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

Supreme Court briefAug 28, 2025

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No. 24-621

In the Supreme Court of the United States

______________

NATIONAL REPUBLICAN

SENATORIAL COMMITTEE, ET AL.,

Petitioners

FEDERAL ELECTION COMMISSION, ET AL.,

Respondents

______________

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF

THE AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF PETITIONERS

JAY ALAN SEKULOW

Counsel of Record

JORDAN A. SEKULOW

STUART J. ROTH

ANDREW J. EKONOMOU

WALTER M. WEBER

LIAM R. HARRELL

AMERICAN CENTER

FOR LAW & JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ................................................................3

THIS COURT MAY OVERRULE ITS

OWN PRECEDENT IMPLICITLY. ...............................3

II.

VERTICAL

STARE

DECISIS

REQUIRES

LOWER

COURTS

ACKNOWLEDGE IMPLICIT OVERRULING. ................5

III.

RODRIGUEZ DOES NOT REQUIRE

LOWER COURTS TO IGNORE THIS

COURT’S ACTUAL HOLDINGS. .................................8

CONCLUSION ..........................................................11

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ................................................. 5

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 19 (2019) ................................................... 5

Asher v. Texas,

128 U.S. 129 (1888) ................................................. 3

Bosse v. Oklahoma,

580 U.S. 1 (2016) ..................................................... 6

Brown v. Board of Education,

347 U.S. 483 (1953) ................................................. 4

Burnet v. Coronado Oil & Gas Co.,

285 U.S. 393 (1932) ................................................. 6

Bush v. Gore,

531 U.S. 98 (2000) ................................................... 1

Colorado Republican Federal Campaign Committee

v. FEC, 533 U.S. 431 (2001) ................................... 2

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ................................................. 4

FEC v. Ted Cruz for Senate,

596 U.S. 289 (2022) ................................................. 2

Fischer v. United States,

144 S. Ct. 2176 (2024) ............................................. 1

iii

Hohn v. United States,

524 U.S. 236 (1998) ................................................. 6

Hudgens v. NLRB,

424 U.S. 507 (1976) ................................................. 4

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ......................................... 5, 7, 8

State Oil Co. v. Khan,

522 U.S. 3 (1997) ..................................................... 6

Korematsu v. United States,

323 U.S. 214 (1944) ................................................. 4

Lamb’s Chapel v. Center Moriches Sch. Dist.,

508 U.S. 384 (1993) ............................................. 1, 7

Limbach v. Hooven & Allison Co.,

466 U.S. 353 (1984) ................................................. 8

McConnell v. FEC,

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

Medina v. Planned Parenthood,

145 S. Ct. 2219, 2234 (2025) ................................... 5

Perrier-Bilbo v. United States,

954 F.3d 413 (1st Cir. 2020) ................................... 8

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................. 3

Republican National Committee v. Genser,

145 S. Ct. 9 (2024) ................................................... 1

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477 (1989) ......................................... 2, 6, 9

Rodriguez de Quijas v. Shearson/Lehman Bros.,

Inc., 845 F.2d 1296 (5th Cir. 1988) ........................ 9

Roe v. Wade,

410 U.S. 113 (1973) ................................................. 4

Rowe v. Peyton,

383 F.2d 709 (4th Cir. 1967)................................... 8

Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220 (1987) ................................................. 9

State Oil Co. v. Kahn,

522 U.S. 3 (1997) ..................................................... 3

Students for Fair Admissions, Inc. v. President &

Fellows of Harv. Coll., 600 U.S. 181 (2023) ........... 4

Town of Greece v. Galloway,

572 U.S. 565 (2014) ................................................. 7

Trump v. Anderson,

601 U.S. 100 (2024) ................................................. 1

Trump v. Hawaii,

585 U.S. 667 (2018) ................................................. 4

Trump v. United States¸

603 U.S. 593 (2024) ................................................. 1

United States v. Hatter,

532 U.S. 557 (2001) ................................................. 6

Wilko v. Swan,

346 U.S. 427 (1953) ................................................. 9

Woodring v. Jackson County,

986 F.3d 979 (7th Cir. 2021)................................... 8

Treatise

Steven G. Calabresi, Text vs. Precedent in

Constitutional Law, 31 HARV. J.L. & PUB. POL’Y

947 (2008) ................................................................ 4

INTEREST OF AMICUS1

Amicus Curiae, the American Center for Law and

Justice (“ACLJ”), is an organization dedicated to the

defense of constitutional liberties secured by law.

ACLJ attorneys have appeared often before this

Court as counsel for parties, e.g., Trump v. Anderson,

601 U.S. 100 (2024) (unanimously holding that states

have no power under the U.S. Constitution to enforce

Section Three of the Fourteenth Amendment with

respect to federal offices); McConnell v. FEC, 540 U.S.

