Anh Cao v. Federal Election Commission

Joseph CAO, also know as Anh re: Committee; Cao; Republican National Party Louisiana.

Republican Cao; Joseph Cao, known as

Anh also Committee,

Republican National

Plaintiffs-Appellants, Commission, Election

Federal

Defendant-Appellee. 10-30080, 10-30146.

Nos. of Appeals, States

United

Fifth Circuit. 10, 2010.

Sept. Accordingly, I Appel- conclude pursuant to Federal Rule of such situation. mit letters addressing 28(j) impact briefing late full Procedure that this would benefit from case Balentine, get Ruiz, they Balentine, full whether, did benefit of under or the opportunity briefing or the address majority approach opinion, set forth in opinion’s interpretation majority novel Wiggins federal merits review of Rocha's Indeed, 5(a)(3). appellate no other federal appropriate. claim approach date has court to (argued), Bopp, James Jr. Richard Eu- Coleson, gene Kaylan Lytle Phillips, Bopp, Bostrom, Haute, IN, Coleson & Terre Hubert, P. Joseph Thomas Francis La- Walker, L.L.P., vigne, Orleans, Jones New LA, Plaintiffs-Appellants. Nesin,

Seth Edward Thomasenia P. Duncan, Kolker, David Brett Associate (argued), Rajan, Gen. Counsel Claire Nada Summers, Harry Jacobs Fed. Election Com’n, DC, Washington, for Defendant- Appellee. Hebert, DC,

J. Washington, Gerald Curiae, Amici Federal Election and Com’n Democracy 21. JONES, KING, Judge,

Before Chief and JOLLY, DAVIS, SMITH, WIENER, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, HAYNES, SOUTHWICK Judges. Circuit EUGENE W. DAVIS BENAVIDES, Judges: Circuit present challenges raised require case this court decide whether provisions certain Federal Election (“FECA” Act”) Act Campaign “the seq.,1 et § U.S.C. violate ("BCRA”) Bipartisan Campaign As amended Act No. Reform Pub.L. to, and ex- iting under the RNC’s contributions right free Plaintiffs’ with, Applying made penditures First Amendment. coordination that each of precedent, we conclude campaign. congressional Cao’s provisions consti- challenged FECA court, abiding by The district its proper permissible regula- constitutionally tutes a addressing a 2 chall role U.S.C. 437h contri- parties’ campaign of political tion enge,4 the constitutional issues identified expenditures. and coordinated butions evidentiary complaint, hearings in the held none the chal- Accordingly, we find that issues, concerning those and made neces in- unconstitutionally lenged provisions v. See Khachaturian sary fact. findings of fringe rights of the Plaintiffs upon FEC, (5th Cir.1992) (en 980 F.2d engage in debate discussion. banc). so, doing the district court be I. gan by discussing general contribution FECA expenditure places limitations Anh is the “Joseph” Plaintiff Cao United FEC, political parties. for the Con- Representative States Second (E.D.La.2010) (“Cao 498, 508-17 F.Supp.2d Louisiana, Plain- gressional District of and Court)”). (District examining Specifically tiff National Committee Republican how FECA affected the RNC’s contribu (“RNC”) political party is the national and expenditures tions related to the 2008 Republican Party.2 of the On committee the campaign, district court then Cao 13, 2008, just the De- November before spent found that the all of the RNC election, the filed cember Plaintiffs $42,100 it spend was allowed to on coordi judgment,3 asserting declaratory a suit for the Ex Party nated under challenges eight constitutional to various Provision, Generally, penditure Plain- U.S.C. provisions of FECA. the 441a(d)(2)(3),5 $5,000 statutory provisions § the lim- challenge tiffs reached its (2002). certify questions all 116 Stat. 81 shall of constitutionali- ty of Act to the of this United States court Republican Party Initially, involved, the of Louisiana appeals the shall circuit which ("LA-GOP”) was a Plaintiff the action. also to sitting hear the matter en banc. court, however, The determined district 441a(d)(2)(3) 5.Section states: standing did LA-GOP under § party appealed (2) U.S.C. 437h. No has this political of The national committee portion of the district court's order. Accord- may any expenditure party not make ingly, longer party LA-GOP is no general connection with the election cam- case before court. now paign any of candidate for President of United States who is affiliated with such complaint under the Plaintiffs’ raises claims equal which an amount to 2 exceeds Amendments, FECA, 2 U.S.C. First and Fifth multiplied by voting age popula- cents Act, 7h, Declaratory Judgment § 43 and the (as of tion the United States under certified §§ 28 U.S.C. 2201-02. (e) section). expen- Any of subsection this paragraph this ad- diture under shall be in provides: 4. Section 437h any expenditure by dition a national to Commission, political party serving the national of committee of a as the committee any eligi- political party, any principal candi- individual committee of a any ble vote in election for the office of date for the office of President of the United to may in the States. President institute such actions (3) political of appropriate court of the United The national committee district States, including declaratory party, actions for or a State of a committee including any may appropriate party, judgment, as to con- subordinate committee committee, constitutionality any any provision of of a State not make strue the immediately expenditure general with the of this Act. The district court connection 441a(a)(2)(A).6 § under ment. Since the landmark of contribution limit decision Additionally, Valeo, district Buckley Id. at 532. court spent the RNC would have (1976), found Supreme L.Ed.2d 659 Court ad- money speech expressly additional on a number of occasions has evaluated vocating the of had it election been the limitations that the First Amendment beyond FECA limita- permitted spend imposes on the ability Government’s tions. Id. 532-33. preserve integrity of the democratic process through regulation election of its making Upon hearing evidence fact, campaign expenditures necessary findings the district and contributions eight such, the Plaintiffs’ consti- court evaluated made federal candidates. As and, challenges pursuant tutional many of the Plaintiffs’ chal- constitutional 437h, questions four en certified lenges questions Supreme raise Court banc court. Id. at 549. The district court Thus, previously begin has addressed. we remaining the Plaintiffs’ four dismissed analysis our with a brief examination challenges Subsequent- as frivolous. Id. constitutional contours which we ly, appealed the the Plaintiffs district find ourselves. Buckley, non-certified, frivo- court’s dismissal determined FECA’s “contribu- questions. judicial For purposes lous tion expenditure operate limitations economy efficiency, we consolidated an area of the most fundamental First appeal the Plaintiffs’ the dismissal of Amendment activities.” Id. the en questions non-certified court’s Buckley 612. The Court declared that the of ques- banc consideration the certified “[djiscussion public of on issues debate tions. the of qualifications candidates are inte- system gral operation to the of gov- the of constitutionality

We review ernment established our Constitution.” pursuant §to questions certified 437h de result, Buckley As a the States, ap- Id. Court novo. See Goland United Cir.1990). 1247, (9th plied scrutiny strict of to F.2d We level the Gov- review of the district court’s dismissal the Plain ernment’s restrictions “on the of amount remaining tiffs’ claims for as frivolous or can on money person group spend of abuse discretion. Id. during a political campaign communication such necessarily re-

[since restrictions] II. the of re- quantity expression by duce] discussed, stricting the number of issues requires appeal This us to address the depth exploration, the of their and the size congressional of fi- campaign intersection of the audience reached.” Id. at right nance reform with the fundamental to under First free the Amend- 5.Ct. (B) campaign

election of a for Feder- the case of a candidate for election candidate State Representative, Delegate, al office in a who affiliated with of office such exceeds— any which or Resident Commissioner other (A) State, $10,000. of a in the case candidate for election Senator, Representative to office or of 441a(a)(2)(A) "(2) that No 6. Section states only from a State which is entitled to one political Representative, multi candidate committee shall greater of— (A) (i) any multiplied voting age make to candidate and cents contributions — (as population political authorized committees with re- the State certified under his of which, section); (e) spect any to for office of this or election Federal subsection ” (ii) $20,000; $5,000 aggregate, .... in the exceed of expenditures. See recognized regulations FECA’s Buckley Court Although implicate impor- deter- limitations at 96 S.Ct. 612. The Court FECA’s id. concerns, the Su- expen- tant First Amendment on regulations mined that FECA’s of strict scruti- application preme Court’s placed greater restrictions First ditures all invalidation of not result in the ny did “repre- rights they Amendment because 19-21, regulations. See id. at of FECA’s merely rather than substantial sent[ed] Instead, Buckley Court S.Ct. 612. quantity on the theoretical restraints in- governmental that some determined and conse- diversity political speech,” of (or political on an individual’s trusions exacting a more quently, Court right to make First Amendment party’s) scrutiny expen- degree of constitutional to a contributions candidate’s financial Id. diture limitations. were based on warranted further distin- S.Ct. 612. Court interest pre- compelling Government’s regulation of guished the Government’s election of federal corruption in the vent expen- from its regulation contributions 20-21, 26-27, Id. at 96 S.Ct. officials. ditures, “[b]y contrast with reasoning that: The Court reasoned upon expenditures a limitation large the extent contributions To expression, upon a limitation the amount given political quid pro secure any person group contrib- one potential from office quo current or political ute to a candidate committee holders, system integrity of our marginal upon entails restriction democracy is under- representative in free com- ability engage contributor’s Athough scope per- mined. such 612. Ac- munication.” Id. reliably practices nicious can never Buckley recognized cordingly, ascertained, exam- deeply disturbing scrutiny the level of constitutional surfacing after the election ples than contribution limitations was less problem not an demonstrate that scrutiny applied level constitution illusory one. 29, at expenditures. See id. limitations 26-27, Buckley 96 612.7 The Id. at S.Ct. 35, 38, 612. 96 S.Ct. recognized that FECA’s contribu- Court articulating the constitutional further response to the Congress’ limits were tion and ex- distinction between contributions in the of rising corruption levels of election carefully distin- 26, penditures, the Court at 612. public officials. Id. S.Ct. from guished independent expenditures found Consequently, the Court that expenditures “prearranged in those that are preserving interest governmental system particular of our was or coordinated” with a candi- integrity democratic 27, Id. paramount. 96 S.Ct. 612. date. at 612. Follow- Id. S.Ct. FECA, terminology in ing the used articulating compel- In addition pur- that for considered Buckley Court interest for FECA’s ling governmental scrutiny, “pre- poses of First Amendment contributions, the campaign limitations on expenditures” or coordinated are arranged articulated consti- Buckley Court also constitutionally equivalent to contributions. regu- distinction between FECA’s tutional According Id. at 96 S.Ct. 612. expenditures, and lations of contributions expen- Court, it followed coordinated concluding apply great- must courts subject are to the same limitations scrutiny оf ditures degree er constitutional preventing appear- compelling in corruption, interest In addition to actual the Buck- 7. corruption. ance 96 S.Ct. 612. ley had a Id. Court found that the Government scrutiny apply Questions and to contributions. A. Frivolous Although Id. at the facts challenge nature of Court’s analysis Buckley in gave the Court no The district court did certify specifically reason to address the level of questions Plaintiffs’ second and fifth scrutiny expenditures, for coordinated their complaint, clearly which raise related

Buckley implicitly recognized that (District Court), issues. expenditures limitations on coordinated F.Supp.2d at 535-39. The Plaintiffs’ sec- be, limitations, would like contribution sub- question ond reads as follows: ject to a lower level of constitutional scru- Do Party Expenditure Provision lim- tiny than independent limitations on ex- 441a(d)(2)(3) § its at U.S.C. violate the penditures. First and Fifth rights Amendment plaintiffs one or they more in that

The Buckley Court’s distinction between overbroad, excessively vague, and be- (or expenditures contribu yond authority of Congress regu- tions) independent expenditures was late elections as to coordinated reaffirmed in Medical Ass’n v. California (a) expenditures other than communica- FEC, 182, 195, (b) containing tions express advocacy, (1981), L.Ed.2d 567 when the Court ex (c) targeted activity, federal election dis- plained type “[t]he equivalent paying bursements can- in Buckley this Court considered con bills, (d) didate’s distributing a can- stitutionally protected those were made in didate’s literature? candidate, individual, dependently by Id. at 504. group engage directly question order to The Plaintiffs’ fifth politi (citation omitted) reads as follows: speech.” cal (empha Id. added). thereafter, sis In cases the Court $5,000 Do the limit contribution at 2 recognize continued to the distinction be 441a(a)(2)(A) § U.S.C. Coordi-

tween a speaker’s right First Amendment nated Contribution Provision at U.S.C. to make independent versus coordinated 441a(a)(7)(B)(i) (treating coordinated expenditures, degree and the to which low “contributions”) expenditures as in-kind er rights courts must balance these violate First and Fifth Amendment compelling Government’s interest rights plaintiffs or more of the one in prevent corruption the democratic elec that they excessively vague, over- public E.g., broad, tions of our officials. beyond Colorado authority and of Con- Republican gress as Campaign regulate Fed. Comm. v. to elections to (a) FEC, 604, 613, 116 expenditures coordinated than 2309, other 518 U.S. 135 S.Ct. (“Colorado containing express communications ad- (1996) /”); L.Ed.2d 795 FEC v. (b) vocacy, targeted election federal ac- Republican Campaign Fed. (c) tivity, equivalent disbursements to Comm., 431, 2351, 121 533 U.S. S.Ct. (d) bills, paying a candidate’s and dis- (“Colorado IF). (2001) L.Ed.2d 461 tributing campaign a candidate’s litera- mind, legal landscape With this in wе ture? begin our examination of the Plaintiffs’ Id. challenges by constitutional first examin- ing questions the district court found Plaintiffs that assert 441a(d)(2)(3), 441a(a)(2)(A), §§ be to frivolous. and ... 441a(a)(7)(B)(i)8 that “express[ly] that nieations advocate speech reach related,” clearly and or defeat of a identi- the election “unambiguously office,” i.e., therefore, provisions are candidate for federal overbroad fied in of the that as Supreme phrases violation those contain such vague “ Buckley, for,’ ‘elect,’ Buckley. your in See ‘support,’ Court’s decision ‘vote ‘cast 81, for,’ 612. We do not Congress,’ ‘vote ballot ‘Smith ” ‘defeat,’ agree. against,’ ‘reject.’ Id. [or] n. 43-44 & S.Ct. 612. in light read of FECA must be FEC, (D.C.Cir. Shays v. 528 F.3d implement the regulations that FEC 2008). regulations The FEC make abun- “party for a coordi Expenditures statute. dantly only clear that the coordinated ex- communication,” by defined nated as penditures captured by statutory reach 109.37, § are restricted those C.F.R. expendi- are campaign-related FECA qualify which coordinated recognized tures that Buckley which Con- regulated that under the Constitu may be gress regulate could as contributions. words, tion as In other contributions. “par argued that Plaintiffs to the district court regulations FEC make it clear a promulgation that above ty communication” en the FEC’s compasses speech campaign-relate regulation acknowledgment that is constitutes an Thus, speech that line d.9 109.37 limits breadth of some exists between which 441a(d)(2)(3), may §§ regulated speech communications to which be which 441a(a)(7)(B)(i) (District 441a(a)(2)(A), apply. regulated. not be See Cao Therefore, Court), that at 536. ac- F.Supp.2d Plaintiffs’ This statutory provisions reach speech knowledgment, argued, these Plaintiffs “demon- campaign-related is not without constitutionally ambigui- strates a deficient Buckley permit merit. does not non-cam ty statutory current language.” Id. regulated. paign-related to be authority, of no We know Plaintiffs authority, requires cite con- Valeo, to no Buckley (1976), regulations tent of FEC be included 46 L.Ed.2d 659 Court, avoidance, prohibits a invoking statute or statute’s reach constitutional regulations. FECA’s limitation on be narrowed Accord- expendi- construed apply only funding ingly, find that the district did tures to commu- we court candidate, 441a(a)(7)(B)(i) pared "expen- 8. Section states the candidate's author- committee, by any cooperation, person made agent any ditures consultation, ized or an concert, with, or at or the re- foregoing,” public or communication "[a] candidate, of, quest suggestion au- or his expressly defeat advocates election or committees, agents, their thorized or clearly of a identified candidate for Federal shall considered be a contribution offiсe,” "public [that] or communication ” .... such candidate clearly identified House Senate refers to publicly and is distributed ... candidate "party 9. Section 109.37 defines jurisdiction clearly identified candidate's as communications” those communications clearly days or fewer before identified (2) (1) satisfy paid by party, that for are general, special, candidate's or runoff elec- standard, (3) particular content coordi- tion, election, primary preference or or or nated with the candidate as defined nominating caucus.” Section convention or (d)(l)(6). § content set 109.21 The standards 109.37(a)(2)(iii)(B) day provides a similar 120 require § forth in 109.37 that the communica- public period time communications refer- public tion that “[a] be either communication disseminates, distributes, ring Vice republishes, to a Presidential or Presidential in or part, campaign pre- in candidate. whole or materials denying tuning discretion in fine not legisla- abuse its does invalidate the second Buckley, 30, certification of Plaintiffs’ and tion.” 96 S.Ct. questions. fifth 612. Although may there be variances

