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

Supreme Court briefAug 28, 2025

Ask Donna

What actually matters in this document.

Text

No. 24-621

IN THE

___________

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

__________

AMICUS CURIAE BRIEF OF THE LIBERTY

JUSTICE CENTER IN SUPPORT OF PETITIONERS

__________

Jeffrey Schwab

Counsel of Record

Reilly Stephens

Emily Rae

August 28, 2025

Duncan Crim

LIBERTY JUSTICE CENTER

7500 Rialto Blvd.

Suite 1-250

Austin, TX 78735

512-481-4400

jschwab@ljc.org

Attorneys for Amicus Curiae

Liberty Justice Center

QUESTION PRESENTED

Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS.............................................. ii

TABLE OF AUTHORITIES ....................................... iii

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

INTRODUCTION AND SUMMARY OF ARGUMENT

…………………………………………………………1

ARGUMENT………………………………………………3

I. Media corporations are functionally allowed to

make unlimited coordinated expenditures,

while political parties face strict limitations

on the same conduct. ....................................... 3

II. Media corporations and political parties serve

similar functions in elections. ......................... 5

III. Coordinated expenditure limits violate the

First Amendment’s prohibition on speakerbased discrimination…………………………....7

CONCLUSION .......................................................... 12

iii

TABLE OF AUTHORITIES

Cases

Buckley v. Valeo,

424 U.S. 1 (1976) ................................................... 7, 9

California Democratic Party v. Jones,

530 U.S. 567 (2000) ................................................... 5

Citizens United v. FEC,

558 U.S. 310 (2010) .......................... 1, 2, 4, 6, 7, 8, 9

Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604 (1996) ............................................... 5, 6

Eu v. San Francisco Cnty. Democratic Cent. Comm.,

489 U.S. 214 (1989) ................................................... 6

FEC v. Colorado Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) ................................................. 10

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) .................................. 2, 6, 7, 8, 9

Illinois Liberty PAC v. Madigan,

904 F.3d 463 (7th Cir. 2018).................................... 1

Illinois State Bd. of Elections v. Socialist Workers

Party,

440 U.S. 173 (1979) ................................................... 5

Janus v. AFSCME,

138 S. Ct. 2448 (2018) .............................................. 1

McConnell v. FEC,

540 U.S. 93 (2003) ................................................. 4, 8

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) ........................................ 2, 6, 11

Mills v. Alabama,

384 U.S. 214 (1966) .................................................. 2

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ........................................... 7, 8, 9

Police Dept. of City of Chicago v. Mosley,

408 U.S. 92 (1972) ........................................ 2, 7, 8, 9

Randall v. Sorrell,

548 U.S. 230 (2006) ................................................. 11

Statutes

52 U.S.C. § 30101(9)(A) ........................................... 3, 4

52 U.S.C. § 30101(9)(B) ............................................... 3

52 U.S.C. § 30104(3) .................................................... 5

52 U.S.C. § 30116 ..................................................... 3, 4

52 U.S.C. § 30118 ......................................................... 3

Regulations

11 C.F.R. § 109.37 ........................................................ 2

Other Authorities

Defining the Press Exemption from Campaign Finance Restrictions,

129 Harv. L. Rev. 1384 (2016) .............................. 2, 4

Eugene Volokh, Freedom for the Press as an Industry,

or for the Press as a Technology? From the Framing

to Today,

160 U. Pa. L. Rev. 459 (2012) ............................... 3, 9

Michael W. McConnell, Reconsidering Citizens United

as a Press Clause Case,

123 Yale L.J. 412 (2013) ........................... 1, 4, 7, 8, 9

INTEREST OF THE AMICUS CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest litigation center that seeks to protect economic liberty, private property rights, free

speech, and other fundamental rights. The Liberty

Justice Center pursues its goals through strategic,

precedent-setting litigation to revitalize constitutional

restraints on government power and protections for individual rights. See, e.g., Janus v. AFSCME, 138 S. Ct.

