COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE ET AL. v. FEDERAL ELECTION COMMISSION
No. 95-489
Supreme Court of the United States
Argued April 15, 1996—Decided June 26, 1996
518 U.S. 604
Jan Witold Baran argued the cause for petitioners. With him on the briefs were Thomas W. Kirby, Carol A. Laham, and Michael E. Toner.
Solicitor General Days argued the cause for respondent. With him on the brief were Deputy Solicitor General Bender, Malcolm L. Stewart, Lawrence M. Noble, Richard B. Bader, and Rita A. Reimer.*
*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by David H. Remes, David H. Miller, Arthur B. Spitzer, Steven R. Shapiro, Joel M. Gora, and Arthur N. Eisenberg; for the Democratic National Committee et al. by Joseph E. Sandler and Robert F. Bauer; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and for the Washington Legal
Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice by Burt Neuborne; and for Common Cause et al. by Roger M. Witten, Donald J. Simon, and Alan Morrison.
Briefs of amici curiae were filed for the State of Kentucky et al. by A. B. Chandler III, Attorney General of Kentucky, Pamela J. Murphy, Deputy Attorney General, Morgan G. Ransdell, Assistant Attorney General, Sheryl G. Snyder, Richard Blumenthal, Attorney General of Connecticut, Hubert H. Humphrey III, Attorney General of Minnesota, Tom Udall, Attorney General of New Mexico, W. A. Drew Edmondson, Attorney General of Oklahoma, and Darrell V. McGraw, Jr., Attorney General of West Virginia; for the Committee for Party Renewal et al. by E. Mark Braden and Stephen E. Gottlieb; and for the Republican National Committee by George J. Terwilliger III, John P. Connors, E. Duncan Getchell, Jr., Robert L. Hodges, and Darryl S. Lew.
JUSTICE BREYER announced the judgment of the Court and delivered an opinion, in which JUSTICE O‘CONNOR and JUSTICE SOUTER join.
In April 1986, before the Colorado Republican Party had selected its senatorial candidate for the fall‘s election, that party‘s Federal Campaign Committee bought radio advertisements attacking Timothy Wirth, the Democratic Party‘s likely candidate. The Federal Election Commission (FEC) charged that this “expenditure” exceeded the dollar limits that a provision of the Federal Election Campaign Act of 1971 (FECA or Act) imposes upon political party “expenditure[s] in connection with” a “general election campaign” for congressional office. 90 Stat. 486, as amended,
To understand the issues and our holding, one must begin with FECA as it emerged from Congress in 1974. That Act sought both to remedy the appearance of a “corrupt” political process (one in which large contributions seem to buy legislative votes) and to level the electoral playing field by reducing campaign costs. See Buckley v. Valeo, 424 U. S. 1, 25-27 (1976) (per curiam). It consequently imposed limits upon the amounts that individuals, corporations, “political committees” (such as political action committees, or PAC‘s), and political parties could contribute to candidates for federal office, and it also imposed limits upon the amounts that candidates, corporations, labor unions, political committees, and political parties could spend, even on their own, to help a candidate win election. See
This Court subsequently examined several of the Act‘s provisions in light of the First Amendment‘s free speech and association protections. See Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986); Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U. S. 480 (1985) (NCPAC); California Medical Assn. v. Federal Election Comm‘n, 453 U. S. 182 (1981); Buckley, supra. In these cases, the Court essentially weighed the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views against a “compelling” governmental interest in assuring the electoral system‘s legitimacy, protecting it from the appearance and reality of corruption. See Massachusetts Citizens for Life, supra, at 256-263; NCPAC, supra, at 493-501; California Medical Assn., supra, at 193-199; Buckley, 424 U. S., at 14-23. After doing so, the Court found that the First Amendment prohibited some of FECA‘s provisions, but permitted others.
- For any “person“: $1,000 to a candidate “with respect to any election“; $5,000 to any political committee in any year; $20,000 to the national committees of a political party in any year; but all within an overall limit (for any individual in any year) of $25,000.
2 U. S. C. §§ 441a(a)(1) ,(3) . - For any “multicandidate political committee“: $5,000 to a candidate “with respect to any election“; $5,000 to any political committee in any year; and $15,000 to the national committees of a political party in any year.
§ 441a(a)(2) .
FECA also has a special provision, directly at issue in this case, that governs contributions and expenditures by political parties.
However, FECA‘s special provision, which we shall call the “Party Expenditure Provision,” creates a general exception from this contribution limitation, and from any other limitation on expenditures. It says:
“Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, ... political party [committees] ... may make expenditures in connection with the general election campaign of candidates for Federal office....”
§ 441a(d)(1) (emphasis added).