within a statute’s on limitations contribu- expenditures, tions or so as the long Gov- court also found the Plain- The district ernment can establish “that limit ... some tiffs’ question fourth frivolous denied is necessary, court no scalpel has (District Court), its probe certification. parse ....” through the varying F.Supp.2d at 542-43. The Plaintiffs’ degrees of limitations. Id. (quotations and challenge omitted). fourth constitutional reads as fol- citations “In practice, legis- lows: lature is equipped better to make such empirical expendi- judgments, legislators

Do the limits on coordinated have 441a(d)(3) ‘particular § expertise’” [the] tures at U.S.C. violate the necessary to rights First one or assess Amendment more what limits will adequately prevent (a) plaintiffs? highest corruption Do all but democratic election of Sorrell, rights any peers. limits violate such because their Randall v. 548 U.S. unsupported by 230, 248, lower are rates nec- 165 L.Ed.2d 482 (b) (2006). essary anti-corruption interest? Is 441a(d)(3) § facially

U.S.C. unconstitu- Plaintiffs also assert tional lower rates cannot because be sev- 441a(d)(3) § is unconstitutional because higher ered from rates the voting- imposed the limitations on contributions to age-population substantially formula is different vary depending candidates on the inherently overbroad and unconstitution- voting age population respective in their (c) al? highest expendi- Is the limit challenge similarly districts. This is frivo tures coordinated with Representatives lous as it is foreclosed Nixon Shrink unconstitutionally low? PAG, Missouri Government Id. (2000), L.Ed.2d 886 Plaintiffs argue that multi The in which upheld the Court the constitution 441a(d)(3) ple § limits contained in mean ality of a impos[ing] “statute contribution Congress acknowledges that the that the $1,000, limits from ranging de $250 higher limits sufficient ‍​​​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​‌​‌​‌​​​‌​​‌​‌‌‌​‌‌​​​​​‌‍to accommodate pending specified on state office or size of any preventing corruption, interest in constituency.” automatically thus the lower limits are un necessary anti-corruption to advance that Finally, regards to the Plaintiffs’ argument interest.10 This the Plain leads challenge highest expen limit for any tiffs to conclude that lower limits with ditures coordinated with Representatives in a multiple-limit inherently scheme are low, unconstitutionally the Plaintiffs unconstitutional. provide any failed to the court with rejected which argu- upon evidence we could conclude Buckley ment in when impose stringent the Court declared of a limits too “Congress’ failure to burden engage political speech. Buckley, such See 441a(d)(3), example, § Representatives. 10. For under RNC U.S. House Plaintiffs $20,000 441a(d)(3)(A)(ii) up make because Senate, $20,000 expenditures up connection with candidate for U.S. allows for of candidates, $10,000 may only but up make of Senate the restriction for $10,000 unconstitutionally in connection with a candidate for House candidates is low. 420 8(c) in eighth question The Plaintiffs’ (explaining limitation a contribution states: whether on depends unconstitutionally part low in $5,000 at 2 limit Does the contribution candi- the prevents the limitation

whether 441a(a)(2)(A) facially § violate U.S.C. neces- “amassing the resources from date or rights of one the First Amendment advocacy sary [campaign] for effective (c) [t]he ... plaintiffs [because] more Khachaturian, F.2d ”); also .... see simply too low to allow limit (“To constitu- present a colorable at 331 impor- fulfill their historic parties challenge, in question [an] tional republic? role in our tant democratic the must demonstrate Plaintiff] [the (District Court), F.Supp.2d 504. Cao on adverse effect limit had serious [Act’s] candidacy.”). his scope initiation of Plaintiffs contend limits Thus, arguing challenged in that the 441a(a)(2)(A)’s $5,000 limi contribution low, Plaintiffs unconstitutionally unconstitutionally low because it tation is demon- provide evidence have failed fulfilling political parties from prohibits federal strating preclude limits role in democratic re their historic “our amassing the effectively from candidates power the Plaintiffs offer public.” While necessary wage an effective resources support in position, ful rhetoric of this campaign.11 rhetoric. support does not As record the district Consequently, we find that found, during court the district finding not abuse court did its discretion raised cycle, parties the national election frivolous. question the Plaintiffs’ fourth in the elec money they than raised more cycles before effective date tion 3. parties when the were also able to BCRA certified Although the district court money, money that was not “soft” i.e. raise 8(c) 8(b) 8(a), to be it question found prohibitions subjeсt to limitation or Plaintiffs no frivolous. offer (District Court), Cao FECA. See that the authority in their to assert briefs Plaintiffs evi at 517.12 Because F.Supp.2d dismissing question erred in district court argument, support failed to their dence 8(b). appellant an fails to advance “When discretion in court did not abuse its district sup- body in the of its brief arguments (c) of the Plain concluding that subsection appeal, an we port of issue has raised eighth question is frivolous. tiffs’ such issues Justiss consider abandoned.” Co., Refining Inc. v. Oil Kerr-McGee Questions B. Certified Cir.1996). (5th F.3d Corp., 75 did not Having found district court Plaintiffs have Accordingly, we find the 8(b). finding the above its discretion in appeal question their abuse waived Quite $5,000 parties evidentiary preclude contrary, rec- limitation does not difficulty fulfilling funding cam- that Cao has no their ord reveals had roles in from amassing impressive resources an amount of federal As the district paigns of candidates. cycle, campaigns. During his the 2008 noted, cycle, election ”[i]n court the 2008 congressional Cao’s then-candidate supported candidates parties their federal $242,531. receipts of June had As contributions, $529,262 a total of $516,957 reported re- had in total he $31,256,379 expenditures, and in coordinated ceipts. $54,563,499 expenditures.” independent Court), (District F.Supp.2d at findings 12. The district court’s factual further support the district court's conclusion

421 frivolous, turn questions we now additional expenditures, and but $42,100 questions Party Expenditure certified the en banc court. mak- Provision so,

ing illegal it to do the RNC would have made expenditures. injury these This is conjectural, rather, not but sufficiently is The district court the first con- certified satisfy concrete to the requirements of stitutional as question follows: Article III. plaintiffs alleged Has each of the suffi- Moreover, the Plaintiffs’ alleged injury injury cient rights constitutional enu- fairly conduct, traceable to the FEC’s following questions merated in the it implementation is the FEC’s of the Act create a constitutional “case contro- regulations and its render Plain- versy” the'judicial power within of Arti- tiffs’ speech illegal. desired The Plaintiffs cle III? also satisfy Lujan’s requirement, third re- (District Court), F.Supp.2d Cao 688 at 504. dressability, ruling since favorable Supreme observed, theAs this en banc permit court would the Plain- § party seeking to “[a] invoke 437h must tiffs to make monetary further contribu- standing have to raise the constitutional tions carry their out desired coordinat- Ass’n, claim.” 453 Med. U.S. at California ed acts—without any fear that the requires 193 n. 101 S.Ct. 2712. This us regulate Government would their coordi- appellants to decide “whether have the nated expenditures pursuant to FECA. ‘personal stake outcome con Therefore, Plaintiffs have demonstrated troversy’ necessary to the require meet III sufficient Article standing bring III.” Buckley, ments of Art. U.S. at their constitutional claims. Carr, (quoting 96 S.Ct. 612 Baker v. 186, 204, S.Ct. L.Ed.2d (1962)). “Standing rеquires, a mini The mum, district court certified the fact, injury three elements: question third as follows: ‘fairly causal link between traceable’ conduct, injury and the defendant’s $5,000 Does the contribution limit at 2 injury that the will likelihood be ‘re 441a(a)(2)(A) § U.S.C. violate the First ” aby dressed favorable decision.’ Cadle rights plain- Amendment of one or more Neubauer, (5th Co. v. 562 F.3d political tiffs as to a in- party’s Cir.2009) (quoting Lujan v. kind and direct it contributions because Defenders of 555, 560-61, Wildlife, imposes the same limits on as on parties 2130, 119 (1992)). L.Ed.2d 351 political action committees? (District Court), at 504. F.Supp.2d case, present

In the the Plaintiffs First, their met Article III burden. In the question, third certified the Plain- 441a(a)(2)(A)’s complaint alleges injury an tiffs claim limitation concrete, hypothetical. complaint violates the First Amendment because that the all spent imposes establishes RNC of its the same contribution limitations $42,100 parties on Cao’s on political election as it does action (“PACs”). Party allotted under Expen committees The Plaintiffs raise $5,000 diture its arguments support proposi- Provision reached three of this Furthermore, first, contribution limit. tion: the com that the deci- Court’s plaint alleges during support the course of sions in Buckley Colorado I Cao’s campaign, parties’ political RNC wanted make notion that II, 455, at 121 S.Ct. higher degree protec- of Colorado U.S. speech deserves Thus, to extent that the Plain- the PACs; of political speech than tion the Buckley to that and attempt argue tiffs second, $5,000 limita- the contribution that support proposition I the that Colorado Randall; third, the and that tion violates the same place Government cannot Supreme decision Citizens Unit- Court’s polit- on restrictive contribution limitations — 876, FEC, -, 130 S.Ct. ed v. PACs, that on that places ical parties — L.Ed.2d-(2010), alter should is II— foreclosed Colorado limits analysis contribution FECA fully Supreme analysis Court’s where parties and PACs. places political supports the Government’s differential merit. arguments are without These political parties treatment of —because II First, recognized political what Colorado as misconstrue the the Plaintiffs corruption. to party’s unique susceptibility Buckley and Colorado principal holdings Buckley in both Although I. the Court Second, the Plaintiffs Randall misread acknowledged impor- they argue and I that the when Court’s decision political on the fact that PACs and political parties that turned tant historic role Randall, parties equally. were treated In this played the democratic election of struck the State of Ver- down officials, simulta- public the Court Nation’s requiring political Act 64 “that mont’s neously acknowledged pre- it is parties exactly abide the same low con- parties gives fill that political cise role that limits to con- apply tribution other compelling inter- rise to the Government’s tributors,” 548 U.S. at regulating expen- their coordinated est because the contribution limitations were Notably, ditures contributions. and seriously low” im- “suspiciously and would rejected effectively Colorado II Court pair parties’ ability effectively political to make, reasoning argument Plaintiffs now process. in the participate political Id. that: 257, 261, present 2479. In being Party’s arguments for treated case, impose “suspi- FECA does not from actors differently political other political par- on a ciously low” limitation subject political spend- to limitation on contribution, rather, ty’s affords a but Act .... ing pan under the do not out $5,000.13 limitation more reasonable In function reality, parties ... for the invali- Consequently, Court’s object entirely Act benefit of donors whose dation of 64 in Randall present constitutional place obligation, inapposite a fact candidates under challenge, support and therefore does not Indeed, parties escape. par- cannot 441a(a)(2)(A). challenge Plaintiffs’ power capacity ties’ concentrate apparently very capacity elect is the Third, we do not read Citizens United opens exploitation as channels them as how changing this court should evaluate circumventing coor- contribution and parties contribution limits on United, binding dinated on other spending limits held PACs. Citizens the Court political players. corporations and labor unions had combined, provided primary 13. The Randall Court two additional well as both finding general reasons first, Act unconstitutional: elections combined. See id. generous provided statute no 249, 259, state S.Ct. 2479. These factors party expen- additional limit for coordinated present noticeably absent from Plaintiffs’ ditures, second, each limit to all challenge. national, state, local affiliates make right under the First Amendment to While failure to index for inflation was 130 independent campaign expenditures. one reason Court struck down Ver- indepen- at This conclusion that S.Ct. 913. limitation, mont’s contribution the Randall be restricted dent Court failure reasoned to index “[a] political for since parties has been the rule means that already limits limits which are II, at Colorado I. Colorado See suspiciously low ... inevitably will almost (“[U]nder I, 455, 121 S.Ct. 2351 too low become over time.” 548 U.S. ability] has to political party had the [a 2479. The Court’s state- spend money support in of a candidate not, turn, in ment does mean that all con- spends without limit so it legal long as tribution limits not indexed for inflation independently. may spend A inde- automatically “suspiciously low” and pendently cent it can every raise wherever case, In present unconstitutional. shine, every it thinks its candidate will on $5,000 FECA’s limitation Thus, subject any viewpoint.”).14 441a(a)(2)(A) § is not to comparable Ver- Supreme decision in Unit- Court’s Citizens mont’s Consequently, limitation. $200$400 corporation’s right -regarding a ed— presented we are not with circumstances independent expenditures provides make — in which the failure to for index inflation is change analysis no reason to our with a coupled contribution limitation so validity of FECA the contribution limits low” that “suspiciously it warrants this places parties on For political and PACs. judicial supervision prevent court’s reasons, above we find from becoming limitation “too low over 441a(a)(2)(A)’s $5,000 § limi- contribution time.” tation is constitutional. The fact that the “closely Government’s drawn” contribution Furthermore, argument the Plaintiffs’ equally limitation applies both court should invalidate parties and is of no PACs constitutional 441a(a)(2)(A) § in based on its failure to moment. dex for inflation alone overlooks the Su preme Buckley, decision in where Court’s 3. recognized “Congress’ fail court The district certified the engage tuning ure to such fine does not question fourth follows: legislation.” Buckley, invalidate the $5,000 Does the limit at contribution long U.S. at 96 S.Ct. 612.15 So as the 441a(a)(2)(A) § facially U.S.C. violate can Government establish “that some limit one rights First Amendment necessary, a on contributions is court has adjusted plaintiffs more because it is not whether, $2,000 scalpel probe, say, no for inflation? $1,000.” might not ceiling serve as well as Court), at 504. F.Supp.2d omitted). {District (quotations Id. and citations As “particular does not possess this Court their fashioning $5,000 expertise” legislators attributable to who limit contribution is unconstitutional inflation, adjusted equipped empiri are “better to make such because it is not heavily opportunity cal rely judgments,” Plaintiffs on the we decline the any degree Court’s Randall v. of exacti decision Sorrell. “determine Notably, cycle, politi- noting 14. worth court in the election It is that no has ever $280,873,688 parties independent cal made invalidated contribution limitation based (District Court), expenditures. Cao solely its failure to index for inflation. F.Supp.2d at 518. Republican Committee necessary to National precise restriction tude princi- core objec long stood certain has legitimate carry out statute’s we are the funda- ples, which believe Randall, tives.” good government. When mentals taxes, to the issues of lower indi- comes 441a(a)(2)(A)’s Accordingly, we find strong national vidual freedoms and a $5,000 contribution limitation survives defense, we need who will stand leaders challenge present- Plaintiffs’ constitutional American defend people with the and question. fourth ed the certified issues. those need leaders who understand We III. recession, economy is in our indi- our constantly under at- freedoms vidual re only remaining question The global fight tack and we to continue The quires a more detailed discussion. our families keep war on terrorism to banc question certified to the en second safe. court asks: fights and Joseph Cao understands lim- expenditure Do the and contribution And, why those issues. that is we for 2in U.S.C. provision

