Amicus Curiae Brief — National Republican Senatorial Committee, et al., Petitioners v. Federal Election Commission, et al.

No. 24-621

In the

Supreme Court of the United States

__________________________________________

NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al.,

Petitioners,

v.

FEDERAL ELECTION COMMISSION, et al.,

Respondents.

__________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

__________________________________________

BRIEF OF AMICUS CURIAE SENATOR MITCH

MCCONNELL IN SUPPORT OF PETITIONERS

__________________________________________

CHARLES J. COOPER

Counsel of Record

PETER A. PATTERSON

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

ccooper@cooperkirk.com

Counsel for Amicus Curiae

January 6, 2025

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 2

ARGUMENT ................................................................ 5

I.

The Coordinated Spending Limit Does Not

Further the Government’s Anti-Corruption

Interest, and Colorado II Was Wrongly

Decided. ............................................................. 5

II.

Intervening Developments in this Court’s

Campaign Finance Jurisprudence Further

Confirm the Coordinated Spending Limit’s

Unconstitutionality. ........................................ 14

A. The Court Has Invalidated Many of

Congress’s Unconstitutional Campaign

Finance Restrictions Since 2001,

Dramatically Changing the Landscape of

Campaign Finance Law. ........................... 15

B. FECA’s Coordinated Party Spending Limit

Serves No Constitutionally Valid Purpose

in the Framework of Campaign Finance

Law that Now Exists. ................................ 21

CONCLUSION .......................................................... 24

ii

TABLE OF AUTHORITIES

CASES

Page

Buckley v. Valeo,

424 U.S. 1 (1976) .................................. 2, 5, 6, 7,

14, 15, 16, 21

Citizens United v. FEC,

558 U.S. 310 (2010) ........................... 1, 5, 19, 20

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002) ......................................... 14

Colorado Republican Federal Campaign Comm. v.

FEC, 518 U.S. 604 (1996) ............................... 12

Davis v. FEC,

554 U.S. 724 (2008) ................................... 18, 19

FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) .............................. 3, 6, 7, 8,

11, 12, 13, 21

FEC v. Cruz,

596 U.S. 289 (2022) ..................... 2, 9, 10, 20, 21

FEC v. National Conservative Pol. Action Comm.,

470 U.S. 480 (1985) ................................... 5, 6, 7

FEC v. Wisconsin Right to Life, Inc.,

551 U.S. 449 (2007) ....................... 18, 19, 21, 22

McConnell v. FEC,

540 U.S. 93 (2003) ....................................... 1, 17

McCutcheon v. FEC,

572 U.S. 185 (2014) .............................. 3, 4, 5, 8,

9, 10, 11, 20

Nixon v. Shrink,

528 U.S. 377 (2000) ..................................... 4, 14

iii

SpeechNow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010) ......................... 22

STATUTES, CODES, AND REGULATIONS

52 U.S.C.

§ 30116(a)(1)(B) ............................................... 10

§ 30116(a)(8) ................................................ 8, 13

§ 30116(j) ........................................................... 9

11 C.F.R. § 109.37 ...................................................... 13

88 Fed. Reg. 7,088, 7,090 (Feb. 2, 2023) ................... 10

OTHER AUTHORITIES

Richard Briffault, Super PACs, 96 MINN. L. REV.

1644 (2012) ...................................................... 22

Coordinated party expenditure limits adjusted (2016),

FEC (Feb. 10, 2016),

https://bit.ly/3wMAuY0................................... 23

Samuel Issacharoff, Outsourcing Politics: The Hostile

Takeovers of Our Hollowed-Out Political

Parties, 54 HOUS. L. REV. 845 (2017) ..... 6, 7, 23

Ian Vandewalker, Since Citizens United, a Decade of

Super PACs, BRENNAN CTR. (Jan. 14, 2020),

https://bit.ly/3uNtLN7 .................................... 22

1

INTEREST OF AMICUS CURIAE1

Amicus Curiae Senator Mitch McConnell is the

senior United States Senator from the Commonwealth of Kentucky and current Chairman of the

United States Senate Committee on Rules and Administration, which has jurisdiction over federal campaign finance laws. He served as the Leader of the Republican Conference in the United States Senate for

18 years and is the former Chairman of the National

Republican Senatorial Committee, a national political

party committee comprising the Republican members

of the United States Senate.

Senator McConnell is a respected senior statesman and is one of the Senate’s strongest defenders of

the First Amendment’s guarantees. For many years,

Senator McConnell has participated in litigation defending First Amendment freedoms. For example, he

was the lead plaintiff challenging the Bipartisan

Campaign Reform Act in McConnell v. FEC, 540 U.S.

93 (2003), and he participated as amicus both by brief

and oral argument in Citizens United v. FEC, 558 U.S.