After exempting political parties from the general contribution and expenditure limitations of the statute, the Party Expenditure Provision then imposes a substitute limitation upon party “expenditures” in a senatorial campaign equal to the greater of $20,000 or “2 cents multiplied by the voting age population of the State,”
In January 1986, Timothy Wirth, then a Democratic Congressman, announced that he would run for an open Senate seat in November. In April, before either the Democratic primary or the Republican convention, the Colorado Republican Federal Campaign Committee (Colorado Party or Party), a petitioner here, bought radio advertisements attacking Congressman Wirth. The State Democratic Party complained to the FEC. It pointed out that the Colorado Party had previously assigned its $103,000 general election allotment to the National Republican Senatorial Committee, leaving it without any permissible spending balance. See Federal Election Comm‘n v. Democratic Senatorial Campaign Comm., 454 U. S. 27 (1981) (state party may appoint national senatorial campaign committee as agent to spend its Party Expenditure Provision allotment). It argued that the purchase of radio time was an “expenditure in connection with the general election campaign of a candidate for Federal office,”
The FEC agreed with the Democratic Party. It brought a complaint against the Colorado Party, charging a violation. The Colorado Party defended in part by claiming that the Party Expenditure Provision‘s expenditure limitations violated the First Amendment—a charge that it repeated in a counterclaim that said the Colorado Party intended to make other “expenditures directly in connection with” senatorial elections, App. 68, ¶ 48, and attacked the constitutionality of the entire Party Expenditure Provision. The Federal District Court interpreted the provision‘s words “in connection with the general election campaign of a candidate” narrowly, as meaning only expenditures for advertis-
Both sides appealed. The Government, for the FEC, argued for a somewhat broader interpretation of the statute—applying the limits to advertisements containing an “electioneering message” about a “clearly identified candidate,” FEC Advisory Op. 1985-14, 2 CCH Fed. Election Camp. Fin. Guide ¶ 5819, p. 11,185 (May 30, 1985)—which, it said, both covered the expenditure and satisfied the Constitution. The Court of Appeals agreed. It found the Party Expenditure Provision applicable, held it constitutional, and ordered judgment in the FEC‘s favor. 59 F. 3d 1015, 1023-1024 (CA10 1995).
We granted certiorari primarily to consider the Colorado Party‘s argument that the Party Expenditure Provision violates the First Amendment “either facially or as applied.” Pet. for Cert. i. For reasons we shall discuss in Part IV, infra, we consider only the latter question—whether the Party Expenditure Provision as applied here violates the First Amendment. We conclude that it does.
II
The summary judgment record indicates that the expenditure in question is what this Court in Buckley called an “independent” expenditure, not a “coordinated” expenditure that other provisions of FECA treat as a kind of campaign “contribution.” See Buckley, supra, at 36-37, 46-47, 78; NCPAC, 470 U. S., at 498. The record describes how the expenditure was made. In a deposition, the Colorado Party‘s Chairman, Howard Callaway, pointed out that, at the time of the expenditure, the Party had not yet selected a
Notwithstanding the above testimony, the Government argued in District Court—and reiterates in passing in its brief to this Court, Brief for Respondent 27, n. 20—that the deposition showed that the Party had coordinated the advertisement with its candidates. It pointed to Callaway‘s statement that it was the practice of the Party to “coordinat[e] with the candidate” “campaign strategy,” App. 195, and for Callaway to be “as involved as [he] could be” with the individuals seeking the Republican nomination, ibid., by making available to them “all of the assets of the party,” id., at 195-196. These latter statements, however, are general descriptions of Party practice. They do not refer to the advertising campaign at issue here or to its preparation. Nor do they conflict with, or cast significant doubt upon, the uncontroverted direct evidence that this advertising campaign was developed by the Colorado Party independently and not pursuant to any general or particular understanding with a candidatе. We can find no “genuine” issue of fact in this respect.
So treated, the expenditure falls within the scope of the Court‘s precedents that extend First Amendment protection to independent expenditures. Beginning with Buckley, the Court‘s cases have found a “fundamental constitutional difference between money spent to advertise one‘s views
In contrast, the Court has said that restrictions on independent expenditures significantly impair the ability of individuals and groups to engage in direct political advocacy and “represent substantial... restrаints on the quantity and diversity of political speech.” Id., at 19. And at the same time, the Court has concluded that limitations on independent expenditures are less directly related to preventing corruption, since “[t]he absence of prearrangement and coordination of an expenditure with the candidate... not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Id., at 47.
Given these established principles, we do not see how a provision that limits a political party‘s independent expenditures can escape their controlling effect. A political party‘s independent expression not only reflects its members’ views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating
We are not aware of any special dangers of corruption associated with political parties that tip the constitutional balance in a different direction. When this Court considered, and held unconstitutional, limits that FECA had set on certain independent expenditures by PAC‘s, it reiterated Buckley‘s observation that “the absence of prearrangement and coordination” does not eliminate, but it does help to “alleviate,” any “danger” that a candidate will understand the expenditure as an effort to obtain a ”quid pro quo.” See NCPAC, 470 U. S., at 498. The same is true of independent party expenditures.
We recognize that FECA permits individuals to contribute more money ($20,000) to a party than to a candidate ($1,000) or to other political committees ($5,000).
