No. 95-489

In the Supreme Court of the United States

OCTOBER TERM, 1995

COLORADO REPUBLICAN FEDERAL CAMPAIGN 
COMMITTEE AND DOUGLAS JONES, TREASURER, 
PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT 

LAWRENCE M. NOBLE
General Counsel

RICHARD B. BADER
Associate General Counsel

RITA A. REIMER
Attorney
Federal Election Commission
Washington, D.C. 20463

DREW S. DAYS, III
Solicitor General

PAUL BENDER
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

Department of Justice
Washington, D.C. 20530
(202) 514-2217

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     QUESTIONS PRESENTED

1. Whether the Federal Election Commission reason-
ably determined that the payments at issue in this case
were subject to the Federal Election Campaign Act's
limitations on contributions to candidates for federal
office, as defined to include coordinated expenditures in
support of those candidates.
2. Whether application of the Act to the payments at
issue in this case violated the First Amendment.

(I)

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TABLE OF CONTENTS     Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statutory Provisions involved . . . . 2
statement . . . . 2
Summary of argument . . . . 10

Argument:

I. The payments at issue in this case were gov-
  erned by the limitations of 2 U.S.C. 441a(a) (2). . . . 14
A.The payments at issue in this case were
"expenditures" within the meaning of the
FECA . . . . 18
B. The payments in question were "coordinated
expenditures" subject to the FECA's limita-
tions on contributions . . . . 23
II. The FECA's restrictions on coordinated expen-
ditures made by political parties do not violate
the First Amendment . . . . 28
A.  By limiting campaign expenditures coordi-
nated with candidates, Section 441a serves a
compelling governmental interest in avoiding
corruption and the appearance of corruption...
B. The FECA'S restrictions on coordinated party
expenditures also serve a compelling govern-
mental interest in preventing evasion of the
limits on individual and political committee
contributions . . . .41
C. The statutory restrictions on coordinated
party expenditures are not unconstitutionally
vague . . . . 43
Conclusion . . . . 46
Appendix . . . . 1a
        
 (III)

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 IV

 TABLE OF AUTHORITIES

Cases:                  Page

A American Land Title Ass'n V. Clarke, 968 F.2d 150
  (2d Cir. 1992), cert. denied, 113 S. Ct. 2959
  (1993) . . . . 25
Austin V. Michigan, State Chamber of Commerce,
  494 Us. 652 (1990) . . . . 399
Broadrick V. Oklahoma, 413 U.S. 601 (1973) . . . . 14, 44
Buckley V. Valeo, 424 U.S. 1 (1976) . . . . passim
Burson v. Freeman, 504 U.S. 191 (1992) . . . . 33.34
California Medical Ass'n V. FEC, 453 U.S. 182
  (1981) . . . . 30,40,41
Common Cause V. FEC, 842 F.2d 436 (D.C. Cir.  24
  1988) , . . . .24
Delta Air Lines, Inc. v. August, 450 U.S. 346
  (1981) . . . . 25
Elrod  v. Burns, 427 U.S. 347 {1976) . . . . 37
FEC V. Democratic Senatorial Campaign Comm.,
  454 U.S. 27 (1981) . . . . passim
FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert.
  denied, 484 U.S. 850 (1987) . . . . 8
FEC v. Massachusetts Citizens for Life, Inc., 479
  U.S. 238 (1986) . . . . 3, 9,20,21,39
FEC v. NRA Political Victory Fund, 6 F.3d 821
  (D.C- Cir. 1993), cert. dismissed, 115 S. Ct 537
  (1994) . . . . 38
FEC v. National Conservative Political Action
  Comm.:
   470 U.S. 480 (1985) . . . . 30,34
   647 F. SUPP. 987 (S.D.N.Y. 1986) . . . . 27
FEC v. National Right to Work Comm., 459 U.S.
  197 (1982)  . . . . 30,32,33,40,45
FEC V, Ted Haley Congressional Comm., 852 F.2d
  1111 (9th Cir. 1988) . . . . 24
Florida Bar  V. Went For It, Inc., 115 S. Ct. 2371
  (1995) . . . . 33
Gard V. Wisconsin State Elections Board, 456
  N.W.2d 809 (WM.), cert. denied, 498 U.S. 982
  (1990) . . . . 43

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 v

Cases-continued:              Page

Igneri v. Moore, 898 F.2d 870 (2d Cir. 1990) . . . . 34
Kennedy V. Shalala, 995 F.2d 28 (4th Cir. 1993) . . . . 25
Kosak v. United States, 465 U.S. 848 (1984)
Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C.
  Cir.), cert. denied, 449 U.S. 954 (1980) . . . . 45
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
  (1958) . . . . 37
National Republican Congressional Comm. v. Legi-
 Tech Corp., 795 F.2d 190 (D.C. Cir. 1986) . . . . 24
Oregon v. Mitchell, 400 U.S. 112 (1970) . . . . 37
Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) . . . . 21,24
Republican Party of Arkansas V. Faulkner County,
  49 F.3d 1289 (8th Cir. 1995) . . . . 37
Rodriguez v. United States, 480 U.S. 522 (1987) . . . . 22
Russello V. United States, 464 U.S. 16 (1983) . . . . 22
Rutan v. Republican Party of Illinois, 497 U.S. 62
  (1990) . . . . 34
Tashjian v. Republican Party of Connecticut, 479
  U.S. 208 (1986) . . . . 36
United States V. National Treasury Employees
  Union, 115 S. Ct. 1003 (1995) . . . . 33
United States Civil Service Comm'n V. National
  Ass'n of Letter Carriers, 413 U.S. 548 (1973) . . . . 45
Wagner Seed Co. v. Bush, 946 F.2d 918 (D.C. Cir.
  1991), cert. denied, 503 U.S. 970 (1992) . . . . 25

Constitution, statutes and regulations:

U.S. Const. Amend. I . . . . 12,28,29,37,38,43
Federal Election Campaign Act of 1971, 2 U.S.C.
  431 et seq. . . . 2,10,14, la
   2 U.S.C. 431 (8) (A) . . . . 22, la
   2 U.S.C. 431 (8) (A) (i) . . . . 2, la
   2 U.S.C. 431 (8) (B) (V) . . . . 40
   2 U.S.C. 431 (8) (B) (x) . . . . 40
   2 U.S.C. 431 (8) (B) (xii) . . . . 40
   2 U.S.C. 431 (9) (A) . . . . 22, la
   2 U.S.C. 431 (9) (A) (i) . . . . 2, 3,11,15,19, la
   2 U.S.C. 431 (9) (B) (iii) . . . . 22
   2 U.S.C. 431 (9) (B) (iv) . . . . 40

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VI

Constitution, statutes and regulations-Continued:   Page

   2 U.S.C. 431 (9) (B) (viii) . . . . 40
   2 U.S.C. 431 (9) (E) (ix) . . . . 40
   2 U.S.C. 431 (11) . . . . 26
   2 U.S.C. 431 (16) . . . . 26
   2 U.S.C. 431(17) . . . . 2,22,1a
   2 U.S.C. 432 . . . . 5
   2 U.S.C. 43.2 (a) . . . . 7
   2 U.S.C. 432 (c) . . . . 7
   2 U.S.C. 434 . . . . 5
   2 U.S.C. 434 (a) (1) . . . .  8
   2 U.S.C. 434(b) (4) (H) (iv) . . . . 5,7
   2 U.S.C. 434 (b) (6) (B) (iv) . . . . 7
   2 U.S.C. 437c(b) (1) . . . . 3
   2 U.S.C, 437d (a) . . . . 3
   2 U.S.C. 437d (e) . . . . 3
   2 U.S.C. 437f . . . .  3, 25,45
   2 U.S.C. 437f (a) (1) . . . . 45
   2 U.S.C. 437g . . . . 3
   2 U.S.C. 437g(a) (1) . . . . 3,7
   2 U.S.C. 437g (a) (2) . . . . 3
   2 U.S.C. 437g(a) (4) . . . . 7
   2 U.S.C. 437h . . . . 3
   2 U.S.C. 441a . . . . 7, 29,31,40, 2a
   2 U.S.C. 441a(a) . . . . l4, 17,28,42, 2a
   2 U.S.C. 441a (a) (1) . . . .  2,2a
   2 U.S.C. 441a(a) (1) (A) . . . . 41,2a
   2 U.S.C. 441a(a) (1) (C) . . . . 41, 2a
   2 U. S.C. 441a(a) (2) . . . . 2 ,5, 14, 2a
   2 U.S.C. 441a(a) (2) (A) . . . . 2, 4,15, 18,2a
   2 U.S.C. 441a (a) (4) . . . . 2,40
   2 U.S.C. 441a(a) (7) (B) (i) . . . . 2, 3,4,15,17,
                                         18,23,30, 2a
   2 U.S.C. 441a(d) . . . . passim, 3a
   2 U.S.C. 441a(d) (1) . . . . 4, 15, 3a
   2 U.S.C. 441a(d) (2) . . . . 45, 15, 3a
   2 U.S.C. 441a(d) (3) . . . . 5, 8,9,15,28, 3a
   2 U.S.C. 441a(d) (3) (A). . . . 5,15,4a
   2 U.S.C. 441a(d) (3) (A) (i) . . . . 7,4a
   2 U.S.C. 441a(f ) . . . . 7

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  VII

Statutes and regulations-Continued:       Page

   2 U.S.C. 441b . . . . 9, 20,21,39
   2 U.S.C. 441b (a) . . . . 8
   2 U.S.C. 441d(a) . . . . 22

Federal Election Campaign Act Amendments of
  1976, Pub. L. No. 94-283, 90 Stat. 475 . . . . 31
Presidential Election Campaign Fund Act, 26
  U.S.C. 9001 et seq. . . . 36
   26 U.S.C. 9006 (b) . . . . 36
11 C. F. R.:
   Section 100.5 (e) (3) . . . . 2
   Section 100.7 (b) (15) . . . . 40
   Section 100.8 (b) (16) . . . . 40
   Section 102.5 (a) (1) (i) . . . . 6
   Section 106.1 (c) . . . . 6
   Section 110.7 (b) (3) . . . . 5
   Section 110.7(b) (4) . . . . 4,23

Miscellaneous:

