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 WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________________________________________________________________________________________________________

BRIEF OF AMICI CURIAE STATE OF

OHIO AND 19 OTHER STATES IN SUPPORT

OF THE PETITIONERS

_______________________________________________________________________________________________________________

DAVE YOST

Ohio Attorney General

MATHURA J. SRIDHARAN*

Ohio Solicitor General

*Counsel of Record

STEPHEN P. CARNEY

TRANE J. ROBINSON

Deputy Solicitors General

30 E. Broad St., 17th Fl.

Columbus, Ohio 43215

614.466.8980

Mathura.Sridharan@OhioAGO.gov

Counsel for Amicus Curiae State of Ohio

(additional counsel listed at the end of the brief)

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND STATEMENT OF

AMICI INTEREST ................................................ 1

STATEMENT .............................................................. 3

SUMMARY OF ARGUMENT .................................... 8

ARGUMENT ............................................................. 12

I.

II.

Limits on parties’ coordinated spending

violate the First Amendment. ..................... 12

A.

Coordinated party expenditures are

core political speech. .............................. 13

B.

Coordinated-party-expenditure limits

do

not

prevent

quid-pro-quo

corruption. .............................................. 16

C.

State experience shows coordinatedparty-spending limits are needless. ...... 27

Colorado II is outdated, non-controlling,

and wrong. ................................................... 29

A.

Both statutes and cases supplant

Colorado II.............................................. 30

B.

Colorado II narrowly rejected facial

invalidity. ............................................... 33

C.

Stare decisis considerations counsel

overruling Colorado II, if necessary. ..... 34

CONCLUSION.......................................................... 36

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Americans for Prosperity Found. v.

Bonta,

594 U.S. 595 (2021) ....................................... 21, 24

Ariz. Free Enter. Club’s Freedom Club

PAC v. Bennett,

564 U.S. 721 (2011) ............................................. 24

Arthur Andersen LLP v. United States,

544 U.S. 696 (2005) ............................................. 18

Buckley v. Valeo,

424 U.S. 1 (1976)

................... 4, 5, 6, 13, 15, 16, 19, 22, 24, 25, 30, 35

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ............................................. 13

Citizens United v. FEC,

558 U.S. 310 (2010)

................................. 7, 15, 17, 22, 28, 31, 32, 33, 34

Colo. Republican Fed. Campaign

Comm. v. FEC,

518 U.S. 604 (1996)

....................................... 5, 13, 14, 15, 16, 19, 24, 35

FEC v. Beaumont,

539 U.S. 146 (2003) ............................................. 31

iii

FEC v. Colo. Republican Fed. Campaign

Comm.,

533 U.S. 431 (2001)

...... 1, 2, 3, 5, 6, 8, 11, 12, 14, 15, 16, 20, 21, 29, 30,

31, 32, 33, 34, 36

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) ......................................... 1, 19

FEC v. Nat’l Conservative PAC,

470 U.S. 480 (1985) ........................5, 17, 18, 19, 20

FEC v. Ted Cruz for Senate,

596 U.S. 289 (2022)

........................... 7, 11, 15, 16, 17, 18, 21, 22, 27, 31

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) ................................... 7, 21, 33

Fischer v. United States,

603 U.S. 480 (2024) ............................................. 18

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ............................................. 22

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ......................................... 34

Marinello v. United States,

584 U.S. 1 (2018) ................................................. 18

McConnell v. FEC,

540 U.S. 93 (2003) ............................3, 6, 12, 26, 31

McCormick v. United States,

500 U.S. 257 (1991) ............................................. 17

iv

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ............................... 2

McCutcheon v. FEC,

572 U.S. 185 (2014)

.... 4, 7, 11, 16, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28,

30, 31, 32

Meyer v. Grant,

486 U.S. 414 (1988) ......................................... 1, 13

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971) ............................................. 16

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) ............................................. 33

Nat’l Inst. of Fam. & Life Advocs. v.

Becerra,

585 U.S. 755 (2018) ............................................. 25

Nixon v. Shrink Mo. Gov’t PAC,

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

Ramos v. Louisiana,

590 U.S. 83 (2020) ......................................... 34, 36

Sabri v. United States,

541 U.S. 600 (2004) ............................................. 22

Snyder v. United States,

603 U.S. 1 (2024) ........................................... 18, 22

SpeechNow.org v. FEC,

599 F.3d 686 (DC Cir. 2010) (en

banc) ..................................................................... 26

v

State ex rel. Stenberg v. Moore,

258 Neb. 738 (Neb. 2000) .................................... 28

Sweezy v. New Hampshire,

354 U.S. 234 (1957) ......................................... 2, 16

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986) ....................................... 16, 20

United States v. Fischer,

64 F.4th 329 (D.C. Cir. 2023) .............................. 18

United States v. Ganim,

510 F.3d 134 (2d Cir. 2007) ................................. 18

United States v. Hansen,

599 U.S. 762 (2023) ............................................. 22

United States v. Householder,

137 F.4th 454 (6th Cir. 2025) ........................ 22, 29

United States v. North,

910 F.2d 843 (D.C. Cir. 1990) ............................. 18

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000) ............................................. 21

United States v. Sittenfeld,

128 F.4th 752 (6th Cir. 2025) .............................. 18

United States v. Sun-Diamond Growers

of Cal.,

526 U.S. 398 (1999) ............................................. 17

Wis. Right to Life, Inc. v. FEC,

546 U.S. 410 (2006) ............................................. 33

vi

Ysursa v. Pocatello Educ. Ass’n,

555 U.S. 353 (2009) ............................................. 26

Statutes, Regulations, and Constitutional

Provisions

U.S. Const. amend. I ............................................. 1, 12

U.S. Const. amend. XVII ............................................ 2

U.S. Const. art. I, §2 ................................................... 2

U.S. Const. art. I, §3 ................................................... 2

11 C.F.R. §100.16 ...................................................... 35

11 C.F.R. §100.26 ...................................................... 15

11 C.F.R. §109.20 ........................................................ 3

11 C.F.R. §109.30 ...................................................... 12

11 C.F.R. §109.37 ...................................................... 15

11 C.F.R. §110.1 ........................................................ 22

11 C.F.R. §110.6 ............................................ 11, 23, 31

11 C.F.R. §110.9 ........................................................ 22

18 U.S.C. §210 ........................................................... 22

26 U.S.C. §6104 ......................................................... 26

52 U.S.C. §30101 ......................................................... 3

52 U.S.C. §30104 ....................................................... 23

vii

52 U.S.C. §30110 ......................................................... 8

52 U.S.C. §30116

........... 1, 3, 4, 7, 8, 11, 12, 13, 15, 21, 22, 23, 25, 30

10 Ill. Comp. Stat. 5/9-8.5 ......................................... 28

25 Pa. Stat. §3253 ..................................................... 28

Ala. Code §17-5-15 .................................................... 28

Ariz. Rev. Stat. §16-911 ............................................ 28

Ariz. Rev. Stat. §16-922 ............................................ 28

Cal. Gov't Code §85301 ............................................. 28

Cal. Gov't Code §85400 ............................................. 28

Ind. Code §3-9-2-1 ..................................................... 28

Iowa Code §68A.101.................................................. 28

Kan. Stat. §25-4153 .................................................. 28

Ky. Rev. Stat. §121.150 ............................................ 28

La. Stat. §18:1505.2 .................................................. 28

Miss. Code §23-15-807 .............................................. 28

N.C. Gen. Stat. §163-278.13 ..................................... 28

N.D. Cent. Code §16.1-08.1-01 ................................. 28

N.J. Admin. Code §19:25-11.2 .................................. 28

N.J. Stat. §19:44A-29 ................................................ 28

viii

N.Y. Elec. Law §14-114............................................. 28

2013 Neb. Laws 79, §41 ............................................ 28

Ohio Rev. Code §3517.02 .......................................... 20

Ohio Rev. Code §3517.102 ........................................ 28

Or. Rev. Stat. §260.005 ............................................. 28

S.D. Codified Laws §12-27-7..................................... 28

Tex. Elec. Code §253.094 .......................................... 28

Utah Code §20A-11-505.7 ......................................... 28

Va. Code §24.2-945 ................................................... 28

Vt. Stat. tit. 17, §2941............................................... 28

W. Va. Code §3-8-9b .................................................. 28

Wis. Stat. §11.1101 ................................................... 28

Wis. Stat. §11.1104 ................................................... 28

Wyo. Stat. §22-25-102 ............................................... 28

Other Authorities

C. Douglas Golden, Meet the Future of

the Democratic Party: A Deep Dive on

Zohran Mamdani, The Western

Journal (July 6, 2025) ......................................... 14

The Charter and Bylaws of the

Democratic Party of the United

States ................................................................... 20

ix

Christopher Robertson et al., The

Appearance and Reality of Quid Pro

Quo Corruption: An Empirical

Investigation, 8 J. Legal Anal. 379

(2016) ................................................................... 18

Democratic Nat’l Comm., What We Do .................... 14

Elaine Kamarck, How Did Kamala

Harris Wrap Up the Democratic

Nomination in 32 Hours?, Brookings

Inst. (Sept. 3, 2024) ............................................. 14

Ian Vandewalker & Daniel I. Weiner,

Stronger Parties, Stronger

Democracy: Rethinking Reform,

Brennan Center for Justice (Sept.