2448 (2018). To that end, the Liberty Justice Center

litigates cases around the country, including many

cases addressing the constitutionality of campaign finance laws and regulations. See, e.g., Illinois Liberty

PAC v. Madigan, 904 F.3d 463 (7th Cir. 2018); Rio

Grande Foundation v. Oliver, (No. 24-2070, 10th Cir.);

Students for Life Action v. Jackley, (No. 3:23-cv-03010,

D.S.D.).

This case concerns amicus because the right to

speak is fundamental, and that right applies equally

to political parties as to all other citizens.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The current regulatory scheme grants nearly unlimited speech rights in the form of coordinated expenditures to media corporations while relegating political

parties to a system of restrictions and disclosures for

equivalent activity. See Michael W. McConnell, Reconsidering Citizens United as a Press Clause Case, 123

YALE L.J. 412, 418 (2013); see also Defining the Press

1 Rule 37 statement: No counsel for any party authored any part

of this brief, and no person or entity other than amicus funded its

preparation or submission.

Exemption from Campaign Finance Restrictions, 129

HARV. L. REV. 1384, 1388–89 (2016). The law’s definition of coordinated expenditure is broad, encompassing the ability to endorse candidates, coordinate with

them, broadcast information about them, or advocate

on their behalf. Petitioners challenge the restrictions

on the grounds that the limits on political parties’ coordinated expenditures violate the First Amendment.

The First Amendment was adopted to protect the

right to engage in political speech, including discussion of candidates. See generally Miami Herald Pub.

Co. v. Tornillo, 418 U.S. 241 (1974); see also Mills v.

Alabama, 384 U.S. 214 (1966). Media corporations currently fully enjoy these speech rights—as they

should—and often participate in what would be considered coordinated communications under 11 C.F.R.

§ 109.37 if conducted by a party. Meanwhile, political

parties are heavily restricted from engaging in the

same conduct.

In the election context, both media corporations and

political parties serve the public interest in disseminating information. Both are essential to our constitutional democracy. Both inform voters about candidates. And both are speakers in the political field.

Therefore, both should be treated equally. Disparate treatment between these two types of speakers is

presumptively unconstitutional under the First

Amendment. See generally Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972); see also First Nat’l

Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Citizens

United v. FEC, 558 U.S. 310 (2010). Additionally, this

treatment distorts the political process, giving a disproportionate voice to media corporations and super

PACs. This Court should restore equality in the realm

of political speech and remove the coordinated expenditure limits on political parties.

ARGUMENT

Media corporations are functionally

allowed to make unlimited coordinated

expenditures, while political parties face

strict limitations on the same conduct.

Political parties face strict limitations on coordinated spending, while media corporations are exempt.

Under the current campaign finance regime, “coordinated expenditures” are not permitted beyond certain

dollar amounts by political parties and not permitted

at all by non-media corporations. 52 U.S.C. § 30116; 52

U.S.C. § 30118. “Expenditures” are purchases or payments or any exchange of anything of value that has

the purpose of “influencing any election for federal office.” 52 U.S.C. § 30101(9)(A). Coordinated expenditures are those expenditures “made in cooperation,

consultation or concert with . . . a candidate . . . .” Coordinated communications, FEC, https://www.fec.gov/

press/resources-journalists/coordinated-communications/ (last visited Aug. 18, 2025).

However, expenditures do not include “[a]ny cost incurred in covering or carrying a news story, commentary, or editorial.” 52 U.S.C. § 30101(9)(B). This allowance covers virtually every communication by any media corporation concerning an election. See Eugene Volokh, Freedom for the Press as an Industry, or for the

Press as a Technology? From the Framing to Today,

160 U. Pa. L. Rev. 459, 516 (2012) (noting that media

corporations can and do “routinely engage” in coordinated speech).

This exception supersedes the restriction on “influencing an election for federal office” and allows media

corporations to endorse candidates and perform other

influential activities. See id.; see also 52 U.S.C. §

20101(9)(A)–(B). “Media companies can run procandidate editorials as easily as nonmedia corporations can

pay for advertisements.” See McConnell v. FEC, 540

U.S. 93, 283 (2003) (Scalia, J., concurring), overruled

by Citizens United, 558 U.S. 310. And “there is little

doubt” that the editorials, commentary, and endorsements by media corporations affect elections and influence voters and candidates. Id. at 284.