its and contribution join him on you supporting to us in ask 441a(a)(23), 441a(a)(2)(A), §§ and It’s for Louisi- important December a(a)(7)(B)(i) Amend- violate the First important country. and ana rights [the] ment of one or more The RNC to coordinate Id. at 532. wanted com- as to coordinated plaintiffs to the “best campaign with the Cao as convey munications the basis Stipula- timing” for the Cao ad. See Joint expressed support? ¶ However, the RNC tion of Fact (District Court), F.Supp.2d at 504. Cao readily argument admitted at before oral the RNC’s question This arose out of 28(j) en banc court and letter to its spend to of the amount desire excess court, the Cao the RNC’s involvement with expendi- campaign allowed for coordinated coordination,16 amounted and campaign to Party Expenditure under the Provi- tures already entire spent the RNC had Particularly, to the RNC wanted sion. it was on coordi- spend amount allowed to its funds to run a radio advertise- expend under nated (hereinafter “the support ment Cao Therefore, the RNC concluded FECA. ad”). proposed ad said: Cao Cao that it could not coordinate with Cao run the violat- Support campaign to ad without Why We Cao Cao Absolutely. following place at Counsel: To exchange took oral Plaintiffs’ It is. 16. The timing it is consult with the it means that argument: Now, they rather coordinated. would Judge Davis: allowed the When the about, know, you happens talk what if to, on candidate consult the candidate candidate, know, you the ad and wrote timing, apparently all we know that's like gave party. it to the Well there’s no that's all because that's knowable being degree pregnant. either It's nothing place, why took is that not coor- .... coordinated not coordinated ... dinated response Plaintiffs' counsel further stated in Plaintiffs' Counsel: It is. question Judge that "... to a from Owen Judge regulations ... it Davis: under the argument is if it it doesn’t is our [0]ur probably independent. acknowledge would be ... We make ad, acknowledge they Plaintiffs' Counsel: It is. Cao [the FEC] ad, Judge why Davis: ... it not? that the coordinated.” court,20 Ultimately, only chose to and the ing argument FECA. RNC the RNC’s to air ad and expend its funds the Cao willing counsel was to make at oral argu- challenge to restric- brought this FECA’s ment before the en banc court. In re- expenditures. on tions sponse friendly questions from the en bench, banc the RNC’s counsel declined a court Because we are of error and us, parties opportunity argue it is that the level оf bring decide issues the identify the important at the outset involvement between the RNC and the certified RNC’s sole with respect candidate to the Cao ad did States, See Sherman United question. broadly not amount coordination. More 2 L.Ed.2d stated, counsel for the RNC refused to (1958) (“We ordinarily do not decide adopt position level of coordi- ”). .... presented parties issues not nation affect an expendi- should whether only argues argues The RNC Instead, regulated. ture counsel 441a(a)(2)(A), 441a(d)(2)(3), §§ and steadfastly proposed insisted that the ex- 441a(a)(7)(B)(i) violate its First Amend- penditure was and that his regu- rights provisions ment because the argument Congress sole was that could not “own The RNC speech.” late the RNCs regulate speech.” the RNC’s “own For speech that own not be may asserts its exchange the example, following occurred regulated, of regardless whether argument: at oral speech speech” is coordinated.17 “Own is Jolly: ... own Judge argument [Y]our that by speech defined the RNC as is your that as is long speech, is as it “attributable” to the and includes RNC there are no further concerns about it. speech the writes decides candidate and ... that Is how to be speech is disseminated. Plaintiffs’ Counsel: That is correct. words, argues speech other the RNC that But, hand, Jolly: other Judge you on the it it adopts is attributed to and therefore you if have admitted also that run it exempt regulation regardless from becomes, it it you and run so often extent of with candidate. coordination so much such degree and and with issue, respect With to this certified coordination that it becomes their speech” argument only is the broad “own speech. in com- argument the RNC raised its No, degree Plaintiffs’ Counsel: plaint,18 only argument the district addressed,19 affect only court coordination does not whose argument banc speech RNC raised its briefs to the en is at all. content, media, Presumably apply this would as to details such as and entity’s others, any person’s speech.” “own timing was received from such as a consultants, writers, script party's poll- media Complaint, 18. See Second Amended officials, sters, allies, ideological constituency, 83-85. (footnote omitted). and candidates.” Id. at 16 entity belongs pays that “Attribution (District Court), F.Supp.2d See Cao adopts speech.” Id. "Cao Ad is and 539-42. clearly speech own it would RNC's because Plaintiffs-Appellants

20. See Brief at 11-25. be attributable to RNC and bear disclaimer this “[in Plaintiffs’ state their brief that paid that ad.” Id. showing RNC for the at 17. Plaintiffs-Appellants question], certified chal- speech” argument argu- is the sole This "own lenged party’s may speech’ 'own whether banc ment Plaintiffs make to the en court on “Apoliti- deemed a Id. at 11. contribution.” this issue. speech’ party's speеch cal is 'own it, input speech attributable even if on the 608(b)’s rather ceilings contribution words, can tion you sit In other Jolly: Judge 608(e)(l)’s expendi- independent § them the de- than with and discuss down ads, to cir- fifty attempts and prevent limitation of coordination ture gree that ad and keep running through prearranged you can the Act cumvent time, it, and ad on their running amounting expenditures or coordinated ads, a number of running contrast, you By contributions. disguised notwith- your speech it still is 608(e)(1) for ex- expenditures limits of coordi- degree “Nth” standing the made total- advocacy of candidates press running them? you nation the candidate independently of ly There right. contributions, That’s Plaintiffs’ Counsel: campaign. Unlike his pregnant. being degree no well independent such either or not. You’re to the candi- little assistance provide may prove and indeed date’s unambiguously reflects record Thus the pre- The absence counterproductive. case challenge the RNC’s sole of an ex- whether and coordination arrangement the Cao ad is regard to with his own the candidate or may regulate party’s Congress penditure paid that is the value of meaning undermines speech, agent re- party candidate, adopted but expenditure candi- with the expendi- of coordination gardless danger also alleviates only that ar- therefore examine quo date. for given quid pro We tures will be as gument. the candi- from improper commitments date. Plaintiffs’ merit of the

To evaluate the re- argument, we speech” “own expansive (footnote 46^47, omit- 96 S.Ct. Id. Valeo, the first case Buckley turn ted). Thus, Buckley concluded Court expenditures under coordinated discuss reg- unable to although Congress was that Buckley, Court In FECA. independent expendi- individuals’ ulate alia, examined, then-18 U.S.C. inter tures, regulate individuals’ Congress could 608(e)(1) limited individuals’ abili- § which expenditures. coordinated expenditures.21 independent make ty to analysis embracing its Building on The Gov- 96 S.Ct. 612. I and Buckley, the in Colorado Court re- Congress that could argued ernment the limita- II further examined Colorado because expenditures independent strict independent ex- coordinated and to tions on could be used independent expenditures political parties. penditures The Buck- contribution limits. circumvent I, Republican argu- In the Colorado rejected the Colorado ley Government’s Court (“CRP”) chal- brought as-applied an expen- Party finding independent In ment. Party Expenditure Provision regulated, lenge the Court to the could not be ditures 608(e)(1) 608(b), indepen- restricting party’s § § arguing with compared coor- unconstitutional. regulated expenditures expenditures was provision dent Buckley Buck- a candidate. The I followed the dinated with Court The Colorado found that “the constitu- ley Court stated: rationale and ... the lack of tionally significant fact expendi- or coordinated ... [CJontrolled the candidate and between rather coordination contributions tures are treated as expenditure.” the Act. Sec- the source expenditures than under 608(e)(1) replaced terms, 608(e)(1) repealed and § has been apply to By did not its § 441a. provisions in 2 U.S.C. Buckley, with similar political parties. Since national I, 518 U.S. at found that “a party’s expendi- coordinated holding tures, indepen- the restraint on an expenditures unlike truly indepen- unconstitutional, expenditure dent, dent was be restricted to minimize cir- distinguished between coordinated cumvention of contribution limits.” 533 expenditures and independent expendi- U.S. at 121 S.Ct. 2351. In examining tures, stating: whether could be restricted, the Court applied the

... interme- Court’s cases [T]he have found a scrutiny diate standard announced in “fundamental constitutional difference Buckley: the restriction closely must be money between spent to advertise one’s drawn to match a important government independently views of the candidate’s interest. Id. at 121 S.Ct. 2351. The money contributed to the Court found that Congress regulate could spent candidate to be campaign.” on his coordinated expenditures as ... contributions [Reasonable contribution limits di- because of sufficiently important gov- rectly materially advance the Gov- ernmental interest in preventing po- ernment’s interest in preventing ex- tential political corruption by circum- changes large financial contributions vention of campaign finance laws. Id. at favors. 459-60, 121 S.Ct. 2351. The Court stated: ... independent [Limitations ex- There is no significant penditures directly are less functional differ- related to party’s ence between a preventing corruption, since “the ab- coordinated ex- penditure and a prearrangement sence of direct and coordina- contribu- candidate, tion to the expenditure good tion of an and there is the candi- reason expect ... that a party’s right date undermines the value candidate, unlimited coordinated expenditure spending would but attract also increased danger parties alleviates the contributions to expendi- to finance exactly tures will that kind of given quid spending. be as a pro quo for Coordinated improper expenditures of money commitments from do- the candi- nated to a date.” are tailor-made to un- dermine contribution limits. Therefore (citations 614-16, at Id. 116 S.Ct. 2309 not, the choice Buckley here is as in omitted). Thus, the I Colorado I, Colorado between a limit pure Party found that Expenditure Provi- pure expenditures. contributions and sion was applied unconstitutional as to the The choiсe is between limiting contribu- independent expenditures. CRP’s tions and limiting expenditures whose I, In Colorado the CRP also raised a special expenditures value as is also the facial challenge application of the power source of their to corrupt. Con- Party Expenditure Provision to coordinat- gress is entitled to its choice. expenditures. ed Id. at 116 S.Ct. (footnotes Id. at 121 S.Ct. 2351 2309. The I Colorado Court remanded omitted). challenge this facial because the lower courts had not considered the issue. at Though Id. II unambig- Colorado Court 625, 116 S.Ct. 2309. The uously remanded issue found the application Party of the of whether Congress could restrict Expenditure coordi- Provision to coordinated ex- expenditures nated reached Supreme penditures constitutional, facially years Court five later as Colorado II. Af- argue Plaintiffs express- “Colorado II ter analyzing precedents its in Buckley ly open left the as-applied question of I, and Colorado the Colorado II Court parties’ speech may whether own be limit- challenge Party Expenditure Provi- Plaintiffs-Appel- as contributions.” ed omitted). (footnote This application spending, to coordinated lants’ Brief sion’s in the is on a footnote in case argument arguments based the facts and the instant majority opinion II that states: present ques- of Colorado court do with characterization, Acceptance of the Plaintiffs’ “own tion.

Whether different effectively evis- scrutiny, speech” would type of and hence a different holding an cerate Court’s Col- in the context of appropriate could be II, coordinat- applica- orado which dealt with as-applied challenge focused on specific expenditures expenditures. ed The Court tion of limit to that, expressly recognized Congress as THOM- II has question is a JUSTICE notes, expendi- not reach in this coordinated power regulate AS need we facial challenge. tures order to combat circumvention of political corrup- the contribution limits Party that even appears argue

The (majority Id. at tion. Party if the Provision Expenditure (‘We opinion) accordingly apply par- to a justified to coordinated ex- regard ty’s spending limitation the to no more than penditures that amount bills, scrutiny lim- same we have to the other of the candidate’s payment actors, is, scrutiny appropri- facially invalid of its itation is because limit, enquiring expenditures ate for contribution potential application ‘closely own ‍​​​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​‌​‌​‌​​​‌​​‌​‌‌‌​‌‌​​​​​‌‍party’s involve more whether restriction drawn’ Party tell us speech. But the does not to match what as the recognized we spending ‘sufficiently falls propoi'tion important’ government what inter- other, category political corruption.”). one or the or otherwise in combating est lay groundwork for its facial over- II The Colorado Court stated: breadth claim. question experi- ... is whether [T]he present ence under the law confirms a 456 n. 121 S.Ct. 2351 (citations omitted). unlimit- further serious threat of abuse from the Plaintiffs dissent, party spending in which ed coordinated rely on Justice Thomas’ clearly contends. It Government does. he states: Despite years of enforcement defined To the extent the Court has not limits, challenged substantial evidence the universe of coordinated candidates, donors, demonstrates how possibility and leaves the that open parties test the limits of the current expenditures there are such that would law, beyond and it shows serious doubt functionally not be identical to direct limits how contribution would be eroded contributions, constitutionality the if inducement to circumvent them were Party Expenditure Provision as declaring by parties’ enhanced coordi- to such remains unre- open. spending nated wide argument, solved. At oral the Govern- appeared suggest Party ment that (citation at Id. S.Ct. reach Expenditure might Provision not omitted). footnote functionally expenditures that Plain- accept If this court were to identical contributions. exceedingly argument, tiffs’ broad we (Thomas, J., 2,n. at 469 Id S.Ct. reaching be a conclusion inconsis- would dissenting). teaching tent with II Court’s Colorado

