Anh Cao v. Federal Election Commission

Case: 10-30146 Document: 00511230137 Page: 1 Date Filed: 09/10/2010

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

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“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

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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

individual eligible to vote in any election for the office of President may institute

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

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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

(ii) $20,000; and

(B) in the case of a candidate for election to the office of Representative,

Delegate, or Resident Commissioner in any other State, $10,000.

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

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(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. 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

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of our system of representative democracy is undermined. Although

the scope of such pernicious practices can never be reliably

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.

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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.

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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?

Id.

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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.

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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?

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(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.

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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

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.

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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:

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

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.

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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.

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,

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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.

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

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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

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

16

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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

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

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.

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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.

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.”

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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

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

15

It is worth noting that no court has ever invalidated a contribution limitation based

solely on its failure to index for inflation.

19

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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.

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

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 “. .

20

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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

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

. [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.”

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.

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en banc court,20 and the only argument the RNC’s counsel was willing to make

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.

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 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.

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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?

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

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

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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

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

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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.”

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

25

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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.

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

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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

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).

27

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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

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

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

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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.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

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

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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

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

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.

30

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the candidate.26 Because such a conclusion would effectually overrule all

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

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).”

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

31

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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

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

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.

32

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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

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

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(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.

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

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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

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

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

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.

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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.

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.

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.

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

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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

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

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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

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

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.”).

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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

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.

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.

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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

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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

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.

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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, __ 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

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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

the expressive side of the spectrum

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.

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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.

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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

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applied to the Cao Ad coordination is de minimis and non-cognizable.”

(emphasis added). Their contentions are best summed up as follows:

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

5

The majority opinion is simply inaccurate in asserting that plaintiffs raised an as-

applied challenge only in their reply brief.

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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 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.

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.

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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:

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 waiver 7 by

plaintiffs of any ground of relief generated by their case.8 That plaintiffs’ oral

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 . . . .

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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 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

(emphasis added). Counsel conceded only FEC’s regulatory interpretation of the consequences

of timing-only coordination, not the constitutionality of that interpretation.

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.)

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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, 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

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Colorado II that facially upheld dollar limits on coordinated expenditures.

This is plainly wrong.

The Supreme Court,10 the district court,11 the plaintiffs 12

and the FEC 13

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.

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.

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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 (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.

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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 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

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”).

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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 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

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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, 1018-19 (1995)).16 It follows from these

principles that the parties “cannot enter into a stipulation that prevents the

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.”).

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.

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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. 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

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.

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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”:

[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

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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.

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

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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 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.

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.

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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. 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.

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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, 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:

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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 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

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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 needed to ensure

that coordinating solely the broadcast timing of the party’s ad does not

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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 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

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).

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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 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

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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

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

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

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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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

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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 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

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

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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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.”

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

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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 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.

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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).

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

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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:

[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. R EP. 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

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