Associated Press, Dems: Record Fund-Raising
  Qtr., Apr. 19, 1994 . . . . 42
Donna Cassata, GOP Retreats on Hatfield, But
  War Far From Over, Cong. Q., Mar. 11, 1995,
  at 729 . . . . 36
Conciliation Agreement, Matter Under Review
  3620 (Aug. 21, 1995) . . . . 42
FEC Advisory Op. 1978-46, 1 Fed. Eke. Camp.
  Fin. Guide (CCH) Par. 5348 (Sept. 5, 1978) . . . . 25,  26
FEC Advisory Op. 1978-50, 1 Fed. Elec. Camp.
  Fin. Guide (CCH) Par.  5353 (Sept. 19, 1978) . . . . 26
FEC Advisory Op. 1979-80, 1 Fed. Elec. Camp.
  Fin. Guide (CCH) Par. 5469 (Mar. 12, 1980) . . . . 27
FEC Advisory Op. 1980-116, 1 Fed, Elec. Camp.
  Fin. Guide (CCH) Par. 5565 (Nov. 14, 1980) . . . . 27
FEC Advisory Op. 1980-119, 1 Fed. Eke. Camp.
  Fin. Guide (CCH) Par. 5561 (Ott. 24, 1980) . . . . 5,17
FEC Advisory Op. 1982-20, 1 Fed. Elec. Camp.
  Fin. Guide (CHH) Par. 5665 (Apr. 26, 1982) . . . . 27
FEC Advisory Op. 1984-15, 1 Fed. Elec. Camp.
  Fin. Guide (CCH) Par. 5766 (May 31, 1984) . . . . 3, 19, 25

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 VIII

Miscellaneous-Continued:           Page

FEC Advisory Op. 1985-14, 2 Fed. Elec. Camp,
  Fin. Guide (CCH) Par. 5819 (May 30, 1985) . . . . 3, 5, 23,
                                                    24,25,26
FEC Advisory Op. 1988-22, 2 Fed. Elec. Camp.
  Fin. Guide (CCH) Par. 5932 (July 5, 1988) . . . . . 24
FEC Press Release, FEC Final 1985-86 Report on
  Political Parties Shows Decline in Financial
  Activity (May 5, 1988) . . . . 38
FEC Press Release, Final FEC Report on 1985-86
  Independent Expenditures Shows Change in
  Spending Patterns (Mar. 31, 1988) . . . . 38
FEC Press Release, 199.4 PAC Activity Shows
  Little Growth Over 1992 Level, Final FEC Re-
  port Finds (Nov. 1995) . . . . 39
60 Fed. Reg. 35,305 (1995) . . . . 16
H.R. Conf. Rep. No. 1057, 94th Cong., 2d Sess.
  (1976) . . . . 4, 16-17, 22, 28
Paul Herrnson, Party Campaigning in the 1980s
(1988) . . . . 43
Tom Kenworthy, House Democratic Campaign
Unit Running Into Turbulence, Wash. Post, Aug.
2, 1989, at A6 . . . . 42
Nathan Miller, The Founding Finaglers (1976) . . . . 34
Iver Peterson, Accepting "Soft Money" As a Nec-
essary Evil, N.Y. Times, Dec. 29, 1994, at B5 . . . . 42
Playing Hardball: How Reaganites Push Reluctant
Republicans to Back Tax-Rise Bill, Wall St. J.,
Aug. 18, 1982, at 1 . . . . 36
William Presecky, Mrs. Bush Says yes, Clinton no
to Du Page, Chi. Trib., Mar. 12, 1992, at 5 . . . .42
Shelley Roes., Fall from Grace: Sex, Scandal, and
Corruption in American Politics from .170.2 to
the Present (1988) . . . . 34
S. Rep. No. 714, 90th Cong., 1st Sess. (1967) . . . . 36
The Federalist No. 10 (Madison) (Rossiter cd.,
1961 ) . . . . 37

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

      No. 95-489

COLORADO REPUBLICAN FEDERAL CAMPAIGN
COMMITTEE AND DOUGLAS JONES, TREASURER,
       PETITIONERS

v.

FEDERAL ELECTION COMMISSION

   ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
   FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (J.A. 32-48) is
reported at 59 F.3d 1015. The opinion of the district
court (J.A. 17-31) is reported at 839 F. Supp. 1448,

JURISDICTION

The judgment of the court of appeals was entered on
June 23, 1995. A suggestion for rehearing in bane was
denied on September 6, 1995. J.A. 49. The petition for
a writ of certiorari w-as filed on September 21, 1995, and
was granted on January 5, 1996 (116 S. Ct. 689). .The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(1)

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  2

   STATUTORY PROVISIONS INVOLVED

The following provisions of the Federal Election Cam-
paign Act of 1971, as amended, 2 U.S.C. 431 et seq.,
are set forth in the appendix to this brief: 2 U.S.C.
431(8)(A)(i) (definition of "contribution"), 431(9)
(A) (i) definition of "expenditure"), 431( 17) (defini-
tion of "independent expenditure"), 441 a (a ) ( 1 ) and (2 )
(dollar limits on contributions), 441a(a) (7) (B)(i)
(treatment of coordinated expenditures ), 441a (d) (ex-
penditures by political party committees).
      
 STATEMENT

1. This case concerns the Federal Election Campaign
Act of 1971 (FECA or Act), as amended, 2 U.S.C. 431
et seq. The Act imposes limits on contributions to candi-
dates for federal office. Individuals may contribute no
more than $1,000, and multicandidate political commit-
tees 1 no more than $5,000, to any candidate with respect
to any election. 2 US.C. 441a(a)(l)(A) and (2)(A).
The Act provides that "expenditures made by any person
in cooperation, consultation, or concert, with" a candi-
date or the candidate's agents--commonly known as
"coordinated" expenditures, see Buckley V. Valeo, 424
U.S. 1, 46 ( 1976) (per curiam)-''shall be considered
to be a contribution to such candidate." 2 U.S.C.
441a(a) (7) (B) (i). The Act defines "expenditure" to
include "any purchase, payment, distribution, loan, ad-
vance, deposit, or gift of money or anything of value,
made by any person for the purpose of influencing any
election for Federal office." 2 U.S.C. 431 (9) (A) (i).

___________________(footnotes)

1 A multicandidate political committee is "a political committee
which has been registered under [2 U.S-C. 433] for a Period of
not less than 6 months, which has received contributions from
more than 50 persons, and, except for any State political party
organization, has made contributions to 5 or more candidates for
Federal office." 2 U.S.C. 441a(a) (4); see 11 C.F.R 100.5(e) (3).

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 3

Under the regulatory scheme established by the Fed-
eral Election Commission ( FEC or Commission, 2 ap-
plication of the statutory contribution limits to expendi-
tures by political parties depends upon whether an ex-
penditure is "allocable" or "attributable" to a particular
candidate. FEC Adivisory Op. 1985-14, 2 Fed. Elec.
Camp. Fin, Guide (CCH) Par. 5819, at 11,185 (May 30,
1.985) (AO 1985-14); see FEC Advisory Op. 1984-15,
1 Fed. Elec. Camp. Fin. Guide (CCH) Par. 5766 (May
31, 1984). "Generic" appeals for public support for a
party's federal candidates (e.g., "Support Republicans for
Congress") are considered "expenditures" (because they
are made "for the purpose of influencing" federal elec-
tions, 2 U.S.C. 431 (9) (A) (i)), but they are not alloc-
able or attributable to particular candidates. See AO
1985-14, at 11,185-11,186. They are therefore not
deemed to be "coordinated" expenditures-expenditures
made "in cooperation, consultation, or concert, with"
a candidate or the candidate's agents, 2 U.S.C. 441a
(a) (7) (B) (i), and are, consequently, not subject to
the Act's contribution limits. Where a party expenditure
is used to finance communicative activities, the Commis-
sion has determined that the expenditure will be con-
sidered attributable or allocable to a particular campaign
only if the communication refers to a "clearly identified
candidate" and contains an "electioneering message." AO
1985-14, at 11,185."                              
                  
___________________(footnotes)

2 The Commission is an independent agency charged with the
administration, interpretation, and civil enforcement of the FECA.
See 2 U.S.C. 437c (b) (1), 437d (a) and (e), 437f, and 437g. Con-
gress has expressly authorized the FE C to "formulate policy"
under the Act, 2 U.S.C. 437c (b) (1) ; to institute investigations of
possible violations of the Act, 2 U.S.C. 437g (a) (1) and (2) ; to
initiate civil actions in the United States district courts to obtain
judicial enforcement of the Act, 2 U.S.C. 437c (b) (1), 437d (e) ; and
to initiate actions in the federal courts to determine the constitu-
tionality of any provision of the Act, 2 U.S.C. 437h.

3 Some coordinated expenditures do not involve speech at all,
making the "electioneering message" test irrelevant. For example,

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 4

If a party committee's expenditure is attributable to a
particular candidate, it is deemed by the Commission, as
a matter of law, to be made "in cooperation, consultation,
or concert, with" that candidate. 2 U.S.C. 441a(a)(7)
(B) (i). 4 All party "expenditures" attributable to par-
ticular candidates are therefore treated as "coordinated
expenditures," and are subject to the Act's limitations on
contributions. The Act, however, allows party commit-
tees to make such coordinated expenditures in amounts
substantially greater than the contribution limits that
apply to individuals and to other organizations.5 An
exception to the Act's general contribution limits thus
provides that, "[n]otwithstanding any other provision
of law with respect to limitations on expenditures or limi-
tations on contributions," the national and state com-
mittees of a political party "may make expenditures in
connection with the general election campaign of candi-
dates for Federal office" up to certain specified amounts,
2 U.S.C. 441a(d) (1 ).6 See H.R. Conf. Rep. No, 1057,
94th Cong., 2d Sess. 59 (1976) ("but for [Section

___________________(footnotes)

a party committee's payment to hire security guards for a candi-
date's campaign appearance would be a coordinated expenditure
subject to the Act's contribution limits.
4 Political " [p] arty committees are considered incapable of mak-
ing `independent' expenditures in connection with the campaigns
of their party's candidate." FEC v. Democratic Senatorial Cam-
paign Comm., 454 U.S. 27, 28-29 n.1 (1981) (DSCC). See 11
C.F.R. 110,7 (b) (4) (party committees "shall not make independent
expenditures in connection with the general election campaign of
candidates for Federal office" ).
5 In addition to limits imposed by the Act on individual contribu-
tions, it also places a general limit of $5,000 upon a multicandidate
political committee's contributions to any candidate for federal
office. 2 U.S.C. 441a (a) (2) (A).