The Government does not point to record evidence or legislative findings suggesting any special corruption problem in respect to independent party expenditures. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664 (1994) (“When the Government defends a regulation on speech as a means to... prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured” (citation and internal quotation marks omitted)); NCPAC, supra, at 498. To the contrary, this Court‘s opinions suggest that Congress wrote the Party Expenditure Provision not so much because of a special concern about the potentially “corrupting” effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign spending. See Buckley, supra, at 57. In fact, rather than indicating a special fear of the corruptive influence of political parties, the legislative history demonstrates Congress’ general desire to enhance what was seen as an important and legitimate role for political parties in American elections. See Federal Election Comm‘n v. Democratic Senatorial Campaign Comm., 454 U. S., at 41 (Party Expenditure Provision was intended to “assur[e] that political parties will continue to have an important role in federal elections“); S. Rep. No. 93-689, p. 7 (1974) (“[A] vigorous party system is vital to American politics.... [P]ooling resources from many small contributors is a legitimate function and an integral part of party politics“); id., at 7-8, 15.
We therefore believe that this Court‘s prior case law controls the outcome here. We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent еxpenditures could deny the same right to political parties. Having concluded this, we need not consider the Party‘s further claim that the statute‘s “in connection with” language, and
III
The Government does not deny the force of the precedent we have discussed. Rather, it argued below, and the lower courts accepted, that the expenditure in this case should be treated under those precedents, not as an “independent expenditure,” but rather as a “coordinated expenditure,” which those cases have treated as “contributions,” and which those cases have held Congress may constitutionally regulate. See, e. g., Buckley, supra, at 23-38.
While the District Court found that the expenditure in this case was “coordinated,” 839 F. Supp., at 1453, it did not do so based on any factual finding that the Party had consulted with any candidate in the making or planning of the advertising campaign in question. Instead, the District Court accepted the Government‘s argument that all party expenditures should be treated as if they had been coordinated as a matter of law, “[b]ased on Supreme Court precedent and the Commission‘s interpretation of the statute,” ibid. The Court of Appeals agreed with this legal conclusion. 59 F. 3d, at 1024. Thus, the lower courts’ “finding” of coordination does not conflict with our conclusion, supra, at 613-614, that the summary judgment record shows no actual coordination as a matter of fact. The question, instead, is whether the Court of Appeals erred as a legal matter in accepting the Government‘s conclusive presumption that all party expenditures are “coordinated.” We believe it did.
In support of its argument, thе Government points to a set of legal materials, based on FEC interpretations, that seem to say or imply that all party expenditures are “coordinated.” These include: (1) an FEC regulation that forbids political parties to make any “independent expenditures ... in connection with” a “general election campaign,”
The Government argues, on the basis of these materials, that the FEC has made an “empirical judgment that party officials will as a matter of course consult with the party‘s candidates before funding communications intended to influence the outcome of a federal election.” Brief for Respondent 27. The FEC materials, however, do not make this empirical judgment. For the most part those materials use the word “coordinated” as a description that does not necessarily deny the possibility that a party could also make independent expenditures. See, e. g., AO 1984-15, ¶ 5766, at 11,069. We concede that one Advisory Opinion says, in a footnote, that “coordination with candidates is presumed.” AO 1988-22, ¶ 5932, at 11,471, n. 4. But this statement, like the others, appears without any internal or external evidence that the FEC means it to embody an empirical judgment (sаy, that parties, in fact, hardly ever spend money independently) or to represent the outcome of an empirical investigation. Indeed, the statute does not require any such investigation, for it applies both to coordinated and to independent expenditures alike. See
The Government does not advance any other legal reason that would require us to accept the FEC‘s characterization. The FEC has not claimed, for example, that, administratively speaking, it is more difficult to separate a political party‘s “independent,” from its “coordinated,” expenditures than, say, those of a PAC. Cf.
Nor does the fact that the Party Expenditure Provision fails to distinguish betweеn coordinated and independent expenditures indicate a congressional judgment that such a distinction is impossible or untenable in the context of political party spending. Instead, the use of the unmodified term “expenditure” is explained by Congress’ desire to limit all party expenditures when it passed the 1974 amendments, just as it had limited all expenditures by individuals, corporations, and other political groups. See
Finally, we recognize that the FEC may have characterized the expenditures as “coordinated” in light of this Court‘s constitutional decisions prohibiting regulation of most independent expenditures. But, if so, the characterization cannot help the Government prove its case. An agency‘s simply calling an independent expenditure a “coordinated expendi-
The Government also argues that the Colorado Party has conceded that the expenditures are “coordinated.” But there is no such concession in respect to the underlying facts. To the contrary, the Party‘s “Questions Presented” in its petition for certiorari describes the expenditure as one “the party has not coordinated with its candidate.” See Pet. for Cert. i. In the lower courts the Party did accept the FEC‘s terminology, but it did so in the context of legal arguments that did not focus upon the constitutiоnal distinction that we now consider. See Reply Brief for Petitioners 9-10, n. 8 (denying that the FEC‘s labels can control constitutional analysis). The Government has not referred us to any place where the Party conceded away or abandoned its legal claim that Congress may not limit the uncoordinated expenditure at issue here. And, in any event, we are not bound to decide a matter of constitutional law based on a concession by the particular party before the Court as to the proper legal characterization of the facts. Cf. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 447 (1993); Massachusetts v. United States, 333 U. S. 611, 623-628 (1948); Young v. United States, 315 U. S. 257, 259 (1942) (recognizing that “our judgments are precedents” and that the proper understanding of matters of law “cannot be left merely to the stipulation of parties“).