Assuming expenditures may II that be re- the Colorado coordinated open as-applied argument for an RNC’s possibility left stricted. The sole throughout has been there is no limit donors to contribute the RNC.” Cao (District Congress Court), cannot regulate to its claim that F.Supp.2d at 526. party’s regardless own speech Representative Cao confirmed in depo- his degree of coordination with the candidate. sition this by behavior the RNC. “Con- succinctly The district court identified the gressman personally Cao has suggested to “Plaintiffs claim that argument: Plaintiffs’ given donors who had the maximum party communication coordinated dis- amount to they his could paid by party closed as is the party.” also contribute to the Id. Fur- if party’s speech’ ‘own even a candidate thermore, the district court found that indicates in the communication that he has party “the has donor list” with [its] shared (District message.” approved the candidates, its federal shar- “[t]he Court), Moreover, at 531. F.Supp.2d ing of happens information also in the party claim “Plaintiffs coordinated other party] since the receives direction^ having communication disclosed as been information from federal candidates about paid is the by party party’s ‘own who has contributed to their campaigns.” if or her cam- speech’ even the candidate Id. 523. The court district also found paign actually creates communication that “the organizes RNC ‘fulfillment’ along party.” Id. at passes events to which individuals who have made Thus, standard, under the Plaintiffs’ large contribution of a speci- RNC all expenditures paid for and fied amount are so that they invited” can adopted party would be considered special have access to federal lawmakers.23 subject a party’s own and not to Id. The Colorado II Court warned that above, restriction.22 As demonstrated spending “[i]f effectiveness Court, Colorado II as well as the Court’s could be enhanced limitless coordina- cases, clearly earlier held that coordinated tion, the ties of straitened candidates to expenditures may prevent restricted to prosperous and, vicariously, large ones corruption. circumvention and donors as well.” would be reinforced Colo- II, II We find the Court’s concern rado 533 U.S. at 460 n. important 2351. The corruption particularly above facts demonstrate the

since, case, present potential corruption in the and abuse that con- Plaintiffs they already admit that cerned Colorado II. Id. themselves At the en banc steps argument, taken to circumvent the Act’s indi- 2351. oral court gave every vidual donor limits. The counsel to address opportunity contribution dis- trict the concern that Plaintiffs’ “[t]he court found that RNC encour- ages its candidates to tell their ‘maxed out’ conflicts with the Court’s control- 22. stated that The RNC has created tiers of donors with "[t]he district court specified on levels of annual benefits based type party-coordinated communication that giving: example, give donors who For plaintiffs party’s speech’ a believe is not 'own $15,000 luncheons, din- receive intimate may constitutionally and therefore limited ners, key policymakers; meetings campaign is one that a airs and for which the $30,400 enjoy give exclusive donors who Cao, party merely pays the bill.” 688 private Republican with elected functions However, F.Supp.2d at 531. under Plaintiffs' leaders; raising who commit to donors argument type of even this communication $60,800 receive at one ... exclusive least party’s speech would be own if considered the during year, as well as other inti- event the party adopted the ad as its own. the key policymakers. mate events with GOP (District Court), F.Supp.2d at 523 following: the The district court found omitted). (internal quotation marks eral, plaintiff successfully bring Plaintiffs’ ling response, cannot precedent.24 statutory challenge as-applied challenge pro that the was an counsel reiterated on factual and challenge, legal an Colorado vision based the same as-applied whereas II, аrguments expressly the Court challenge. II the a facial Colorado was assert, rejecting when a facial considered chal open possibility left the Plaintiffs provision. Doing is lenge to that so not so as-applied challenge. their it as-applied challenge much an as an open certainly Colorado II left argument overruling precedent.”), as-applied challenge the for an possibility —FEC, U.S.-, aff'd, RNC v. summ. it Party Expenditure Provision as the — - (2010). 130 S.Ct. L.Ed.2d it applies expenditures; to coordinated the argument raised Plaintiffs upholding that the facial well-established sufficiently this case rests not on a devel prevent as-applied not future a law does rather, record, factual on oped but Life, challenges. E.g., Right to Wisconsin general rejected by principles same FEC, 410, 411-12, Inc. v. U.S. II, namely Court Colorado broad (2006) (holding S.Ct. 163 L.Ed.2d 990 position expenditures coordinated plaintiff bring as-applied that the could an regulated.25 Finding not be for the up challenge despite BORA Court would to hold require Plaintiffs us face). However, holding the statute its expendi cannot Congress party’s limit a characterizing an simply challenge ad, on a tures content of challenge it one. as-applied does make regardless adopts, which rejection challenge of a facial to a “While degree of coordination with candid preclude as-applied not statute does all ate.26 Because a conclusion such would attacks, surely precludes resting it one effectually overrule all restrictions on coor upon principle the same of law.” asserted expenditures, dinated the RNC’s 302, 354, Penry Lynaugh, 492 light fail in II. must of Colorado (1989) (Scalia, 106 L.Ed.2d 256 J., FEC, dissenting). argue See also RNC v. The Plaintiffs further (D.D.C.2010) (“In gen- recent F.Supp.2d Court’s decision Citizens United Judge questioned simply government 24. Chief Jones RNC’s coun- because the claims it is. regard: sel in this She "This bound writes: court is not government's simply labeling speech always very has often said [T]he simply agency’s .... "well, 'coordinated' 'An call- are differ- independent ing expenditure an they "coordinat- ent.” Now haven't delineated the line coordination, (for expenditure” but ed between cannot constitutional " you trying pretty me are much seems to purposes) make it Jones one.’ Dissent at thing I, shatter that barrier. And the second (quoting Colorado is, I would Colorado have been decided 2309). note, enough. We True way you if the Court had advocate however, relying we gov- on the accepted your position. So what has ernment’s claim Ad is that the Cao coordinat- changed since Colorado I? ed, rather, place but we reliance our on the the extent Plaintiffs' admissions as to of the Complaint 25. The Plaintiffs' Second Amended labeling of coordination аnd Plaintiffs' their merely concern an raises further that this is 28(j) Notably, own claim. in their Rule letter attempt to overturn II because the court, again once Plaintiffs con- chiefly rely Plaintiffs on the rationale proposed firmed that the Cao Ad amounted to dissenting opinion. Colorado II See Second ad, specific provides coordination: "RNC a Complaint, Amended 83-85. candidate, specific coordinating specific and (timing, posits detail as to coordination nature with Judge Jones we conclude Chief 26. awareness).” expenditure the Cao Ad is a "coordinated” content $529,262 in in signaled change contributions, has the law this in $31,256,379 in Undoubtedly, area. Citizens United al- expenditures, $54,563,499 coordinated and legal landscape respect tered the with to in independent expenditures.” at Id. 517. unions, corporations and labor because the Thus, Party Expenditure Provision Supreme Court held that these entities hardly amounts to a ban on speech. free independent campaign expendi- make Instead, cap the Act’s on coordinated ex- tures Congressional free of limitations. penditures price seems small to pay to However, See 130 S.Ct. at 913. we preserve “the integrity system of our earlier, discussed Court’s de- representative democracy.” Buckley, 424 bearing cision Citizens United has no at Congress power whether has the to re- speech” Plaintiffs’ “own argument political parties’ strict expen- coordinated cannot be reconciled with II. As only ditures. Citizens United addresses such, we find that the expenditure and independent expenditures simply does contribution limits provi- and contribution expenditures. address coordinated 441a(a)(2)(3), §§ sion U.S.C. Regardless, holding of Citizens Unit- 441a(a)(2)(A), 441a(a)(7)(B)(I) do not independent ed—’that the restrictions on violate the First rights Amendment of one expenditures corporations and labor un- or more of the Plaintiffs as ions violated the First Amendment —is en- coordinated convey communications that tirely consistent with the Court’s decision party’s the basis for the expressed sup- I, in Colorado in which the Court held that port. Congress not regulate indepen- could expenditures dent of a party. See Colora- IV. I, do 116 S.Ct. 2309.

Thus, stated, previously as we have there The principal disagreement we have is no reason for us to conclude Citi- with the dissents is over scope zens United undermines Colorado ITs respect Plaintiffs’ holding Congress can regulate par- constitutionality of contribution restric- ty’s expenditures.27 expenditures. tions relative to coordinated record, Based on the briefs oral argu-

The Plaintiffs have offered much rheto- ment, explained we have why above we regarding Party ric Expenditure Pro- only conclude that the pre- issue Plaintiffs “suppression” speech, yet vision’s of their sented to us decision is whether the as the district court noted its factual speech” subject regula- RNC’s “own findings, “party committees like the RNC tion and restriction under rarely legal reach their limit FECA. As we for coordinat- dissent, read expenditures Judge ed in a Chief Jones’s she particular House or (District Court), agrees ques- Senate race.” that Colorado II Cao answers this F.Supp.2d Overall, regulation tion and 520.28 authorizes of RNC’s “[i]n cycle, major speech generally. election own Judge national Chief (RNC DNC) committees supported principal argument Jones’s that Plain- their federal candidates with a total of tiffs also presented for decision whether FEC, F.Supp.2d 27. See "Although also RNC at 153 there are at least 468 federal cycle, Republican (noting elections each committees United did not disturb Citizens reached the maximum amount of coordinated prior decisions found limits on contribu- congressional seven constitutional). political parties tions to to be races in and in two races in 2006.” (District Court), F.Supp.2d at 520. Brief). however, Plaintiffs, make no constitutionally expen- Reply restrict Act can involved this for the Cao Ad argument ditures that coordination of Cao Ad be- content) that ad was coordinated case when (with timing plus knowledge of is as to and the candidate the RNC tween this is the Notably, only de minimis. only.” “timing referring to “de minimis” coordi- passage above, position outlined in either of Contrary to nation Plaintiffs’ briefs. That asserts first Judge Jones’s dissent Chief never to make the Plaintiffs intended de latter “nar- that the Plaintiffs raised this argument supported by minimis is further this support To issue its brief. row” (as below) fact we will discuss assertion, on two Judge relies Chief Jones repeatedly an intent counsel disclaimed to First, she re- in Plaintiffs’ briefs. sources narrow appeal. raise this issue on Stipulation recitations Joint lies on accept argument ¶ Even if we that the intends Fact which states that “RNC reply raised properly Ad with Jo- Plaintiffs’ brief this coordinate the RNC Cao to Ad, timing consideration, for the seph Cao as best clear to for our is us issue coordi- but the Ad not be otherwise would argument that counsel Plaintiffs at oral stipu- The of a with Cao.” recitation nated quoted this abandoned issue. We an issue on present of fact does not lation length persistent above counsel’s disclaim- only passage appeal. other fact that relying ers that he is on the Judge re- Plaintiffs’ briefs the Chief coordination between the candidate and her Plaintiffs support on to view that lies was de He minimis. consistent- appeal present this as an issue wish ly argues speech once the is deter- reply in the brief. in a footnote Plaintiffs’ is party’s speech,” to be the mined “own then clear in circuit that we do The law is speech on that regulation restrictions arguments made for the first not consider responses giv- unconstitutional. All of the appellant’s reply in an brief. Woods time questions counsel to from the en court (5th Johnson, n. 24 v. 75 F.3d that he disclaiming making this narrow Cir.1996) (“[W]e do not consider issues cannot explained agreeing brief.”); reply for the first in a raised time may that the Cao Ad amount to coordina- Co., v. State Mt. Auto Ins. Cavallini Farm failing the regulation tion under but (5th Cir.1995); 260 n. 9 see F.3d that the amounts to concede Cao Ad coor- Connick, 1338, 1345 also Cinel v. 15 F.3d purposes of our constitutional dination (5th Cir.1994) (“A party inadequately who analysis of claim. See Jones Plaintiffs’ briefs an issue is to have aban- considered claim.”) at 438 n. 5. Dissent (citing doned Villanueva (5th Cos., Ins. 687 n. 5 CNA F.2d if Even we further consider Plain- Cir.1989)). Moreover, read this foot- we argu- made and did tiffs not abandon explain an attempt note as Plaintiffs ment the coordination between the question open, II left legal minimis, and the party candidate was de particularly Justice Thomas’ view of stipulation on the and admission based which in his open question he articulated counsel the coordination cannot be consid- that Colorado passage edge hours, of the Cao Ad’s content.29 Plaintiffs’ infrequently during off or perhaps repeated counsel expressly this concession not at all. degree This of coordination of supplemental 28(j) in a Rule letter filed campaign expenditures contrasts sharply after oral argument stating with the court with the Supreme Court’s functional defi- ad, provides specific specif- that “RNC nition independent expenditures. candidate, ic coordinating specific de- Whereas the explained has tail as to coordination nature (timing, independent that an expenditure repre- awareness).” (emphasis with content add- senting party’s own may views at times ed).30 These against interests,32 concessions counsel are work the candidate’s allegations consistent with the of the Plain- timing-plus-content-awareness coordina- tiffs’ Complaint, may Second Amended which tion party’s ensure that a message Ad, specific recites the text of the virtually always Cao works the candidate’s necessarily indicating that Plaintiffs in- favor.33 Buckley, See 424 U.S. at provide 612; II, tended to Cao with advance knowl- S.Ct.