6 In determining whether a party expenditure for communicative
activity is made "in connection with" a general election campaign
for purposes of Section 441a(d), the Commission employs the same
test (depiction of a "clearly identified candidate" plus communica-
tion of an "electioneering message") that it utilizes in determining

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  5

441a(d)], these expenditures would be covered by the
contribution limitations stated in [Section 441a(a)(1)
and (2) ]" ). In elections for the United States Senate,
the national and state party committees may each expend
the greater of $20,000 or 2 cents multiplied by the voting
age population of the State in which the election. is held.
2 U.S.C. 441a(d) (3) (A).7 If a state party committee
cheeses not to make the coordinated expenditures per-
mitted by law, it may assign its right to do so to a desig-
nated agent such as a national committee of the party.
See FEC v. Democratic Senatorial Campaign Comm., 454
U.S. 27,31-43 (1981).
The FECA requires detailed recordkeeping and report-
ing of all contributions and expenditures. 2 U.S.C. 432,
434. Coordinated expenditures made by political party
committees pursuant to Section 441a(d) must be reported
by the committees separately from other contributions and
expenditures. 2 U.S.C. 434(b) (4) (H) (iv).
2. On March 14, 1986, petitioner Colorado Republi-
can Federal Campaign Committee (the Committee ) as-
signed to the National Republican Senatorial Committee
(NRSC) its entire coordinated expenditure authority
($103,248 ) for the 1986 Colorado Senate campaign, in
which one United States Senate seat was to be contested.
J.A. 35, 175. In January, 1986, then-Representative
Timothy E. Wirth, a Democrat, registered with the FEC
as a candidate in that year's Colorado United States Sen-

___________________(footnotes)

whether an expenditure is attributable to an individual candidate.
See AO 1985-14, at 11,185; FEC Advisory OP. 1980-119, 1 Fed. Elec.
Camp. Fin. Guide (CCH) Par. 5561, at 10,691 (Oct. 24, 1980).
7 As construed by the Commission, Section 441a (d) permits a
state party committee to make coordinated expenditures up to the
limits set out in Section 441a(d) (2) and (3) in addition to the
$5,000 that can be contributed directly to the candidate. See 11
C.F.R. 110.7(b) (3) ; AO 1985-14, at 11,186 n.5. Thus, if a party
committee's coordinated expenditures exceeded the limits estab-
lished by Section 441a(d) (2) and (3), the excess expenditure
could be treated, up to the amount of $5,000, as an in-kind con-
tribution falling within the limitations of Section 441a(a) (2),

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 6

ate election. J.A. 33. In April, 1986, the Committee
spent $15,000 to broadcast a radio advertisement, "Wirth
Facts #1." See J.A. 56, 64. The text of the advertise-
ment was as follows:

Paid for by the Colorado Republican State Central
Committee.

Here in Colorado we're used to politicians who let
you know where they stand and I thought we could
count on Tim Wirth to do the same. But the last
few weeks have been a real eye-opener. I just saw
some ads where Tim Wirth said he's for a strong
defense and a balanced budget. But according to his
record, Tim Wirth voted against every major new
weapon system in the last five years. And he voted
against the balanced budget amendment.
Tim Wirth has a right to run for the Senate, but he
doesn't have a right to change the facts.

J.A. 161. At a press conference contemporaneous with
the broadcast of the advertisement, the chairman of the
Colorado Republican Party stated that only after "the
public know[s] what Tim Wirth's record really is * * *
will the voters be able to make an informed decision
regarding who will be Colorado's next U.S. Senator."
J.A. 148. The chairman asserted that "[i]t's too bad that
[Wirth] has only discovered the need for a strong na-
tional defense now that he's running for the Senate."
J.A. 146. At the time that the advertisement was broad-
cast, neither the Democratic nor the Republican Party
had nominated its candidate for the Colorado Senate seat,
J.A. 33. Three candidates were in contention for the
Republican nomination. J.A. 195-196 3

___________________(footnotes)

8 The Committee made the expenditure from its federal account,
see 11 C. F.R. 102.5 (a) (1) (i), but did not report the expenditure
to the FEC as being in connection with the Colorado Senate cam-
paign. The Committee's report to the Commission did reflect the
expenditure's electoral purpose, however, by characterizing it as
"Voter Information to Colorado Voters-Advertising." J.A. 179.

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7

After investigating an administrative complaint filed
by the Colorado Democratic Party pursuant to 2 U.S.C.
437g(a) ( 1 ), the FEC determined that the Committee's
expenditure on "Wirth Facts #1" was a coordinated party
expenditure subject to the limitations of Section 44 la of
the FECA. Because the Committee had previously as-
signed its entire Section 44 la(d) coordinated expenditure
authority to the NRSC,9 the Commission found probable
cause to believe (see 2 U.S.C. 437g(a) (4)) that it had
violated 2 U.S.C. 441a(f), which prohibits contributions
and expenditures in violation of Section 441a. Because
the Committee had failed to report the payment as an
expenditure under Section 441 a ( d), the FEC also found
probable cause to believe that the Committee had violated
the reporting requirements of 2 U.S.C. 434(b) (4) (H)
(iv) and 434(b) (6) (B) (iv). J.A. 136-139; Pet. App.
43a-46a, 56a.   10
3. After conciliation efforts under 2 U.S.C. 437g(a)
(4) were unsuccessful, the Commission authorized the
filing of this civil enforcement action.11 The district court

___________________(footnotes)

9 If the Committee had not assigned to the NRSC its coordinated
expenditure authority, the payment at issue in this case would
have been authorized by Section 441a (d). Under the statutory
formula set forth in Section 441a (d) (3) (A) (i), the Committee
would have been authorized to make expenditures of LIP to $103,248
in connection with the 1986 Senate campaign. J.A. 35. The Com-
mittee spent $15,000 on "Wirth Facts #l." J.A. 33.

10 The administrative complaint also challenged the Committee's
payments for two other radio advertisements and two pamphlets,
all of which criticized Representative Wirth's record without allud-
ing to his Senate campaign. By a vote of 3-3, the Commission
failed to find probable cause to believe that those payments violated
the Act. J.A. 136; see Pet. App. 93a-105a.

11 The complaint in this action named the Committee's treasurer,
as well as the Committee, as respondents, and the treasurer is a
petitioner in this Court. A political committee's treasurer has
legal responsibility for approving all expenditures, 2 U.S.C. 432 (a),
for keeping the committee's records, 2 U.S.C. 432(c), and for filing

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8

granted petitioners' motion for summary judgment. J.A.
17-31. The court acknowledged that a party expenditure
can be "coordinated" even if it is made before the party's
nominee is officially selected. J.A. 23. The court rea-
soned that the expenditure here "was made on behalf of
the Republican candidate, whomever [sic] that might be;
and it is irrelevant that no particular person had been des-
ignated." Ibid. The court concluded, however, that the
expenditure in question had not been made "in connec-
tion with the general election campaign of a candidate
for Federal office" with the meaning of Section 441a
(d) (3), because the advertisement paid for by the ex-
penditure did not contain "express advocacy" of the elec-
tion or defeat of a particular candidate. J.A. 23-28.  12
In so holding, the district court placed substantial reli-
ance on this Court's decision in FEC V. Massachusetts
Citizens for Life, Inc., 479 U.S. 238 ( 1986) (MCFL),
which involved a prohibition (2 U.S.C. 441b(a) ) on
independent expenditures by corporate entities "in connec-
tion with any election" to any federal office. The Court

___________________(footnotes)

the committee's disclosure reports with the Commission, 2 U.S.C.
434(a) (1).

12 This court has stated that an express advocacy test would
restrict the application of the statutory limits to expenditures
for communications that in express terms advocate the election or
defeat of a clearly identified candidate for federal office." Buckley
V. Valeo, 424 U.S. at 44 (per curiam). Express advocacy would
include the use of terms "such as `vote for,' `elect,' `support,' `cast
your ballot for; `Smith for Congress,' `vote against,' `defeat,' `re-
ject.' " Id. at 44 n.52. See also id. at 80 ["spending that is
unambiguously related to the campaign of a particular federal
candidate") ; FEC v. Massachusetts Citizens for Life, Inc., 479
U.S. 238, 249 (1986) (publication found to contain express ad-
vocacy where it "not only urge [d] voters to vote for `pro-life'
candidates, but also identifie [d] and provide [d ] photographs of
specific candidates fitting that description") ; FEC V. Furgatch,
807 F.2d 857, 864 (9th Cir.) (speech that is "susceptible of no
other reasonable interpretation but as an exhortation to vote for
or against a specific candidate"), cert. denied, 484 U.S. 850 (1987).

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  9

in MCFL held that "an expenditure must constitute `ex-
press advocacy' in order to be subject to the prohibition
of  441 b." 479 U.S. at 249. Applying the canon of
statutory construction that "identical words used in differ-
ent parts of the same act are intended to have the same
meaning," the district court concluded that the phrase
"in connection with" should be given the same construc-
tion in Section 441a(d)(3) as in Section 441b. J.A. 24.
The court rejected the FEC's contention that the phrase
"in connection with," as used in Section 441a(d)(3),
should be construed more broadly to cover all communi-
cations that contain a "clearly identified candidate" and
an "electioneering message." J.A. 25-28; see page 3 &
note 6, supra. The court concluded that "Wirth Facts
#1" did not contain "express advocacy" of Wirth's defeat,
J.A. 28-31, and that petitioners' expenditure on the ad-
vertisement therefore "was not subject to section 441a
(d) (3) limitations and did not violate the Act," J.A. 31.
Because the district court found that no violation of the
FECA had occurred, it did not reach petitioners" con-
stitutional challenge to the statutory restrictions on politi-
cal party expenditures. Ibid.
4. The court of appeals reversed. J.A. 32-48. The
court first stated that "[t]he FECA does not clearly mani-
fest the meaning Congress intended to attach to the
`expenditures in connection with' language in  441a(d)
(3) ." J.A. 37. The court found MCFL inapposite, ex-
plaining that the independent expenditures limited by
Section 441b are substantially different-both in their
treatment under the FECA and in the degree of protec-
tion afforded them by the Constitution-from the coordi-
nated expenditures at issue here. J.A. 39-41. In light
of the FEC's " `primary and substantial responsibility for
administering and enforcing' the FECA," J.A. 42 (quot-
ing Buckley v. Valeo, 424 U.S. at 109 (per curiam) ),
the court of appeals concluded that the Commission's
"construction of  441a(d) as regulating political com-
mittee expenditures depicting a clearly identified candi-

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 10

date and conveying an electioneering message is a
reasonable one to which [the court] must defer," J.A.
42. The court found that Representative Wirth was a
clearly identified candidate at the time "Wirth Facts #1"
was broadcast, J.A. 44, and that the advertisement "un-
questionably contained an electioneering message," J.A.
45.
 The court of appeals then addressed and rejected peti-
tioners' constitutional challenge to the statutory restric-
tions on coordinated party expenditures. The court
observed that "[t]he primary purpose of the contribution
and expenditure caps in the FECA [is] to prevent cor-
ruption or the appearance of corruption,"J.A. 46, and
that "[t]he same reasoning the Supreme Court used to
uphold the constitutionality of other contribution limita-
tions applies when analyzing the constitutionality of limits
on coordinated expenditures by political committees,"
J.A. 47. The court rejected the claim that contributions
from committees operated by a political party can never
be corrupting, ibid., and concluded that "[b]y treating
coordinated expenditures as contributions, the FECA ef-
fectively precludes political committees from literally or
in appearance, `secur[ing] a political quid pro quo from
current and potential office holders,' " J.A. 48 (quoting
Buckley v. Valco, 424 U.S. at 26 (per curiam) ).