Finally, the Government and supporting amici argue that the expenditure is “coordinated” because a party and its candidate are identical, i. e., the party, in a sense, “is” its candidates. We cannot assume, however, that this is so. See, e. g., W. Keefe, Parties, Politics, and Public Policy in America
IV
The Colorado Party and supporting amici have argued a broader question than we have decided, for they have claimed that, in the special case of political parties, the First Amendment forbids congressional efforts to limit coordinated expenditures as well as independent expenditures. Because the expenditure before us is an independent expenditure we have not reached this broader question in deciding the Party‘s “as applied” challenge.
We recognize that the Party filed a counterclaim in which it sought to raise a facial challenge to the Party Expenditure Provision as a whole. But that counterclaim did not focus specifically upon coordinated expenditures. See App. 68-69. Nor did its summary judgment affidavits specifically allege that the Party intended to make coordinated expenditures exceeding the statute‘s limits. See id., at 159, ¶ 4. While this lack of focus does not deprive this Court of jurisdiction to consider a facial challenge to the Party Expenditure Provision as overbroad or as unconstitutional in all applications, it does provide a prudential reason for this Court not to
More importantly, the opinions of the lower courts, and the parties’ briefs in this case, did not squarely isolate, and address, party expenditures that in fact are coordinated, nor did they examine, in that context, relevant similarities or differences with similar expenditures made by individuals or other political groups. Indeed, to our knowledge, this is the first case in the 20-year history of the Party Expenditure Provision to suggest that in-fact coordinated expenditures by political parties are protected from congressional regulation by the First Amendment, even though this Court‘s prior cases have permitted regulation of similarly coordinated expenditures by individuals and other political groups. See Buckley, 424 U. S., at 46-47. This issue is complex. As JUSTICE KENNEDY points out, post, at 629-630, party coordinated expenditures do share some of the constitutionally relevant features of independent expenditures. But many such expenditures are also virtually indistinguishable from simple contributions (compare, for example, a donation of money with direct payment of a candidate‘s media bills, see Buckley, supra, at 46). Moreover, political parties also share relevant features with many PAC‘s, both having an interest in, and devoting resources to, the goal of electing candidates who will “work to further” a particular “political agenda,” which activity would benefit from coordination with those candidates. Post, at 630. See, e. g., NCPAC, 470 U. S., at 490 (describing the purpose and activities of the National Conservative PAC); id., at 492 (coordinated expenditures by PAC‘s are
But the focus of this litigation, and of the lower court opinions, has not been on such issues, but rather on whether the Government may conclusively deem independent party expenditures to be coordinated. This lack of focus may reflect, in part, the litigation strategy of the parties. The Government has denied that any distinction can be made between a party‘s independent and its coordinated expenditures. The Colorado Party, for its part, did not challenge a different provision of the statute—a provision that imposes a $5,000 limit on any contribution by a “multicandidate political committee” (including a coordinated expenditure) and which would apply to party coordinated expenditures if the entire Party Expenditure Provision were struck from the statute as unconstitutional. See
Finally, we note that neither the parties nor the lower courts have considered whether or not Congress would hаve wanted the Party Expenditure Provision‘s limitations to stand were they to apply only to coordinated, and not to independent, expenditures. See Buckley, supra, at 108; NCPAC, supra, at 498. This nonconstitutional ground for exempting party coordinated expenditures from FECA limitations
JUSTICE THOMAS disagrees and would reach the broader constitutional question notwithstanding the above prudential considerations. In fact, he would reach a great number of issues neither addressed below, nor presented by the facts of this case, nor raised by the parties, for he believes it appropriate here to overrule sua sponte this Court‘s entire campaign finance jurisprudence, developed in numerous cases over the last 20 years. See post, at 635-644. Doing so seems inconsistent with this Court‘s view that it is ordinarily “inappropriate for us to reexamine” prior precedent “without the benefit of the parties’ briefing,” since the “principles that animate our policy of stare decisis caution against overruling a longstanding precedent on a theory not argued by the parties.” United States v. International Business Machines Corp., 517 U. S. 843, 855, 856 (1996). In our view, given the important competing interests involved in campaign finance issues, we should proceed cautiously, consistent with this precedent, and remand for further proceedings.
For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings.
It is so ordered.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring in the judgment and dissenting in part.
In agreement with JUSTICE THOMAS, post, at 631-634, I would hold that the Colorado Republican Party (Party), in its pleadings in the District Court and throughout this litigation, has preserved its claim that the constraints imposed by the Federal Election Campaign Act of 1971 (FECA), both on its face and as interpreted by the Federal Elections Commission (FEC), violate the First Amendment.