16, 2015)............................................................... 30

Julie Carr Smyth & Samantha

Hendrickson, Fired FirstEnergy

execs indicted in $60 million Ohio

bribery scheme; regulator faces new

charges, AP News (Feb. 12, 2024) ....................... 29

L. Brandeis, Other People’s Money (The

McClure Publications 1914) ................................ 23

Miss. Sec’y of State, 2025 Campaign

Finance Guide...................................................... 28

R.W. Emerson, The Conduct of Life 197

(Smith, Elder & Co. 1860) ................................... 23

Republican Nat’l Comm., Who We Are ..................... 14

The Rules of the Republican Party .......................... 20

x

The Run Up, It’s Kamala’s Party Now.

What’s Different?, N.Y. Times (Aug.

22, 2024)............................................................... 13

St. George Tucker, Blackstone’s

Commentaries (1803) ........................................... 18

The Vanderbilt Project on Unity &

American Democracy, Majority of

Republicans Nationally Identify as

MAGA for First Time in Unity Poll,

Vanderbilt University (Feb. 24,

2025)..................................................................... 13

1

INTRODUCTION AND STATEMENT

OF AMICI INTEREST

Limits on political spending are limits on political

speech. Such limits are anathema to the American

way. U.S. Const. amend. I. This Court recognizes just

one justification for political-spending limits: combating bribery-style corruption and its appearance. The

Federal Election Campaign Act limits political party

committees’ spending in coordination with their preferred candidates. This “Party Expenditure Provision,” 52 U.S.C. §30116(d), imposes speech burdens

without anticorruption benefits. The law is unconstitutional.

Parties, like legislatures, are vessels of democracy,

directly responsive to public opinion. It is the “essence” of “our Nation’s party system of government”

for candidates and parties to work together to find the

winning message. FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 477 (2001) (“Colorado II”)

(Thomas, J., dissenting). Unlike private actors that

seek to change policy to make more money—a corruptible endeavor—parties spend money to improve

public policy. Party–candidate coordination simply

does not raise the “specter of corruption” that politicalspending limits aim to prevent. FEC v. Mass. Citizens

for Life, Inc., 479 U.S. 238, 263 (1986). To the contrary, party communication encourages an informed,

engaged electorate. Impediments to coordinated

party spending thus “reduc[e] the total quantum” and

quality of information parties provide voters. See

Meyer v. Grant, 486 U.S. 414, 423 (1988).

States can attest firsthand. In their own elections,

many States do not limit party–candidate coordinated

spending. The results from these laboratories of

2

democracy are higher-quality communication and political association, but not more corruption of the kind

political spending limits may permissibly target.

In federal contests, too, States have the utmost interest in political parties’ coordination with candidates unfettered by spending limits. Candidate coordination optimizes party spending, eliminating

deadweight loss. That matters to States because the

People’s representatives also guard their States’ interests in Congress. U.S. Const. art. I, §§2, 3, amend.

XVII; McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

435 (1819) (Marshall, C.J.); The Federalist No. 62

(J. Madison). States thus rely on their citizens to

make informed decisions on who is best suited for that

job. That electoral process entails core speech and association by and among citizens, candidates, and parties. Coordinated-party-spending limits inhibit the

free flow of information at the crucial hour that citizens form their political judgment and convert it to

campaign and electoral action. Because parties’ “adherents”—that is, voters—pay the price, Sweezy v.

New Hampshire, 354 U.S. 234, 250 (1957), the speech

abridgment disserves the amici States—Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana,

Iowa, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and West Virginia.

As the States’ experience shows, limits on coordinated party spending do not serve any anti-bribery interest. Nor are they necessary in light of other preventive measures in place. Though Colorado II held

otherwise, that decision has been abrogated dramatically. Both Congress, by amending the Party Expenditure Provision, and this Court, through later decisions, undermined that precedent’s reasoning and

3

stare decisis effect. See JA831–32 (Readler, J., dissenting). And the Court should overrule Colorado II,

if necessary, because it wrongly relegated parties’

speech rights. “Money, like water, will always find an

outlet.” McConnell v. FEC, 540 U.S. 93, 224 (2003).

In Colorado II’s wake, donors found unaccountable

private-interest groups in parties’ stead, thus encouraging rather than reducing risk of corruption. No

stare decisis consideration counsels saving that decision.

STATEMENT

1. Congress passed the Federal Election Campaign

Act in 1972. As amended through the Bipartisan

Campaign Reform Act, FECA anchors federal campaign-finance law. Though unenforceable in part (see

below at 4–5, 7), FECA’s text limits both campaign

contributions and expenditures. For contributions,

FECA places base limits on the amount individuals

may give both candidates and political party committees. 52 U.S.C. §30116(a). And the Act in turn limits

the amount committees may distribute to candidates

for federal office. §30116(c)–(d). For expenditures, the

Act caps the party committees’ spending on their chosen candidates according to an equation tied to votingage population. Id.

Expenditures are classified as coordinated or independent; FECA purports to limit both. §30116(d)(4).

Independent expenditures are “not made in concert or

cooperation with” any “candidate … or a political

party committee.” §30101(17). Coordinated expenditures, conversely, are “made in cooperation, consultation or concert with … a candidate” or “political party

committee.” 11 C.F.R. §109.20(a). FECA counts

4

coordinated expenditures as contributions. 52 U.S.C.

§30116(a)(7)(B)(i).

In 2014, Congress amended FECA to lift the partyexpenditure caps in three areas. FECA no longer limits coordinated party expenditures from a segregated

account made to defray (i) costs of a “presidential nominating convention,” (ii) costs to build and operate a

party “headquarters building[],” and (iii) costs related

to “election recounts and contests and other legal proceedings.” §30116(a)(9), (d)(5).

2. But many of FECA’s provisions are unenforceable because they violate the Free Speech Clause, as

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and

later cases hold. The First Amendment draws a “constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech.”

McCutcheon v. FEC, 572 U.S. 185, 192 (2014) (plurality op.). The seminal decision in Buckley held that

contributions and expenditures straddle that line.

424 U.S. at 28–29, 44–45; Nixon v. Shrink Mo. Gov’t

PAC, 528 U.S. 377, 386–87 (2000). Buckley “subjected

expenditure limits to ‘the exacting scrutiny applicable

to limitations on core First Amendment rights of political expression.’” McCutcheon, 572 U.S. at 197

(quoting Buckley, 424 U.S. at 44–45). Generally,

spending limits do not meet that strict level of scrutiny, but Buckley did not resolve spending by political

party committees. 424 U.S. at 58 n.66. Contribution

limits burden speech less, Buckley held, because they

still allow for the “symbolic expression of support” to

the candidate and do not “infringe the contributor’s

freedom to discuss” politicians and their ideas. Id. at

21. The Court thus subjected contribution limits to

lesser, “closely drawn” scrutiny, and the limits

5

survived review on the strength of their means-end fit.

Id. at 58.

Later, under Buckley’s framework, the Court held

that limits on political action committees’ independent, uncoordinated expenditures were “constitutionally infirm.” FEC v. Nat’l Conservative PAC, 470 U.S.

480, 497 (1985). Then, in “Colorado I,” the Court extended that holding to limits on political-party spending, which FECA treated differently from other spending under the Party Expenditure Provision. Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604,

611, 616 (1996) (lead op.). Limits on independent

party expenditures, Colorado I held, “impair … direct

political advocacy” and do not prevent corruption or

its appearance. 518 U.S. at 615. For “prudential reason[s],” Colorado I left open the constitutionality of coordinated party expenditures. Id. at 623–24.