     SUMMARY OF ARGUMENT

1. In contending that their conduct did not violate the
Federal Election Campaign Act of 1971, petitioners argue
that the payments at issue in this case fall outside the
coverage of 2 U.S.C. 441a(d) because they were not
made "in connection with" the 1986 Colorado Senate
campaign. Petitioners' focus on Section 441a(d) is mis-
conceived. Section 441 a(d) is not a restriction on spend-
ing by political parties; rather, it serves to uuthorize party
expenditures that would otherwise be violative of the
Act's limits on contributions. The pertinent statutory

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 11

question in this case, therefore, is not whether the pay-
ment at issue was prohibited by Section 441a(d), but
whether it exceeded the statutory limitations on con-
tributions, defined by the Act to include coordinated
expenditures.
The payments at issue in this case fall squarely within
the FECA's definition of "expenditure," which includes
"any purchase, payment, distribution, loan, advance, de-
posit, or gift of money or anything of value, made by
any person for the purpose of influencing any election
for Federal office." 2 U.S.C. 431 (9) (A) (i). The Com-
mission was not required to prove that the communica-
tions in question contained "express advocacy" of the
election or defeat of a particular candidate. Based on
constitutional concerns, this Court has construed FECA
provisions governing independent expenditures to apply
only to payments used for express advocacy. The Court
has never applied that standard to coordinated expendi-
tures, however, and it should not do so here. Because
there would be little difficulty in "devising expenditures
that skirted the restriction on express advocacy of elec-
tion or defeat but nevertheless benefited the candidate's
campaign," Buckley v. Valeo, 424 U.S, 1, 45 (1976)
(per curiam), such a construction would eviscerate the
Act's restrictions on coordinated expenditures. Such a
construction would be especially unwarranted in light of
post-Buckley amendments to the FECA, which incorpo-
rate an "express advocacy" requirement into the statutory
definition of "independent expenditure" but not into the
definitions of "contribution" and "expenditure."
The FEC's conclusion that the payments at issue here
were subject to the Act's monetary limitations rests in
part on the Commission's determination that, because
"Wirth Facts #1" depicted a "clearly identified candi-
date" and communicated an "electioneering message," it
was "attributable" to the 1986 Colorado Senate race.
The Commission's standard for determining whether a
party expenditure is attributable to a particular election

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 12

is entitled to substantial deference from a reviewing court,
and the court of appeals correctly upheld the FEC's ap-
proach. There is, in particular, no basis for petitioners'
contention that the Commission's "clearly identified can-
didate'' "electioneering message" standard represents an
unexplained departure from prior FEC pronouncements.
The Commission has also reasonably determined that,
because "[p]arty committees are considered incapable of
making `independent' expenditures in connection with the
campaigns of their party's candidates," FEC v. Demo-
cratic Senatorial Campaign Comm., 454 U.S. 27, 28 n.1
( 1981) (DSCC), all party expenditures attributable to
individual candidates are deemed "coordinated."
II. The FECA's restrictions on coordinated expendi-
tures by political parties do not violate the First Amend-
ment, Those restrictions serve the government's com-
pelling interests in (a) preventing the reality and appear-
ance of quid pro quo corruption by the political parties
themselves, and (b) preventing circumvention of the stat-
utory limitations on campaign contributions by other
donors.
A. Beginning with Buckley v. Valeo, this Court has
recognized a sharp constitutional distinction between limi-
tations on contributions to political candidates and limita-
tions on independent expenditures.  The Court has
consistently upheld the FECA's limitations on contri-
butions and coordinated expenditures because those
limitations serve a compelling interest in foreclosing op-
portunities for the corruption of candidates. Those hold-
ings are fully applicable here.
There is no merit to petitioners' contention that the
Commission must produce record evidence showing that
federal candidates have in fact been corrupted by con-
tributions from a political party. This Court in Buckley
did not require evidence of actual corruption by partic-
ular classes of contributors, but accepted Congress's judg-
ment as to the need for prophylactic measures in order
to prevent the fact and appearance of quid pro quo

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 13

corruption. Nor is there any basis for petitioners' argu-
ment that political parties are incapable of exerting a
corrupting influence over the candidates whom they sup-
pat. Political parties act through their employees and
agents, and individual party officials may be tempted to
use their control over the party's expenditures in order
to advance their private interests. In any event, the
danger at which the Act's contribution limitations are
directed does not depend on the invidious motivation of
the contributor. It inheres in any arrangement in which
an official's actions are driven by the prospect of sub-
stantial monetary reward, even where the contributor who
seeks to exercise "coercive influence," Buckley v. Valeo,
424 U.S. at 25 (per curiam), over the formulation of
public policy is motivated solely by a concern for the
public good.
Political parties have no constitutional entitlement to
an exemption from the contribution limitations that apply
to other donors. Although party officials may legitimately
seek in a variety of ways to influence the behavior of
members who hold public office, Congress may permissi-
bly limit their ability to employ sizeable monetary con-
tributions as a means of achieving their desired ends.
Contrary to petitioners' contention, the FECA does not
discriminate against political parties. To the contrary,
Section 441 a(d) permits parties to make coordinated ex-
penditures far in excess of those that can be made by
any other entity. In other respects as well, the Act in-
cludes special accommodations to party activities. Con-
gress thus endeavored to strike an appropriate balance
between the prevention of actual or apparent corruption
and the desire to "assud[e] that political parties will con-
tinue to have an important role in federal elections."
DSCC, 454 U.S. at 41. The Court should respect that
balance.
B. The FECA's restrictions on coordinated party ex-
penditures also serve the compelling governmental interest
in preventing evasion of the contribution limits on in-

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 14

dividuals and political committees. Although individuals
can contribute no more than $1,000 to a candidate, they
can contribute up to $5,000 to a multicandidate political
committee operated by a state political party, and up to
$20,000 to a political committee operated by a national
political party. 2 U.S.C. 441a(a). An individual who
wished to provide financial support to a candidate in
excess of the $1,000 limit might attempt to circumvent
that statutory restriction by making a large contribution
to that candidate's political party, with the expectation
that the party would in turn expend the funds in support
of the candidate. Nothing in the Act precludes candi-
dates and officeholders from urging their contributors to
make additional contributions to a party committee, and
such solicitations are not unusual. Congress may legiti-
mately act to prevent the use of such practices as means
of circumventing the Act's restrictions on individual con-
tributions.
C. The FECA provisions governing coordinated party
expenditures are not unconstitutionally vague. Persons of
"common intelligence," Broadrick v. Oklahoma, 413 U.S.
601, 607 ( 1973), would have no difficulty understanding
that an advertisement explicitly linking an attack on the
record of an opposing candidate with his ongoing Senate
campaign contained an "electioneering message." The
availability of advisory opinions construing the Act as
applied to particular factual circumstances provides fur-
ther assurance that regulated parties can receive fair
warning as to the nature of the conduct that the statute
prohibits.

     ARGUMENT

I. THE PAYMENTS AT ISSUE IN THIS CASE WERE
  GOVERNED BY THE LIMITATIONS OF' 2 U.S.C.
  441a(a)(2)

The Federal Election Campaign Act of 1971 (FECA
or Act) provides that "[n]o multicandidate political com-
mittee shall make contributions * * * to any candidate

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 15

and his authorized political committees with respect to any
election for Federal office which, in the aggregate, exceed
$5,000." 2 U.S.C. 441a(a) (2) (A). The Act states that
"expenditures made by any person in cooperation, con-
sultation, or concert, with, or at the request or suggestion
of, a candidate, his authorized political committees, or
their agents''-commonly known as "coordinated" ex-
penditures, see Buckley v. Valeoj 424 U.S. 1, 46 ( 1976)
(per curiam)-" shall be considered to be a contribution
to such candidate." 2 U.S.C. 441a(a)(7)(B)(i). The
FECA defines "expenditure" to include "any purchase,
payment, distribution, loan, advance, deposit, or gift of
money or anything of value, made by any person for the
purpose of influencing any election for Federal office." 2
U.S.C. 431(9) (A) (i). Under the regulatory framework
established by the FEC, a political party expenditure that
is "attributable" to an individual candidate is treated as a
coordinated party expenditure, and thus as subject to the
contribution limits for that candidate. See 2 U.S.C.
441a(a)(7)(B)(i); page 3, supra.
Section 441 a(d) ( 1), however, authorizes political par-
ties to make coordinated expenditures that would other-
wise exceed the Act's limitations on contributions to can-
didates. Section 441a (d) (1) states that, "[n]otwithstand-
ing any other provision of law with respect to limitations
on expenditures or limitations on contributions," a national
or state political party "may make expenditures in con-
nection with the general election campaign of candidates
for Federal office," subject to the monetary limits set
forth in Section 441(d)(2) and (3). Section 441a(d)(3)
provides in turn that, in elections for the United States
Senate, a national or state party committee "may not make
any expenditure in connection with the general election
campaign" in excess of the greater of $20,000 or 2 cents
multiplied by the voting age population of the State. 2
U.S.C. 441a(d) (3) (A).

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16

Petitioners contend that the payment at issue in this
case was not made "in connection with" the 1986 Colo-
rado Senate campaign, and that Section 441 a(d) is there-
fore inapplicable. Petitioners base that argument on the
fact that "Wirth Facts #1" was not found to have con-
tained "express advocacy" of the election or defeat of
a particular candidate.l3 Petitioners err in focusing their
attention on the applicability y of Section 441a(d) to the
payment they made. That provision does not impose
restrictions upon political parties more stringent than
those imposed by the rest of the Act. To the contrary,
Section 441a (d) serves to authorize expenditures that
would otherwise be impermissible because violative of
the FECA's limits on contributions. See FEC v. Dem-
ocratic Senatorial Campaign Comm., 454 U.S. 27, 28
( 1981) (DSCC) (Section 441a(d) "authorizes limited
expenditures by the national and state committees of a
political party * * * which otherwise would be imper-
missible" ); H.R. Conf. Rep. No. 1057, 94th Cong,, 2d

___________________(footnotes)

13 A regulation recently promulgated by the FEC provides that
communications will be considered to contain express advocacy if
those communications
  (b) When taken as a whole and with limited reference to
external events, such as the proximity to the election, could
only be interpreted by a reasonable person as containing
advocacy of the election or defeat of one or more clearly
identified candidates because-
  (1) The electoral portion of the communication is unmis-
takable, unambiguous, and suggestive of only one meaning;
and
 (2) Reasonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly identi-
fied candidate (s) or encourages some other kind of action.
60 Fed. Reg. 35,305 (1995) (to be codified at 11 C.F,R. 100.22(b) ).
Because the Commission does not regard the express advocacy test
as the appropriate standard for determining whether coordinated ex-
penditures by political parties are permissible, the FEC took and
takes no position on the question whether "Wirth Facts # 1"
contains express advocacy.