310 (2010), which overruled McConnell in part. He

also participated as amicus in many of this Court’s

other campaign finance cases. E.g., Br. of Amicus Curiae Sen. Mitch McConnell, McCutcheon v. FEC, 572

U.S. 185 (May 13, 2013); Br. of Amicus Curiae Sen.

1 Pursuant to SUP. CT. R. 37.2, amicus certifies that counsel

of record for all parties received timely notice of the intent to file

this brief. Pursuant to SUP. CT. R. 37.6, amicus certifies that no

counsel for any party authored this brief in whole or in part, no

party or party’s counsel made a monetary contribution to fund

its preparation or submission, and no person other than amicus

or his counsel made such a monetary contribution.

2

Mitch McConnell, FEC v. Cruz, 596 U.S. 289 (Dec. 22,

2021).

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

“Discussion of public issues and debate on the

qualifications of candidates are integral to the operation of the system of government established by our

Constitution.” Buckley v. Valeo, 424 U.S. 1, 14 (1976).

The freedom of speech thus “has its fullest and most

urgent application precisely to the conduct of campaigns for political office.” FEC v. Cruz, 596 U.S. 289,

302 (2022). And because any “restriction on the

amount of money a person or group can spend on political communication during a campaign necessarily

reduces the quantity of expression by restricting the

number of issues discussed, the depth of their exploration, and the size of the audience reached,” this

Court has held that such restrictions comport with the

First Amendment only if they satisfy heightened constitutional scrutiny. Buckley, 424 U.S. at 19.

Money is essential to extend a political campaign

beyond the soapbox. Yet Congress has nonetheless

erected a complex, sweeping structure of restrictions

on the flow of money into the political process. That

sprawling regulatory edifice, which was originally

fashioned in 1971 by the Federal Election Campaign

Act (“FECA”) and was renovated in 2002 by the Bipartisan Campaign Reform Act (“BCRA”), has not aged

well, as one after another of its most important features—its load-bearing pillars—have been toppled by

the First Amendment. One of the structure’s important pillars, however, survived its first challenge

under the First Amendment.

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Section 315 of FECA, 52 U.S.C. Section 30116(d),

tightly limits the amount of money that a national political party, such as the Republican or Democratic

Party, can spend in coordination with the party’s own

candidates. Section 315’s limits are adjusted for inflation and currently range between roughly $60,000 and

$32 million depending on the office. This coordinated

party spending limit was upheld by a closely divided

Court in FEC v. Colorado Republican Fed. Campaign

Comm. (“Colorado II”), 533 U.S. 431 (2001). The

Court, respectfully, was wrong.

The only government interest this Court has recognized as adequate to justify a campaign funding restriction is the interest in preventing the reality or appearance of quid pro quo corruption—i.e., transactional exchanges involving “dollars for political favors,” McCutcheon v. FEC, 572 U.S. 185, 192 (2014)

(plurality). But the influence that political parties

seek to exercise over their own candidates’ behavior is

nothing like that. To the contrary, a party’s influence

over “its candidate’s stance on issues and, if the candidate takes office or is reelected, his votes … is

simply the essence of our Nation’s party system of government.” Colorado II, 533 U.S. at 477 (Thomas, J.,

dissenting) (cleaned up). Nor can Section 315’s coordinated party expenditure limit be justified as curbing

quid pro quo transactions between a candidate and

the donor who is the ultimate source of the funds

spent by the party. For that donor’s contribution to the

party cannot lawfully be “earmarked” for the benefit

of a particular candidate, and the donation is itself

limited by federal contribution limits—limits that “indicate[ ] [Congress’s] belief that contributions of that

amount or less do not create a cognizable risk of

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corruption.” McCutcheon, 572 U.S. at 210 (plurality)

(emphasis added). In truth, the challenged coordinated-spending limit’s real function and effect has

nothing to do with fighting corruption. No, its inevitable real-world effect is to restrict the amount and diminish the effectiveness of political speech—“the primary object of First Amendment protection.” Nixon v.

Shrink, 528 U.S. 377, 410-411 (2000). And that effect

is antithetical to the First Amendment.

These constitutional defects, evident when Colorado II was decided, have only become glaringly conspicuous in the decades since, as the Court has demolished several of the key pillars that Congress devised

to support the overall structure of its regulatory edifice. The First Amendment’s repeated collisions with

FECA and BCRA have resulted in a dilapidated statutory framework that Congress did not anticipate and

that no one would have designed: a framework where

the national parties are tightly constrained in spending money on speech that is not corrupting in the

slightest, while unaccountable outside “Super PACs”

can freely spend unlimited amounts of money to influence federal elections and, thus, candidates. Even if

one assumes that FECA’s coordinated party spending

limit could have conceivably served a compelling government interest two decades ago, it does not do so today, standing in isolation among the statutory ruins

of Congress’s campaign finance rules. Petitioners

have thus made a strong case that Colorado II has lost

its precedential force. See Pet.22-23. But even if that

is not so, Colorado II’s decision upholding the challenged provision is egregiously wrong, and this Court

should schedule a rematch between Section 315 and

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the First Amendment and send it to the same fate as

the rest of FECA’s and BCRA’s statutory wreckage.