Justice Kennedy agreed that limits on independent party expenditures are unconstitutional but rejected any distinction between political parties’ coordinated and independent spending. Id. at 629–30 (op.

concurring in judgment and dissenting in part). Coordinated party spending, Justice Kennedy would have

held, is constitutionally guaranteed, too. Id. Justice

Thomas argued that the anticorruption rationale that

supports some aspects of FECA “is inapplicable” to

“political parties.” Id. at 631 (op. concurring in judgment and dissenting in part).

3. The Court reached coordinated party expenditures in Colorado II. 533 U.S. at 437. The Court rejected a “facial challenge” to those limits. Id.; see also

id. at 456 n.17 (noting facial challenge standard).

Congress may limit coordinated spending, the Court

held, because parties “act as agents” for self-

6

interested donors “who seek to produce obligated officeholders.” Id. at 452. Unlimited coordinated party

expenditures, in other words, would circumvent the

contribution limits on PACs and individuals that

Buckley upheld. Id. at 453. And in the Court’s view,

the efficiency that parties gain from crowdsourcing

only amplifies the “threat of corruption” from circumvention. Id. Ultimately, the Court applied “closely

drawn” scrutiny—the “scrutiny appropriate for a contribution limit”—and facially upheld the coordinatedparty-spending limit. Id. at 456. The Court rested its

government-interest analysis on anticircumvention

alone; it did not “reach” whether a “concern with quid

pro quo arrangements … between candidates and parties themselves” justifies the coordinated-spending

limit. Id. at 456 n.18.

In dissent, Justice Thomas argued the limit on coordinated party expenditures “cannot pass constitutional muster.” Id. at 466. The dissent said that coordinated-spending limits restrict “the party’s most natural form of communication,” “preclude[] parties from

effectively amplifying the voice of their adherents,”

and obstruct “the ability of the party to do what it exists to do.” Id. at 471 (quotations omitted).

4. Soon after Colorado II, Congress enacted the Bipartisan Campaign Reform Act of 2002. BCRA closed

a loophole that allowed parties to use “soft money”—

unregulated contributions directed to national parties’ non-federal accounts—to circumvent FECA’s contribution limits. BCRA also prohibited certain electioneering activities, such as issue advertising. See

McConnell, 540 U.S. at 132. In McConnell, the Court

reviewed BCRA’s soft-money and electioneering provisions and upheld them both “[i]n the main.” Id. at

224.

7

BCRA fared worse in later cases. First, in Wisconsin Right to Life, the Court held that bans on issue

advertisements violate the First Amendment unless

the advertisements represent an unmistakable “appeal to vote for or against a specific candidate.” FEC

v. Wis. Right to Life, Inc., 551 U.S. 449, 470 (2007).

Another pillar of BCRA fell in 2010, when Citizens

United v. FEC held unconstitutional BCRA’s ban on

corporations’ and unions’ independent campaign expenditures, overruling part of McConnell. 558 U.S.

310, 365 (2010); see id. at 385 (Roberts, C.J., concurring). In McCutcheon, FECA’s aggregate-limits provision—capping “how much money a donor may contribute in total to all candidates or committees”—failed

constitutional muster. 572 U.S. at 192–93. Most recently, the Court held unconstitutional BCRA’s limit

on funds raised post-election that campaigns can use

to repay candidates for personal loans. FEC v. Ted

Cruz for Senate, 596 U.S. 289, 305 (2022).

Three key principles emerge from these post-Colorado II decisions. First, all campaign-finance restrictions that impair speech and association must

pass heightened scrutiny. Second, this Court recognizes only one government interest that can justify

such restrictions: eradicating quid-pro-quo corruption and its appearance. Cruz, 596 U.S. at 305;

McCutcheon, 572 U.S. at 207. Finally, measures that

combat corruption only indirectly—so-called “prophylactics”—raise a red flag.

5. This case raises facial and as-applied First

Amendment challenges to FECA’s coordinated-partyexpenditure limits. §30116(d). The plaintiffs are “the

national senatorial and congressional committees of

the Republican Party, [former] Senator J.D. Vance,

and former Representative Steve Chabot.” JA712.

8

The National Republican Senatorial Committee

“makes coordinated party expenditures up to the

FECA’s limit,” but left to its own devices, it would

spend more. JA624. Plaintiffs sued in the Southern

District of Ohio. The District Court certified the constitutional question to the en banc Sixth Circuit.

JA643; see 52 U.S.C. §30110. The Sixth Circuit saw

Colorado II as binding “[i]n a hierarchical legal system” and upheld the law. JA722, 726. Chief Judge

Sutton’s majority opinion acknowledged that this

“Court’s recent decisions create tension with Colorado

II’s reasoning.” JA718. Judges Thapar, Bush,

Stranch, and Bloomekatz wrote concurring opinions.

Judge Readler dissented, observing that “intervening

precedent,” along with changes to “both the statutory

and factual backdrops,” “leaves Colorado II essentially on no footing at all.” JA831–32.

6. As the case comes to the Court, the “government

agrees with [the plaintiffs and amici States] that the

challenged statute abridges the freedom of speech under this Court’s recent First Amendment and campaign-finance precedents.” U.S.Resp.Br.1–2. The

Democratic National Committee intervened to defend

the law. The Court granted certiorari and appointed

an amicus to join in the DNC’s defense of the limits.

660 U.S. __ (U.S. June 30, 2025).

SUMMARY OF ARGUMENT

FECA limits the amount of money that party committees may spend in coordination with the candidates they support. 52 U.S.C. §30116(d)(3). That

spending limit violates the Free Speech Clause, Colorado II notwithstanding.

I.A. Parties exist to support candidates’ election

bids and offer policy visions that shape voter and

9

official behavior. Parties spend time and money promoting preferred candidates. Parties devote most of

those resources to political advertisements. This

spending is inherent to the party mission and constitutes core political speech and association entitled to

full constitutional protection.

B. Coordinated-party-expenditure limits are unenforceable. Campaign-finance laws that restrict speech

must survive heightened constitutional scrutiny. Expenditure limits normally are subject to the highest

level of review, exacting scrutiny. That should be the

standard applied to limits on coordinated party expenditures. But under the rigorous standard for contribution limits, closely drawn scrutiny, coordinated

party spending limits still fail.

Coordinated-party-spending limits do not serve

any quid-pro-quo-corruption prevention rationale. A

party does not “bribe” its own candidate in the sense

that a private interest might, as candidates join parties and parties endorse candidates because their interests align. So the limits cannot serve that goal.

The only remaining justification, then, is preventing

the “circumvention” of donor contribution limits: that

is, stopping donors from using party contributions as

a conduit to evade direct contribution limits, which in

turn aim to stop donor–candidate quid pro quos.

But coordinated-party-spending limits are inadequately tailored to survive on an anticircumvention

rationale. Other measures already prevent such circumvention: namely, (1) criminal laws against bribery, (2) donor–candidate base contribution limits,

(3) donor–party base contribution limits, (4) earmarking restrictions, and (5) disclosure requirements.

Those measures also burden free speech, but they are

10

accepted as prophylaxes for preventing corruption.

Limits on coordinated party spending are an unnecessary added layer. When a donor contributes to the

party without any illegal earmark, the donor cedes to

the party control of the funds. So a donor cannot realistically overcome all those obstacles to use party

spending as a conduit for a donor–candidate bribe. If

the gambit were possible, then tightening those other

restrictions (such as decreasing the party base limits)

would be a less restrictive solution.

The Party Expenditure Provision is not tailored

adequately for additional reasons. The greater freedom of spending available through Super PACs and

politically oriented non-profits—where far more plausible threats of corruption lie—undermines any claim

that party-spending limits are closely drawn to a permissible goal. And FECA’s three exceptions—areas of

unlimited coordinated party spending—undermine

any claim to legitimate limits on coordinated party

spending. The exceptions render the limits fatally underinclusive; if candidates are corruptible at all, they

are just as corruptible through these three channels

as any other still-restricted channel (such as political

advertising). Accordingly, the record belies the evidentiary burden to show that party coordination

causes quid-pro-quo corruption.

C. The States’ experience (amici and otherwise)

confirms that coordinated party spending does not facilitate corruption. In these jurisdictions, parties’ coordinated spending are sometimes limited and sometimes not. But the data do not bear a difference in

corrupt results along that axis of differential policy.

That is not for lack of care; amici States vigorously

fight public corruption.

11

II. Colorado II allows the result that the First

Amendment forbids limits on coordinated party expenditures. In a facial challenge, Colorado II held

that such limits are not categorically unconstitutional. Moreover, changes in law and precedent thoroughly abrogate Colorado II’s holding, but if not, this

Court should overrule it.