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 17

Sess. 59 (1976) ("but for [Section 441a(d)], these ex-
penditures would be covered by the contribution limita-
tions stated in [Section 441a(a)(1) and (2)]"); FEC
Advisory Op. 1980-119, 1 Fed. Election Camp. Fin.
Guide (CCH) Par. 5561, at 10,691 (Oct. 24, 1980) (AO
1980-1 19) ("The right to make 441a(d) expenditures
connected with a general election is an exception for
political party committees permitting them to engage in
certain activity that would otherwise result in a contri-
bution to the candidate with respect to whom the expen-
diture was made."). If petitioners were correct in arguing
that the expenditure at issue here was not made "in
connection with" the 1986 Colorado Senate election,
making Section 441 a(d) inapplicable to that payment,
the expenditure would not thereby be exempted from the
FECA's restrictions. Rather, the inapplicability of Section
44 la(d) would mean that the payment would be gov-
erned by Section 441a (a)'s restrictions on contributions,
as defined by Section 441a(a)(7) (B) (i) to include
coordinated expenditures like that made by petitioners
in this case.
Thus, the pertinent question in this case is not whether
the Committee's payment for "Wirth Facts #1" was pro-
hibited by Section 441a(d). The relevant question is
whether the Act's limitations on contributions, defined to
include coordinated expenditures, prohibited the payment
made here. If the Commission properly concluded that the
payment at issue here was a coordinated expenditure in
an amount exceeding the Act's contribution limitations,
Section 441 a(d) could not authorize petitioners to make
it because the Committee had previously assigned to the
National Republican Senatorial Committee (NRSC) its
entire coordinated expenditure authority for the 1986
Colorado Senate campaign.14

___________________(footnotes)                            

14  If   the Committee had not assigned to the NRSC its coordinated
expenditure authority, the payments at issue in this case would
have been authorized by Section 441a(d). See note 9, supra.

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18

The Court's inquiry should therefore focus on the ques-
tions (a) whether the Committee's payment for "Wirth
Facts #1" was an "expenditure" within the meaning of
the Act, and (b) whether that payment was properly
treated by the Commission as a "coordinated" expendi-
ture. 15 Petitioners do not contest either of those proposi-
tions. As we demonstrate below, both are correct. Be-
cause the payment for "Wirth Facts #1" exceeded Section
441 a(a) (2) (A)'s contribution limits and was not author-
ized by Section 441a(d), petitioners' conduct violated the
Act.

  A. The Payments At Issue In This Case Were "Ex-
   penditures" Within The Meaning Of The FECA
1. The FECA defines the term "expenditure" to in-
clude "any purchase, payment, distribution, loan, advance,

___________________(footnotes)

15 As noted above, see note 6, supra, under the FEC's implemen-
tation of the statute, the question whether a party expenditure is
attributable to a particular campaign (and thus constitutes a
coordinated party expenditure ) turns on the same factors--de-
piction of a clearly identified candidate and communication of an
electioneering message-as the question whether the expenditure
is made "in connection with" that election. To construe the phrase
"in connection with" more narrowly (i.e., as covering only a
subset of party expenditures attributable to individual elections)
would not advance the interests of political parties. To the con-
trary, such an approach would create a category of political party
expenditures that are subject (as coordinated expenditures) to
the Act's contribution limitations but that are not authorized by
Section 441a(d), thus disserving Section 441a(d)'s purpose of
allowing party committees to make coordinate expenditures sub-
stantially in excess of those permitted to other donors.
As a practical matter, a determination that the Committee's
expenditure for "Wirth Facts # 1" was not made "in connection
with" the 1986 Senate race would result in that expenditure not
being subject to the Act's monetary limits. That would be so, how-
ever, not because the payment would fall outside Section 441a(d),
but because it would fall outside Section 441a(a) (7) (B) (i).

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19

deposit, or gift of money or anything of value, made by
any person for the purpose of influencing any election for
Federal office." 2 U.S.C. 431(9) (A) (i). The payments
at issue in this case fall squarely within that definition.
As the court of appeals observed, "[a]ny reasonable read-
ing of `Wirth Facts #1' * * * would leave the reader
(or listener) with the impression that the Republican
Party sought to `diminish' public support for Wirth and
`garner support' for the unnamed Republican nominee."
J.A. 45 (quoting FEC Advisory Op. 1984-15, 1 Fed.
Election Camp. Fin. Guide (CCH). Par. 5766, at 11,069
(May 31, 1984) (AO 1984-15)). That uncontested
finding provides a sufficient basis for the determination
that the payments in question were made "for the pur-
poses of influencing" the 1986 Colorado Senate election
and were therefore "expenditures" within the meaning
of the FECA. 2 U.S.C. 431(9) (A)(i); cf. AO 1984-15,
at 11,070 ("These advertisements effectively advocate the
defeat of a clearly identified candidate in connection with
[the presidential] election and thus have the purpose of
influencing the outcome of the general election for Presi-
dent of the United States.") .16
    
___________________(footnotes)
   
16  On April 4, 1986 (J.A. 144), the date on which "Wirth Facts
# 1" began to air (J.A 101), Petitioner's chairman gave a press
conference in which he linked criticisms of Wirth's own advertise-
ment.. to the upcoming Senate election:

  In Colorado, a man is only as good as his word. After
viewing Wirth's] ads, Coloradans should ask, "what are
Tim Wirth's words worth ?" With blatant disregard for the
facts, he has purchased television time to baldly misstate his
record cm two key issues: defense and federal spending.
  This press conference is to serve notice that Tim Wirth
will not get away with it. His record will be scrutinized as
it has never been, and we in the Republican party are com-
mitted to letting the public know what Tim Wirth's record
really  is. Only then will the voters be able to make an informed
decision regarding who will be Colorado's next U.S. Senator.

J.A. 147-148.

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  20

2. The Commission was not required to prove that the
communication in question contained "express advocacy"
of the election or defeat of a particular candidate in order
to find that petitioners' disbursement for "Wirth Facts #l"
constituted an "expenditure." In Buckley V. Valeo, 424
U.S. 1 ( 1976) (per curiam), this Court addressed the
proper construction of FECA provisions that placed limits
upon, and required reporting of, independent expendi-
tures "relative to" candidates for federal office or made
"for the purpose of * * * influencing" a nomination
or election. See id. at 41-42, 77 (per curiam). Because
of constitutional concerns, the Court construed those pro-
visions to apply only to payments for communications
that "expressly advocate the election or defeat of a clearly
identified candidate." Id. at 80 (footnote omitted); see
id. at 43. In its subsequent decision in FEC v. Massa-
chusetts Citizens for Life, Inc., 479 U.S. 238, 249 ( 1986)
(MCFL), the Court gave the same construction to 2
U.S.C. 441 b's prohibition on independent corporate ex-
penditures in connection with federal elections.
The Buckley Court thus construed the phrase "for the
purpose of * * * influencing" in the Act's definition of
"expenditure" as "reach[ing] only funds used for com-
munications that express] y advocate the election or defeat
of a clearly identified candidate." 424 U.S. at 77-80
(footnote omitted) (per curiam). That holding, however,
does not govern the statutory provisions at issue in this
case. As we describe below, see pages 26-28, infra,
"[p]arty committees are considered incapable of making
`independent' expenditures in connection with the cam-
paigns of their party's candidates," DSCC, 454 U.S. at
28-29 n.1, and party expenditures attributable to par-
ticular candidates are therefore treated as coordinated
expenditures subject to the Act's contribution limits. The
Court in Buckley did not apply the express advocacy test
to such coordinated expenditures. Rather, the Court ob-
served that "controlled or coordinated expenditures are

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21

treated as contributions rather than expenditures under
the Act." 424 U.S. at 46 (per curiam). The Court
understood "contribution" to "include not only contribu-
tions made directly or indirectly to a candidate, political
party, or campaign committee * * * but also all expendi-
tures placed in cooperation with or with the consent of
a candidate, his agents, or an authorized committee of
the candidate," and found that, "[s]o defined, `contribu-
tions' have a sufficiently close relationship to the goals
of the Act, for they are connected with a candidate or
his campaign." Id. at 78. It was only when the Court
construed the statutory provisions as they applied to inde-
pendent expenditures that it applied the express advocacy
test. Id. at 78-79. See also MCFL, 479 U.S. at 249
(applying express advocacy requirement to 2 U.S.C.
441 b, a statutory provision that "directly regulates inde-
pendent spending"); Orloski V. FEC, 795 F.2d 156, 166-
167 (D.C. Cir. 1986) ( "[T]he Court limited [the express
advocacy definition] to those provisions curtailing or pro-
hibiting independent expenditures. This definition is not
constitutionally required for those statutory provisions
limiting contributions.") .17
Even if the Buckley Court's treatment of the issue
were not deemed dispositive, subsequent statutory amend-
ments make clear that Congress did not intend the express
advocacy test to apply to the statutory limitations on
coordinated expenditures. As amended in 1976, shortly
after this Court's decision in Buckley, the Act's definition

___________________(footnotes)
 
17 In fact, the Court did not find that a narrowing construction
was required even for independent expenditures of political com-
mittees. Because the Court found that political committees are by
definition "organizations that are under the control of a cadidate
or the major purpose of which is the nomination or election of a
candidate," the Court concluded that all expenditures of such
committees "can be assumed to fall within the core area sought
to be addressed by Congress" because " [t] hey are, by definition,
campaign related." Buckley V. Valeo, 424 U.S. at 79 (per curiam).

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  22

of "independent expenditure" includes the requirement
that the payment be one "expressly advocating the elec-
tion or defeat of a clearly identified candidate." 2 U.S.C.
431 ( 17) .18 Other provisions of the Act also incorporate
the express advocacy standard. See 2 U.S.C. 431(9)
(B) (iii), 441d(a). The definitions of "contribution" and
"expenditure," however, include no reference to ex-
press advocacy. See 2 U.S.C. 431(8)(A), 431(9)(A).
"[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion." Rodriguez v. United States, 480 US. 522,
525 (1987) (per curiam) (quoting Russello v. United
States, 464 U.S. 16, 23 ( 1983)). The absence of an
express advocacy requirement in the statutory definitions
of "contribution" and "expenditure" is persuasive evi-
dence that coordinated expenditures need not contain
express advocacy in order to be subject to the Act's
regulatory provisions.
Application of the "express advocacy" standard to the
Act's limits on coordinated expenditures would have im-
portant and adverse consequences. That construction
would permit any interest group-including a corpora-
tion, union, or political interest group-to make coordi-
nated political expenditures in support of a candidate
without financial limit, so long as those expenditures
avoided "express advocacy." As this Court has observed,
there would not be "much difficulty [in] devising expendi-
tures that skirted the restriction on express advocacy of
election or defeat but nevertheless benefited the candi-
date's campaign ." Buckley v. Valeo, 424 U.S. at 45

___________________(footnotes)

18   The Conference Report accompanying the 1976 amendments
states that "[t]he definition of the term `independent expenditure'
* * *  is intended to be consistent with the discussion of independent
political expenditures which was included in Buckley V. Valeo."
H.R. Conf. Rep. No. 1057, supra, at 38.