ARGUMENT

“Speech is an essential mechanism of democracy,

for it is the means to hold officials accountable to the

people.” Citizens United, 558 U.S. at 339. Under the

doctrinal framework first established in Buckley, laws

that restrict expenditures on campaign speech are

“subject to strict scrutiny” and thus must be “narrowly

tailored” to prevent quid pro quo corruption or its appearance, id. at 340, while laws that restrict campaign

contributions must be “closely drawn” to serve that

anti-corruption interest, McCutcheon, 572 U.S. at 197

(plurality). FECA’s coordinated party expenditure

limit is neither.

I.

The Coordinated Spending Limit Does Not

Further the Government’s Anti-Corruption

Interest, and Colorado II Was Wrongly Decided.

A. Any attempt to justify FECA’s limits on coordinated party spending stumbles out of the starting

blocks, for while the model of quid pro quo corruption

makes sense when applied to contributions by individual donors—who could conceivably try to contribute “dollars” in exchange for the promise of “political

favors,” Id. at 192 (plurality)—it makes no sense at all

in the context of political parties.

The government may target quid pro quo corruption because it “undermine[s]” “the integrity of our

system of representative democracy.” Buckley, 424

U.S. at 26-27. Where contributions are “given as a

quid pro quo for improper commitments from [a] candidate,” the democratic link between a candidate and

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those who vote for him is broken. FEC v. National

Conservative Pol. Action Comm., 470 U.S. 480, 498

(1985) (“NCPAC”). Moreover, as Buckley affirms, “the

appearance of corruption stemming from public

awareness of the opportunities for abuse” arising from

such “quid pro quo arrangements” can cause “confidence in the system of representative Government …

to be eroded to a disastrous extent.” 424 U.S. at 27

(cleaned up).

When the source of a contribution is the candidate’s political party, these concerns simply do not obtain. Yes, political parties contribute money in an attempt to influence the candidate’s behavior in office;

indeed, they may perhaps even do so in an attempt to

extract concrete “commitments.” NCPAC, 470 U.S. at

498. But that is one of their basic raisons d’être. “The

very aim of a political party is to influence its candidate’s stance on issues and, if the candidate takes office or is reelected, his votes.” Colorado II, 533 U.S. at

477 (Thomas, J., dissenting). Rather than constituting

“a subversion of the political process,” id., this type of

influence is one of the basic features of representative

democracy in a party system of government.

Parties play a number of vital roles in our governmental system that make them “critical to the central public good of democratic self-governance.”

Samuel Issacharoff, Outsourcing Politics: The Hostile

Takeovers of Our Hollowed-Out Political Parties, 54

HOUS. L. REV. 845, 854 (2017). For example, parties

help to forge “a coherent set of policies or priorities”

out of the “competing agendas[ ]” and interests of all

of their disparate members, thus guarding against

“inconsistency in potential political outcomes.” Id. at

855-56. Parties also generally pull officeholders on the

7

political fringes closer “to the center of the political

distribution of voters.” Id. at 855. And critically, to

provide any of these public goods, a party must have

tools to influence the behavior of its candidates and officeholders—including by supporting them with

money raised by the party.

While parties thus most assuredly seek to wield

influence over candidate behavior through their contributions and spending, there is nothing “improper,”

let alone corrupt, about the “commitments” they seek

to obtain, NCPAC, 470 U.S. at 498, since they are in

furtherance of “the central public good of democratic

self-governance,” Issacharoff, supra, at 854. A party’s

effort at influencing a candidate’s behavior thus does

not undermine “the integrity of our system of representative democracy,” Buckley, 424 U.S. at 26-27; it

“is simply the essence of our Nation’s party system of

government. One can speak of an individual citizen or

a political action committee corrupting or coercing a

candidate, but what could it mean for a party to ‘corrupt’ its candidate or to exercise ‘coercive’ influence

over him?” Colorado II, 533 U.S. at 477 (Thomas, J.,

dissenting) (brackets and quotation marks omitted).

B. Since the Government cannot show that coordinated party spending poses any risk of corruption

by the entity actually doing the spending—the party—

it has attempted to justify FECA’s limit as targeting

corruption from a different source: the original donor

who gave the party the money it spends in coordination with the candidate. This original donor, the theory goes, might “give to a party with the understanding that the contribution to the party will produce increased party spending for the candidate’s benefit,”

thereby circumventing the individual “contribution

8

limits binding on them.” Colorado II, 533 U.S. at 44647. “The Government argues that if coordinated

spending were unlimited, circumvention would increase: because coordinated spending is as effective as

direct contributions in supporting a candidate, an increased opportunity for coordinated spending would

aggravate the use of a party to funnel money to a candidate from individuals and nonparty groups, who

would thus bypass the contribution limits that Buckley upheld.” Id. at 447.