A. Statutory and doctrinal changes displace Colorado II’s stare decisis effect. Congress amended FECA

in 2014 to add exceptions. FECA no longer limits parties’ coordinated spending in three areas,

§30116(a)(9), (d)(5), where parties and candidates

may now fully collaborate. That change undermines

Colorado II’s rationale. So do regulatory changes

against donor–party contributions earmarked for a

specific candidate. 11 C.F.R. §110.6.

Doctrinal changes are even more pronounced. Major cases, including Citizens United, McCutcheon, and

Cruz, undercut Colorado II. Specifically, Colorado II’s

anticorruption rationale credited the risk of general

candidate access or soft influence. Later cases reject

that approach and explicitly require an interest

against quid-pro-quo corruption, akin to bribery. Further, Colorado II’s tailoring inquiry was much looser

than today’s rigorous approach.

B. Colorado II resolved a facial challenge only.

That makes its holding narrow: coordinated party

spending limits are constitutional in some applications, e.g., paying candidates’ bills. 533 U.S. at 456

n.17; but see §30116(a)(9), (d)(5) (allowing unlimited

party spending on candidates’ bills for “election recounts” and “legal proceedings”). That holding allows

for the as-applied review of coordinated advertising.

The parties spend most of their money on political

12

advertisements, which are not functionally candidate

contributions, but the parties’ own political speech.

Colorado II never held otherwise.

C. If Colorado II controls the Question Presented,

then it should fall. Colorado II was wrongly decided

for the reasons the four-Justice dissent provided. 533

U.S. at 466, 474 (Thomas, J., dissenting). And stare

decisis considerations counsel its retirement. The

case engenders reliance interests only from Super

PACs, their suppliers, and incumbents, while it weakens the rule of law. The Court should correct course

even if that requires overruling bad caselaw.

ARGUMENT

“Congress shall make no law … abridging the freedom of speech.” U.S. Const. amend. I. FECA’s limit

on coordinated party expenditures delivers a direct hit

to the core of that fundamental right. Party committees may not spend money in coordination with their

candidate beyond a set cap. 52 U.S.C. §30116(d)(3);

11 C.F.R. §109.30. That spending limit stifles parties’

speech, for “an attack upon the funding of speech is an

attack upon speech itself.” McConnell, 540 U.S. at 253

(Scalia, J., concurring in part and dissenting in part).

The party loses its right to communicate and associate

with voters in the most effective manner, informed

with its preferred candidate’s input on how best to

achieve their shared goal of electoral victory.

The Free Speech Clause forbids that abridgment,

and Colorado II does not save the law.

I.

Limits on parties’ coordinated spending

violate the First Amendment.

No one doubts that a limit on coordinated spending

restricts speech. Under FECA, party committees can

13

coordinate without spending, or they can spend without coordinating, see Colorado I, 518 U.S. at 615. But

they cannot do both. §30116(d)(3). Party–candidate

coordination requires communication, and spending

money is a classic form of electoral speech and association. Buckley, 424 U.S. at 14. In result, coordinatedparty-spending limits “impose[] a direct restriction”

on the quality and “quantity of expression” disseminated to voters. See Meyer, 486 U.S. at 419 (citing

Buckley, 424 U.S. at 19; quotation omitted). In many

ways, then, the Party Expenditure Provision suppresses speech at the highest rung of constitutional

significance. And that limit is, at best, a tenuous

prophylaxis against quid-pro-quo corruption; speech

restrictions may not be so loosely drawn to their legitimate objectives.

A.

Coordinated party expenditures are

core political speech.

The uniquely reciprocal relationship between

party and candidate informs the constitutional analysis. Candidates serve the party, and the party serves

the candidate. The two share in a rich “constitutional

tradition” of “joint First Amendment activity.” Colorado I, 518 U.S. at 630 (Kennedy, J., concurring in

judgment and dissenting in part).

Parties “select[] and support[]” chosen candidates.

Id. at 629. Candidates, in turn, come to define their

party. Cal. Democratic Party v. Jones, 530 U.S. 567,

575 (2000); cf. The Run Up, It’s Kamala’s Party Now.

What’s Different?, N.Y. Times (Aug. 22, 2024),

https://tinyurl.com/22sppczz; The Vanderbilt Project

on Unity & American Democracy, Majority of Republicans Nationally Identify as MAGA for First Time in

Unity Poll, Vanderbilt University (Feb. 24, 2025),

14

https://perma.cc/XNN6-QUYJ; C. Douglas Golden,

Meet the Future of the Democratic Party: A Deep Dive

on Zohran Mamdani, The Western Journal (July 6,

2025), https://perma.cc/8SX2-VGCK. Thus, “candidates are necessary to make the party’s message

known and effective, and vice versa.” Colorado I, 518

U.S. at 629 (Kennedy, J., concurring in judgment and

dissenting in part) (emphasis added).

Parties and candidates “have a practical identity of

interests … during an election.” Id. at 630. Both want

to win the election and shape public policy. See Colorado II, 533 U.S. at 450. The DNC’s stated aim is “lifting Democrats all across the country to [electoral] victory.” Democratic Nat’l Comm., What We Do (last accessed Aug. 26, 2025), https://perma.cc/FH89-83VS.

Likewise, the RNC prides itself on “majorities in both

the House and Senate.” Republican Nat’l Comm., Who

We Are (last accessed Aug. 26, 2025), https://tinyurl.com/yc3pshxw. Coordination is the “ordinary

means for a party to” serve its mission. Colorado II,

533 U.S. at 469 (Thomas, J., dissenting). One major

party most vividly displayed the power of coordination

last summer—after the State primaries—when it

nominated for the Presidency a candidate who had not

entered that race. Elaine Kamarck, How Did Kamala

Harris Wrap Up the Democratic Nomination in 32

Hours?,

Brookings

Inst.

(Sept.

3,

2024),

https://perma.cc/3MKV-6LP5. The DNC’s then-Vice

Chairman orchestrated that “modern political miracle,” which required “nonstop, intense conversations”

among party leaders. Id.

Candidate and party success requires messaging

and spending. On voter outreach, parties have a comparative advantage to communicate with and for candidates. This is because parties can “aggregat[e]

15

contributions and broadcast[] messages more widely”

and “with greater sophistication” by “using such

mechanisms as speech coordinated with a candidate.”

Colorado II, 533 U.S. at 453. Parties are uniquely

“efficient in generating large sums to spend and in

pinpointing effective ways to spend them.” Id. The

canonical example—restricted by FECA—is parties

placing a political advertisement in “consult[ation]”

with a candidate. Id. at 468 (Thomas, J., dissenting);

52 U.S.C. §30116(a)(7)(B)(i); 11 C.F.R. §§109.37(a),

100.26. Indeed, the “record shows that roughly 97%

of the committees’ expenditures relate to … political

advertising.” JA725 (majority op.). Coordinatedspending limits cut off “the most effective mechanism

of sophisticated” First Amendment activity, Colorado

II, 533 U.S. at 453, which “undermines the value of

the expenditure,” see Citizens United, 558 U.S. at 357.

Limits on party spending also create a glaring incongruity in campaign-finance law. The First Amendment secures for candidates and their campaigns the

right to unlimited spending. Buckley, 424 U.S. at 54–

59. Of course, FECA cannot restrain candidate–campaign coordination, even though the campaign is “a legal entity distinct from the candidate himself.” See

Cruz, 596 U.S. at 294. The two have “identi[cal] interests”—winning the election. Cf. Colorado I, 518 U.S.

at 629 (Kennedy, J., concurring in judgment and dissenting in part). The party committee shares that

identical interest. Party expenditures are “indistinguishable in substance” from candidate and campaign

expenditures, but (under FECA and Colorado II) parties lack uninhibited coordinated speech rights. Id. at

630. And yet political parties are supposed to enjoy

the full suite of First Amendment rights to participate

in political discourse, including speaking for, spending

16

on, and associating with candidates. Buckley, 424

U.S. at 15; accord Colorado II, 533 U.S. at 448 n.10.

“[I]nterference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” Sweezy, 354 U.S. at 250. FECA “limits the

Part[ies’] associational opportunities at the crucial

juncture” of democratic participation. Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 (1986).

This strikes at the heart of the Free Speech Clause’s

“fullest and most urgent application.” Monitor Patriot

Co. v. Roy, 401 U.S. 265, 272 (1971).

B.