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  23

(per curiam). Application of the "express advocacy"
standard to the statutory limits on coordinated expendi-
tures would thus substantially impair the Act's effective-
ness in reducing both the fact and the appearance of
political corruption.

  B. The Payments In Question Were "Coordinated Ex-
   penditures" Subject To The FECA's Limitations
   On Contributions

The FECA provides that "expenditures made by any
person in cooperation, consultation, or concert, with, or
at the request or suggestion of, a candidate, his author-
ized political committees, or their agents, shall be con-
sidered to be a contribution to such candidate." 2 U.S.C.
441a(a) (7) (B) (i). Political party committees are "pet--
sons" for purposes of that provision. See 2 U.S.C.
431 (11 ). The Commission's conclusion that a particular
party expenditure is "coordinated" rests on two subsidiary
determinations-one case-specific and one categorical.
First, a party expenditure is coordinated only if it is attrib-
utable to a particular candidate (as distinct from "generic"
appeals for support for the party's candidates as a group).
See page 3, supra. That determination is made on a
case-by-case basis and depends upon whether the com-
munication "(1 ) depict[s] a clearly identified candidate
and (2) convey [s] an electioneering message." AO
1985-14, at 11,185; see page 3, supra. If the expendi-
ture is attributable to a particular candidate, it is then
conclusively deemed to be coordinated with that candi-
date, based on the categorical determination that "[p]arty
committees are con-sidered incapable of making `inde-
pendent' expenditures in connection with the campaigns
of their party's candidates." DSCC, 454 U.S. at 28-29
n. 1. See 11 C.F.R. 110.7(b) (4) (party committees "shall
not make independent expenditures in connection with
the general election campaign of candidates for Federal

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  24

office" ); FEC Advisory Op. 1988-22, 2 Fed. Election
Camp. Fin. Guide (CCH) Par.   5932, at 11,471 n.4 (July
5, 1988) (with respect to the campaign expenditures of
political party committees, "coordination with candidates
is presumed and `independence' precluded"),
1. The Commission's standard for determining whether
a party expenditure is attributable to a particular candi-
date is entitled to substantial deference from a reviewing
court. As this Court recognized in DSCC, the Commis-
sion's broad statutory powers, its "inherently bipartisan"
character, and the fact that its jurisdiction involves "the
dynamics of party politics," make it "precisely the type
of agency to which deference should presumptively be
afforded." 454 U.S. at 37. See also, e.g., FEC V. Ted
Haley Congressional Comm., 852 F.2d 1111, I 115 (9th
Cir. 1988) (interpretations of the Act "by the FEC
through its regulations and advisory opinions" are entitled
to deference); Common Cause v. FEC, 842 F.2d 436,
448 (D.C. Cir. 1988) (deference is "particularly appro-
priate" in FEC cases); Orloski V. FEC, 795 F.2d at 164
(FEC's advisory opinion authority indicates that "Con-
gress intended the Commission to fill in gaps left in the
statute and to resolve any ambiguities in the statutory
language" ); National Republican Congressional Comm. v.
Legi-Tech Corp., 795 F.2d 190, 193 (D.C. Cir. 1986)
(declining to resolve private lawsuit before FEC had
construed relevant FECA provision, "[i]n light of the
deference that must be accorded the FEC's interpretation
of its own statute").
Petitioners challenge the court of appeals' decision to
accord deference to the FEC's application of the statutory
restrictions on political party expenditures. They contend
(Br, 47-49) that in AO 1985-14 the Commission de-
parted without explanation from a prior pronouncement
that the Act's monetary Imitations would apply to politi-
cal party expenditures only if the communications in

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25

question contained express advocacy.'" In support of that
assertion, petitioners rely on a single sentence from FEC
Advisory Op. 1978-46, 1 Fed. Elec. Camp. Fin. Guide
(CCH) Par. 5348 (Sept. 5, 1978) (AO 1978-46), in which
the Commission responded to an inquiry concerning legal
restrictions on certain uses of corporate funds in con-
nection with a party convention and newspaper. The
Commission stated that "[t]he Federal statute relevant to
your questions is 2 U.S.C.  441 b," id. at 10,346, and
explained at length how that provision applied to the
corporate expenditures described. The Commission then
observed that, "if the newsletter includes communications
expressly advocating the election or defeat of a clearly
identified candidate for Federal office, the expenses of
the newsletter attributed to those communications * * *
must be treated as a general election expenditure of the
Party under 2 U.S.C.  441a(d)." Id. at 10,347.
That statement does not conflict with the "clearly iden-
tified candidate''/"'electioneering message" standard sub-
sequently enunciated in AO 1985-14. Any communica-
tion containing express advocacy would necessarily satisfy

___________________(footnotes)

10 Petitioners' additional contention (Br. 46-47) that Section
437f precludes deference to the Commission's advisory opinions
unless they are promulgated as regulations was neither pressed
nor passed upon below, and this Court therefore should not consider
it. See, e.g., Kosak V. United States, 465 U.S. 848, 850 n.3 (1984) ;
Delta Air Lines, Inc. V. August, 450 U.S. 346, 362 (1981). In any
event, the argument is without merit. Advisory Opinions 1984-15
and 1985-14 did not adopt legislative rules of the sort requiring a
formal rulemaking, but merely interpreted the terms of the Act
"with respect to a specific transaction or activity," as provided in
Section 437f. The construction of the Act enunciated in those
advisory opinions is analogous to an interpretive rule, to which a
reviewing court owes deference., See, e.g., Wagner Seed Co.. v.
Bush, 946 F.2d 918, 922 (D.C. Cir. 1991), cert. denied, 503 U.S.
970 (1992) ; Kennedy V. Shalala, 995 F.2d 28, 30 n.3 (4th Cir.
1993) ; American Land Title Ass'n V. Clarke, 968 F.2d 150, 154
(2d Cir. 1992), cert. denied, 113 S. Ct. 2959 (1993).

---------------------------------------- Page Break ----------------------------------------

 26

the "electioneering message" standard of AO 1985-14,
and AO 1978-46 did not state that communications that
do not contain express advocacy cannot be coordinated
party expenditures. That the language upon which peti-
tioners rely was not intended to represent a limiting con-
struction is shown by the remainder of the paragraph in
which it appears, in which the Commission explained that
the expenditures to which it was referring were those made
"on behalf of a clearly identified candidate and [that]
can be directly attributed to that candidate." AO 1978-46,
at 10,347 (quoting 11 C. F. I?. 106.1 (c)). The Com-
mission confirmed the latter formulation just two weeks
later in FEC Advisory Op. 1978-50, 1 Fed. Elec.
Camp. Fin. Guide (CCH) Par.  5353 (Sept. 19, 1978) (AO
1978-50), when the Commission stated that an expendi-
ture for a get-out-the-vote drive would be subject to the
Act's limitations on coordinated expenditures only if
"those expenditures are made on behalf of clearly iden-
tified candidates to whom the expenditures can be directly
attributed." Id. at 10,355. AO 1978-50 did not mention
"express advocacy," but affirmed that the expenditure
would be attributable to a federal candidate "if the purpose
of the drive is to advocate the election of one or more
clearly identified candidates for Federal office." Id. at
10,354. Petitioner has failed to identify a single in-
stance in which the Commission has found, either in an
advisory Opinion or in an enforcement context, that a
party expenditure was not subject to the Act's monetary
restrictions because it did not contain express advocacy.
2. The Act defines a "political party" as "an associa-
tion, committee, or organization which nominates a candi-
date for election to any Federal office whose name appears
on the election ballot as the candidate of such associa-
tion, committee, or organization." 2 U.S.C. 431 ( 16).
The FEC's determination that political parties are "in-
capable of making `independent' expenditures in connec-
tion with the campaigns of their party's candidates,"
DSCC, 454 U.S. at 28-29 n. 1, is entitled to substantial

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27

deference. That determination rests in part on the em-
pirical 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. 20 The more significant point, however,
is that a political party's function of nominating candi-
date and sponsoring them on the ballot is inconsistent
with independent promotion of the candidates' election.
Other groups or individuals bound as closely to a candi-
date's campaign as the candidate's party would also be
incapable of making independent expenditures. See FEC
Advisory Op. 1980-116, 1 Fed. Elec. Camp. Fin. Guide
(CCH) Par. 5565 (Nov. 14, 1980); FEC Advisory Op.
1979-80, 1 Fed. Elec. Camp. Fin. Guide (CCH)
Par. 5469 (Mar. 12, 1980); FEC Advisory Op. 1982-20,
1 Fed. Elec. Camp. Fin. Guide (CCH) Par. 5665 (Apr.
26, 1982). See also FEC v. National Conservative Po-
litical ActionComm., 647 F. Supp. 987 (S.D.N.Y. 1986).
Indeed, petitioner conceded in the court of appeals that
its expenditures are correctly considered to be coordi-
nated. See Pet. C.A. Br. 18-19 ("The Colorado Party

___________________(footnotes)

20 It is especially clear in the present case that the Committee
was in fact coordinating with the eventual Republican. nominee
when "Wirth Facts # 1" was aired, and that the expenditure for
that advertisement was made to diminish Democratic candidate
Wirth's chance against that nominee in the general election. The
Committee's chairman testified that when the advertisement aired
he was already "as involved as I could be" in the campaigns of all
three candidates for the Republican nomination and that he "made
all of the assets of the party that I could available to all three of
them until the convention in which case we merged with the
number one candidate and I made them all  available. to that one
candidate." J.A. 195-196. The chairman testified that he decided
to run the advertisement when he did because then-Representative
Wirth "was getting away with saying things that were not being
refuted by anyone and we bad no candidate to refute it, and the
only possible person to refute that was the party." J.A. 197.

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 28

cannot by law make `independent expenditures,' nor does
it wish to. The Colorado Party's argument is that it
should be permitted to make unlimited `coordinated ex-
penditures' in support of its own candidates just as other
groups are permitted to make unlimited `independent ex-
penditures.'" ) (footnote omitted). See also Democratic
National Committee, et al., Amicus Br. 14-15 ("[I]t is
reasonable to assume * * * that parties cannot make
`independent' expenditures in the same way as other kinds
of organizations" because of their *'unique need to com-
municate and coordinate with their candidates" ).
That Congress regarded political party campaign ex-
penditures as necessarily coordinated with the party's
candidate is further demonstrated by the legislative history
accompanying the 1976 amendments to the FECA. The
Conference Report notes that Section 441a (d) serves to
permit political party expenditures that would otherwise
run afoul of the Act's limits on contributions:

This limited permission allows the political parties to
make contributions in kind by spending money for
certain functions to aid the individual candidates
who represent the party during the election process.
Thus, but for this subsection, these expenditures
would be covered by the contribution limitations
stated in subsections (a) ( 1 ) and (a) (2) of this
provision.