As an initial matter, federal law already prevents

a donor from “earmarking” funds for a particular candidate, in the way the Government’s argument assumes. 52 U.S.C. § 30116(a)(8). But this argument

faces an additional, and insurmountable, hurdle: federal base contribution limits already restrict the

amount that any individual may contribute to a party

as well as to a candidate, and so these base limits already guard against any threat of quid pro quo corruption that might stem from contributions to parties.

The “anti-circumvention” justification for the coordinated party spending limit thus amounts to precisely

the type of “prophylaxis-upon-prophylaxis approach”

that this Court has repeatedly rejected. McCutcheon,

572 U.S. at 221 (plurality).

McCutcheon is closely on point. The plaintiffs

there challenged FECA’s “aggregate” contribution

limits (as amended by BCRA). Those limits capped the

amount any individual could “contribute in total to all

candidates or committees”—even if each individual

contribution within the aggregate total was within the

applicable base contribution limit. Id. at 192. The

Government defended the aggregate limits as an additional layer of protection against the same risk of

9

corruption targeted by the base limits, arguing that

the aggregate cap was necessary to “prevent circumvention of the base limits.” Id. at 210. The Court rejected this “prophylaxis-upon-prophylaxis approach.”

Id. at 221.

The “base limits remain the primary means of

regulating campaign contributions,” the Court explained, and “Congress’s selection of a [$3,300] base

limit indicates its belief that contributions of that

amount or less do not create a cognizable risk of corruption.” Id. at 209, 210 (emphasis added). And “[i]f

there is no corruption concern” in donating the maximum allowable amount to each candidate until the aggregate limit is met, there can be no anti-corruption

interest in preventing any further donations that also

comply with the limit selected by Congress—donations that cannot be “regarded as corruptible” as a

matter of law. Id. at 210.

The Court adopted similar reasoning in Cruz.

There, Senator Ted Cruz challenged a provision of

BCRA that capped at $250,000 the amount of loans

from a candidate to his own campaign committee that

could be repaid with funds raised by the committee

after the election. See 52 U.S.C. § 30116(j). This Court

struck down the limit, reasoning that it was “yet another in a long line of ‘prophylaxis-upon-prophylaxis

approach[es]’ to regulating campaign finance.” Cruz,

596 U.S. at 306 (citation omitted).

Individual contributions to candidates for

federal office, including those made after the

candidate has won the election, are already

regulated in order to prevent corruption or

its appearance. Such contributions are

10

capped at $[3,300] per election, and nontrivial contributions must be publicly disclosed.

… And the requirements are themselves

prophylactic measures, given that few if any

contributions to candidates will involve quid

pro quo arrangements. Such a prophylaxisupon-prophylaxis approach, we have explained, is a significant indicator that the

regulation may not be necessary for the interest it seeks to protect.

Id. (citations and quotation marks omitted).

As in McCutcheon and Cruz, so too here. Any

funds donated by individuals to finance a party’s coordinated spending already must fall within the base

limit for contributions to a national party, 52 U.S.C.

§ 30116(a)(1)(B)—currently set at the inflation-adjusted amount of $41,300, 88 Fed. Reg. 7,088, 7,090

(Feb. 2, 2023). Any effort to “circumvent” the limit for

contributions to candidates by donating to the candidate’s party would thus run headlong into the limit for

contributions to parties themselves. And contributions to a party within that limit, under McCutcheon

and Cruz’s reading, cannot be regarded as corrupting

as a matter of law. McCutcheon, 572 U.S. at 210, 221

(plurality).

Put differently, in setting the base limits on contributions to national parties, Congress already took

into account—and already provided prophylactic protection against—the possibility that individual donors

might seek to use those contributions in service of a

quid pro quo arrangement with one of the party’s candidates. To be sure, the limit on contributions to parties is substantially higher than the limit on

11

contributions to individuals, but that merely reflects

the fact that “there is not the same risk of quid pro

quo corruption or its appearance when money flows

through independent actors to a candidate, as when a

donor contributes to a candidate directly[,]” since with

the addition of the intermediary, “the chain of attribution grows longer, and any credit must be shared

among the various actors along the way.” Id. at 210,

211.

If Congress believes that the base limit on contributions to parties is no longer adequate to prevent

quid pro quo corruption—because of a ruling invalidating the challenged coordinated spending limit or

for any other reason—“the proper response is to lower

the cap.” Colorado II, 533 U.S. at 482 (Thomas, J., dissenting). That policy solution eschews directly regulating party expenditures—speech that lies at the

heartland of the First Amendment’s protective sweep.