Coordinated-party-expenditure limits

do

not

prevent

quid-pro-quo

corruption.

“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” McCutcheon, 572 U.S. at 210. The

particulars of that burden depend on the law’s place

in Buckley’s analytical dichotomy between spending

and giving. Laws burdening the former, expenditure

limits, must withstand “exacting scrutiny,” that is, the

law must advance a “compelling interest” and use the

“least restrictive means” to advance it. Cruz, 572 U.S.

at 197. And those targeting the latter, contribution

limits, must be “closely drawn” to a “sufficiently important interest.” Buckley, 424 U.S. at 25.

Although the Party Expenditure Provision imposes a spending limit, Colorado II treated it as functionally a contribution limit, subject to lesser scrutiny.

533 U.S. at 456. Though that was an analytical error,

see Colorado I, 518 U.S. at 629 (Kennedy, J., concurring in judgment and dissenting in part); id. at 631,

640 (Thomas, J., concurring in judgment and dissenting in part) (“coordinated expenditures” are subject to

17

and “fail strict scrutiny”), it is not dispositive here.

Even assuming the lesser, closely drawn scrutiny applies, this restriction fails that test, as well as any

more exacting test. Accord McCutcheon, 572 U.S. at

199. The limit at issue here neither advances an important government interest nor is tailored adequately to the sole interest it purports to serve—preventing quid-pro-quo corruption.

Important Interest. The restriction on coordinated party spending does not further the only legitimate interest this Court recognizes in the campaignfinance arena: preventing “quid pro quo corruption or

its appearance.” Cruz, 596 U.S. at 305 (quotation

omitted); McCutcheon, 572 U.S. at 207; Citizens

United, 558 U.S. at 909–910. Quid-pro-quo corruption

is a particular ailment of the political process that

should not be conflated with corruption simpliciter or

other “loosely conceived” notions of “general influence.” Cruz, 596 U.S. at 308; Citizens United, 558 U.S.

at 360 (“ingratiation and access … are not corruption”). That distinction—between generic corruption

and quid-pro-quo corruption—is critical for “safeguard[ing] basic First Amendment” freedoms.

McCutcheon, 572 U.S. at 209.

1. Begin, then, with what is a quid pro quo. The

Latin phrase connotes a corrupt agreement: “dollars

for political favors.” See Nat’l Conservative PAC, 470

U.S. at 497. A quid pro quo requires “specific intent

to give or receive something of value in exchange for

an official act.” United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404–05 (1999). Such an

agreement obtains “only if the payments are made in

return for an explicit promise or undertaking by the

official to perform or not to perform an official act.”

McCormick v. United States, 500 U.S. 257, 273 (1991).

18

In a quid-pro-quo arrangement, the corrupted official

performs public acts for illegitimate “private gain, not

for the public good.” Snyder v. United States, 603 U.S.

1, 6 (2024); Marinello v. United States, 584 U.S. 1, 21

(2018) (Thomas, J., dissenting).

An agreement is corrupt if it has a “wrongful, immoral, depraved, or evil” character. Arthur Andersen

LLP v. United States, 544 U.S. 696, 705 (2005); cf.

Fischer v. United States, 603 U.S. 480, 494 (2024);

United States v. Fischer, 64 F.4th 329, 352–56 (D.C.

Cir. 2023) (Walker, J., concurring in part) (corruption

requires “intent to procure an unlawful benefit”);

United States v. North, 910 F.2d 843, 942 (D.C. Cir.

1990) (Silberman, J., concurring in part and dissenting in part). It is insufficient that a donor’s motivation

is “to buy favor or generalized goodwill from a public

official.” United States v. Ganim, 510 F.3d 134, 147–

49 (2d Cir. 2007) (Sotomayor, J.). Nor does a gratuity

qualify. Snyder, 603 U.S. at 18. In effect, quid-proquo corruption entails a bribe by which a candidate

accepts “any undue reward to influence his behaviour

in his office.” United States v. Sittenfeld, 128 F.4th

752, 792 (6th Cir. 2025) (Murphy, J., concurring)

(quoting 5 St. George Tucker, Blackstone’s Commentaries 139 (1803); emphasis in Sittenfeld); see Christopher Robertson et al., The Appearance and Reality of

Quid Pro Quo Corruption: An Empirical Investigation,

8 J. Legal Anal. 379 (2016).

Putting that together, spending limits can be imposed only to prevent elected officials from agreeing to

“act contrary to their obligations of office by the prospect of financial gain.” Nat’l Conservative PAC, 470

U.S. at 497. Any general concerns that a donation will

curry “general influence” takes political speech as intolerable collateral damage. Cruz, 596 U.S. at 305;

19

JA736 (Thapar, J., concurring) (“the only permissible

goal of campaign-finance regulations is preventing

bribery and its appearance”). It is unrealistic that a

party would corrupt its own candidate through coordinated spending.

2. Parties are differently situated vis-à-vis candidates from private individuals, (Super) PACs, and

other nonprofits, whose private interests introduce

risk of corrupt campaign activity. Buckley, 424 U.S.

at 23, 35. Political parties pose no similar “specter of

corruption.” Mass. Citizens for Life, 479 U.S. at 263.

Parties do not seek to change policy to make money;

they seek to raise and spend money to make policy.

Influencing politicians is the parties’ transparent purpose, not a “subversion of the political process.” See

Nat’l Conservative PAC, 470 U.S. at 497. It is difficult

to conceive how a party would bribe its own candidate—or how the public would perceive as much. See

Colorado I, 518 U.S. at 646 (Thomas, J., concurring in

judgment and dissenting in part) (posing the question); JA240 (expert report that “the now clearer understanding of what constitutes ‘corruption’ … calls

into serious doubt any notion that parties can act as

corrupt conduits.” (quotation omitted)). Given the

“practical identity of interests between the two entities during the election,” the prospect of a corrupting

agreement is “fanciful.” Colorado I, 518 U.S. at 630

(Kennedy, J., concurring in judgment and dissenting

in part).

Party–candidate coordination is not a harm to

avoid but is instead a positive force of democratic accountability in representative government. In other

words, it is a democratic feature, not a bug. Parties,

like legislatures, are representative organs that respond to public sentiment. Leadership roles in state

20

party committees often are directly elected by voters.

See, e.g., Ohio Rev. Code §3517.02. And national committee members hold their appointment either by selection from the state parties or by virtue of their

elected office, meaning they were chosen by voters.

See The Charter and Bylaws of the Democratic Party

of

the

United

States,

art.

3,

§§2–3,

perma.cc/M85SAGM7; The Rules of the Republican

Party, Rules 1–2, https://perma.cc/UT6Y-6URX.

Members of Congress also lead the House and Senate

party committees, including the committee plaintiffs

here. JA662–64 (fact findings ¶¶9–18). Party leadership at every level, then, responds to the electorate.

“Such responsiveness is key to the very concept of selfgovernance through elected officials.” McCutcheon,

572 U.S. at 227. Candidates and parties working in

tandem to find the winning message “is simply the essence of our Nation’s party system of government.”

Colorado II, 533 U.S. at 477 (Thomas, J., dissenting).

A candidate’s association with a party, and the party’s

reciprocal endorsement, is perhaps the clearest message voters receive. See Tashjian, 479 U.S. at 215.

This coordination “can hardly be called corruption,”

certainly not the bribery-style corruption that the government may permissibly target. Nat’l Conservative

PAC, 470 U.S. at 498. Parties do not “corrupt” democracy—they are democracy.

3. “To recast” the “shared interest” of parties and

candidates “as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process.” McCutcheon, 572 U.S. at

226. But “there is no risk that” parties themselves

will corrupt candidates via coordinated spending. Id.

at 210. That leaves “the Government [to] defend” coordinated spending “limits by demonstrating that

21

they prevent circumvention” of donor contribution

limits. Id.; 52 U.S.C. §30116(a). An anticircumvention justification is conceptually plausible but fatally

untailored.

Tailoring. Here, “fit matters.” McCutcheon, 572

U.S. at 218. A “closely drawn” measure must be “narrowly tailored to” prevent quid-pro-quo corruption

and “avoid unnecessary abridgement of First Amendment rights.” Id. at 199, 218 (quotation omitted). Adequate tailoring does not require the least restrictive

measure, but it does require demonstrating the restriction’s “need … in light of any less intrusive alternatives.” Americans for Prosperity Found. v. Bonta,

594 U.S. 595, 613 (2021). The government must carry

its burden with evidence; “anecdote and supposition”

will not do. United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803, 822 (2000).