H.R. Conf, Rep. No. 1057, supra, at 59. That discussion
presumes that party committee campaign expenditures fall
within the statutory definition of "contributions."

II. THE FECA'S RESTRICTIONS ON COORDINATED
  EXPENDITURES MADE BY POLITICAL PARTIES
  DO NOT VIOLATE THE FIRST AMENDMENT

As we explain above, the payments at issue in this case
are properly regarded as coordinated party expenditures
and are therefore subject to the restrictions established by
Section 441a(a) and (d) (3). Those restrictions do not

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 29

violate the First Amendment. The statutory limitations
on expenditures by political parties serve two compelling
governmental interests. First, the limitations serve to pre-
vent both the reality and the appearance of quid pro quo
corruption by the political parties themselves. Second,
the limits help to prevent circumvention of the Act's
restrictions on campaign contributions by other donors.

  A. By Limiting Campaign Expenditures Coordinated
   With Candidates, Section 441a Serves A Compelling
   Governmental Interest In Avoiding Corruption And
   The Appearance Of Corruption

Beginning with Buckley V. Valeo, this Court has rec-
ognized a constitutional distinction between limitations on
contributions to political candidates and limitations on
independent expenditures. The Court in Buckley recog-
nized that the FECA's contribution and expenditure limi-
tations both limit associational and expressive activities
protected by the First Amendment, and that such limits
can be upheld only if they serve compelling governmental
interests. See 424 U.S. at 14-15, 19-23 (per curiam).
The Court upheld the FECA's limitations on contribu-
tions because those limits serve a compelling interest in
preventing the corruption of candidates. The. Court rec-
ognized that, "[t]o the extent that large contributions are
given to secure a political quid pro quo from current and
potential office holders, the integrity of our system of
representative democracy is undermined." Id. at 26-27.
The Court struck down the Act's limitations on inde-
pendent expenditures, however, reasoning that "[t]he ab-
sence of prearrangement and coordination of an [inde-
pendent] expenditure with the candidate or his agent 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 commit-
ments from the candidate." 424 U.S. at 47 (per curiam).
The Court held the independent expenditure limits to be

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30

unconstitutional "because [it] found no tendency in such
expenditures, uncoordinated with the candidate or his
campaign, to corrupt or to give the appearance of corrup-
tion." FEC v. National Conservative Political Action
Comm., 470 U.S. 480, 497 (1985) NCPAC). The
Court has continued to emphasize the "fundamental
constitutional difference" between contributions and inde-
pendent expenditures, ibid., and has uniformly upheld
the Act's restrictions on contributions in candidate elec-
tions. See, e.g., California Medical Ass'n v. FEC, 453
U.S. 182 ( 1981); FEC v. National Right to Work
Comm., 459 U.S. 197 (1982) (NRWC).
As we describe above, see pages 2, 15, supra, Congress
has determined that "expenditures made by any person in
cooperation, consultation, or concert, with, or at the
request or suggestion of, a candidate, * * * shall be con-
sidered to be a contribution to such candidate." 2 U.S.C,
441a(a) (,7) (B) (i). See Buckley V. Valeo, 424 U.S. at
46 (per curiam) ("expenditures controlled by or coordi-
nated with the candidate and his campaign * * * arc
treated as contributions rather than expenditures under
the Act" ); NCPAC, 470 U.S. at 492 (coordinated
expenditures "are considered `contributions' under the
FECA, and as such are already subject to [the] $1,000
and $5,000 limitations in  441a(a) ( 1), (2)") (cita-
tion omitted ). Because of a party committee's close and
continuous relationship with the party's candidates, this
Court has recognized that all expenditures by such a
committee that are attributable to an individual election
must be considered coordinated. DSCC, 454 U.S. at 28-
29 n. l; see pages 26-28, supra. The statutory restrictions
on party expenditures therefore fall within the anti-
corruption rationale on which this Court has repeatedly
relied. 21

___________________(footnotes)

21 As the Court noted. in Buckley, the Act's contribution limits
were originally based in part on two additional purposes: the
desire "to mute the voices of affluent persons and groups in the

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  31

Petitioners contend that ( 1 ) because political parties
pose no danger of actual or perceived corruption, they
are constitutionally exempt from the limitations applicable
to other contributors, and (2) Section 441a impermissi-
bly discriminates against political parties by subjecting
them to restrictions more stringent than those applicable
to other organizational donors. Those arguments are
incorrect.
1. a. Petitioners contend (Br. 26-34) that the Com-
mission must produce record evidence showing that fed-
eral candidates have in fact been corrupted by contribu-
tions from political parties in order to justify the statutory
                                                     
___________________(footnotes)

election process and thereby to equalize the relative ability of all
citizens to affect the outcome of elections, " 424 U.S. at 25-26
(per curiam), and the belief that "the ceilings may to some extent
act as a brake on the skyrocketing cost of political campaigns
and thereby serve to open the political system more widely to
candidates without access to sources of large amounts of money,"
id. at 26. The Court in Buckley held that those purposes did not
constitute compelling governmental interests that could justif y the
Act's restrictions on independent expenditures. Id. at 55-57. The
Court concluded, however, that "[i] t is unnecessary to look beyond
the Act's primary purpose-to limit the actuality and appearance
of corruption resulting from large individual financial contribu-
tions-in order to find a constitutionally sufficient justification for
the $1,000 contribution limitation." Id. at 26.
In the wake of this Court's decision in Buckley, Congress amended
and reenacted the FECA, including Section 441a(d)'s provisions
dealing specifically with campaign expenditures by political parties.
Federal Election Campaign Act Amendments of 1976, Pub. L.
No. 94-283, 90 Stat. 475. Both the text of Section 441a(d) and
the pertinent 1976 legislative history reflect Congress's understand-
ing that party expenditures in connection with federal election
campaigns fall within the coverage of the Act's contribution limits,
except insofar as Section 441a(d) permits political parties to make
expenditures that would otherwise be barred. Thus, whatever com-
bination of factors may have initially motivated Congress to limit
expenditures by political parties, Congress chose to retain those
limits after this Court's decision in Buckley. There is consequently
no basis for petitioners' suggestion (Br. 27) that those limits
should be regarded with particular suspicion on the ground that
they were "expressly adopted for an unconstitutional purpose."

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32

limitations on party expenditures. That argument ignores
this Court's holding in Buckley that avoiding actual cor-
ruption is not the only compelling interest justifying limits
on contributions and coordinated expenditures. As the
Buckley Court recognized, "[o]f almost equal concern as
the danger of actual quid pro quo arrangements is the
impact of the appearance of corruption stemming from
public awareness of the opportunities for abuse inherent
in a regime of large individual financial contributions."
424 U.S. at 27 (per curiam ). See NRWC, 459 U.S. at
208 ( "[I]n Buckley, * * * we specifically affirmed the
importance of preventing both the actual corruption
threatened by large financial contributions and the erod-
ing of public confidence in the electoral process through
the appearance of corruption.").
Because it is the opportunity for a quid pro quo that
creates the appearance of corruption, the Court in
Buckley did not require evidence of actual corruption by
particular classes of contributors. Indeed, the Buckley
Court assumed that "most large contributors do not seek
improper influence over a candidate's position or an
officeholder's action." 424 U.S. at 29 (per curiam). The
Court nevertheless upheld the FECA's $1,000 limit on
individual contributions to candidates and political com-
mittees. The Court explained that it is "difficult to isolate
suspect contributions," and that "Congress was justified
in concluding that the interest in safeguarding against the
appearance of impropriety requires that the opportunity
for abuse inherent in the process of raising large mone-
tary contributions be eliminated." Id. at 30.  22 In dealing

___________________(footnotes)

22 The Court emphasized that point when it upheld the appli-
cation of the contribution limits to members of a candidate's
immediate family, although it was not presented with either record
evidence or legislative findings of familial corruption. The Court
acknowledged that "the risk of improper influence is somewhat
diminished in the case of large contributions from immediate
family members," but found that fact insufficient to support a
conclusion "that the danger is sufficiently reduced to bar Congress

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33

with contributions and coordinated expenditures, the
Court has consistently "accept[ed] Congress' judgment"
and has refused to "second-guess a legislative determina-
tion as to the need for prophylactic measures where cor-
ruption is the evil feared." NRWC, 459 U.S. at 210. 23
As the court of appeals in the instant case observed,
"[t]he members of Congress who enacted this law were
surviving veterans of the election campaign process, and
all were members of organized political parties. They
should be considered uniquely qualified to evaluate the
risk of actual corruption or appearance of corruption
from large coordinated expenditures by political parties."
J.A. 47-48.
b. Petitioners' argument that political parties are in-
capable of corrupting party candidates is unpersuasive.
Party committees are not abstract, disembodied entities.
As this Court has observed, "[i]n the nature of things, a
[party] committee must act through its employees and
agents." DSCC, 454 U.S. at 33. There is no reason to.
believe that the individuals who control party committees
are immune from the corrupting temptations and self-

___________________(footnotes)

from subjecting family members to the same limitations as non-
family contributors." Buckley V. Valeo, 424 U.S. at 53 n.59 (per
curiam).

23 See also Florida Bar v. Went For It, Inc., 115 S. Ct. 2371,
2378 (1995) (statute can be justified even under "strict scrutiny"
based "solely on history, consensus, and `simple common sense' ")
(quoting Burson V. Freeman, 504 U.S. 191, 211 (1992) (opinion
of Blackmun, J.) ). Petitioners' reliance ( Br. 26) on United States
v. National Treasury Employees Union, 115 S. Ct. 1003 (1995), is
misplaced. The Court concluded in that case that the government
had failed to show that its interest in workplace efficiency justified
a broad ban on compensated writings and speeches by rank and
file government employees. When it came to the possibility of
influencing officials, however, the Court found that "Congress
reasonably could assume that payments of honoraria to judges or
high-ranking officials in the Executive Branch might generate a
similar appearance of improper influence." Id. at 1016 (emphasis
added).

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34

interest of other persons. To the contrary, history demon-
strates that individual officials of political organizations
are particularly well-situated to exert a corrupting influ-
ence upon candidates and officeholders in order to ad-
vance their private interests.  24 See generally, e.g., Rutan
V. Republican Party of Illinois, 497 U.S. 62, 88 n.4
(1990) (Stevens, J., concurring); Igneri v. Moore, 898
F.2d 870, 876 (2d Cir. 1990) (State may enact legisla-
tion to deter party officials from "capitalizing on their
special relationships" with public officials to "curry[] favor
for themselves and their associates").25

___________________(footnotes)

24 That history includes such notorious examples Of corrupt
political organizations as the Boas Tweed and the Tammany Hall
machine, the 1876 Tilden/Hayes presidential election, the Custom
House scandals of the 1880's, Teapot Dome, the Prendergast
Machine, and Watergate. See, e.g., Nathan Miller, The Founding
Finagler (1976) ; Shelley Ross, Fall from Grace: Sex, Scandal,
and Corruption in American Politics from 170.2 to the Present
[1988). If petitioners are correct in their assertion (Br. 31 n.20)
that there have been no major public scandals involving party
officials during the last 20 years, that fact may be evidence that the
FECA's restrictions on party expenditures have been successful,
rather than evidence that those restrictions are no longer needed.
Cf. Burson v. Freeman, 504 U.S. at 208 (opinion of Blackmun, J.)
("The fact that these laws have been in effect for a long period
of time also makes it difficult for the States to put on witnesses who
can testify as to what would happen without them.").