edge of the Cao Ad’s content. Second 121 See S.Ct. 2351. ¶ Amended 44.31 Complaint For these reasons we agree cannot with This “content stipulation Judge awareness” has Chief Jones’s conclusion that “there significance completely the dissents is no functional difference between the Cao instance, given overlook. For constitutionally advance Ad and a protected inde- content, knowledge pendent of the Cаo Ad’s if expenditure.” Cao Jones Dissent at approved above, of the content and found it favor- explained 445. As we have knowl- campaign, may able to his he have told or edge plus of content timing coordination requested the RNC to run the ad huge fre- makes a difference relative to the quently during prime disap- hours. If Cao benefit of the ad to the candidate that the proved of the Cao Ad’s content and found dissent recognize namely, fails to — campaign, unfavorable his he ability candidate’s to direct approved con- requested told or to run it tent for impact maximum and redirect dis- Owen, Upon questioning by Judge experience counsel 32. Cao’s previous with the RNC’s facts, part stated “I think that is independent expenditures confirms this dis- said,” they again knew what the Cao Ad tinction. He testified that some of the RNC's knowledge "part confirmed that content prior independent expenditures harmed his pattern.” the fact Deposition election chances. of Anh "Jo- ("Cao (FEC seph” Dep.”) Cao at 42 Exh. 4 to supplemental 30. FEC own counsel's Rule Fact). Proposed Findings of 28(j) correctly to the court letter observed that the admission Plaintiffs’ counsel at oral 33. This is consistent with Cao's understand- argument "clarified for the first time that Cao ing of the nature of the intended coordina- only planned timing, as to coordinate deposition, tion. At he testified as to the but also would be aware of the content following: advertisement.” I would like to know the contents of those appearing 31. The full text of the Cao Ad in the ads .... And so if we were allowed to Complaint appears Second Amended also them, ¶ coordinate it with I would have loved Complaint 43 of Plaintiffs’ First Amended fundings 4, 2008, support to have their and their days filed December two before the Thus, basically and—and to how the coordinate election. Cao knew of the Cao Ad’s election, ads should be read or—what the ads days content at should least two before the say. immediately granted What our we want if relief had been focus—what place coordination would have taken focus on. his knowledge Dep. of the Cao Ad’s content. at 42. inferences to the evidence impact give on reasonable for minimum content approved Plain And it is the produced. that was campaign.34 his of as-applied challenge in an tiffs’ burden activity, more- of coordinated type This upon the facts produce this nature to over, corruption the same implicates challenge. Khachatu which he bases his II concerns of circumvention rian, words, In other 980 F.2d at 331. above, is the court discussed Court. As injunction in an as- seeking an plaintiff Plaintiffs’ ad- with particularly concerned generally has the burden applied challenge already they taken missions to enough for the Court allege to facts individual the Act’s steps to circumvent avoid the constitutional claim while decide Furthermore, limits. donor contribution “ interpretation of stat ing ‘premature dissent, if Cao Judge quote to Clement’s ” conjecture requiring speculation utes’ its con- provide input on were asked “to “ ” Mi ‘factually on a barebones record.’ to provide to his consent tent” or “asked lavetz, Milavetz, P.A. v. Gallop & United ... that would indeed raise run the ad — U.S.-, 1324, 1344, States, 130 S.Ct. attempting were suspicion parties that the (2010) (Thomas, J., concur 176 L.Ed.2d against rules coordina- to circumvent the concurring judg in the ring part pay could the bill tion so that the RNC ment) Washington Grange State (quoting coordi- at which the Cao’s evil —the Party, Washington Republican State are aimed.” Clement Dissent nation rules 442, 450, 1184, 170 128 S.Ct. that is exactly is the scenario at 452. This (2008)). L.Ed.2d 151 Court timing by the coordination contemplated such chal “generally disapprove^] content the addition of advance with to determine lenges.” Id. “When forced awareness, to both dissents refuse which constitutionality of a statute based Therefore, based on what acknowledge. solely conjecture, uphold we will on such proposed extent of the we know of the manner any the law if there is ‘conceivable’ record, it is rea- coordination on this scant it can consistent with which be enforced infer that the coordination sonable to Amendment.” Id. at 1345.35 First the candidate and the Cao Ad between timing to with the candidate’s party as sum, we are satisfied that the content prior knowledge of the of ad’s not de minimis coordination issue was expendi- would amount to a coordinated In presented to the court for decision. subject ture to restriction under Colorado deed, strange we find it that the dissents II. argument take an not made the district court, appeal presented facts as to nor us In the absence of additional —and coordination, wholly all disavowed Plaintiffs’ counsel actual extent of the attempt obligation during oral is left with is —and especially in the context of the "content awareness” This true 34. Consideration of Id.; as-applied pre-enforcement action. see allegations demonstrates element of Plaintiffs’ - Project, Law also Holder v. Humanitarian U.S.-, conclusions, many the error in of the dissents' 2705, 2722, 177 L.Ed.2d including Judge Chief Jones’s assertions (2010) (Denying pre-enforcement as- cam- no evidence that he or his "[t]here challenge First Amendment paign provided on its con- ... their views support provisions federal anti- material tent,” that candidate will not know "[t]he plaintiffs pro- terrorism law because did not effective,” and that "[c]on- whether the ad is degree any "spеcific vide articulation of tent, however, is not at issue in this case.” they their advoca- which seek to coordinate 438, 445, Dissent at Jones cy.”). it like a Phoenix from standing raise the ashes. to bring Second, their claims. 441a(a)(2)(A)’s $5,000 However, comprised as a court of Article contribution limit is constitutional though even it imposes the judges, III our role is not argu- to create same parties limits on as on PACs and is rather, adjudication ments for our —but adjusted Third, inflation. adjudicate arguments role is to those 441a(a)(2)(3), §§ 441a(a)(2)(A), Thus, presented. which we are we should 441a(a)(7)(B)(i) are not unconstitutional as decline the dissents’ invitation to serve as applied to the Moreover, Plaintiffs. we advocates for the Plaintiffs and arbiters of find that the district court did not abuse Nonetheless, engendered our own claims. its discretion in dismissing the frivolous completeness, for the sake of if even Accordingly, claims. we remand this case court were to conclude that this issue was to the district court for entry judgment presented, it clear to that an expendi- us consistent with opinion. this ture for an advocating ad the election of timing, the candidate coordinated as to JOLLY, E. GRADY Judge, Circuit knowledge when the candidate has in concurring result: ad, content of the amounts to a coordinat- I concur in the by result reached expenditure may ed that be constitutional- majority I agree because that it reflects ly regulated under II. Colorado the more way accurate and realistic disagree position We also with the advo- case has been presented for decision. Judges Judge cated Chief Jones and There is much in to admire Chief Judge dissent, Jones’s if agreed I analysis Clement that the applies WRTL question she addresses was the WRTL, to this case. In the Court consid- plaintiffs actually were presenting for government ered whether the regu- could decision, I would concur in her opinion. late an independent expenditure under Judge Clement has clearly written but payment 203 of BCRA for of an “issue view, broadly. my merely she does not advocacy” ad. 551 U.S. at 127 S.Ct. challenge the express provisions statute’s question 2652. No was raised the ad effectively Party bar a from coordi- was coordinated with the candidate. The nating its efforts with campaign of a applied scrutiny strict to the statute candidate, but also the Court’s and held that BCRA as to this ad ruling essentially upholds provi- this pass did not constitutional muster. This Both she and Judge sion. Chief Jones holding is not inconsistent Buckley, with ultimately may But, my be correct. I, II, and Colorado all of which opinion, today. make it clear that strict scrutiny applies to regulation independent expenditures JONES, EDITH H. Judge, Chief political speech.36 SMITH, E. EDITH JERRY BROWN

CLEMENT, JENNIFER WALKER V. HAYNES, Judges, ELROD and Circuit concurring part dissenting part: reasons, foregoing For the we answer questions certified to the en banc court object The first of the First Amendment First, as follows. protect Plaintiffs do have is to robust debate that WRTL, WRTL, 36. Under it is clear that the Ad is Cao See 551 U.S. at 127 S.Ct. 2652. express advocacy Additionally, an ad. The Ad affirma- the Plaintiffs' themselves charac- tively join specific express asks the reader to terize the Cao Ad as "a advo- supporting day. cacy Cao on election This meets communication that RNC intends to requirements express advocacy Stipulation of an ad. make ...." Joint of Facts V31. boundary the outer ability govern dispute touches citizens’ underpins free authority. The agency’s regulatory mecha is an essential “Speech ourselves. adjudication is path to usual of constitutional democracy, for it is the means nism of and to to consider the fact-based issue people first hold officials accountable questions reach broader constitutional has its fullest .... The First Amendment Citi- they inescapably presented. ut if urgent application and most (Roberts, United, at 918 political of zens 130 S.Ct. during tered —FEC, C.J., majority stand this concurring). United fice.” Citizens 876, 898,-L.Ed.2d- head. -1, tradition on its (internal (2010) quotations citations and Substantively, majority analysis, omitted). majority hold that Con Yet the ulti- premises, flawed its overbroad political party from gress forbid mately begs primary question before broadcasting explaining an advertisement “coordination” be- point us—at what does why supports congres its party the own political party a tween a candidate and merely the adver sional candidate because party’s transform the communicative with the candi was coordinated tisement subject into a mere “contribution” speech timing. date as question This was to strict dollar limits? by Supreme FEC v. open The Ad cannot be left the Court. We dissent. Cao Campaign Republican the FEC on the facts before Colorado Fed. suppressed Comm., 431, 456, 17, n. 533 U.S. S.Ct. us.1 (2001) 2351, 17, n. L.Ed.2d 461 majority’s as procedural The errors are (“Colorado II”). In light subsequent a Taking well as substantive. most unor- decisions, Supreme Court courts must be- approach to First Amendment ad- thodox it.2 gin to deal with judication, they assert that the “sole” issue may majority join fail to issue Congress the court is “whether Because the before facts, can- speech, meaning stipulated opinion with the their regulate party’s own party against party’s as-applied the not defend the paid that is 441a(d)(2), (3), §§ to 2 adopted by party regardless challenge the of coordi- U.S.C. (a)(2)(A). not the But for the issue of “coordi- nation with the candidate.” This is as to its broad- clearly presents issue. The record nation” the candidate “sole” cast, controversy' timing-only speech by coor- the Cao Ad would be the a narrower — fully by the Amend- majority оpinion ignores protected The the RNC First dination. argument presenting Right ment. FEC v. Wisconsin stipulated facts Cf. Inc., 449, 467, just Life, it the dispute ignores the Ad as Cao (2007) n. concession in oral 168 L.Ed.2d 329 FEC’s majority agree- 1. While this dissent considers the narrow is- The “reads” this dissent ing regulation that Colorado II “authorizes timing-only of a sue whether coordination speech generally.” own Not so. We RNC’s party's campaign speech with the acknowledge expen- read Colorado II to may prohibited by supports be candidate ditures coordinated between and a FECA, Judge opinion Clement’s carries range along spectrum federal candidate implications Supreme of recent Court de- expressiveness less-“expressive” party dona- — protect political party cisions further copying equipment clearly fall with- tions like “speech equivalent that is not functional expenditure limits. More in the coordinated ap- of a contribution.” Our expressive support by party, forms of harmonious, reflecting proaches are different however, enjoy stronger protec- constitutional generality. levels of The FEC admitted that the Cao Ad tion. itself along expressive spectrum lies side of United, (“WRTU’); particular regulated Citizens 180 S.Ct. at ad can be as a defacto as-applied challenge, In this 908-10. though contribution even the coordination had the burden to show that government regarded solely timing of its broad- expressive minimally but cast.4 speech may subjected to the strict lim- important It is just to stress mini- how monetary its reserved contributions. mal was the level of coordination. When WRTL, 551 U.S. at 127 S.Ct. at 2665 interpreted Court has conclude, performing n. 4. I after term expenditures,” “coordinated it de- necessary analysis, government spectrum, scribed a at one end of which infringe party’s right speak political parties would simply foot the can- in this manner. II, didate’s bills. Colorado 533 U.S. at foregoing propositions The are elaborat- 439, 460, 2368. The First, steps. I ed three will restate the present scenario stands at the other end. narrower, obvious, fact-based chal- Republican Party sought to broadcast Second, lenge presented was to the court. supporting Congressman this ad Cao be- according to well precedent, settled fore the 2008 election: ought narrower issue to be decided. Why Support We Third, as-applied challenge I address the merits, on its the placing burden on the Republican The National Committee has government.3 long principles, stood for certain core which we believe are the fundamentals I. A Challenge Narrow Fact-Based Is of good government. to When comes The Court Before taxes, the issues of lower individual free- majority The state that “the record un- defense, doms a strong and national we ambiguously reflects that the RNC’s sole need leaders who will stand with the in challenge regards this case with people American and defend those is- Congress may regulate Cao Ad is whether sues. a party’s speech, meaning speech own We need leaders who understand that paid by is for adopted by the and the recession, economy our is in a our indi- party regardless of coordination with the constantly vidual freedoms are under at- Indeed, majority candidate.” devote fight global tack and we continue to nearly justifying as much discussion to war on keep terrorism to our families their challenge” approach they “sole as do safe. rejecting challenge. Despite to contentions, majority’s obliged Joseph fights the court Cao understands and And, actually why to address the facts that have those issues. we ask been presented- specifically, you join supporting whether this to us in him on — majority opinion responds fully 3. I concur in the rest of the coordination. This dissent by latter, because the other issues are controlled the former contention. As to the after authority. This dissent con- past years litigation several Cao would majority’s disposition cerns the of certified admit the ad! his awareness of questions 3 and 6. event, any it is the assertion of "content appeared awareness” first en banc facts, Responding majority to these con- post-argument briefing. oral and (a) really tends Cao's counsel disclaimed Timing-only only stipulation is the in the dis- approach the narrower taken this dissent only trict court and therefore the "fact” be- (b) only timing counsel conceded not but fore us. underlay proposed "content awareness” does not matter and none of RNC’s important gree for Louisi- December 6. It’s country. proposed own-speech activities important ana for the so treated. ¶ Facts 31. Stipulated Brief, Reply at 10. approved by produced The ad was doubt, RNC, initiative, any plaintiffs’ there be de- without Lest on its own run the RNC intend- sire to the Cao Ad without fear input from Cao. Cao and timing prosecution investigation permeates or cooperate only as to the ed their initial brief to this court as it did Timing constituted the coordina- ad. ¶ The arguments Facts There is no their the district court. Stipulated tion. instigated plaintiffs’ “Spe- statement of facts asserts: suggested, evidence that Cao cifically, to make an ad. There is no evidence RNC intended requested (‘Cao Ad’), provid- advocacy it or radio if campaign expressive that he or his wrote ad judicial content. There is no relief legally permitted ed their views on its (R.278-79). might evidence that the ad have caused The sought this case. any his funds dif- spend Cao to coordinate the Ad RNC intended Cao Thus, such ferently. it, whether or not de timing as to the best but minimis coordination allows the Cao Ad otherwise it would not be coordinated with expenditure” a “coordinated be banned as Cao.”5

is before the court for decision. goes explain Plaintiffs’ brief on to their plaintiffs precise issue in raised theory politi- about the distinction between They briefing. their assert “[i]f contributions, cal the Supreme which matters, FEC degree coordination] [of govern- Court has held are amenable to must concede that as to the Cao regulation symbolic expressions ment and non- Ad coordination is de minimis political support, expenditures, which added). cognizable.” (emphasis Their con- fully protected the Court considers under summed as follows: up tentions are best they the First Amendment because “com- open question ‍​​​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​‌​‌​‌​​​‌​​‌​‌‌‌​‌‌​​​​​‌‍underlying sup- The in asks municate the basis for Colorado-II (a) Valeo, own-speech port.” Buckley both whether some com- See 612, 634-35, may regulated munications not 46 L.Ed.2d 659 be be- (1976). (e.g., Campaign cause coordination is The Federal Election de minimis (b) all just timing) expenditures” whether all such Act treats “coordinated parties communications are too much like inde- between third and their favored contributions, and therefore pendent expenditures to be limited re- candidates as Plaintiffs, subject rigid dollar limits.6 gardless degree. of coordination Under former, however, expendi- matters and would have this court acknowl- degree edge protection Ad not treated the constitutional of “coor- tures for the Cao be latter, expenditures” represent as contributions. Under the de- dinated com- tional, formal, majority opinion simply not “contribu- 5. The is inaccurate in definition of tion,” asserting plaintiffs as-applied raised an “expenditures which made includes challenge only reply consultation, in their brief. by any person cooperation, in with, concert, request sug- or at the or explained in II that 6. Justice Souter Colorado of, candidate, gestion polit- his authorized expenditures coordinated with a candidate committees, agents,” ical or their 2 U.S.C. are contributions under FECA: 441a(a)(7)(B)(i). simplicity [between of distinction II, S.Ct. at expenditures] qualified, contributions and 2356-57. however, by provision the Act’s func- dence, municative statements of their reasons for “this would have had to have Thus, supporting they a candidate. as- been made through an outside consul- in broadly serted their brief that communi- tant” .... paid cative activities attributable to and At the time RNC wanted to speak

by speech” the RNC become its “own irre- Ad, through the Cao it was not practical- spective of coordination with Cao. But ly possible to firewall off RNC staff in they narrowly also more assert that the order to an independent do expenditure Ad Cao is attributable to the RNC: communicates the [The Ad] under- For majority’s all the quotations intend- lying support basis for for the candidate support ed to their characterization of views, ie., merely sym- and his it is not plaintiffs’ broader as the “sole expression support. bolic of Coordina- challenge,” resting entirely on hypothetical Rep. tion with timing Cao as to would grounds, there is not a word waiver7 way no alter the fact that this ad would plaintiffs any ground speech. generated own relief plainly RNC’s The ad is more the nature of a their case.8 That party’s plaintiffs’ argu- own oral speech than ment merely nature before this court broadly phrased paying a candidate’s tactic, bills. Disburse- is hardly a novel especially when the it expenditures, ments for would be line between facial as-applied chal- They may contributions. not be limited lenges to statutes is “not so well defined they as if were contributions. that it has some automatic effect or that it always must control the pleadings and dis- Finally, plaintiffs’ brief returns to the position in every case involving a constitu- Cao Ad the course of asserting United, Citizens challenge.” tional government cannot sustain its burden of court, however, S.Ct. at 893. The justifying limit district on coordinated expen- embody plaintiffs’ ditures that was well aware that party’s political object is to speech: defines, obtain a ruling that or begins to define, where certain coordinated