1. The notion that coordinated spending facilitates

bribery-style corruption merits “a measure of skepticism.” Cruz, 596 U.S. at 306. And when in doubt, the

“First Amendment requires [courts] to err on the side

of protecting political speech rather than suppressing

it.” Wis. Right to Life, 551 U.S. at 457. At best, a defense for limiting coordinated party spending could

rest on an anticircumvention rationale that donors

could “use parties as conduits” of corruption. Colorado II, 533 U.S. at 452. Moneyed interests, the theory runs, will bypass FECA’s direct-contribution limits by channeling their corrupt inducements through

party spending. Whatever marginal barrier on corruption coordinated-spending limits may provide, it

does not justify the dramatic cost on speech infringement, especially because less intrusive alternatives

are apparent.

22

2. To start with, other barriers against quid-proquo

corruption—“prophylaxis-upon-prophylaxis”—

“indicat[e] that the regulation may not be [a] necessary” addition. Cruz, 596 U.S. at 306. Means attenuated from their end suggest that the restriction is but

a Trojan horse for the “impermissible desire simply to

limit political speech.” McCutcheon, 572 U.S. at 192.

Here, at least five layers of protection separate coordinated party spending from corruption. JA736–37

(Thapar, J., concurring).

First, bribery is a federal offense. 18 U.S.C.

§210(b); Snyder, 603 U.S. at 12. The criminal law already roots out the quid-pro-quo corruption that could

justify FECA’s spending limit. Cf. United States v.

Householder, 137 F.4th 454, 471 (6th Cir. 2025). The

First Amendment does not protect speech to induce a

bribe, United States v. Hansen, 599 U.S. 762, 783

(2023); Giboney v. Empire Storage & Ice Co., 336 U.S.

490, 502 (1949), so Congress may (and has) directly

address the source of the ill FECA envisions: the bribers. See Sabri v. United States, 541 U.S. 600, 605

(2004).

Second, FECA caps the amount donors can contribute to candidates and campaigns.

52 U.S.C.

§30116(a)(1)(A). Buckley upheld these base limits.

424 U.S. at 29. Nonetheless, they “are a prophylactic

measure.” McCutcheon, 572 U.S. at 221. For “few if

any contributions to candidates will involve quid pro

quo arrangements.” Id. (quoting Citizens United, 558

U.S. at 357). But the limits stand just in case.

Third, relatedly, FECA caps the amount donors

can contribute to parties. §30116(a)(1)(B); 11 C.F.R.

§110.1. Parties cannot accept donations above the

limit. 11 C.F.R. §110.9. Donors could exploit parties

23

to broker a corrupt agreement only if the contribution

amount is sufficiently enticing. So party base limits

stand as “an additional hurdle for a donor.” McCutcheon, 572 U.S. at 201. Again here, the limits are “preventative” (and hardly so), because most or all contributions will be aboveboard. See id. at 221. But if not,

Congress’s tailored solution would be to reduce party

base limits rather than prevent party–candidate coordination. Dialing back party base limits represents “a

lesser burden” than “limits that flatly ban [coordinated spending] beyond certain levels.” Id.

Fourth, restrictions on earmarking “disarm” the

risk of donor-to-party-to-candidate corruption by prohibiting “implicit agreements to circumvent the base

limits.” Id. at 211, 222–23; 11 C.F.R. §110.6. Donors’

contributions to parties that are designated for a specific candidate—explicitly or otherwise—count “as

contributions from such person to such candidate.”

§30116(a)(8).

In today’s “intricate regulatory

scheme,” a donor would struggle to get attribution for

unearmarked party contributions. McCutcheon, 572

U.S. at 201. The earmarking restrictions prevent using parties as “an intermediary or conduit to [a] candidate,” §30116(a)(8), so circumventing candidate

base limits as part of a corrupt agreement would require donors to also circumvent FECA’s earmarking

requirements. To the extent circumvention is possible, tighter earmarking regulations are preferable to

party-coordination limits.

Last, FECA saddles parties with detailed disclosure obligations. §30104(b). Sunlight, after all, is the

best disinfectant. L. Brandeis, Other People’s Money

92 (The McClure Publications 1914) (available online

at Google books); R.W. Emerson, The Conduct of Life

197 (Smith, Elder & Co. 1860) (same). The “disclosure

24

of contributions minimizes the potential for abuse of

the campaign finance system,” it is more effective now

than ever, and it “represents a less restrictive alternative to flat bans on certain types or quantities of

speech.” McCutcheon, 572 U.S. at 223–24; see Buckley, 424 U.S. at 56.

Only after a briber convinces a candidate that a

party contribution within FECA limits is enough quid

for the quo—and only if the donor manages to skirt

criminal detection, earmarking, and disclosure—

would limits on coordinated party spending spring to

action. JA737 (Thapar, J., concurring). “[I]t is hard

to imagine what marginal corruption deterrence could

be generated by” an extra layer. See Ariz. Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721,

752 (2011). Still then, the briber is just half-way

home: The party would need to agree to middleman

the scheme. The risk of “corruption or its appearance”

decreases “when money flows through independent

actors” like parties. McCutcheon, 572 U.S. at 210.

The earmarking rules ensure donors “cede control

over the funds” to the party, which allocates at its own

“discretion.” Id. at 211. As detailed above (at 14–15),

party allocation serves transparent electoral-victory

interests, not nefarious private interests. See JA691–

92 (fact findings ¶¶108–09).

Tellingly, the law’s defenders have failed to provide evidence to justify the restriction’s “need … in

light of any less intrusive alternatives.” See Bonta,

594 U.S. at 613; Colorado I, 518 U.S. at 618 (government cannot “simply posit the existence of the disease

sought to be cured”). The record is devoid of proof that

contributors have used donations to political parties

to

funnel

bribes

to

specific

candidates.

U.S.Resp.Br.11.

25

3. Unnecessary speech burdens are but one tailoring flaw. McCutcheon, 572 U.S. at 218. Each of

FECA’s exceptions “undercuts whatever marginal role

the expenditure limitations might otherwise play in

enforcing the contribution ceilings.” Buckley, 424 U.S.

at 56. FECA no longer limits coordinated party spending related to “a presidential nominating convention,”

the “headquarters building of the party,” or “election

recounts and contests and other legal proceedings.”

52 U.S.C. §30116(a)(9), (d)(5). These exceptions introduce under-inclusivity problems that “raise[] serious

doubts about whether the government is in fact pursuing the interest it invokes.” Nat’l Inst. of Fam. &

Life Advocs. v. Becerra, 585 U.S. 755, 777 (2018).

To the extent coordinated party spending could

ever facilitate quid-pro-quo corruption, FECA’s three

unlimited channels provide a viable path to circumvent contribution limits. JA859 (Readler, J., dissenting). To illustrate, a donor seeking to induce a corrupt

agreement by circumventing the base limits (and navigating the other prophylaxes) could simply finance a

presidential convention, new party headquarters, or

election-challenge lawsuit (although recounts seldom

succeed). Those avenues, where party coordination is

unlimited, are as plausible as, say, coordinated advertising to entice a candidate’s fealty. In the scenario

that a financier supports a successful election challenge, leading the candidate to victory, the line between gratitude and indebtedness may blur. Or

surely a Senate candidate would appreciate the benefactor that facilitated her home State playing host to

the presidential convention—modern-day “publicity

extravaganzas, devoted to promoting the platform and

candidate[s] of a dominant political party.” JA860

(Readler, J., dissenting) (quotation omitted).

If

26

candidates are corruptible through party coordination, FECA’s exceptions dismember its restrictions.

4. Finally, channels of contribution other than parties are far more attractive conduits for potential bribers. As noted, the convoluted path to bribery through

coordinated party expenditures—as compared to alternative options—makes the targeted limits on parties beyond untailored, and plain irrational. A tailored law aims its “response to [a] problem” at “its

source,” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353,

361 (2009), here, the potential briber. Such a person

could more easily enlist a Super PAC or other nonprofit as her choice conduit. BCRA ignited an explosion of Super-PAC “expenditures for federal elections,” which “now far exceed those of political parties.” JA842 (Readler, J., dissenting); JA706; see also

McCutcheon, 572 U.S. at 214 n.9; cf. SpeechNow.org v.

FEC, 599 F.3d 686, 695–96 (DC Cir. 2010) (en banc).

Super PACs’ defining characteristics are unlimited

contributions paired with no permissible candidate coordination. Donors’ revealed preference for giving to

Super PACs over parties shows where the risk of corruption, if any, does and does not lie. If coordinated

spending aided corruption, then bribers would not

choose Super PACs over parties.