It avoids the Rube-Goldberg-like stack of “prophylaxis

upon prophylaxis” measures entailed by the coordinated spending limit. McCutcheon, 572 U.S at 196.

And it also has the benefit of being “directed at the

source of the alleged corruption—the individual donor—and not the party.” Colorado II, 533 U.S. at 482

(Thomas, J., dissenting) (cleaned up).

C. In truth, while the Colorado II majority accepted the Government’s rationale of the coordinated

party spending limit as a prophylactic anti-corruption

measure, its real function and effect has nothing to do

with quid pro quo corruption. No, the real effect of the

coordinated spending limit is simply to make party

speech less valuable and effective.

12

Colorado II was quite clear about this. The only

practical difference between party expenditures that

are coordinated with a candidate’s campaign and

party expenditures that are made independently is

that the latter are less effective: “[t]he absence of prearrangement and coordination of an expenditure with

the candidate or his agent … undermines the value of

the expenditure to the candidate.” Id. at 464 (quoting

Buckley, 424 U.S. at 47). A party spending without coordination runs the risk of spending funds at a time

or place that is unhelpful or out of sync with the candidate’s electoral strategy. And uncoordinated spending can also be ineffective or, worse still, even unhelpful as a substantive matter, emphasizing themes that

are out of step with the candidate’s own campaign

messaging, or discussing issues that the candidate

has concluded are affirmatively harmful. As Petitioners explained below, “a lack of coordination on independent expenditures” can thus “result in advertisements being run that are unhelpful to, if not entirely

disfavored by, the supported candidate.” D.Ct. Doc.

19-1 at ¶ 23 (Apr. 19, 2023). It is thus often “impractical and imprudent, to say the least, for a party to support its own candidates without some form of ‘cooperation’ or ‘consultation.’ ” Colorado Republican Federal

Campaign Comm. v. FEC, 518 U.S. 604, 630 (1996)

(“Colorado I”) (Kennedy, J., dissenting in part). The

design and effect of Section 315’s coordinated party

spending limit is thus to sow discord into the campaign speech of a political party and its own candidates for office, a result that enfeebles speech that “is

the lifeblood of a self-governing people.” Colorado II,

533 U.S. at 466 (Thomas, J., dissenting).

13

And for what? According to the Colorado II majority, the “special value” of coordinated expenditures

“is also the source of their power to corrupt.” Id. at

465. But in reality the two concepts are entirely unrelated. Only coordinated party expenditures that are

part of a quid pro quo arrangement (a description

that, on the available evidence, fits precious few coordinated expenditures, if any at all) are corrupting.

And uncoordinated expenditures could just as readily

be part of a quid pro quo arrangement as coordinated

ones, since nothing in the copious regulatory rules

fleshing out what constitutes “coordination,” see, e.g.,

11 C.F.R. § 109.37, prevents a party from informing

candidate X that donor Y has contributed $41,300 designated for uncoordinated spending on X’s behalf, as

the quo in exchange for a particular agreed-upon quid.

It is instead FECA’s separate rule against earmarking

(not to mention bribery laws) that outlaws that sort of

arrangement. See 52 U.S.C. § 30116(a)(8); compare

Colorado II, 533 U.S. at 459 (discussing “ ‘tallying,’ a

system that helps to connect donors to candidates

through the accommodation of a party”), with id. at

479 (Thomas, J., dissenting) (“[E]ven if the tally system were evidence of corruption-through-circumvention, it is only evidence of what is occurring under the

current system, not of additional ‘corruption’ that

would arise in the absence of the Party Expenditure

Provision.”).

Layering the coordinated party spending limit on

top of the anti-earmarking rule is thus rather like imposing a tax on a bribe, on the theory that the crime of

bribery will occur less often because the tax “undermines the value” of each bribe. Id. at 464 (majority

opinion). And the coordinated party spending limit, in

14

addition to sharing the irrationality of such a bribery

regime (which alone would be sufficient to doom the

limit under any level of heightened scrutiny), suffers

from an even more pernicious defect. For here the

“tax” falls not on bribe payments but on “the speech

upon which democracy depends.” Shrink, 528 U.S. at

405 (Kennedy, J. dissenting) (emphasis added). Again,

the whole premise of the Government’s anti-corruption theorem is that forcing more spending to be uncoordinated will reduce its attractiveness as a potential

quo in a quid pro quo arrangement by reducing its effectiveness as political speech. And any argument built

upon such a premise must fail, because that premise

is antithetical to our First Amendment. Cf. Buckley,

424 U.S. at 48-49 (“the concept that government may

restrict the speech of some elements of our society in

order to enhance the relative voice of others is wholly

foreign to the First Amendment”); City of Los Angeles

v. Alameda Books, Inc., 535 U.S. 425, 445 (2002).