Indeed, the principal opinion‘s reasoning with respect to the presumption illuminates the deficiencies in the statutory provision as a whole as it constrains the speech and political activities of political parties. The presumption is a logical, though invalid, implementation of the statute, which restricts as a “contribution” a political party‘s spending “in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents.”
The central holding in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), is that spending money on one‘s own speech must be permitted, id., at 44-58, and this is what political parties do when they make the expenditures FECA restricts. FECA calls spending of this nature a “contribution,”
“A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor‘s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor‘s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” Id., at 21 (footnote omitted).
We had no occasion in Buckley to consider possible First Amendment objections to limitations on spending by parties. Id., at 58, n. 66. While our cases uphold contribution limitations on individuals and associations, see id., at 23-38; California Medical Assn. v. Federal Election Comm‘n, 453 U. S. 182, 193-199 (1981) (plurality opinion), political party spending “in cooperation, consultation, or concert with” a candi
The First Amendment embodies a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). Political parties have a unique role in serving this principle; they exist to advance their members’ shared political beliefs. See, e. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 (1989); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957). Cf. Morse v. Republican Party of Va., 517 U. S. 186, 250-251 (1996) (KENNEDY, J., dissenting). A party performs this function, in part, by “identify[ing] the people who constitute the association, and... limit[ing] the association to those people only.” Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981). Having identified its members, however, a party can give effect to their views only by selecting and supporting candidates. A political party has its own traditions and principles that transcend the interests of individual candidates and campaigns; but in the context of particular elections, candidates are necessary to make the party‘s message known аnd effective, and vice versa.
It makes no sense, therefore, to ask, as FECA does, whether a party‘s spending is made “in cooperation, consultation, or concert with” its candidate. The answer in most cases will be yes, but that provides more, not less, justification for holding unconstitutional the statute‘s attempt to control this type of party spending, which bears little resemblance to the contributions discussed in Buckley. Supra, at 627-628 and this page. Party spending “in cooperation, consultation, or concert with” its candidates of necessity “communicate[s] the underlying basis for the support,” 424 U. S., at 21, i. e., the hope
The problem is not just the absence of a basis in our First Amendment cases for treating the party‘s spending as contributions. The greater difficulty posed by the statute is its stifling effect on the ability of the party to do what it exists to do. It is fanciful to suppose that limiting party spending of the type at issue here “does not in any way infringe the contributor‘s freedom to discuss candidates and issues,” ibid., since it would be impractical and imprudent, to say the least, for a party to support its own candidates without some form of “cooperation” or “consultation.” The party‘s speech, legitimate on its own behalf, cannot be separated from speech on the candidate‘s behalf without constraining the party in advocating its most essential positions and pursuing its most basic goals. The party‘s form of organization and the fact that its fate in an election is inextricably intertwined with that of its candidates cannot provide a basis for the restrictiоns imposed here. See Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U. S. 480, 494-495 (1985).
We have a constitutional tradition of political parties and their candidates engaging in joint First Amendment activity; we also have a practical identity of interests between the two entities during an election. Party spending “in cooperation, consultation, or concert with” a candidate therefore is indistinguishable in substance from expenditures by the candidate or his campaign committee. We held in Buckley that the First Amendment does not permit regulation of the latter, see 424 U. S., at 54-59, and it should not permit this regulation of the former. Congress may have authority, consistent with the First Amendment, to restrict undifferentiated political party contributions which satisfy the constitutional criteria we discussed in Buckley, but that type of regulation is not at issue here.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join as to Parts I and III, concurring in the judgment and dissenting in part.
I agree that petitioners’ rights under the First Amendment have been violated, but I think we should reach the facial challenge in this case in order to make clear the circumstances under which political parties may engage in political speech without running afoul of
I
As an initial matter, I write to make clear that we should decide the Colorado Republican Party‘s (Party‘s) facial challenge to
After the Federal Election Commission (FEC) brought this action against the Party, the Party counterclaimed that “the limits on its expenditures in connection with the general
Given the liberal nature of the rules governing civil pleading, see Fed. Rule Civ. Proc. 8, the Party‘s straightforward allegation of the unconstitutionality of § 441a(d)(3)‘s expenditure limits clearly suffices to raise the claim that neither independent nor coordinated expenditures may be regulated consistently with the First Amendment. Indeed, that is precisely how the Court of Appeals appears to have read the counterclaim. The court expressly said that it was “analyzing the constitutionality of limits on coordinated expenditures by political committees,” 59 F. 3d 1015, 1024 (CA10 1995), under
For the same reasons, the fact that the Party‘s summary judgment affidavits did not “specifically allege,” ante, at 623, that the Party intended to make coordinated expenditures is also immaterial. The affidavits made clear that, but for
Finally, though JUSTICE BREYER notes that this is the first Federal Election Campaign Act of 1971 (FECA) case to raise the constitutional validity of limits on coordinated expenditures, see ante, at 624, that is, at best, an argument against granting certiorari. It is too late for arguments like that now. The case is here, and we needlessly protract this litigation by remanding this important issue to the Court of Appeals. Nor is the fact that the “issue is complex,” ibid., a good reason for avoiding it. We do not sit to decide only easy cases. And while it may be true that no court has ever asked whether expenditures that are “in fact” coordinated may be regulated under the First Amendment, see ibid., I do not see how the existence of an “in fact” coordinated expenditure would change our analysis of the facial constitutionality of
The validity of § 441a(d)(3)‘s controls on coordinated expenditures is an open question that, if left unanswered, will inhibit the exercise of legitimate First Amendment activity nationwide. All JUSTICE BREYER resolves is that when a political party spends money in support of a candidate (or against his opponent) and the Government cannot thereafter prove any coordination between the party and the candidate, the party cannot be punished by the Government for that spending. This settles little, if anything. Parties are left to wonder whether their speech is protected by the First Amendment when the Government can show—presumably with circumstantial evidence—a link between the party and the candidate with respect to the speech in question. And of course, one of the main purposes of a political party is to support its candidates in elections.