93 (2003) (unanimously holding that minors enjoy the

protection of the First Amendment); Lamb’s Chapel v.

Center Moriches Sch. Dist., 508 U.S. 384 (1993)

(unanimously holding that denying a church equal

access to public school premises to show a film series

on parenting violated the First Amendment); or for

amici, e.g., Republican National Committee v. Genser,

145 S. Ct. 9 (2024); Trump v. United States¸ 603 U.S.

593 (2024); Fischer v. United States, 144 S. Ct. 2176

(2024); and Bush v. Gore, 531 U.S. 98 (2000). The

ACLJ has a fundamental interest in defending the

uniformity of federal elections and in promoting

election security and confidence.

1 Pursuant to Supreme Court Rule 37.6, amicus states that

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

and no entity or person, aside from amicus, its members, and its

counsel, made any monetary contribution toward the

preparation or submission of this brief.

SUMMARY OF ARGUMENT

This Court has long held that restrictions on

political speech are justified only to prevent quid pro

quo corruption or its appearance. FEC v. Ted Cruz for

Senate, 596 U.S. 289, 305 (2022). Petitioners show

why that principle controls here: the limits on party

expenditures at issue thus cannot survive. The

decision below essentially acknowledged as much—

recognizing that since 2001, this Court “has

recognized only one permissible ground for restricting

political speech: the prevention of ‘quid pro quo’

corruption or its appearance,” and that Colorado

Republican Federal Campaign Committee v. FEC, 533

U.S. 431 (2001) (“Colorado II”), has been abandoned

in practice. Pet. App. 10a–11a.

Yet the Sixth Circuit upheld the law for one

reason: “Colorado II has not been formally overruled.”

Pet. App. 11a–12a. Relying on Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989),

the court concluded that because Colorado II opined

on the same statutory provision, it remains binding

until this Court explicitly says otherwise.

That reading of Rodriguez is mistaken. This Court

has often overruled its precedents implicitly, without

naming them. Properly understood, Rodriguez does

not compel lower courts to treat long-abandoned

decisions as controlling until the Court utters the

right “magic words.” To is not fidelity to precedent but

defiance of this Court itself—forcing this Court to

catalogue the cases it discards in every opinion and

leaving “zombie precedents” to distort the law long

after they have been rejected in substance. Such a

regime undermines doctrinal coherence, wastes

judicial resources, and erodes this Court’s authority.

This case offers the Court the chance to say two

things plainly: Colorado II is no longer good law, and

Rodriguez does not require blind adherence to

decisions that the Court has already clearly displaced.

ARGUMENT

I. THIS COURT MAY OVERRULE

PRECEDENT IMPLICITLY.

ITS

OWN

Only this Court has authority to overrule its own

precedent. State Oil Co. v. Kahn, 522 U.S. 3, 20

(1997). But such an overruling need not be explicit; it

can occur implicitly, without naming the displaced

case. As this Court recognized long ago, “a later

decision in conflict with prior ones had the effect to

overrule them, whether mentioned and commented

on or not.” Asher v. Texas, 128 U.S. 129, 131-32 (1888).

This principle does not invite lower courts to

speculate about future rulings, but it does mean that

this Court is not forced literally to list every precedent

displaced by its subsequent opinions.

Indeed, this Court could not be expected

exhaustively to catalog outdated decisions every time

an opinion alters this Court’s case law. When two of

this Court’s opinions cannot coexist, the latter

governs. To deny that reality would produce startling

consequences.

Consider Plessy v. Ferguson, 163 U.S. 537 (1896).

No serious student of American history believes it

remained “good law” after Brown v. Board of

Education, 347 U.S. 483 (1953). Yet Brown never said

so in express terms; the proposition that Brown

“implicitly overturned” Plessy was simply understood.

See, e.g., Steven G. Calabresi, Text vs. Precedent in

Constitutional Law, 31 HARV. J.L. & PUB. POL’Y 947,

953 (2008). Only later did this Court itself describe

Plessy as overturned by Brown. See, e.g., Students for

Fair Admissions, Inc. v. President & Fellows of Harv.

Coll., 600 U.S. 181, 203-04 (2023) (“In [Brown] we

overturned Plessy for good and set firmly on the path

of invalidating all de jure racial discrimination by the

States and Federal Government.”). Brown is not

unique. This Court has often recognized that its

decisions were implicitly displaced by later ones.2

That principle extends to precedent within a given

“line.” When this Court overrules a foundational

case—expressly or implicitly—it also strips its

progeny of precedential force. Thus, when Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215 (2022),

expressly overruled Roe v. Wade, 410 U.S. 113 (1973),

See, e.g., Trump v. Hawaii, 585 U.S. 667, 710 (2018) (“The

dissent’s reference to Korematsu, however, affords this Court the

opportunity to make express what is already obvious: Korematsu

was gravely wrong the day it was decided, has been overruled in

the court of history, and—to be clear—'has no place in law under

the Constitution.’”) (citing Korematsu v. United States, 323 U.S.