While political parties are permitted to make independent expenditures, which are expenditures made

without any consultation with the candidate, coordinated expenditures are considered contributions and

are subject to strict regulation. See, e.g., 52 U.S.C.

§ 30116(7)(C).

Media corporations are permitted to endorse candidates, perform interviews, provide airtime, and write

favorable editorials and news stories, all with input

from the candidates. They take these actions “while

the voters are making up their minds,” having a huge

impact on the election results. McConnell, supra, at

418; see also McConnell v. FEC, 540 U.S. at 284

(Scalia, J., concurring). Media corporations spend

money on these actions to influence voters. See

McConnell v. FEC, 540 U.S. at 284 (Scalia, J., concurring); see also Defining the Press Exemption, supra, at

1388–89 (noting that “CNN may air an editorial that

endorses a candidate for federal office,” implying CNN

is paying for their airtime). Moreover, broadcast media

frequently advertise for their productions of these edi-

torials, interviews, and endorsements, resulting in further funds being spent on these influential activities.

Even if the cost of these actions is relatively low, the

standard for expenditure is “anything of value,” and

positive media coverage is certainly valuable. 52

U.S.C. § 30101(9)(A).

Meanwhile, political parties face scrutiny and limitations. If a political party runs an ad for a candidate,

it must report the ad and remain under strict dollar

limits. See 52 U.S.C. § 30104(3). If it endorses a candidate, it must report the endorsement and stay under

strict dollar limits. Id. And if it were to sponsor and

televise a rally featuring a candidate, it would have to

report the rally and remain under strict dollar limits.

Id. It is hard to imagine any activity performed by media corporations in the election context that a political

party is allowed to perform without limitation.

II.

Media corporations and political parties

serve similar functions in elections.

There is no meaningful difference between the political influence exerted by media corporations that coordinate with candidates and the political influence

exerted by political parties that coordinate with candidates. Political parties serve many functions; one of

the most important of which is disseminating information about candidates to persuade voters. See Colorado Republican Fed. Campaign Comm. v. FEC, 518

U.S. 604, 629, 630 (1996) (“Colorado I”) (Kennedy, J.,

concurring); see also Illinois State Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173, 186 (1979) (“As

the records of such parties demonstrate, an election

campaign is a means of disseminating ideas as well as

attaining political office.”) This dissemination is an essential function of political parties, which are in turn

necessary to our representative democracy. See California Democratic Party v. Jones, 530 U.S. 567, 574

(2000); see also Colorado I, 518 U.S. at 629, 630 (Kennedy, J., concurring). This political speech by parties

has a significant influence on elections. See Colorado

I, 518 U.S. at 627, 629, 630 (Kennedy, J., concurring).

Likewise, media corporations are “enormously powerful and influential in [their] capacity to manipulate”

and engage in “advocacy journalism.” Tornillo, 418

U.S. at 248–49; see also Bellotti, 435 U.S. at 796–97

(Burger, C.J., concurring). However, unlike political

parties that reflect the diverse voices of those they represent, media corporations often present their own political views. Compare Tornillo, 418 U.S. at 255, with

Colorado I, 518 U.S. at 629 (Kennedy, J., concurring).

This media view is an essential part of “informing and

educating the public” and is protected by the First

Amendment. Bellotti, 435 U.S. at 781-83.

The clear similarities between parties and media

corporations, as well as their similar influence on elections, have been previously pointed out. See Citizens

United, 558 U.S. at 391–92 (Scalia J., concurring)

(analogizing parties to corporations generally). Parties

and media corporations both work to persuade voters.