Other private entities, too, namely non-profit

501(c) organizations, attract political donors. Such

entities operate without contribution limits or disclosure requirements. See 26 U.S.C. §6104(d). FECA’s

limits incentivize the increasing “movement of money”

toward such entities as preferable “avenues for political speech.” McCutcheon, 572 U.S. at 224. “Money,

like water, will always find an outlet.” McConnell, 540

U.S. at 224. That moneyed interests have trended toward Super PACs and non-profits is yet another

27

“indicator that the regulation” of coordinated party

spending is not tailored to the problem it purports

solve, Cruz, 596 U.S. at 306, “while seriously restricting” parties’ most effective “participation in the democratic process,” McCutcheon, 572 U.S. at 193. Ironically, the chokehold on party funding has, if anything,

channeled funds away from democratically accountable party organs to non-transparent private entities.

So the Party Expenditure Provision is not merely ineffective, but also affirmatively counterproductive to

anticorruption and democratic legitimacy.

Measures other than coordinated spending limits,

such as earmarking regulations, are better suited to

prevent corruption through circumvention of candidate base limits. If extant measures are inadequate,

solutions narrower than coordinated-spending limits

avail themselves to Congress. An obvious example is

decreasing the party base limit. At a minimum, coordinated-party-spending limits are poorly drawn to

prevent quid-pro-quo corruption.

C.

State experience shows coordinatedparty-spending limits are needless.

If coordinated party spending were integral to

quid-pro-quo corruption, one would expect trouble in

the States with unlimited coordination. But many

States have no such limits, with no evidence of corruption through coordinated spending. The dearth of

party-as-conduit corruption in these States is “telling”

evidence against the need for coordinated-partyspending limits in federal elections. JA722 (majority

op.).

State experience informs the Court’s campaign-finance cases. In Citizens United, over half the States

did “not restrict independent expenditures by for-

28

profit corporations,” but no evidence suggested such

spending “corrupted the political process in those

States.” 558 U.S. at 357. And McCutcheon questioned

aggregate limits’ vitality to prevent corruption absent

evidence of “circumvention of base limits from the 30

States with base limits but no aggregate limits.” 572

U.S. at 209 n.7.

Coordinated-party-spending limits come with the

same defect. Over half the States allow party coordination without limits.

E.g., Ohio Rev. Code

§3517.102(B). * Most of those States do limit donor–

candidate contributions. E.g., id. By FECA’s hypothesis, therefore, donors in those States should use state

parties to circumvent state-candidate base limits. But

they do not. This exposes the fiction that donors exploit parties’ coordinated spending as instruments of

corruption.

In fact, more bribery would seemingly arise in

state campaigns. State campaigns are cheaper, so the

dollar goes a longer way. They are subject to less

*See Ala. Code §17-5-15; Ariz. Rev. Stat. §§16-911(B)(4)(b),

16-922(E); Cal. Gov’t Code §§85301, 85400(c); 10 Ill. Comp. Stat.

5/9-8.5(b); Ind. Code §3-9-2-1 et seq.; Iowa Code §68A.101 et seq.;

Kan. Stat. §25-4153(f); Ky. Rev. Stat. §121.150; La. Stat.

§18:1505.2(H)(1); Miss. Code §23-15-807; Miss. Sec’y of State,

2025 Campaign Finance Guide 17; N.C. Gen. Stat. §163278.13(h); N.D. Cent. Code §16.1-08.1-01 et seq.; 2013 Neb. Laws

79, §41 (repealing Nebraska Campaign Finance Limitation Act

after State ex rel. Stenberg v. Moore, 258 Neb. 738, 738 (Neb.

2000)); N.J. Stat. §19:44A-29; N.J. Admin. Code §19:25-11.2; N.Y.

Elec. Law §14-114(1), (3); Or. Rev. Stat. §260.005 et seq.; 25 Pa.

Stat. §3253; S.D. Codified Laws §12-27-7(4); Tex. Elec. Code

§253.094; Utah Code §20A-11-505.7; Vt. Stat. tit. 17,

§2941(a)(1)(B); Va. Code §24.2-945; W. Va. Code §3-8-9b; Wis.

Stat. §§11.1101, 11.1104(5); Wyo. Stat. §22-25-102(f).

29

public scrutiny, so detection is less likely. State candidates represent fewer constituents and so are more

accessible. And state legislators realistically are better positioned to affect public policy (more attractive

targets for bribers), as gridlock features more prominently in Congress than in States. For example, few

States have a legislative filibuster as prohibitive as

the Senate’s.

Public corruption, to be sure, rears its head in the

States with unlimited party spending—but coordinated party spending does not facilitate it. E.g.,

Householder, 137 F.4th at 476. And States combat it.

See, e.g., Julie Carr Smyth & Samantha Hendrickson,

Fired FirstEnergy execs indicted in $60 million Ohio

bribery scheme; regulator faces new charges, AP News

(Feb. 12, 2024), perma.cc/TYK6-ATVD. Most relevant, coordinated spending has not been corruption’s

main channel. State experience confirms that limits

on coordinated party spending are unnecessary to prevent quid pro quos.

II. Colorado II is outdated, non-controlling,

and wrong.

Colorado II does not pretermit the conclusion that

FECA’s coordinated-spending limit is unconstitutional. Statutory amendments and doctrinal developments both supersede Colorado II. Even at face value,

that case rejected a facial challenge only. But if it remains operative precedent, see JA722 (majority op.),

Colorado II is wrong, and stare decisis values do not

redeem its holding.

30

A.

Both statutes

Colorado II.

and

cases

supplant

The law Colorado II upheld is not the one the Court

confronts today. Statutory and doctrinal changes

post-Colorado II both release its stare decisis effect.

See JA827 (Readler, J., dissenting). McCutcheon gave

“plenary” review to FECA’s aggregate limits even

though Buckley had addressed them previously—for

the same reasons, Colorado II permits fresh review

here. See McCutcheon, 572 U.S. at 203.

Statutory Developments. First, FECA itself is

different; Congress amended it in 2014. Three categories of coordinated party spending now are unlimited

(or nearly so), provided the funds come from a party’s

“separate, segregated account”: funds to a repay expenses from (1) a “presidential nominating convention”; (2) construction and operation of a party headquarters; and (3) for “election recounts and contests

and other legal proceedings.” 52 U.S.C. §30116(a)(9),

(d)(5). As discussed above (at 25), “closely drawn”

analysis now differs in light of these exceptions, because such channels of coordinated spending are as

open as any other to induce a corrupt agreement. See

JA840 (Readler, J., dissenting). The States, to clarify,

believe that likelihood is near-zero, but the point

stands that other applications of coordinated spending

are no more likely than those three now-unlimited outlets to foster a quid pro quo. The once-tenuous claim

that limiting coordinated spending prevents corruption is now outright spurious.

Since Colorado II as well, BCRA walled-off “soft

money” contributions to parties that were previously

unregulated. That structural change gave rise to Super PACs. See Ian Vandewalker & Daniel I. Weiner,

31

Stronger Parties, Stronger Democracy: Rethinking Reform 5–6, Brennan Center for Justice (Sept. 16, 2015).

Meanwhile, the FEC tightened its regulatory framework. Namely, the earmarking rules are stricter than

in 2001. See 11 C.F.R. §110.6. Today’s earmarking

requirements “disarm” donors and candidates from

using parties as conduits of corruption. Above 23; contra Colorado II, 533 U.S. at 462.

Doctrinal Developments. Second, and more

acutely, this case surfaces “at a different point in the

development of campaign finance regulation.”

McCutheon, 572 U.S. at 203. Colorado II preceded

BCRA, McConnell, Citizens United, McCutcheon, and

Cruz, among others. That makes a difference.

Colorado II rested on a capacious view of permissible anticorruption justifications. The majority conceptualized corruption “not only as quid pro quo agreements, but also as an undue influence on an officeholder’s judgment, and the appearance of such influence.” Colorado II, 533 U.S. at 441. That does not

square with the administrable modern line that “the

prevention of ‘quid pro quo’ corruption or its appearance” is the “one permissible ground for restricting political speech.” Cruz, 506 U.S. at 305. Limiting “the

general influence a contributor may have over an

elected official” is decidedly not a permissible government interest. Id.; Citizens United, 558 U.S. at 359–

60. Justice Breyer, dissenting in McCutcheon, assailed this very development: The Court formerly recognized preventing “undue influence on an officeholder’s judgment” as a valid government interest, but

(wrongly in his view) updated the doctrine to reject

that “considerably broader definition” of corruption.