Another it activities reason was difficult was that with Congressman RNC couldn’t have RNC written the Cao Ad if Cao lie an independent expenditure along spectrum were running be- from “func- cause, necessary to create the indepen- tional monetary contributions” full- issue, "coordinated,” 7. To waive an must have they referring "the Ad was were forgoing regulations: intention of it." the FEC Law Black's Dictio- nary (8th ed.2004); Ryan, Kontrick v. Judge Jolly: you In other words can sit 443, 13, 906, 458 n. 124 S.Ct. 157 L.Ed.2d degree down and discuss with them the (2004) ("[W]aiver 867 is the 'intentional relin- fifty you of coordination on ads and can quishment or abandonment of a known keep running running that ad and that ad Olano, right.’ "(quoting United States v. 507 you’re running on their time. And 725, 773, 1770, 1777, U.S. 113 S.Ct. 123 your speech number of ads and still it’s (1993))). L.Ed.2d 508 notwithstanding degree the nth of coordi- you nation that had. majority 8. exchange The make too much of an right. Plaintiff’s Counsel: That's There's during plaintiffs’ oral in which degree being pregnant. no of You’re ei- not, counsel stated that the Cao Ad was "coordi- ther regulations, under their majority imply plaintiffs nated.” The that the it is.... added). conceded that the Ad (emphasis Cao was a "coordinated only Counsel conceded II, expenditure” regulatory under Colorado interpretation therefore FEC's of the conse- cоordination, quences Colorado II timing-only controls this case. This inaccu- of not the plaintiffs rate. constitutionality When the stated that interpretation. the Cao of that ill- likely are to be sory opinions that advocacy.9 specifi- The throated produc- was the activity here informed. cally defined Ad. of planned

tion and broadcast trap. majority opinion falls into this The in the district raised this issue Having stipulated facts Rather than address the court, plaintiffs court and to this Ad, fairly which have been about the Cao an entitled to answer. parties’ in the briefs and “passed upon” court, majority considers the district Address Narrow Is- II. The Court Must all of Colorado II application sues First “adopted by political party.” “speech” hardly reminding need majority The majority an answer to the propose The ad- principle of constitutional the cardinal possible question before broadest that a court should address judication court, of their decision extending the reach it rath- by the facts before presented case beyond the factual record. Their well broad, hypothetical than scenarios. er leads to at least one “anticipate ques- approach overbroad should neither Courts they plain- of constitutional law advance conflate the tion serious mistake as nor “formulate a necessity deciding it” every speech” argument with tiffs’ “own than is rule constitutional law broader “coordi- “expenditure” whose conceivable to which it is required by precise facts to be the nation” is deemed FECA TVA, 297 applied.” Ashwander v. monetary equivalent simple of a functional 466, 483, 288, 346-47, 56 S.Ct. U.S. Thus, conclude, they adopt- contribution. (1936) J.) (Brandéis, (quoting L.Ed. 688 would “ef- ing speech” argument the “own Philadelphia Steamship N.Y. Liverpool, & fectually Supreme overrule” the Court’s Commissioners, Emigration Co. v. facially upheld II that decision Colorado 39, 352, 355, L.Ed. 5 S.Ct. expenditures. dollar limits on coordinated (1885)); Grange v. Wash. Wash. State plainly wrong. This is Party, 552 U.S. 450-51 128 Rep. State Court,10 (2008). the district beyond our Going court,11 and the FEC13 all controversy” spawns plaintiffs12 limits advi- “case or actors.”); Berrigan’s Id. at 2372-73 Judge 9. order cites both Colorado (Thomas, ("This dissenting) J. definition cov- majority Thomas’s ITs Justice opinion conduct, dissent, array which ers a broad some of explaining that ‘'coordinated” several expenditure.”). independent an is akin to equivalent de con- activities are not facto tributions, genuine expendi- but instead are Cao, F.Supp.2d at 539-40. 11. a minimal amount of coordi- tures FEC, F.Supp.2d nation. Cao Brief, Appellants' Reply (E.D.La.2010). Relying on this dis- 539-40 cussion, rejects the order the FEC’s motion 13. The FEC conceded that the Cao Ad would stating summary judgment, that “where a regulato- of the FEC's be at the outer reaches conveys expenditure explicitly coordinated ry authority: basis, arguably underlying it becomes symbolic begins a less to look more like Judge you Where do think [Clement]: political ... communica- 'direct restraint on spectrum of coordi- Cao ad falls on ” Buckley, (quoting 424 U.S. tion.’ Id. at 541 expenditures, respect nated to first 21, 636.) at S.Ct. at 96 rights? amendment Well, of— FEC Counsel: I think terms II, 445, S.Ct. at Judge 10. Colorado 533 U.S. at 121 Is it within the heartland [Clement]: ("Coordinated spending by party, a 2360 or is it— words, activity, spectrum of I think the outer other covers a FEC Counsel: it's towards timing spending by political boundary, because is— other does coordinated

441 recognize expenditures” that, that “coordinated a question as Justice Thomas spectrum on a from those that range notes, 468, 2351], at post, n. [121 S.Ct. independently more communicative of a we need not reach in this facial chal- views to supporter’s those more like mon- 9, lenge. Brief for Petitioner n.5 Cf. contributions, ey Buckley which v. Valeo (noting that the FEC has solicited com- symbolic expression. characterizes as mere ments regarding possible criteria for majority a in- employs The meat cleaver identifying expenditures). coordinated scalpel stead of a in the most sensitive Party appears The to argue that even if political constitutional area of speech. Party Expenditure jus- Provision is majority’s The overbreadth is even more regard tified with expen- to coordinated disturbing Supreme’ because the ditures that amount to no more than proceeded with constitutional caution in payment bills, of the lim- candidate’s contribution cases that con- itation facially invalid because of its I, Court, cern us here. In Colorado potential application expenditures rejecting approach the FEC’s meat cleaver involve more of party’s own political party that would have deemed all speech. Brief for Respondent 48-49. expenditures as “coordinated” with candi- Party But the does not tell us what dates, an upheld as-applied challenge al- proportion of spending falls in one lowing independent expenditures. Colora- category other, lay or otherwise FEC, Republican Campaign do v. Comm. groundwork its facial over 604, 623-24, 2309, 2319, U.S. S.Ct. breadth claim. Cf. Broadrick Okla- (1996) (“Colorado I”). 135 L.Ed.2d 795 homa, 601, The Court then remanded for fuller con- (overbreadth (1973) L.Ed.2d 830 must sideration of the party’s challenge facial be substantial to trigger facial invalida- expenditure provi- FECA’s coordinated tion). sion. Id. at 116 S.Ct. at 2320-21. II, Colorado 533 U.S. at at S.Ct. up rejected When the Court later took 2366 n. 17. II, challenge the facial in Colorado it none- Thus, acknowledged potential majority theless the Court expressly for future rec- as-applied dissent, attacks: ognized, as did the potential as-applied challenges characterization, coordinated

Whether different expenditures express and hence a contributor’s type scrutiny, different supporting basis for also appropriate could be in the context of an candidate. See II, as-applied challenge at applica- focused on (Thomas, tion of the limit to specific expenditures dissenting).14 litiga- J. Judge boundary? parly's expenditure [Clement]: Which outer coordinated and a di- boundary candidate”). FEC Counsel: The outer of what rect contribution to the regulable. obviously, would be Because To the extent the Court has not defined the just timing if it's about there are other expenditures universe things that would make even more open possibility leaves that there are being valuable candidate such as expenditures such that would not be func- specifically able to control more the mes- contributions, tionally to direct identical sage itself. constitutionality Party Expenditure Provision as to such explained: 14. Justice Thomas See, ante, e.g., remains unresolved. 17, argument, very n. 121 S.Ct. 2351. At oral assumption. The Court makes this See ante, 464, (“There suggest appeared at the Government 121 S.Ct. 2351 is no significant Party Expenditure might functional between a Provision not difference 442 93, 619, 124 157 L.Ed.2d 491 case demon- U.S. S.Ct. history

tion of the Colorado WRTL, (2003), 551 should be overruled. migration methodical strates the Court’s 2652, U.S., 482, L.Ed.2d at 127 S.Ct. challenge of from a narrow to broader 449, 329; id., 551 U.S. provision. the FECA J., (ALITO, 168 L.Ed.2d 329 S.Ct. in approach The took a similar Court not, concurring). This case is different — analyzed the It first Citizens United. ap- suggests, as the because dissent Hillary: The plaintiffs’ arguments has been deemed proach taken WRTL statutory prohibi- fall Movie did not within “failure,” 876], post, at 935 S.Ct. [130 electioneering communi- corporate tions on because, any of valid but the absence those, and, rejecting only after cations decision, ground of there is no narrower constitutionality of the ultimate reached way to avoid Citizen United’s broader explained: ban. Chief Justice Roberts argument. constitutional rejects majority It is because United, (Roberts, 130 S.Ct. at 918 Citizens statutory claim that it Citizens United’s C.J., concurring). The Chief Justice also group’s various proceeds to consider that the decision rested on a noted WRTL beginning with arguments, constitutional basis. narrower constitutional (that Hillary claim is not its narrowest majority’s approach cannot sal- equivalent express functional of ad- The be of the vaged by their re-characterization vocacy) proceeding broadest (that speech” argument as a “fa- Michigan plaintiffs’ claim Austin v. Chamber “own Commerce, 652, 110 cial attack” no different from the one re- S.Ct. (1990) jected by should be 108 L.Ed.2d overruled). II. It that the line between facial This is the same order of is truе challenges controlling as-applied constitutional operations followed United, 130 opinion in Federal Election Comm’n v. not well defined. Citizens Inc., Life, But it is also true that courts Right to 551 U.S. S.Ct. 893. Wisconsin authority argu- L.Ed.2d 329 have the to re-frame these (2007) (WRTL). judicial to subserve restraint15 and appellant There the ments recognition “goes narrowest that the distinction prevail was able to on its remedy employed because its the breadth of the constitutional Court, in a qualify pleaded as the not what must be broadcast ads did J.) (Kennedy express complaint.” (citing advoca- Id. Unit- equivalent functional Union, cy; go Emp’s thus no on to ed States v. Nat Treas. there was need 454, 477-78, 1003, 1018-19, claim that McCon- address the broader (1995)).16 Comm’n, It follows from nell v. Election 540 130 L.Edüd 964 Federal functionally appeals The courts of have followed this reach that are not approach, focusing allegations on the factual See Tr. Oral identical to contributions. underlying challenge. Circuit The Second Arg. (stating purpose Vernon, explained in Ramos v. Town Party Expenditure simply Provision is (2d Cir.2003): F.3d 171 prevent making someone "from contribu- explicitly paying present never been tions in the form of the candidate’s case has bills”). as-applied. characterized as either facial or Rather, plaintiffs' complaint speci- without United, ("If 130 S.Ct. at 918 there ficity alleges ways the has ordinance Citizens deciding statutory specific infringed rights were a valid basis for in their on their circumstances, (and thereby claim in Citizens United's favor and then asks for relief. avoiding adjudication), plaintiffs While the claims raise are constitutional it would some of so.”). logically analyzed challenges, e.g., proper as facial to do

443 “cannot principles parties paign jurisprudence, these finance “closely Valeo, stipulation prevents scrutiny. Buckley enter into a drawn” v. 424 considering 1, 25, 612, 638, certain remedies if Court from U.S. 96 S.Ct. 46 L.Ed.2d (1976). necessary to resolve a those remedies 659 former has been presented.” claim that has been Citizens speech independent candidates’ ex- United, Thus, it improper Id. at 893.17 penditures, applies while the latter to con- majority plaintiffs to conclude that for the facially tributions and to “coordinated ex- pled argued have somehow themselves penditures.” Which pertains standard Recharacterizing plain- out of court. government’s regulation of the Cao Ad position tiffs’ a facial attack cannot elim- depends on whether the ad is core concerning inate the narrower issue (see United, speech Citizens 130 S.Ct. at Cao Ad. 890-91), or a functional contribution. This government’s court is not bound duty

This court has the to decide the simply labeling “coordinated”: stipulated brought properly case on facts recognize [W]e that the FEC before us. characterized the as “coor- III. Evaluating As-Applied Coo’s Chal- light dinated” in of this Court’s consti-

lenge regulation tutional decisions prohibiting But, independent of most expenditures. as-applied In this attack on the coordi- so, if the characterization help cannot expenditure nated limit that would ban prove the Government its case. An Ad, of the Cao this court must broadcast agency’s simply calling indepen- an appropriate first determine the level of expenditure dent a “coordinated ex- scrutiny and then evaluate the evidence (for penditure” cannot regulation. constitutional concerning government’s WRTL, See, 456, purposes) make e.g., 127 it one. 551 U.S. S.Ct. 2659 (“With Button, 415, 429, scrutiny] v. the standard thus set- NAACP [of (1963) (the tled, adequate the issue remains whether S.Ct. L.Ed.2d evidentiary grounds government exist to sustain the “cannot foreclose the exer- standard[.]”). rights by limit under that Two levels cise of constitutional mere la- Carolina, bels”); scrutiny govern campaign regu- finance Edwards v. South and, scrutiny unique lations: strict to cam- challenges vague- recognize Appellants for overbreadth and We characterized ness, challenge. their claim as a facial We are equal protection claim is more however, not, by Appellants' desig- bound logically "as-applied” given viewed claims, complaint nation of their as the sets complaint. statements in the Even if a fa- as-applied an forth a cause of action for intended, challenge cial was a facial chal- challenge McKinney rules. See v. lenge present equal in the context of the Pate, (11th Cir.1994) 20 F.3d protection logically claim would include (en banc) ("Our however, responsibility, as-applied challenge, it an within thus [plaintiff's] to examine cause of action for ignore we cannot the constitutional viola- is, [plaintiff] actually what it not for what "as-applied” simply tion because the words be,” would have it and thus court looks to were not used. complaint plain- to determine what claim (citation omitted). at 174 n.