Both seek to influence the public to elect their preferred candidates. Both speak about and advocate for

policy changes. And both endorse candidates. See Eu

v. San Francisco Cnty. Democratic Cent. Comm., 489

U.S. 214, 224 (1989). This type of “[p]olitical speech is

‘indispensable to decisionmaking in a democracy’” regardless of the source. Citizens United, 558 U.S. at 349

(cleaned up). Both political parties and media corporations “use money amassed from the economic marketplace to fund [this] speech.” Id. at 351. While one “disseminate[s] ideas by way of a newspaper” and the

other “give[s] lectures or speeches,” there is no difference in their “liberty [as] citizen[s] of the Republic.”

Bellotti, 435 U.S. at 802 (Burger, C.J., concurring)

(cleaned up). And whether it’s a party or a media corporation, there is no reason to believe that their influence over a candidate makes that candidate corrupt.

See Citizens United, 558 U.S. at 359. Thus, media corporations and political parties serve substantially similar roles in the political process: informing and influencing the opinions of the public and candidates for office.

III.

Coordinated expenditure limits violate the

First

Amendment’s

prohibition

speaker-based discrimination.

It is impermissible favoritism for the government to

allow unlimited political speech from media corporations while simultaneously restricting the political

speech of similarly situated political parties. The purpose of the First Amendment is to encourage the wide

dissemination of information from a variety of sources.

See New York Times Co. v. Sullivan, 376 U.S. 254, 266

(1964). The public has the right to hear from various

speakers and sources and choose for themselves what

to listen to. See Citizens United, 558 U.S. 340–41. History, logic, and precedent make clear that the government cannot exclude an entire class of speakers from

public discussion. See id. at 341; see also Bellotti, 435

U.S. at 784; see also McConnell, supra, at 431. This

principle is particularly true in political speech, where

debate is meant to be “robust” and “wide-open.” Buckley v. Valeo, 424 U.S. 1, 14 (1976).

This Court has “frequently condemned such discrimination among different users of the same medium

for expression.” Mosley, 408 U.S. at 96. “[T]he press

does not have a monopoly on either the First Amendment or the ability to enlighten,” and does not get special rights to be the only voice disseminating political

information. Bellotti, 435 U.S. at 782–83.

Restricting spending is restricting speech. See Citizens United, 558 U.S. at 339 (citing Buckley, 424 U.S.

at 19); see also McConnell v. FEC, 540 U.S. at 254–55

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

(“It should be obvious, then, that a law limiting the

amount a person can spend to broadcast his political

views is a direct restriction on speech.”); see also Mosley, 408 U.S. at 94 (proposing that any restriction on

expressive conduct is a restriction on speech) This violation of the First Amendment is even more “flagrant”

when the discussion is about a candidate. McConnell,

supra, at 424–25.

Here, the restrictions on coordinated expenditures

directly contradict the First Amendment’s goal of encouraging the dissemination of information. See Sullivan, 376 U.S. at 266. Political parties offer a different

perspective on important political issues, and voters

have the right to hear that voice and decide for themselves whether it is more agreeable than the media’s

voice. See Citizens United, 558 U.S. at 340–41. However, both the media and political parties use the same

“medium for expression:” spending money on political

campaigns. Mosley, 408 U.S. at 96. Not only do parties

and the media use the same medium for their expression, but they also spend their money on similar

things, like express advocacy and advertising that references a candidate by name. See Petition for a Writ of

Certiorari at 7, Nat’l Republican Senatorial Comm. v.

FEC, No. 24-621 (U.S. 2024). There are some differences like expenditures on rallies, but “[i]t seems unlikely that . . . spending $10,000 to print and mail campaign literature [is] constitutionally different from

spending $10,000 to organize a political rally.” Volokh,

supra, at 518; see also Pet. at 7, NRSC v. FEC, No. 24621 (U.S. 2024).

The government may not discriminate between

speakers, especially political speakers, just because

the favored speaker is a media corporation. See Sullivan, 376 U.S. at 266; see also Mosley, 408 U.S. at 96

(noting that the legislature is “disqualified” from selecting a single type of voice to speak on public issues).

In light of history, logic, and precedent, the press

clause is an insufficient justification for protecting the

speech of media corporations and not also protecting

the speech of political parties. See Bellotti, 435 U.S., at

782, 784; see also Citizens United, 558 U.S. at 341, 352;

see also McConnell, supra, at 431. Singling out media

companies for special speech rights “presents seemingly insurmountable historical and pragmatic difficulties.” McConnell, supra, at 431.