214, 248 (1944) (Jackson, J., dissenting); Hudgens v. NLRB, 424

U.S. 507, 518 (1976) (“[W]e make clear now, if it was not clear

before, that the rationale of Logan Valley did not survive the

Court’s decision in the Lloyd case. Not only did the Lloyd opinion

incorporate lengthy excerpts from two of the dissenting opinions

in Logan Valley, 407 U.S., at 562-563, 565; the ultimate holding

in Lloyd amounted to a total rejection of the holding in Logan

Valley.”).

it necessarily deprived the entire Roe line of cases of

binding effect, without enumerating each case

individually. See also Medina v. Planned Parenthood,

145 S. Ct. 2219, 2234 (2025) (“To the extent lower

courts feel obliged, or permitted, to consider the

contrary reasoning of [certain named precedents

governing implied causes of action], they should resist

the impulse… given this Court’s longstanding

repudiation of [their] reasoning”).

The same dynamic operated in Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 534 (2022), in

which this Court confirmed that it had “long ago

abandoned Lemon and its endorsement test offshoot.”

(citing Am. Legion v. Am. Humanist Ass’n, 588 U.S.

19 (2019)). No prior case had said this in so many

words, but the overruling was unmistakable—and

with it, the progeny of Lemon lost precedential

weight, even without being named individually. The

same is true for long-abandoned precedents.

II. VERTICAL STARE DECISIS REQUIRES LOWER

COURTS

ACKNOWLEDGE

IMPLICIT

OVERRULING.

Because this Court can, and often does, overrule

its past decisions implicitly, lower courts may not

apply a cramped, overly literal version of stare decisis

that treats only explicit overrulings as binding.

Implicit overrulings bind no less than explicit ones.

The rationale of stare decisis—the “policy judgment

that ‘in most matters it is more important that the

applicable rule of law be settled than that it be settled

right,’” applies with equal force whether a precedent

is displaced expressly or be necessary implication.

Agostini v. Felton, 521 U.S. 203, 235 (1997) (quoting

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406

(1932) (Brandeis, J., dissenting)). Here, as both Judge

Sutton’s opinion below and Judge Readler’s dissent

explain in detail, Colorado II cannot be reconciled

with modern First Amendment jurisprudence. That

analysis need not be repeated; it suffices to say

Colorado II no longer reflects this Court’s

understanding of the Constitution. The only

remaining question is whether the Sixth Circuit was

nevertheless bound to follow it. It was not.

Yet this does not mean lower courts are free to

disregard precedent at will. This Court has been clear

that mere “doubts about [a case’s] continuing vitality”

are insufficient to disregard controlling authority. Cf.

Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (quoting

Hohn v. United States, 524 U.S. 236, 252-53 (1998)).

“[I]t is this Court’s prerogative alone to overrule one

of its precedents.” United States v. Hatter, 532 U.S.

557, 567 (2001) (quoting State Oil Co. v. Khan, 522

U.S. 3, 20 (1997)). More directly, Rodriguez instructs

that when “a precedent of this Court has direct

application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly

controls, leaving to this Court the prerogative of

overruling its own decisions.” 490 U.S. at 484.

These directives are not in tension. Lower courts

must distinguish between precedent that has been

effectively overruled—whether expressly or implicitly

—and precedent that, though questioned, remains

binding. The former they are obligated to set aside;

the latter they must continue to apply. As the dissent

below explained,

[W]e do not mechanically apply earlier Supreme

Court doctrine when “events subsequent to the

[Supreme Court’s] last decision… approving the

doctrine or—especially later decisions by that

court, or statutory changes—make it almost

certain that the [Supreme Court] would repudiate

the doctrine if given a chance to do so.” Olson v.

Paine, Webber, Jackson & Curtis, Inc., 806 F.2d

731, 734 (7th Cir. 1986) (Posner, J.); see also Hobbs

v. Thompson, 448 F.2d 456, 473 (5th Cir. 1971)

(declining to apply Supreme Court doctrine that is

“out of harmony with… a long line of cases decided

subsequently”).

Pet. App. 121a.

This Court has essentially said the same thing. In

Kennedy it made clear that the Ninth Circuit was

wrong in its continued reliance on Lemon after the

Supreme Court had so clearly and repeatedly

departed from Lemon’s holding and analysis. 597 U.S.

at 535-36. This Court noted that it had already

“instructed” a new constitutional approach at least

eight years prior. Id. (citing Town of Greece v.