The constitutionality of limits on coordinated expenditures by political parties is squarely before us. We should address this important question now, instead of leaving political parties in a state of uncertainty about the types of First Amendment expression in which they are free to engage.
A
Critical to JUSTICE BREYER‘s reasoning is the distinction between contributions3 and independent expenditures that we first drew in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). Though we said in Buckley that controls on spending and giving “operate in an area of the most fundamental First Amendment activities,” id., at 14, we invalidated the expenditure limits of FECA and upheld the Act‘s contribution limits. The justification we gave for the differing results was this: “The expenditure limitations ... represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech,” id., at 19, whereas “limitation[s] upon the amount that any one person or group may contribute to a candidate or political committee entai[l] only a marginal restriction upon the contributor‘s ability to engage in free communication,” id., at 20-21. This conclusion was supported mainly by two аssertions about the nature of contributions: First, though contributions may result in speech, that speech is by the candidate and not by the contributor; and second, contributions express only general support for the candidate but do not communicate the reasons for that support. Id., at 21. Since Buckley, our campaign finance jurisprudence has been based in large part on this distinction between contributions and expenditures. See, e. g., Federal Election Comm‘n v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U. S. 238, 259-260, 261-262 (1986); Federal Election Comm‘n v. National Conservative Political Action Comm. (NCPAC), 470 U. S. 480, 497 (1985);
In my view, the distinction lacks constitutional significance, and I would not adhere to it. As Chief Justice Burger put it: “[C]ontributions and expenditures are two sides of the same First Amendment coin.” Buckley v. Valeo, 424 U. S., at 241 (concurring in part and dissenting in part).4 Contributions and expenditures both involve core First Amendment expression because they further the “[d]iscussion of public issues and debate on the qualifications of candidates... integral to the operation of the system of government established by our Constitution.” Id., at 14. When an individual donates money to a candidate or to a partisan organization, he enhances the donee‘s ability to communicate a message and thereby adds to political debate, just as when that individual communicates the message himself. Indeed, the individual may add more to political discourse by giving rather than spending, if the donee is able to put the funds to more productive use than can the individual. The contribution of funds to a candidate or to a political group thus fosters the “free discussion of governmental affairs,” Mills v. Alabama, 384 U. S. 214, 218 (1966), just as an expenditure does.5
Giving and spending in the electoral process also involve basic associational rights under the First Amendment. See BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 Calif. L. Rev. 1045, 1064 (1985) (hereinafter BeVier). As we acknowledged in Buckley, “‘[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.‘” 424 U. S., at 15 (quoting NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958)). Political associations allow citizens to pool their resources and make their advocacy more effective, and such efforts are fully protected by the First Amendment. Federal Election Comm‘n v. NCPAC, supra, at 494. If an individual is limited in the amount of resources he can contribute to the pool, he is most certainly limited in his ability to associate for purposes of effective advocacy. See Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 296 (1981) (“To place a ... limit ... on individuals wishing to band together to advance their views ... is clearly a restraint on the right of association“). And if an individual cannot be subject to such limits, neither can political associations be limited in their ability to give as a means of furthering their members’ viewpoints. As we have said, “[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion).6
Turning from similarities to differences, I can discern only one potentially meaningful distinction between contributions and expenditures. In the former case, the funds pass through an intermediary—some individual or entity responsible for organizing and facilitating the dissemination of the message—whereas in the latter case they may not necessarily do so. But the practical judgment by a citizen that another person or an organization can more effectively deploy funds for the good of a common cause than he can ought not deprive that citizen of his First Amendment rights. Whether an individual donates money to a candidate or group who will use it to promote the candidate or whether the individual spends the money to promote the candidate himself, the individual seeks to engage in political expression and to associate with like-minded persons. A contribution is simply an indirect expenditure; though contributions and expenditures may thus differ in form, they do not differ in substance. As one commentator cautioned, “let us not lose sight of the speech.” Powe, Mass Speech and the Newer First Amendment, 1982 S. Ct. Rev. 243, 258.