Moreover, the current regime grants a disproportionate level of control over political issues to the media and super PACs—control that rightfully belongs to

the political committees. See Buckley, 424 U.S. at 57;

See Pet. at 13, NRSC v. FEC, No. 24-621 (U.S. 2024).

As a result, the parties are left with the meager leftovers. These super PACs have become an increasingly

prevalent part of the political conversation, spending

more than 40 times as much as the political parties’

coordinated spending. See Brief of Amicus Curiae Senator Mitch McConnell in Support of Petitioners at 22,

23, NRSC v. FEC, No. 24-621 (U.S. 2025).

FECA’s limits on political parties’ coordinated expenditures are an unacceptable abridgment of parties’

First Amendment rights. This Court has already

acknowledged that the limits burden parties’ rights.

See FEC v. Colorado Republican Fed. Campaign

Comm., 533 U.S. 431, 450 n.11 (2001); see also Pet. at

7, 14, NRSC v. FEC, No. 24-621 (U.S. 2024). However,

this Court has previously allowed the burden as a

means of preventing corruption because coordinated

expenditures are similar to contributions. See Pet. at

5, 6, NRSC v. FEC, No. 24-621 (U.S. 2024). The logic

is that contributions run the most significant risk of

corruption and restricting them restricts corruption.

The reality, however, is that these restrictions

merely make it more difficult and more expensive for

political parties to support their chosen candidates.

See Pet. at 7, NRSC v. FEC, No. 24-621 (U.S. 2024); see

also Mitch McConnell Br. at 12. They do not prevent

corruption. See Pet. at 9, NRSC v. FEC, No. 24-621

(U.S. 2024); see also Brief of Amici Curiae State of Ohio

and 13 Other States in Support of Petitioners at 20,

NRSC v. FEC, No. 24-621 (U.S. 2025) (noting that, in

over two dozen states that do not have these restrictions, there have been no instances of corruption

in state elections).

“Party speech is inherently political” and entitled to

First Amendment protection. Ohio and 13 Other States

Br. at 2. Logically, this protection extends to the committees. And yet, the NRSC, as a subunit of the Republican Party, faces an even greater violation of its

speech rights. The NRSC must get written permission

from the Republican Party before making any expenditures. See Pet. at 8, NRSC v. FEC, No. 24-621 (U.S.

2024). The NRSC then must share the total expenditure allowance with the main party. See id.

Furthermore, these restrictions on party speech are

a new development in our constitutional history. See

Brief of Chamber of Commerce of the United States of

America as Amicus Curiae in Support of Petitioners at

13, NRSC v. FEC, No. 24-621 (U.S. 2025). From America’s earliest days, coordination of speech and spending

was unlimited, “necessary,” and commonplace. See id.

Thus, there was no disparity between the press and

the party, especially because the press was the primary avenue for political spending. See id. Only in the

last 50 years has Congress decided to restrict any form

of coordinated expenditures, and now it does so unevenly.

The government may not respond by restricting everyone’s speech, including that of the media, as this further restriction would violate the press clause. See

Tornillo, 418 U.S. at 258. The lesson from history is

that neither limits on coordination between candidates

and the media, nor restrictions on coordination between candidates and political parties, are permissible. “The First Amendment cannot tolerate” these expenditure limitations. Randall v. Sorrell, 548 U.S. 230,

264 (2006) (Kennedy, J., concurring) (cleaned up).

Therefore, the solution to the government’s impermissible favoritism is to remove these restrictions on the

speech of political parties.

CONCLUSION

Because the media is properly permitted to comment on political issues without restriction, and because political parties, like media organizations, communicate and advocate for public viewpoints, the First

Amendment prohibits the government from favoring

the media over political parties as speakers. Accordingly, governmental restrictions on coordinated expenditures by political parties cannot withstand constitutional scrutiny.

Respectfully submitted,