Galloway, 572 U.S. 565 (2014)) See also Lamb’s

Chapel, 508 U.S. at 398 (Scalia, J., concurring)

(comparing Lemon to “some ghoul in a late-night

horror movie that repeatedly sits up in its grave and

shuffles abroad, after being repeatedly killed and

buried.”). This Court minced no words: “[T]he Ninth

Circuit erred by failing to heed this guidance.”

Kennedy, 597 U.S. at 536 (emphasis added).3

Other circuits had, by contrast, correctly

recognized Lemon’s demise. See, e.g., Woodring v.

Jackson County, 986 F.3d 979, 981 (7th Cir. 2021)

(holding that intervening Supreme Court decisions

required the abandonment of the Lemon test);

Perrier-Bilbo v. United States, 954 F.3d 413, 425 (1st

Cir. 2020) (same); Kondrat’yev v. City of Pensacola,

949 F.3d 1319, 1326 (11th Cir. 2020) (recognizing that

“Lemon is dead”). The Sixth Circuit’s reading of

Rodriguez in the present case—that lower courts

must wait helplessly until this Court pens Colorado

II’s obituary—is mistaken and incompatible with this

Court’s clear instructions.

III.RODRIGUEZ DOES NOT REQUIRE LOWER COURTS

TO IGNORE THIS COURT’S ACTUAL HOLDINGS.

The Sixth Circuit read Rodriguez to mean that

until this Court formally declares a case “overruled,”

lower courts must treat it as binding—even when

subsequent decisions have unmistakably displaced it.

Pet. App. 11a-12a. That interpretation misreads

Rodriguez and converts it into a rule of paralysis.

Such

rule

both

impractical

and

3 See also Limbach v. Hooven & Allison Co., 466 U.S. 353, 361

(1984) (finding “error” in a lower court applying a precedent

which, while not “expressly overruled,” failed to “retain[] current

validity.”); Rowe v. Peyton, 383 F.2d 709, 714 (4th Cir. 1967),

aff’d 391 U.S. 54 (1968) (“[T]here are occasional situations in

which subsequent Supreme Court opinions have so eroded an

older case . . . as to warrant a subordinate court in pursuing what

it conceives to be a clearly defined new lead from the Supreme

Court to a conclusion inconsistent with an older Supreme Court

case.”).

counterproductive: by ignoring controlling law, lower

courts would undermine doctrinal coherence, erode

judicial legitimacy, and force needless appeals—the

very ills stare decisis was meant to prevent. A more

faithful reading confines Rodriguez to its own terms.

Rodriguez concerned the continued validity of

Wilko v. Swan, 346 U.S. 427 (1953), which had

interpreted the Securities Act of 1933. The Fifth

Circuit held Wilko no longer viable in light of

Shearson/Am. Express, Inc. v. McMahon, 482 U.S.

220 (1987), a case construing a different statute -- the

Securities Exchange Act of 1934. See Rodriguez de

Quijas v. Shearson/Lehman Bros., Inc., 845 F.2d

1296 (5th Cir. 1988). This Court ultimately agreed

that Wilko was bad law, but reproved the Fifth Circuit

for anticipating that result by discarding Wilko before

this Court had done so. Rodriguez, 490 U.S. at 484.

The “chiding” in Rodriguez was thus directed at

anticipatory overruling—at the Fifth Circuit’s own

acknowledgement that Wilko had not yet been

overruled, even as it proceeded as though it were. 845

F.2d at 1298.

That principle makes sense: lower courts may not

speculate about whether this Court will abandon a

precedent. But it does not follow that, once this Court

has spoken—repeatedly and unmistakably—lower

courts should persist in treating the displaced

precedent as controlling. A bar on anticipatory

repudiation is not a command of willful blindness.

Requiring adherence to precedent this Court has

already left behind is not fidelity to stare decisis but

obstinance. It would reduce vertical precedent to a

mechanical game of “magic words,” obligating this

Court to append comprehensive obituaries to any

decision that reshapes this Court’s view of the

governing law, lest abandoned doctrines to continue

to shamble on as “good law.”

This is not how this Court has operated. See supra

§§ I-II. Nor could it be: such a rule entrenches zombie

precedents, sows confusion among courts and

litigants, and obscures this Court’s actual holding

until a formal funeral rite is performed. Nothing in

Rodriguez demands such a distortion of the judicial

process. To the extent courts of appeals have read

Rodriguez that way, this Court should correct the

error.

* * *

This Court should make clear that Colorado II no

longer governs and that Rodriguez does not compel

lower courts to enforce precedent this Court has

already clearly abandoned.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,