Id. allegations support) ... tiff's Bar, Similarly, in Jacobs Florida 50 F.3d Id. at 905 n. 17. (11th Cir.1995), the Eleventh Circuit ex- plicitly challenge United, recharacterized a based on ignored the the Court Citizens appellants plaintiffs' swearing the facts before it where the were stipulation fore an attack carry corporate unable to a broader facial attack on on the contribution ban. 130 restricting attorney advertising: rules at 892-93. 444 (State that, alone, (1963) standing There is no may not avoid doubt 697

L.Ed.2d speech. The political the Cao Ad is core by apply- strictures First Amendment’s general expression than “a Cao Ad is more peace” of the ing the label “breach Buckley, suppоrt for the candidate.” demonstrations). peaceful 635; 424 at 96 S.Ct. at see also U.S. I, 621-22, at 116 S.Ct. 518 U.S. Colorado (“[T]here United, at 890 Citizens 130 S.Ct. added). (emphasis at 2319 interpretation Hillary no reasonable appeal other than as an to vote movie] [the to a can- Buckley held that contributions Clinton, ... film against [T]he Senator contribu- regulated, didate because advocacy.”). The ad qualifies express as tions, independent unlike communicative Cao, for “communi- expressly advocates merely general a expenditures, express underlying basis cate[s] [the the Buckley, 424 support candidate. support,” quan- and increases “the RNC’s] at at 635. The FECA U.S. S.Ct. tity Buckley, of communication.” including “expen- contributions as defines at at 635. S.Ct. by any person cooperation, ditures made Further, closely to inde- the ad hews the consultation, concert, with, at the or or expenditure spectrum. side of the pendent of, request suggestion or a candidate.” independently produced The RNC the Cao 441a(a)(7)(B)(i). the U.S.C. While Su- Cao; input Ad without from the RNC placed great importance preme Court has initiative; the ad at its own the created coordinated, and thus on whether message; planned RNC the ad’s the RNC contribution, it regarded as a has offered ad; produced approved the RNC guidance except acknowledge no ad; and the RNC final version sweeping expendi- term “coordinated air the ad. Like the ads in decided to range tures” covers a wide of activities I, developed by Ad “was Colorado attributes: varying constitutional [party] independently pursu- and not I opinion Colorado not- principal any particular under- general ant to ed that “share coordinated I, standing with candidate.” Colorado constitutionally some of the relevant fea- at 2315.18 It S.Ct. independent expenditures.” tures of unambiguously “reflects mem- [the RNC’s] U.S., But it at 624 S.Ct. [116 2309]. philosophical bers’ views about the “many [party also observed that coordi- governmental matters that bind them to- virtually ... in- expenditures] nated others gether also seeks convince [and] distinguishable simple from contribu- join practical in a demo- those members spending tions.” Ibid. Coordinated task, creating a govern- cratic the task of words, party, spec- other covers ment that voters can instruct and hold activity, trum does subsequent or fail- responsible for success spending by other actors. 615-16, ure.” Id. at II, 444^5, 121 opposite 533 U.S. at At the end of the coordination party are instances in which a spectrum at 2361. (4) party independently Colorado I listed several features of an Whether decided ad; "independent expenditure” pertain (5) which to circulate Whether (1) inquiry: party indepen- Whether ownership the ad within the ad claims dеntly decided to create the ad on its own itself; Whether, (6) objectively, when viewed initiative; (2) party independent- Whether own. Colo- appears party’s the ad is to be ad; (3) ly developed party's Whether I, rado U.S. at 116 S.Ct. at 2315. ad; leadership independently approved II, tiny is required its candidate’s bills. See because of Colorado simply pays 46, subjected 424 at 96 at 648 n. Buckley, U.S. S.Ct. the Cao Ad cannot be to dollar I, 624, 53; at also Colorado 518 U.S. see limits. rejecting Apparently at 2320.

116 S.Ct. A. Applying Scrutiny Strict approach, the FEC asserts spectrum functionally the same as that the Cao Ad is That a statute has been facially held candidate. This a cash contribution to the may valid does answer whether it be is inaccurate. The critical differences be- constitutionally applied specific cir the Cao Ad and a direct contribu- tween WRTL, 464, cumstance. 551 U.S. at 127 candidate’s bills” in- “footing tion or apply S.Ct. at 2663-64. Instead court “[a] initiator, message, quality, clude the ad’s ing scrutiny strict must ensure that a com approval, ultimate of and decision source pelling supports interest each application “virtually to air. The Cao Ad is not identi- WRTL, restricting speech.” of statute might produce. See cal” to one Cao 464-65, 2664; 551 U.S. at 127 at S.Ct. id. Cao, F.Supp.2d (explaining at 533 477-78, 267; at at S.Ct. ‍​​​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​‌​‌​‌​​​‌​​‌​‌‌‌​‌‌​​​​​‌‍See also Citi many independent expenditures Cao found United, 898, zens 130 S.Ct. at 130 S.Ct. harmful). counterproductive to be and (justifying regulation speech “re Further, coordination, despite timing quires prove the Government to that the “may provide the ads well little assistance compelling restriction furthers a interest the candidate’s and indeed narrowly and is tailored to achieve that Buckley, prove counterproductive.” (internal quotation interest.” marks omit at 424 U.S. at 96 S.Ct. 648. Because ted)); Bank First Nat’l. Boston v. Bell decides to create air the ad party 765, 786, 1407, 1421, 435 U.S. 98 S.Ct. otti initiative, of its own the candidate cannot (1978). Moreover, gov 55 L.Ed.2d 707 depend on it. The candidate will not know ernment bears the burden to demonstrate If whether the ad is effective. the ad is that the law is constitutional as candidate, useful to the then it is useful WRTL, plaintiffs’ speech. 557 U.S. at because the interests of the 127 S.Ct. at 2663. the candidate coincide. On all these regulat- government contends grounds, significant there is no functional ing timing-only coordination furthers its Ad a con- difference between the Cao compelling preventing corrup- interest stitutionally expen- protected independent appearance tion or its or circumvention of diture. the contribution limits. The FEC also ar- II Compared pro- with the Colorado expansive that an definition of “coor- gues expendi- nouncement that the coordinated necessary to ensure that it can dination” is valid, facially this case ture limits are regulate all coordinated presеnts question the narrow whether de But truly are de contributions. be- facto transforms other- minimis coordination represents expressive Ad cause constitutionally protected politi- wise core political speech, government’s position something cal into less. We be- squared cannot be with WRTL: lieve it does not. Because the Cao Ad long recognized “the This Court has speech, it represents core should cor- governmental preventing interest evaluated the traditional strict under II, corrup- ruption appearance scrutiny test. See Colorado 443-44, 2360; I, campaigns. Buckley, tion” in election at 121 S.Ct. at U.S., 614-15, 2315;. at 46 L.Ed.2d at at 518 U.S. S.Ct. interest has been invoked as Alternatively, “closely even if drawn” scru- 659. This original)). prophylaxis-upon- contribution lim- But such a upholding reason for ex- Buckley explained, “[t]o its. As prophylaxis regulating ex- approach given large tent that contributions pression is not consistent with strict political quid pro quo from secure scrutiny. holders, potential office current and WRTL, system integrity representative of our Id., democracy undermined.” at 26- import The of WRTL is clear. Even if

27, 1, 612, 424 96 46 L.Ed.2d U.S. S.Ct. support regu- the record afforded some suggested that inter- We this coordination, lating timing-only which it might justify est also limits on election- not, infra, clearly does it discussed does eering expenditures because it be not support treating the Cao Ad as the that, circumstances, “large in some inde- equivalent” monetary “functional of a mere pendent expenditures pose the same expressive contribution. The content of dangers apparent quid pro of actual or addition, prevents the ad that. the risk quo arrangements large as do contribu- Id., 45, 1, circumvention of contribution at 424 tions.” U.S. 96 S.Ct. 612, appreciably greater limits is not here than 46 L.Ed.2d 659. it “independent” expenditures. is with arguably applied McConnell this inter- The candidate lacks control or influence only est—which this Court had assumed initiation, production, over the and content justify regulation could of express advo- party party of the ad. The decides wheth- cacy ads that were the “functional —to made, equivalent” er or not an ad will be what it will express advocacy. See like, 619, say, 540 U.S. at what it will look and whether it S.Ct. justify regulation L.Ed.2d 491. But to will air. may may The candidate or not ads, of WRTL’s this interest approve must it the ad or find useful. yet step stretched another to ads Consequently, expenditure will be are equivalent not the functional of ex- only useful to the candidate to the extent press advocacy. Enough enough. Is- party’s his and the interests coincide. sue ads like WRTL’s are no means Should the candidate “encourage” donors contributions, equivalent and the give money party, to the he cannot be quid-pro-quo corruption interest cannot certain whether these will donations

justify regulating equate them. To independent be more useful to him than an WRTL’s ads with ig- contributions is to expenditure. Without some link of candi- nore their political speech. value as influence, quid date control or neither the Appellants argue expansive that an defi- pro quo corruption appearance nor of cor- equivalent” nition of “functional is need- justifies ruption that contribution limits advocacy ed to ensure that issue does II, 464, can occur. Colorado at against express not circumvent the rule (discussing S.Ct. at 2370 a “link in a advocacy, in helps protect which turn corruption by-conduit”); chain of Citizens against against circumvention of the rule United, 876, (preventing 130 S.Ct. cor- McConnell, contributions. at supra, Cf. appearance or its ruption govern- is the (“[RJecent 205, 124 S.Ct. 619 cases have limiting politi- ment’s valid interest in recognized that certain restrictions cal speech). corporate permis- electoral involvement sibly essentially The hedge against argues, circumvention of FEC did (internal WRTL, expansive contributions limits” [valid] definitions coor- omitted; quotation expenditures marks brackets dination and coordinated are real” and that stan- coordinating solely harms it recites to ensure needed party’s speculation of the ad does is “not satisfied mere timing broadcast dard against rule coordinat- conjecture.”) government circumvent the remains helps in turn which present ed evidence that the inter- obliged lim- of contribution prevent circumvention facts us. applies est before McCon- preventing quid which culminates FEC, 93, 144, its n. nell v. 540 U.S. appearance of quo corruption or the pro 661, 684, 157 L.Ed.2d 491 than the This is no more corruption. such II, (2003); 533 U.S. at specula- “prophylaxis-upon-prophylaxis” require Not to some level of WRTL, rejected by tion proof by government would allow cen- overly 2672. It is an broad 127 S.Ct. at sorship party’s nothing ad based on protected sweeps up that here approach general proof more than the offered logic, speech. government’s And facial validity sustain the statute’s Colo- the less- greater coordination includes rado II. (this coordination), re- unambiguously er evidence or ar- The FEC offered no by greater-includes- “This jected WRTL: gument that coordination Cao Ad is not how strict scru- approach the-lesser timing appreciably as to broadcast will applying .... A court strict tiny works appearance cor- increase the risk or of compelling that a scrutiny must ensure of ruption or circumvention contribution of a supports application interest each fifty-nine limits. The record contains at restricting speeсh.” 551 U.S. statute spanning pages, exhibits thousands of 477-78,127 at 2671.19 S.Ct. part

