tim Wirth said he's for a strong defense and a balanced budget," the ad continued. "But according to his record, Tim Wirth voted against every major new weapon system in the last five years. And he voted against the balanced budget amendment. Wirth has the right to run for the Senate, but he doesn't have a right to change the facts."

In the 14 years since 1986, campaign spending in Congressional races increased markedly, so that by June 30, four months before the 2000 elections, candidates nationwide had raised 35% more than had been raised at the same point only two years earlier. In the 6th Congressional district of Colorado alone, campaign spending in the 2000 election is expected to surpass the state's record of $3 million which was set just two years ago.

Back in 1986, the excessive spending in Congressional races was just starting. That year, the Colorado Democratic Party challenged the anti-Wirth ad before the Federal Election Commission (Fec), which agreed and filed suit in federal court, alleging that the purchase of radio time was an expenditure in connection with the Senate run and exceeded spending limit stipulated by the Party Expenditure Provision of the Federal Election Commission Act (FecA) of 1974.

FecA regulates spending limits and prohibits the national committee of a political party from making any expenditure greater than $20,000 or 2 cents multiplied by the voting age population of the state "in connection with the general election campaign of a candidate for federal office."

The Republican Party responded that the ad was not an expenditure "in connection with" the general election of a candidate for federal office because neither party had an official candidate when the ad was aired. It also alleged FecA violated its 1st Amendment guarantee to free speech.

The district court agreed with the Republican Committee and dismissed the Fec complaint but declined to address the constitutionality of the spending limits as a violation of the 1st Amendment.

On appeal in 1995, the 10th Circuit Court of Appeals reversed, concluding that the ad was subject to the limits of the Party Expenditure Provision and going on to hold that the provision did not impermissibly burden the Party's 1st Amendment rights.

In its 1996 opinion in the case, the U.S. Supreme Court was divided. Three members of the Court found the provision unconstitutional as applied to the expenditure at issue because since there was no Republican candidate yet in the race, the ad was an "independent expenditure," not a "coordinated expenditure," and as such, entitled to full 1st Amendment protection.

Four other justices agreed. But those other justices also dissented, urging the Court to resolve the Party's facial challenge to the Party Expenditure Provision.

The Court remanded the case, noting that "to our knowledge, this is the first case in the 20-year history of the Party Expenditure Provision to suggest that in-fact coordinated expenditures by political parties are protected from congressional regulation by the First Amendment."

On remand, the district court concluded that the Fec had "failed to offer evidence which demonstrates the compelling need for limits on political party coordinated expenditures" and held the Party Expenditure Provision unconstitutional.

This time, a divided 10th Circuit Court of Appeals panel affirmed. In holding the provision unconstitutional, Judge Deanell Tacha wrote that political speech and association "are the lifeblood of a free and independent republic."

Contesting the Fec's argument that contributions by corporate, bank and union entities may have a corrupting influence on parties, the 2-1 majority said it "will not validate limits on the protected speech of a political party as a back-door means of stemming corporate involvement in the legislative process."

In dissent, Chief Judge Stephanie Seymour criticized the majority for substituting its judgment for that of Congress. "In doing so," she wrote, "the majority creates a special category for political parties based on its view of their place in American politics, a view at odds with history and with legislation drafted by politicians."

The Fec sought review by the U.S. Supreme Court.

In a brief supporting the Fec's petition to the Court, Roger Written, attorney for Common Cause and Democracy 21, expanded on the dangers of unlimited funding.

"There is," the brief reads, "a plethora of evidence that individual contributors and other special interest do attempt to influence party candidates and officeholders through contributions to parties themselves."

In an interview, Written said the case "will have implications in how elections funding for both presidential and congressional candidates will work."

On Oct. 10, 2000, the Court granted certiorari in the case.

In a 5-4 decision on June 25, 2001, the Court held that because the party expenditure in this case was coordinated and not truly independent, it could be limited by Fec regulations, as could a political contribution, without violating the Republican Party's 1st Amendment speech rights.

An examination of the 1976 case of Buckley v. Valeo and the Fec Act of 1971 indicates that Congress is entitled to restrict both campaign contributions and campaign spending, Justice David Souter wrote for the majority, while conceding "that limits on political expenditures deserve closer scrutiny than restrictions on political contributions."

The trick in this and future cases is in determining when the political party expenditure is a disguised contribution, and whether political parties should be treated similar to other political speakers, including PACs, for the purposes of limiting contributions to party candidates.

Souter noted that the line between spending and donating was "easy to draw when it falls between independent expenditures by individuals or political action committees without any candidate's approval (or wink or nod), and contributions in the form of cash gifts to candidates." Coordinated spending should be limited, Souter wrote, because having no limits would allow individuals and other campaign contributors to circumvent their contributions - directly supporting a specific candidate through coordinated spending.

"Parties function for the benefit of donors whose object is to place candidates under obligation, a fact that parties cannot escape," wrote Souter for himself and Justices John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg and Stephen Breyer.

In dissent, Justice Clarence Thomas wrote that the opinion means that in combination, lawful contributions and expenditures amount "to corruption sufficient to silence those who wish to support a candidate," despite his belief that the majority did not find evidence that coordinated expenditures led to corruption.

Thomas wrote that he was "baffled that this court has extended the most generous 1st Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend."

"In my view, the 1st Amendment demands a more coherent explanation," he wrote. "In my view, it makes no sense to contravene a political party's core 1st Amendment rights because of what a third party might unlawfully try to do. Instead of broadly restricting political parties' speech, the Government should have pursued better-tailored alternatives for combating alleged corruption.

Justices Antonin Scalia, Anthony Kennedy and Chief Justice William Rehnquist joined in the dissent.