Echoing the suggestion in Buckley that contributions have less First Amendment value than expenditures because they do not involve speech by the donor, see 424 U. S., at 21, the Court has sometimes rationalized limitations on contributions by referring to contributions as “speech by proxy.” See, e. g., California Medical Assn. v. Federal Election Comm‘n, 453 U. S., at 196 (Marshall, J.) (plurality opinion). The “speech by proxy” label is, however, an ineffective tool for distinguishing contributions from expenditures. Even in the case of a direct expenditure, there is usually some go
Moreover, wе have recently recognized that where the “proxy” speech is endorsed by those who give, that speech is a fully protected exercise of the donors’ associational rights. In Federal Election Comm‘n v. NCPAC, we explained:
“[T]he ‘proxy speech’ approach is not useful... [where] the contributors obviously like the message they are hearing from [the] organizatio[n] and want to add their voices to that message; otherwise they would not part with their money. To say that their collective action in pooling their resources to amplify their voices is not entitled to full First Amendment protection would subordinate the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.” 470 U. S., at 495.
The other justification in Buckley for the proposition that contribution caps only marginally restrict speech—that is, that a contribution signals only general support for the candidate but indicates nothing about the reasons for that support—is similarly unsatisfying. Assuming the assertion is descriptively accurate (which is certainly questionable), it still cannot mean that giving is less important than spending in terms of the First Amendment. A campaign poster that reads simply “We support candidate Smith” does not seem to me any less deserving of constitutional protection than one that reads “We support candidate Smith because we like
In sum, unlike the Buckley Court, I believe that contribution limits infringe as directly and as seriously upon freedom оf political expression and association as do expenditure limits. The protections of the First Amendment do not depend upon so fine a line as that between spending money to support a candidate or group and giving money to the candidate or group to spend for the same purpose. In principle, people and groups give money to candidates and other groups for the same reason that they spend money in support of those candidates and groups: because they share social, economic, and political beliefs and seek to have those beliefs affect governmental policy. I think the Buckley framework for analyzing the constitutionality of campaign finance laws is deeply flawed. Accordingly, I would not employ it, as JUSTICE BREYER and JUSTICE KENNEDY do.
B
Instead, I begin with the premise that there is no constitutionally significant difference between campaign contributions and expenditures: Both forms of speech are central to the First Amendment. Curbs on protected speech, we have repeatedly said, must be strictly scrutinized. See Federal Election Comm‘n v. NCPAC, supra, at 501; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S., at 294; First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978).7 I am convinced that under tradi
The formula for strict scrutiny is, of course, well established. It requires both a compelling governmental interest and legislative means narrowly tailored to serve that interest. In the context of campaign finance reform, the only governmental interest that we have accepted as compelling is the prevention of corruption or the appearance of corruption, see Federal Election Comm‘n v. NCPAC, 470 U. S., at 496-497, and we have narrowly defined “corruption” as a “financial quid pro quo: dollars for political favors,” id., at 497.8 As for the means-ends fit under strict scrutiny, we have specified that “[w]here at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation.” Federal Election Comm‘n v. MCFL, 479 U. S., at 265.
In Buckley, we expressly stated that the means adopted must be “closely drawn to avoid unnecessary abridgment” of First Amendment rights. 424 U. S., at 25. But the Buckley Court summarily rejected the argument that, because less restrictive means of preventing corruption existed—for instance, bribery laws and disclosure requirements—FECA‘s contribution provisions were invalid. Bribery laws, the Court said, “deal with only the most blatant and specific attempts of those with money to influence governmental action,” id., at 28, suggesting that those means were inade
In my opinion, FECA‘s monetary caps fail the narrow tailoring test. Addressing the constitutionality of FECA‘s contribution caps, the Buckley appellants argued:
“If a small minority of political contributions are given to secure appointments for the donors or some other quid pro quo, that cannot serve tо justify prohibiting all large contributions, the vast majority of which are given not for any such purpose but to further the expression of political views which the candidate and donor share. Where First Amendment rights are involved, a blunderbuss approach which prohibits mostly innocent speech cannot be held a means narrowly and precisely directed to the governmental interest in the small minority of contributions that are not innocent.” Brief for Appellants in Buckley v. Valeo, O. T. 1975, Nos. 75-436 and 75-437, pp. 117-118.
The Buckley appellants were, to my mind, correct. Broad prophylactic bans on campaign expenditures and contributions are not designed with the precision required by the First Amendment because they sweep protected speech within their prohibitions.