II.

Intervening Developments in this

Court’s Campaign Finance Jurisprudence Further Confirm the Coordinated Spending Limit’s Unconstitutionality.

For all the reasons set forth above, Colorado II

was wrong the day it was decided. In the intervening

years, however, this Court’s campaign-finance jurisprudence has significantly matured. Since 2001, the

Court has knocked down provision after provision,

first of FECA and then of BCRA, as constitutionally

invalid. And in the legal landscape that has emerged,

it is now clearer than ever that FECA’s limit on coordinated party spending has no constitutionally valid

role to play.

15

A. The Court Has Invalidated Many of

Congress’s Unconstitutional Campaign Finance Restrictions Since

2001, Dramatically Changing the

Landscape of Campaign Finance Law.

1. The leading campaign finance decision on

the books when Colorado II was handed down was the

landmark 1976 decision in Buckley. While Buckley upheld much of FECA, it struck down many of its most

significant provisions, effecting a sea-change in the

overall structure of campaign finance law. Most momentously, Buckley established the basic framework

that continues to govern the constitutional assessment of campaign finance restrictions. “[E]xpenditure

limitations” on the spending of money to fund political

speech must “satisfy the exacting scrutiny applicable

to limitations on core First Amendment rights of political expression.” 424 U.S. at 44-45. “[C]ontribution

limitations,” in contrast, “may be sustained if the

State demonstrates a sufficiently important interest

and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” Id. at 21,

25. Finally, “disclosure requirements,” though nominally subject to “[t]he strict test established by

NAACP v. Alabama,” are generally considered “to be

the least restrictive means” of furthering Congress’s

goals and, thus, constitutional, id. at 66, 68.

Applying this newly-minted framework, Buckley

upheld some of FECA’s restraints—including its base

limits on contributions by individuals and political

committees to candidates—as well as its numerous

disclosure and recordkeeping requirements. Id. at 2329, 35-36, 60-84. But the Court struck down many

other features of the Act, including its spending

16

limits—one of the chief, load-bearing pillars of the legislative structure. The Buckley Court held that

FECA’s $1,000 limit on expenditures “relative to a

clearly identified candidate” could not be squared with

“First Amendment Freedoms”—even if narrowed to

encompass only “communications that in express

terms advocate the election or defeat of a clearly identified candidate.” Id. at 39, 44 (cleaned up). The Court

employed similar reasoning to strike down the Act’s

“ceiling on personal expenditures by candidates on

their own behalf.” Id. at 52. And it also invalidated

FECA’s “limitations on overall campaign expenditures by candidates.” Id. at 54.

2. The Court’s next major campaign-finance

decision came two years after Colorado II, and was

prompted by Congress’s second major piece of legislation: BCRA. BCRA imposed several new restraints on

speech—most significantly, detailed bans or restrictions on the use of so-called “soft money” (money

raised outside the scope of FECA’s federal contribution limits); a new definition of “electioneering communications” that extended FECA’s disclosure requirements to a category of independent expenditures

far broader than the “express advocacy” boundary-line

adopted by Buckley; and a ban on “express advocacy,”

as newly defined, by corporations. Plaintiffs (including amicus Senator McConnell) brought facial challenges to nearly every part of BCRA. And though a

cobbled-together bare majority of Justices upheld

most of the challenged provisions, cracks in the legislative structure’s foundation were apparent—cracks

that would ultimately lead to successive collapses of

major pillars of the edifice.

17

Four Justices would have held many of BCRA’s

most significant provisions invalid. See McConnell,

540 U.S. at 286-341 (Kennedy, J., concurring in part

and dissenting in part); id. at 264-86 (Thomas, J., concurring in part and dissenting in part). That includes

Section 203’s ban on “electioneering communications”

by corporations and labor unions, see id. at 330 (Kennedy, J., concurring in part and dissenting in part); id.

at 274-75 (Thomas, J., concurring in part and dissenting in part), but a majority allowed it to stand until

the Court’s decision in Citizen United. Taken together,

the dissenters recognized BCRA for what it was: “an

incumbency protection plan.” Id. at 306 (Kennedy, J.,

concurring in part and dissenting in part).

Although a narrow majority in McConnell thus

upheld much of BCRA, the Court struck down Section

213’s requirement that a political party choose, “during the postnomination, preelection period,” either to

“spend more than $5,000 in coordination with its nominee” or entirely to forego “the right to make independent expenditures for express advocacy” during that period. Id. at 213, 216-17 (majority opinion) (emphasis

omitted). And it similarly invalidated Section 318’s

ban on contributions by individuals under the age of

18. Id. at 231-32.

Accordingly, most of BCRA’s provisions narrowly

survived the Act’s first encounter with the First

Amendment. But far from constituting the last word

on BCRA’s constitutionality, McConnell merely

started this Court down a path that would ultimately

dismantle much of BCRA—and knock out as constitutionally infirm much of the structural framework supporting federal campaign finance law as a whole.