572 U.S. at 239–40 (Breyer, J., dissenting) (quoting

FEC v. Beaumont, 539 U.S. 146, 155–56 (2003)).

32

Colorado II focused on that broader—now-rejected—general-influence justification. The Court did

not “reach” any “concern with quid pro quo arrangements … between candidates and parties themselves,”

resting its entire analysis on an anticircumvention rationale. Colorado II, 533 U.S. at 456 n.18. The Court

did not mean circumvention of anti-quid-pro-quo

measures, however, but rather cited “combating circumvention of contribution limits designed to combat

the corrupting influence of large contributions to candidates from individuals.” Id. (emphasis added). The

Court feared that a system of coordinated party

spending fosters unfair access, where “substantial donations turn the parties into matchmakers whose special meetings and receptions give the donors the

chance to get their points across to the candidates.”

Id. at 461. In other words, Colorado II never reasoned

that coordinated spending would make parties a conduit of bribery-style corruption, only a conduit of

“more subtle” communication so that candidates

might “know whom to thank.” Id. at 460 n.23.

The Court’s post-Colorado II jurisprudence draws

an “administrable line between money … for which

the candidate feels obligated” to a private donor and

money “for which the candidate … feels grateful.”

McCutcheon, 572 U.S. at 225–26. Curbing the “possibility that an individual who spends large sums may

garner influence over or access to elected officials or

political parties” is a justification this Court rejected.

Id. at 208 (quotation omitted); Citizens United, 558

U.S. at 359.

Also, the Court approaches tailoring with more rigor today. Closely drawn scrutiny “demands narrow

tailoring.” JA719 (majority op.) (quotation omitted;

alterations accepted). But Colorado II “made no

33

mention of narrow tailoring and seemed to disavow it,

saying” even “unskillful tailoring” would suffice. Id.

(quoting Colorado II, 533 U.S. at 463 n.26).

B.

Colorado II narrowly rejected facial

invalidity.

Even if Colorado II remains binding precedent in

the modern legal landscape, that decision “left …

room” for as-applied review. Wis. Right to Life, 551

U.S. at 456. A holding that rejects a First Amendment

facial challenge means that the challenged law is capable of some lawful applications.

Moody v.

NetChoice, LLC, 603 U.S. 707, 718 (2024).

Indeed, Colorado II expressly invited “an as-applied challenge focused on application of the limit to

specific expenditures” apart from the “facial challenge” before the Court. 533 U.S. at 456 n.17. And

this Court has noted, after Colorado II, that facial rulings do not “purport to resolve future as-applied challenges,” Wis. Right to Life, Inc. v. FEC, 546 U.S. 410,

412 (2006) (per curiam). That facial framing allowed

the Court to isolate the most contribution-like coordinated spending, such as coordinating to pay “the candidate’s bills.” Colorado II, 533 U.S. at 456 n.17. “Coordinated spending by a party,” the Court reasoned,

“covers a spectrum of activity,” so for facial review the

Court could focus on spending “virtually indistinguishable from simple contributions.” Id. at 444–45

(quotation omitted).

That matters here. Now, the plaintiffs press an asapplied challenge backed by record evidence and fact

findings that the committees wish to coordinate their

spending with candidates to optimize their political

activity. Nearly all party-committee spending goes toward political advertising, and surely coordination

34

would refine targeted messaging. See JA681–82 (fact

findings ¶82). The First Amendment secures that coordinated political activity, and nothing Colorado II

said suppresses it.

C.

Stare decisis considerations counsel

overruling Colorado II, if necessary.

If the Court agrees with the Sixth Circuit that statutory and doctrinal changes fail to unseat Colorado II

and that its holding forecloses fresh as-applied review,

then this Court holds one recourse that the Circuit

lacked: overruling Colorado II. See JA719. Colorado

II was wrongly decided. Justice Thomas explained

why exacting scrutiny was appropriate and why limits

on coordinated party expenditures fail even closely

drawn scrutiny. See Colorado II, 533 U.S. at 466, 474

(dissenting op.).

It is not necessarily enough, however, to prove a

precedent wrong. The Court weighs other factors before overruling past decisions. Here, those factors—

quality of reasoning, consistency with the body of law,

changes in factual and legal circumstance, reliance interests, and workability—all counsel correcting Colorado II’s mistake. Ramos v. Louisiana, 590 U.S. 83,

118 (2020) (Kavanaugh, J., concurring in part).

The bottom-line: Colorado II hurts the rule of law.

Citizens United, 558 U.S. at 378 (Roberts, C.J., concurring). Colorado II was poorly reasoned. Above 16–

27. Its result is incompatible with the campaign-finance law at large. Above 31–32. Developments in

law and circumstance since 2001 frustrate Colorado

II’s rationale. Above 30–32. The decision is inconsistent with the “general tenor of legal principles.” See

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244,

2276–77 (2024) (Gorsuch, J., concurring) (quotation

35

omitted). Workability and reliance-interests considerations fare poorly, too.

The restriction is workable in the sense that parties currently do limit their coordinated spending. 11

C.F.R. §100.16. The restriction remains unworkable,

however, because it is incongruent with unlimited

candidate–campaign coordination, even though candidates, campaigns, and parties “have a practical identity of interests.” Colorado I, 518 U.S. at 630 (Kennedy, J., concurring in judgment and dissenting in

part). Coordination restrictions are unworkable also

because they help drive funds from democratically accountable parties to Super PACs. JA213 (expert report). Coordination is parties’ one “true competitive

advantage over Super PACs.” JA239. Coordination

limits contribute to parties’ precariously weakened

position in today’s political environment. JA213–15.

Nor do coordinated-spending limits engender

weighty reliance interests. Two communities can lay

claim to reliance on coordinated-party-spending caps:

incumbents and top-dollar donors. Spending limits

“handicap a candidate who lacked substantial name

recognition or exposure of his views before the start of

the campaign.” Buckley, 424 U.S. at 57. The newcomer candidate’s handicap is the incumbent’s gain.

Such limits force the newcomer to spend more time

fundraising, which means less time spreading her

message to prospective voters. Lesser-known challengers far more so than name-recognized incumbents

bear the incidence of that opportunity cost. Of course,

“wealthy interests” enjoy coordination limits because

they incentivize “nontransparent, unaccountable” Super PACs. JA215 (expert report). Those interests suggest a market correction would actually enhance election integrity by rechanneling campaign activity

36

through the most transparent, accountable vectors of

political association in modern self-government: political parties.

This Court boasts a “lengthy and extraordinary list

of landmark cases that overruled precedent.” Ramos,

590 U.S. at 118 (Kavanaugh, J., concurring in part).

If it is necessary to overrule Colorado II to secure parties’ speech rights, then it is necessary to overrule Colorado II.

CONCLUSION

The Court should hold the Party Expenditure Provision unconstitutional.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

MATHURA J. SRIDHARAN*

Ohio Solicitor General

*Counsel of Record

STEPHEN P. CARNEY

TRANE J. ROBINSON

Deputy Solicitors General

30 East Broad St., 17th Fl.

Columbus, Ohio 43215

614.466.8980

Mathura.Sridharan@OhioAGO.gov

Counsel for Amicus Curiae

State of Ohio

Additional counsel listed on the

following pages.

AUGUST 2025

37

Additional Counsel

STEVE MARSHALL

Alabama Attorney General

TREG R. TAYLOR

Alaska Attorney General

TIM GRIFFIN

Arkansas Attorney General

JAMES UTHMEIER

Florida Attorney General

CHRISTOPHER M. CARR

Georgia Attorney General

THEODORE E. ROKITA

Indiana Attorney General

BRENNA BIRD

Iowa Attorney General

KRIS KOBACH

Kansas Attorney General

RUSSELL COLEMAN

Kentucky Attorney General

LIZ MURRILL

Louisiana Attorney General

ANDREW BAILEY

Missouri Attorney General

38

AUSTIN KNUDSEN

Montana Attorney General

MICHAEL T. HILGERS

Nebraska Attorney General

DREW H. WRIGLEY

North Dakota Attorney General

GENTNER DRUMMOND

Oklahoma Attorney General

ALAN WILSON

South Carolina Attorney General

MARTY JACKLEY

South Dakota Attorney General

KEN PAXTON

Texas Attorney General

JOHN B. MCCUSKEY

West Virginia Attorney General