Section 441a(d)(3), in particular, suffers from this infirmity. It flatly bans all expenditures by all national and state party committees in excess of certain dollar limits, without any evidence that covered committees who exceed those limits are in fact engaging, or likely to engage, in bribery or any
In contrast, federal bribery laws are designed to punish and deter the corrupt conduct the Government seeks to prevent under FECA, and disclosure laws work to make donors and donees accountable to the public for any questionable financial dealings in which they may engage. Cf. Schaumburg v. Citizens for a Better Environment, supra, at 637-638 (explaining that “less intrusive” means of preventing fraud in charitable solicitation are “the penal laws [that can be] used to punish such conduct directly” and “disclosure of the finances of charitable organizations“). In light of these alternatives, wholesale limitations that cover contributions having nothing to do with bribery—but with speech central to the First Amendment—are not narrowly tailored.
Buckley‘s rationale for the contrary conclusion, see supra, at 641-642, is faulty. That bribery laws are not completely effective in stamping out corruption is no justification for the
III
Were I convinced that the Buckley framework rested on a principled distinction between contributions and expenditures, which I am not, I would nevertheless conclude that § 441a(d)(3)‘s limits on political parties violate the First Amendment. Under Buckley and its progeny, a substantial threat of corruption must exist before a law purportedly
The Government asserts that the purpose of § 441a(d)(3) is to prevent the corruption of candidates and elected representatives by party officials. The Government does not explain precisely what it means by “corruption,” however;12 the closest thing to an explanation the Government offers is that “corruption” is “‘the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.‘” Brief for Respondent 35 (quoting Buckley v. Valeo, 424 U. S., at 25). We so defined
As applied in the specific context of campaign funding by political parties, the antiсorruption rationale loses its force. See Nahra, Political Parties and the Campaign Finance Laws: Dilemmas, Concerns and Opportunities, 56 Ford. L. Rev. 53, 105-106 (1987). What could it mean for a party to “corrupt” its candidate or to exercise “coercive” influence over him? The very aim of a political party is to influence its candidate‘s stance on issues and, if the candidate takes office or is reelected, his votes. When political parties achieve that aim, that achievement does not, in my view, constitute “a subversion of the political process.” Federal Election Comm‘n v. NCPAC, 470 U. S., at 497. For instance, if the Democratic Party spends large sums of money in support of a candidate who wins, takes office, and then implements the Party‘s platform, that is not corruption; that is successful advocacy of ideas in the political marketplace and representative government in a party system. To borrow a phrase from Federal Election Comm‘n v. NCPAC: “The fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by [political groups] can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view.” Id., at 498. Cf. Federal Election Comm‘n v. MCFL, 479 U. S., at 263 (suggesting that “[v]oluntary political associations do not present the specter of corruption“).
The structure of political parties is such that the theoretical danger of those groups actually engaging in quid pro quos with candidates is significantly less than the threat of individuals or other groups doing so. Seе Nahra, supra, at
In any event, the Government, which bears the burden of “demonstrat[ing] that the recited harms are real, not merely conjectural,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664 (1994), has identified no more proof of the corrupting dangers of coordinated expenditures than it has of independent expenditures. Cf. ante, at 618 (“The Government does not point to record evidence or legislative findings suggesting any special corruption problem in respect to independent party expenditures“). And insofar as it appears that Congress did not actually enact § 441a(d)(3) in order to stop corruption by political parties “but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign spending,” ibid. (citing Buckley v. Valeo, supra, at 57), the statute‘s ceilings on coordinated expenditures are as unwarranted as the caрs on independent expenditures.
In sum, there is only a minimal threat of “corruption,” as we have understood that term, when a political party spends to support its candidate or to oppose his competitor, whether
* * *
To conclude, I would find
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting.
In my opinion, all money spent by a political party to secure the election of its candidate for the office of United States Senator should be considered a “contribution” to his or her campaign. I therefore disagree with the conclusion reached in Part III of the principal opinion.
I am persuaded that three interests provide a constitutionally sufficient predicate for federal limits on spending by political parties. First, such limits serve the interest in avoiding both the appearance and the reality of a corrupt political process. A party shares a unique relationship with the candidate it sponsors because their political fates are inextricably linked. That interdependency creates a special danger that the party—оr the persons who control the party—will abuse the influence it has over the candidate by virtue of its power to spend. The provisions at issue are appropriately aimed at reducing that threat. The fact that the party in this case had not yet chosen its nominee at the time it broadcast the challenged advertisements is immaterial to the analysis. Although the Democratic and Republican nominees
Second, these restrictions supplement other spending limitations embodied in the Federal Election Campaign Act of 1971, which are likewise designed to prevent corruption. Individuals and certain organizations are permitted to contribute up to $1,000 to a candidate.
Finally, I believe the Government has an important interest in leveling the electoral playing field by constraining the cost of federal campaigns. As Justice White pointed out in his opinion in Buckley, “money is not always equivalent to or used for speech, even in the context of political campaigns.” Id., at 263 (opinion concurring in part and dissenting in part). It is quite wrong to assume that the net effect of limits on contributions and expenditures—which tend to protect equal access to the political arena, to free candidates and their staffs from the interminable burden of fundraising,
Congress surely has both wisdom and experience in these matters that is far superior to ours. I would therefore accord special deference to its judgment on questions related to the extent and nature of limits on campaign spending.* Accordingly, I would affirm the judgment of the Court of Appeals.