18

3. In FEC v. Wisconsin Right to Life, Inc.

(“WRTL”), 551 U.S. 449 (2007), the Court returned to

the constitutionality of Section 203’s limit on corporate “electioneering communications.” McConnell had

upheld Section 203 on its face, but in WRTL a plurality of the Court clarified that this ban could constitutionally be applied only to the subset of “electioneering

communications” that either falls within Buckley’s

category of “express advocacy or its functional equivalent.” Id. at 465. And “a court should find that an ad

is the functional equivalent of express advocacy only

if the ad is susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific

candidate.” Id. at 469-70. Because the issue advertisements that WRTL wished to run were “plainly not the

functional equivalent of express advocacy,” Section

203 could not constitutionally be applied to restrict

them. Id. at 470. Three Justices would have gone further, overruled McConnell, and held that Section 203

was unconstitutional on its face. Id. at 499-500

(Scalia, J., concurring).

4. This Court knocked down another of

BCRA’s pillars in Davis v. FEC, 554 U.S. 724 (2008).

That case concerned a “part of the so-called ‘Millionaire’s Amendment’ ” providing that “when a candidate

spends more than $350,000 in personal funds …, that

candidate’s opponent may qualify to receive both

larger individual contributions than would otherwise

be allowed and unlimited coordinated party expenditures.” 554 U.S. at 729, 736. The Court held that this

“asymmetrical regulatory scheme,” which “imposes an

unprecedented penalty on any candidate who robustly

exercises [his] First Amendment right,” could be

squared with the First Amendment only if it were

“justified by a compelling state interest.” Id. at 729,

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739, 740 (cleaned up). But instead of a compelling interest, the Government had come forward with an illegitimate one: the aim of “level[ling] electoral opportunities for candidates of different personal wealth.”

Id. at 741. The Millionaire’s Amendment’s asymmetrical contribution scheme was thus “antithetical to the

First Amendment,” and another regulatory pillar fell.

Id. at 744.

5. Two Terms after Davis, the Court returned

to the constitutionality of BCRA, and this time it took

out one of the Act’s most significant structural supports: Section 203’s ban on corporate “electioneering

communications.” The McConnell Court had upheld

this ban on its face. And though WRTL, as discussed

above, narrowed its application to expenditures on

“express advocacy or its functional equivalent,” 551

U.S. at 465, the Court left it standing as applied to

that subset of speech. Citizens United finally struck

down the ban in its entirety, overruling that portion

of McConnell.

In Citizens United, a nonprofit corporation

sought to broadcast a cable documentary regarding

then-Senator Hillary Clinton within 30 days of the

2008 primary elections. 558 U.S. at 319-21. Unlike the

issue ads in WRTL, the Court concluded that Citizen

United’s proposed broadcast plainly “qualifies as the

functional equivalent of express advocacy,” thus teeing up the constitutional validity of Section 203’s ban

as applied to that speech. Id. at 326. The Court repudiated McConnell and held that it was not valid.

“Political speech is indispensable to decisionmaking in a democracy, and this is no less true because

the speech comes from a corporation.” Id. at 349 (citation and quotation marks omitted). And no legitimate

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government interest could justify BCRA Section 203’s

restraint on that core political speech. The Government’s proffered “antidistortion” interest did not do

the trick, since that interest is not a constitutionally

legitimate one, let alone compelling. Id. at 349-56. Nor

could the ban be justified as preventing the reality or

appearance of corruption. For while independent expenditures by a corporation (or anyone else) might

conceivably garner it “influence over or access to

elected officials,” those expenditures “do not give rise

to corruption or the appearance of corruption,” when

that concept is properly understood as “limited to quid

pro quo corruption.” Id. at 357, 359.

6. Following Citizens United, the Court took

down yet another portion of the federal campaign finance structure in McCutcheon. As discussed above,

McCutcheon invalidated the aggregate limits on “how

much money a donor may contribute in total to all candidates or committees.” 572 U.S. at 192 (plurality).

The Court confirmed what was clear from its earlier

decisions, from Buckley onward: the only compelling

justification for regulating campaign speech is to prevent “what we have called ‘quid pro quo’ corruption or

its appearance.” Id. And in light of the federal base

contribution limits, “the aggregate limits do little, if

anything, to address that concern” and “are therefore

invalid under the First Amendment.” Id. at 193.

7. Finally, this Court’s most recent encounter

with BCRA in Cruz finished off the portion of the Millionaire’s Amendment that Davis had left standing.