much was of the record in of which “Closely Scrutiny Drawn” Applying B. II or McConnell. There are Colorado studies, expert testimony be- academic regulation if the of the Cao Ad Even invitations to various Congress, fore Buckley’s, “close- must be evaluated under put by political parties, and events because of its de min- ly drawn” standard former many politicians, affidavits coordination, still government imis advisors. Over- politicians, political and affirmatively demonstrate some suffi- must all, proves evidence that the record cor- ciently important preventing interest — primary political a role money plays or appearance corruption, of ruption, party lead- campaigns, parties that 25, Buckley, 424 U.S. at circumvention. involved in significantly ers are (contribution may limits be S.Ct. at 638 fund-raising, independent “[sjtate if upheld only demonstrates increasing role in played have an groups sufficiently important employs interest and money than ever is years. recent More unnecessary closely drawn to avoid means raised, advertising and election being freedoms” abridgment of associational of important and more Fane, has become more added)); (emphasis Edenfield Frequently, before. a science than ever 761, 770-71, U.S. (1993) (when through it travels money, whether regulating L.Ed.2d independent campaigns, parties, scrutiny, under intermediate speech ac- up opportunities for groups, opens must “demonstrate government unprotected speech .... turns the First concerning to ban the criminalization of 19. In a case subject deserving pornography, upside v. Free virtual child down.” Amendment Ashcroft scrutiny, Coalition, 234, 255, the Court far less First Amendment Speech contention, "[Tjhat stating, rejected a similar (2002). L.Ed.2d may protected speech be banned as a means politicians. cess to candidates and In corrup- coordination increases the risk of short, FECA, despite as amended Instead, appearance. tion or its the rec- McCain-Feingold, money politics re- simply ord includes blanket conclusions linked, inextricably main any coordination increases the risk. entangled they more than were at contrast, general evidence demon- time of passage.20 FECA’s strating risks of presented circumvention this, however, None of demonstrates II involved situations where specific type coordination the candidate retained real control over case, concerning timing issue in this party’s expenditures. otherwise-independent expenditures, has message Candidates controlled the and its any propensity quid pro quo to increase and, presentation ultimately, approved corruptiоn appearance corruption or the expenditures. those coordinated See 533 or to promote circumvention of contribu- S.Ct. at 2367-68. Indeed, tion limits. the voluminous evi- Here, Cao had no influence over the few, dentiary only a record contains inci- RNC’s save what time would air. dental timing references to coordination. The candidate does not even input example, For expert finance into whether or on what stations the ad opines “Giving say candidates direct air, air, whether, when, will when it will and he cannot party’s and how often a speech essentially is broadcast be certain that gives party them will heed his say a direct in the content of what the If any heightened advice. there is possi- Content, however, get voters to hear.” is bility corruption of or in circumvention this not issue in this ease. A former politi- arrangement, government has not party cian states that in advertisements it, pointed ought to and we not to invent days the final of a campaign can make the some govern- conceivable interest that the winning difference between and losing. ment itself is prove. unable to articulate or hardly Coordination necessary is to draw Nor, instance, in entirely this are un- campaign that conclusion. One consultant expenditures coordinated an adequate al- complained that “the clutter on television minimally ternative to speech. coordinated during the last few weeks of the The record demonstrates that coor- FEC’s really prevented message our from getting dination-regulation regime prevents party through clearly as we would have any from exercising degree liked.” No leaders of con- doubt. What is absent from any party’s the record is discussion trol over their or evaluation advertisements in (let evidence) alone timing on whether support of a candidate.21 party Because majority 501(c) 20. The Money Spending by is "shocked” to note that the Nonprof- Political major political parties (Feb. 25, spent 2009), Tripled $100 well over its in 2008 Election apiece independent expenditures million on http://www.cfinst.org/Press.aspx. available at during contrary, money the 2008 Even election. To the this amount of is a in trifle put marketing. single corporation, this is not an exorbitant world of A sum. To this Gamble, perspective, annually spends $2.7 amount in Procter & consider that a mere bil- advertising promote products $142 individuals contributed a total of lion to its in tax-exempt organizations million to the United States. Suzanne in Vranica & San Schechner, 501(c) Deal, J., Signs 2004 and groups spent that 527 and P&J Ad Wall St. 22, 2010, April $400 more than at B6. million in the 2008 federal Hassan, elections. S. Weissman and R. 21. The district court found: Groups, BCRA and the 527 in The Election (M. ed.2006); 92-96 Malbin the RNC Because has a continuous and After Reform Release, Inst., candidates, Campaign Press ongoing relationship Finance spe- Soft with its noted, majority’s analysis candi- As we inevitably associate with leaders plaintiffs’ speech” argument “own dates, the taint of coordination of to avoid expen- simply point: speech, misses the is “independent must establish parties The paid consul- that the RNC has for. pencils, staffed hired programs” diture aspects spectrum expenditures all responsible are tants who communications, potentially is polling from coordinated with candidate party’s writing scripts, but limitless. Coordinated to and research effect, monetary party functionally has like contribu- budget. topline tions, message. only symbolically expressive The and are over its own no control Buckley’s dichotomy, to continue according make a Hobson’s leaders must party in comfortably range candi- fall within the talking to their own choice between party’s monetary upheld limits must be controlling their own which dates and or the justifies quid pro quo corruption government prevent message. corruption. appearance to the risk of “circum- of such Conse- by reference regime fear that the speech quently, majority’s sub- bot- by prohibiting But vention.” coordination, regulation fall out of the FEC tom would FEC ject to de minimis constitutionally expenditures if RNC succeeds severely abridges parties’ independent groundless. in engage here protected right words, in speak other expenditures —in Second, the Cao Ad is undeni- because their own candidates. support public majority is ably political speech, core United, more After Citizens the two most recent incorrect to dismiss ability polit- engage in its constrained Court has cases which run-of-the-mill business ical than a speech communicative addressed whose corporation. constitutionally limited and what may be way. mean Neither Citizens United nor WRTL “Closely scrutiny has to drawn” case, both are censorship present of controls the but something applied to when informative; core defense of govern- the their bedrock speech. Where political core ap- systematic in- and their compelling political speech a cannot demonstrate ment of Amendment standards terest, in this to First regulation proach the effect of and reciting Ad, away by regulation cannot be waved to ban the Cao the review ease is kind, degree, in not between differences “closely be drawn.” cannot speech of at issue. speakers types the Majority Opinion The TV. plain- of Finally, majority’s the treatment argument erases speech” “own tiffs’ majority on their own taking Even as-applied facial and between terms, distinction II does not foreclose Colorado banned If the Cao Ad must be argument. challenges. speech” “own plaintiffs’ broader expenditures but neither indepen- independent taken do cial must be measures officers, employees or any of its regarding RNC nor expenditures its candidates. dent any in the inde- agents may have involvement with its extensive discussions The RNC has truly needs, expenditure for it to be pendent in order about their activities candidates result, fact, independent. neither the chairman In strategy. the RNC As a activities of officers, employ- any the RNC’s may the RNC nor deemed to be about its candidates be of candidates, message agents over the subjecting has control ees or with its coordinated of expenditure yet the RNC hears independent ex- an the FECA's coordinated these activities to message. The RNC responsibility limits. In order penditure and contribution way expenditures independent in this expenditure makes its any independent engage in candidates, way is no to have that there the RNC out supporting of its one of belief ” added). (Emphasis policy. consulting group to do true may hire an outside “firewall Movie, expenditure, despite lary: as a coordinated its The politi- Cao Ad is core speech. cal provenance core The RNC wishes to political and character as coordi- nate with Cao on its broadcast timing, but speech, majority opinion “eviscerates” Supreme spoken Court has never acknowledgment both the in I what of degree expressive contact makes spectrum and II of potentially of the wide political speech “coordinated” such that it expenditures recogni- coordinated and the suppressed. be The Court’s as-applied tion in Colorado II that chal- recent decisions demand much more from short, lenges were foreseeable. government presented than it has plaintiffs may beyond have reached essentially nothing. Even if the here — grasp judicial power promoting of government burden, were to meet its largely hypothetical speech” position. “own seems inconceivable that country majority, however, seriously The abdicated hope reality founded on the of free their responsibility protect First debate, open political otherwise inde- political speech apply Amendment and to pendent political speech could be banned governing Supreme Court authorities. speakers because its asked candi- date, air “When do we the ad?” V. Conclusion It place is not our to revisit whether the governing constitutional rules cam government may generally regulate coor- paign presently finance law are in a state expenditures. dinated Still less is it our flux, Party see Green Conn. v. Gar place approve the banning specific of a (2d field, 616 F.3d 2010 WL 2737134 political simply ad because the Court has 13, 2010), July Cir. but there is a clear held that when expenditures coordinated trend favoring protection generally analogous paying can- WRTL, speech. Beginning with the Su bills, they may didates’s regulated. preme has, steps, pro measured But when it defining comes to speech what political speech tected leaving while qualifies as sub- scaffolding Buckley place. It has ject regulation to such issue we do —the cast recently aside both speech enacted have to decide—we should follow Chief restrictions, WRTL, see and decades-old Justice Roberts’s admonition WRTL: restrictions, see Citizens United. give [W]e the benefit of the doubt to Lower courts have conformed to this speech, censorship. The First FEC, SpeechNow.org trend. v. 599 F.3d Amendment’s command that “Congress (D.C.Cir.2010); 686 N.M. Organized Youth shall make no law ... abridging the Herrera, (10th Cir.2010). 611 F.3d 669 freedom of speech” at demands least that. instances, In each of those Supreme demanded, justify has to banning WRTL, 482, 551 at U.S. 127 at 2674. S.Ct.

speech, government provide We respectfully dissent.

strong a compelling evidence of interest CLEMENT, EDITH BROWN Circuit preventing appearance or occurrence JONES, Judge, with EDITH H. Chief corruption. uncertainty Where there is Judge, and JERRY E. SMITH and interest, government’s about the “the First ELROD, JENNIFER WALKER Circuit requires Amendment us to err on the side Judges, concurring part and dissenting protecting political speech rather than in part: WRTL, suppressing 457, it.” 551 U.S. at

127 S.Ct. at 2659. Like Wisconsin Right join I the Chief Judge’s dissent because to Life’s or issue ads Citizen United’s Hil- I Party believe the Expenditure Provision

451 by expenditures limits contribution constitutionally applied be cannot simply paying to candidate’s that I amount to note separately I write ad. Buckley, 424 U.S. 47 n. 96 in bills. See at Judge further than the Chief go would (noting expenditure that an is not 612 protects politi- S.Ct. fashioning standard if “incurred without the it is equiv- is not the functional speech cal or his or of a candidate request consent contribution. of a alent Rep. H.R. No. 93-1239 6 agent”) (citing I on much. Judge agree and The Chief II, (1974)); see also Colorado U.S. challenge is as-applied agree that this We circum- (describing S.Ct. assumes, not, erroneously majority vention); Republican Campaign Colo. Commis- Election foreclosed Federal Comm’n, 518 U.S. v. Fed. Election Comm. Campaign Republican v. Colorado sion 604, 624, L.Ed.2d 795 S.Ct. Committee, 431, 121 S.Ct. (“Colorado I”) (1996) (describing expendi- (“Colorado IF). (2001) L.Ed.2d 461 indistinguishable “virtually that are tures task is to agree that the court’s alsoWe contributions”). A simple “timing from determining wheth- fashion a standard nothing capture only” standard does the func- expenditure is a coordinated er two constitution- difference between these contribution, and that equivalent of tional communication. The ally distinct forms of v. Wiscon- Election Commission Federal of other standards same could be said Inc., 449, 127 Life, Right to sin coordination, such based on the manner (2007) L.Ed.2d 329 (radio television); venue as medium versus (“WRTL”), what guidance about provides (the channel versus Spanish-language local like. We ought look that standard (the channel); region Low- soft rock tim- merely as to that coordination agree New Or- Uptown versus er Ninth Ward the function- the Cao ad ing does make leans). that the al contribution equivalent of Likewise, is diffi- a minimis standard scruti- de accordingly protected strict ad is The FEC apply interpret. govern- cult to Finally, agree we ny. develop extensive required banning this ad would interest ment’s asserted lines de min- regulations drawing between scrutiny. survive such does not Courts prohibited coordination. imis However, timing no reason that I see application of adjudicate attempting the constitu- any difference in alone makes situa- specific factual regulations these whether a de analysis, question tional drawn into themselves tions would find bright a line provides minimis standard would be splitting. Litigants hair similar chilling protected enough to avoid discovery respond to forced to extensive ac- of an enforcement through the threat with the of their contacts on the substance drawn the Court has tion. en- contemplating speaker A candidate. expendi- an between relevant distinction ad would such as the gaging speech contribution ture and a contribution: a “burdensome, inquiry, expert-driven face a expression support as a general “serves WRTL, result.” an indeterminate views,” an while and his for the candidate 469, Despite S.Ct. underly- the expenditure “eommunicate[s] standard, “it such a the best intentions Buckley support.” for the ing basis a chill substantial unquestionably will Valeo, political speech.” Id. amount (1976). also has Court L.Ed.2d in the con- a difference does make What of the goal identified the anti-coordination however, is coordina- analysis, stitutional of the circumvention preventing rules: tion discovery the content ad. The Cao to a factual issue that is relative- ascertain, ie., speech, expressing ly easy ad is the RNC’s own its whether the ad issues, political generated views on and identifying by approved was or its content supports by Cao as a candidate who those the candidate or the It party. views. provide input Cao did not on its references the fundamental distinction the provide content not and was asked his Court drew between contributions and ex- had, penditures consent to run the ad. If he in Buckley, exempts from suspicion would indeed raise a protection expenditures the its that amount to parties attempting party merely were to circumvent the paying a candidate’s bills. against rules closely coordination so the RNC The standard align would also more pay could the bill for than possible Cao’s other with the ac- standards —the evil at which the coordination tual definition of a expendi- rules ture, aimed.1 which prohibits spending “at the re- quest or suggestion of, a candidate.” 2 I Accordingly, propose would a two- 441a(a)(7)(B)(I) U.S.C. (emphasis add- “content-driven,” pronged standard that is ed). rather than one that turns degree on the Specifically, standard, coordination. I pro- Applying would this is Cao ad pose following: An advertisement functionally is not identical to a functionally only identical to contribution generated by contribution. The ad was if it susceptible is of no other expresses reasonable the RNC. It merely not interpretation general than as a expression generalized kind of for sentiment —“Vote candidate, of support for the Joseph and the ad Cao”'—that the Court has de- not generated by was contribution, candidate. Un- scribed as the hallmark of a standard, der this speaker could expresses but impor- RNC’s view on refuge take in the safe harbor of a content- tant public matters of concern urges if speech conveys driven standard vote for Cao because he shares the same underlying basis of support, and was “takeaway” views. While the message of not merely adopted speech indistinguish- advertisement urging sup- one paying Cao, able from advertising port candidate’s for message is anchored and bills. approach This shares all inspired the charac- not by support the RNC’s Cao, teristics of adopted the standard the by but support Cao’s for the views clear, in WRTL: it objective, expressed by and con- the RNC. The ad thus com- tent-driven, relatively and because it is municates the underlying basis for the simple speakers for both regulators support, making it more like an expendi- apply, understand and will chill speech protected ture scrutiny. strict This is through litigation. the threat of It limits far from archetypal coordination de- majority argues 1. The that what it support. Buckley, calls "tim- basis for the 424 U.S. at analysis distinguishes S.Ct. 612. Such ing-plus-content-awareness coordination'' generated Cao ad from a communication “exactly” raises the same circumvention con- pays Cao that the RNC to have broadcast. provided input cerns as if Cao had on the Furthermore, majority's approach pre- given permission content of the ad or his cisely rejected by the Court in WRTL: the Maj. Op. the ad to run. at 432-33. This is "prophylaxis-upon-prophylaxis” approach of again, majority not the case. Once re- banning protected sрeech because that makes analyze along fuses to this ad the lines the unprotected speech. it easier to ban merely gener- Court demands: whether it is a 479, at quote 127 S.Ct. 2652. To the Court: expression support al of for the candidate "Enough enough.” Id. at 127 S.Ct. underlying versus one that communicates the lent,” phrases like. These bland a and the effectively paying Buckley, in scribed position import mask the of the absolutist Cao ad advertising bills. The candidate’s today. taken majority as some- has stan- interpreted reasonably be can proposed of I makes distinctions general expression dard other than thing with the Court’s often gener- was not and is consistent for a candidate and support area, such, in it Cao, scrutiny precedents this but and as strict difficult ated fairly impulse: If simple this ad. regulating proceeds to laws from apply should anything, First Amendment means is faith- this standard importantly, Most speech that is not same means political lesson I take to be the central ful to what a candidate’s bills for trav- thing paying First Amend- “[w]here of WRTL: salaries, el, hamburgers and bal- or or goes the tie implicated, ment case, of citizens has group In loons. at not the censor.” U.S. speaker, their views on together express banded 2652. Like advertisements 127 S.Ct. Congress matters. has important public WRTL, politi- indisputably ad is to do so. abridged freedom This their any other con- one that expression, cal permit. I respect- does not Constitution degree of highest would merit text fully dissent. Buckley, 424 U.S. See protection. (“[T]he First Amendment ... all public mind on right ‘speak one’s right engage includes the

institutions’ ‘abstract advocacy’ no less than

‘vigorous election or Advocacy of the

discussion.’ is no for federal office of candidates

defeat the First protection

less under entitled political of than the discussion Amendment LAKE NURSING CEDAR advocacy passage policy generally Petitioner, HOME, (quotations omit- legislation.”) or defeat ted) The Court has (ellipsis original). parties have

emphasized political DEPARTMENT STATES UNITED politi- right speak First Amendment AND HUMAN OF HEALTH acknowledged explicitly cal issues and SERVICES, Respondent. ‍​​​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​‌​‌​‌​​​‌​​‌​‌‌‌​‌‌​​​​​‌‍some of expenditures “share 10-60112 No. of in- constitutionally relevant features Summary Calendar. I, 518 dependent expenditures.” Colorado Speech 116 S.Ct. 2309. Appeals, States Court United ex- a set of views articulates Fifth Circuit. support of candidate plains speaker’s 13, 2010. Sept. that candidate’s endorsement in terms of ie., conveys speech that of those views — support underlying basis —is strongest and most implicates First Amendment interests.

compelling fi- any dealing case easy to oneself— mystify law it is

nance “coordina- talk of audience—with one’s

tion,” “circumvention,” equiva- “functional dissent. This notes argument, ered de minimis. At oral other open II left “whether some counsel that the Plaintiffs’ conceded RNC be- regulated communications not be Ad intended coordinate the Cao with just (e.g., coordination is minimis cause de tinfing, regard Cao not but ...” at 438 timing) See Jones Dissent (citing Plaintiffs-Appellants’ by providing footnote 5 in Cao with advance knowl- also

Case Details

Case Name: Anh Cao v. Federal Election Commission

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 10, 2010

Citation: 619 F.3d 410

Docket Number: 10-30080, 10-30146

Court Abbreviation: 5th Cir.