Cruz, as also noted above, concerned the Millionaire’s

Amendment’s restriction on a campaign committee

“using more than $250,000 of funds raised after election day to repay a candidate’s personal loans” to his

21

campaign. 596 U.S. at 293. This limitation, the Court

explained, suffered from the same basic constitutional

infirmity as in Davis: it “burdens candidates who wish

to make expenditures on behalf of their own candidacy.” Id. at 302. And because the loan-repayment

limit did not further the “only one permissible ground

for restricting political speech: the prevention of ‘quid

pro quo’ corruption or its appearance,” the Court

struck it down. Id. at 305.

B.

FECA’s Coordinated Party Spending

Limit Serves No Constitutionally Valid

Purpose in the Framework of Campaign Finance Law that Now Exists.

Over nearly a half century, then, this Court has

again and again invalidated parts of Congress’s campaign-finance framework—including several loadbearing timbers—in an effort to conform Congress’s

handiwork to the strictures of the First Amendment.

The result is a crumbling legislative structure in

which all but one or two pillars have collapsed and

FECA’s coordinated party spending limit serves no

valid, let alone compelling, purpose.

While the national parties may have been “dominant players” in electoral politics when Colorado II

was decided, 533 U.S. at 450, in the new reality

wrought by Congress’s legislation and the courts’ decisions, permissible party coordinated spending has

now been far outstripped by the “independent expenditures” of outside groups. Id. at 463. This Court’s jurisprudence has correctly afforded this campaign

spending the highest constitutional protection since

Buckley, 424 U.S. at 14-20, and its more recent decisions have emphatically reaffirmed this fundamental

22

principle. See WRTL, 551 U.S. at 476-77. “Speech is

an essential mechanism of democracy, for it is the

means to hold officials accountable to the people,” the

Court has insisted, and any “restriction on the amount

of money a person or group can spend on political communication during a campaign … necessarily reduces

the quantity of expression by restricting the number

of issues discussed, the depth of their exploration, and

the size of the audience reached,” contrary to the First

Amendment’s most vital commands. Citizens United,

558 U.S. at 339 (citation omitted).

This Court’s robust enforcement of the First

Amendment’s protection of independent campaign

speech, particularly in the Citizens United decision,

engendered the dramatic rise of the so-called “Super

PAC”—political committees that engage solely in independent expenditures and, as a result, are constitutionally entitled to raise and spend unlimited

amounts of money. Richard Briffault, Super PACs, 96

MINN. L. REV. 1644, 1647 (2012); see SpeechNow.org v.

FEC, 599 F.3d 686, 694-95 (D.C. Cir. 2010). These Super PACs have eclipsed the parties themselves as the

new “dominant players” in national electoral politics

since Colorado II was decided, 533 U.S. at 450. The

number of Super PACs grew five-fold between 2010

and 2012, Briffault, supra, at 1673-75, and in 2016,

they spent over $1 billion on the presidential election

alone2—compared to the $23,821,100 in coordinated

2 Ian Vandewalker, Since Citizens United, a Decade of Su-

per PACs, BRENNAN CTR. (Jan. 14, 2020), https://bit.ly/3uNtLN7.

23

expenditures that the national parties were permitted

to spend that year.3

As the role played in electoral politics by Super

PACs and other outside groups has waxed, the role

played by the parties has waned. This shift in power

has partly come as a result of FECA’s coordinated

spending limit itself. That limit effectively stripped

away “one of the competitive advantages that parties

have in the race for campaign funding”: the ability to

“raise money to support its candidates on [a] basis distinct from any other contributor” and closely coordinate the spending of that money with the candidate’s

own strategic goals. Issacharoff, supra, at 864. And

with that outlet of campaign spending severely restricted, “new outlets emerged for political donations

outside the candidates and parties,” most notably Super PACs Id. at 866.

The end result is that the limit challenged here

restricts an activity—coordinated spending by political parties—that now occupies an utterly marginal

place in what is left of FECA and BCRA after this

Court’s decisions conforming those statutes to the

First Amendment. While the parties’ most effective

means of influencing elections is tightly restricted by

the coordinated spending limit, Super PACs are

spending billions of dollars—completely unrestricted

both in the amounts of contributions they can receive

and the amounts of campaign speech they can fund—

to influence election campaigns. Even if the coordinated party spending limit served some rational and

valid purpose when FECA was enacted (and as shown

Coordinated party expenditure limits adjusted (2016),

FEC (Feb. 10, 2016), https://bit.ly/3wMAuY0.

3

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supra in Part I, it did not), it certainly serves no such

purpose today. Accordingly, it should be held unconstitutional.

CONCLUSION

This Court should grant the Petition for Writ of

Certiorari.

January 6, 2025

Respectfully submitted,

CHARLES J. COOPER

Counsel of Record

PETER A. PATTERSON

JOHN D. OHLENDORF

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

Counsel for Amicus Curiae