25 Petitioners argue (Br. 5, 30, 31, 32) that political parties are
"insulate [d] * + * from any potentially corruptive influences"
by the Act's disclosure requirements and restrictions on the amount
and sources of contributions they can accept, and by the voluntary
nature and diverse sources of the contributions they receive.
Petitioners, however, are not unique in those respects. All political
committees are voluntary associations that can accept contributions
in amounts subject to the same limits in the Act that are applicable
to petitioners, and all political committees must publicly report
their contributions and expenditures. Nor does the diversity of a
party committee's supporters distinguish it from an independent
political committee, whose coordinated expenditures are subject
to the Act's contribution limits. See NCPAC, 470 U.S. at 494
("[Approximately 101,000 people contributed an average of $75

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35

In any event, the danger at which the Act's contri-
bution limitations are directed does not depend on the
invidious motivation of the contributor. As this Court
observed in Buckley, "the primary interest served by [the
FECA] is the prevention of corruption and the appear-
ance of corruption spawned by the real or imagined
coercive influence of large financial contributions on
candidates' positions and on their actions if elected to
office." 424 U.S. at 25 (per curiam). Congress may
legitimately attempt to combat that form of "corruption"
even where the contributor who seeks to exercise "coer-
cive influence" over the formulation of public policy is
motivated solely by a concern for the common good.
Thus, contrary to petitioners' suggestion (see Br. 32),
the propriety of Congress's decision to limit political party
expenditures in no way depends upon the assumption that
party officials will be corrupter self-serving,
Nor is there a basis for petitioners' contention (Br. 21)
that "any effect the parties may have on candidates con-
stitutes democracy, not corruption." Officials of political
parties may legitimately seek in a variety of ways to
influence the behavior of party members who hold federal
offices. The FECA's restrictions on coordinated party
expenditures do not reflect the view that parties and their
officers should be precluded from exercising such influ-
ence. They reflect instead Congress's determination, re-
peatedly sustained by this Court in Buckley and its
progeny, that efforts to influence public policy by means
of monetary contributions to candidates for federal office
pose distinctive dangers to the integrity of the democratic

___________________(footnotes)

each to NCPAC and * * * approximately 100,000 people contributed
an average of $25 each to [Fund for a Conservative Majority] .").
Thus, with party committees, no less than other political commit-
tees, "Congress was surely entitled to conclude that disclosure was
only a partial measure, and that contribution ceilings were a
necessary legislative concomitant to deal with the reality Or appear-
ance of corruption." Buckley V. Valeo, 424 U.S. at 28 (per curiam).

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 36

process.26  That party officials may have alternative
methods of accomplishing the same ends does not mean
that they are constitutionally entitled to employ the
"coercive influence of large financial contributions,"
Buckley v. Valeo, 424 U.S. at 25 (per curiam), in seek-
ing obedience to their views. 27
This Court has recognized that "[t]he freedom of asso-
ciation protected by the First and Fourteenth Amend-
ments includes partisan political organization." Tashjian
V. Republican Party of Connecticut, 479 U.S. 208, 214
( 1986). Political parties have no special status under

___________________(footnotes)

26 The Presidential Election Campaign Fund Act, 26 U.S.C. 9001
et seq., authorizes federal funding for presidential candidates who
satisfy the statutory criteria. Under the Act, federal funds are
paid directly to the candidate. 26 U.S.C. `3006 (b). An earlier
proposal to provide campaign funds to the political parties rather
than to the candidates was changed to ensure, inter alia, that "a
national committee of a political party will not be able to use
control of a large Federal payment as a weapon to dictate party
policies and strategies to * * * candidates and potential candi-
dates." S. Rep. No. 714, 90th Cong., 1st Seas. 15 (1967). See also,
e.g., Playing Hardball: How Reaganites Push Reluctant Republi-
cans to Back Tax-Rise Bill, Wall St. J., Aug. 18, 1982, at 1
(Republican National Committee deputy chairman convinced two
reluctant congressmen to vote for the President's budget cuts
by offering them coordinated party expenditures. "The two con-
gressmen rallied behind their president.. And if they hadn't?
`I would have nailed them to the wall,' vows the deputy chair-
man.") ; Donna Cassata, GOP Retreats on Hatfield, But War Far
From Over, Cong. Q., Mar. 11, 1995, at 728 ("[Chairman of
the National Republican Senatorial Committee * * * suggesting the
day after the vote [rejecting a balanced budget amendment] that
the party might withhold funds from [Senator] Hatfield's re-
election campaign in 1996 as punishment.").
27 Officials such as the President, the Speaker of the House of
Representatives, and the Senate majority and minority leaders
exercise influence over the voting behavior of legislators within
their own political parties. No one would suggest, however, that
the occupants of those offices could assert a constitutional right
to make or direct monetary contributions to candidates for the
Senate or House in amounts greater than those permitted by the
FECA.

---------------------------------------- Page Break ----------------------------------------

37

the Constitution, however, that would require that they
be exempted from the limits cm coordinated expenditures
that apply to other voluntary organizations (whose mem-
bers also possess a constitutionally protected "freedom
to engage in association for the advancement of beliefs
and ideas," NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 460 (1958))?' See Republican Party of Ar-
kansas v. Faulkner County, 49 F.3d 1289, 1297 (8th
Cir. 1995) ("The rights of political parties derive from
the associational rights of members and candidates, and
it would make little sense to afford greater protection to
the rights of political parties than to the rights of voters
and candidates." ) (citation omitted). Since "[partisan
politics bears the imprimatur only of tradition, not the
Constitution," Elrod v. Burns, 427 U.S. 347, 369 n.22
( 1976) (opinion of Brennan, J.), the First Amendment
provides no greater protection for the coordinated ex-
penditures of political parties than for those of other
private groups?'                                                

___________________(footnotes)

28  Petitioners point out (Br. 35) that their coordinated expendi-
tures were for public advocacy, and not merely the symbolic ex-
pression of support conveyed by a gift of money. That is squally
true, however, of coordinated expenditures made by corporations
and unions through their separate segregated funds, and those
made by other groups and individuals. In Buckley, this Court
nevertheless found that the compelling interest in avoiding the
appearance of corruption justified regulating coordinated expendi-
tures under the Act's contribution limits. 424 U.S. at 26-29, 46-47
& n.53 (per curiam).

29 The Founders considered the diversity of interests and Views
that would result from individual legislators' accountability to
separate constituencies to be an essential check against the poten-
tial for tyranny by a cohesive and domineering majority in Con-
gress. See The Federalist No. 10 (Madison), at 83 (Rossiter cd.,
1961). Cf. Oregon V. Mitchell, 400 U.S, 112, 134 (1970) (opinion
of Black, J.) (it is "[essential to the survival * * * of our national
government" that "the officials who fill [elective] offices are as
responsive as possible to the will of the people whom they repre-
sent"). Party leaders have come to exercise substantial influence

---------------------------------------- Page Break ----------------------------------------
 
38

2. Petitioners argue (Br. 28, 31-32, 35) that the
FECA unconstitutionally discriminates against political
parties by imposing limits upon their expenditures more
stringent than those applicable to corporations, unions and
other political committees. That contention is unpersua-
sive.30 Petitioners' attempt (Br. 31) to liken a party

___________________(footnotes)

over the voting behavior of party members within the Congress.
Whatever the advantages and disadvantages of that influence as a
matter of policy, the First Amendment cannot be thought to
confer on party officials a constitutional entitlement to acquire the
sort of centralized control against which the Founders sought to
guard.
Amici Committee for Party Renewal, et al., argue (Br. 24) that
"[t]he more a candidate depends on the party [for campaign
support], the greater the party's ability to apply its leverage to
achieve policy coherence and mobilize party majorities in Congress."
These amici further contend ( Br. 15) that " [t]he party system,
when it operates properly, overcomes the handicaps to governance
imposed by the separation of powers." As Madison explained,
however, what these amici view as "handicaps" were included in
the Constitution for a reason. The Constitution can hardly be
thought to require Congress to fashion its legislation so as to
facilitate efforts to "overcome" constitutional safeguards.
30 petitioners suggest ( Br. 6 n.5) that independent groups make
independent expenditures far in excess of the coordinated expendi-
tures that party committees are permitted to make under Section
441a (d). In 1986, however-the year in which the violation in
this case occured-independent expenditures totaled $10,205,153
nationwide, while the Republican and Democratic party committees
throughout the country made a total of $23,317,430 in coordinated
expenditures on behalf of party nominees. FEC Press Release,
FEC Final 1985-86 Report On Political Parties Shows Decline In
Financial Activity (May 5, 1988) ; FEC Press Release, Final FEC
Report On 1985-86 Independent Expenditures Shows Change in
Spending Pattern-s (Mar. 31, 1988). It should also be noted that
the Institute for Legislative Action is, contrary to petitioners'
suggestion (Br. 6 n.5), the lobbying arm of the National Rifle
Association and is prohibited from making expenditures in con-
nection with federal elections; the NRA's separate segregated
fund is called the Political Victory Fund. See FEC v. NRA Political
Victory Fund, 6 F.3d 821, 822-823 (D.C. Cir. 1993), cert. dis-
missed, 115 S. Ct. 537 (1994). According to its discloscure reports

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39

committee to the incorporated advocacy organization in-
volved in MCFL does not advance their argument, for
such corporations are entirely prohibited from making
contributions and coordinated expenditures. See 2 U.S.C.
441b.31
As shown above, the purpose of Section 441a(d) is
to permit committees operated by political parties to make
coordinated expenditures far in excess of those that can
be made by any other entity. See pages 16-17, supra.
Thus, petitioners could have spent more than $100,000
in opposing Representative Wirth's Senate campaign if
they had not assigned that right to the NRSC. See DSCC,
454 U.S. at 41 ("The delegation of spending authority
is an option, not a requirement, and it is an option resting
entirely with the state committees." ). Congress also in-
              
___________________(footnotes)

on file with the Commission, the Political Victory Fund made
$1,519,349 in independent expenditures in connection with federal
elections in 1994. Petitioners' assertion about the amount the
AFL-CIO has claimed it intends to spend in 1996 ignores the differ-
ence between contributions to candidates and independent expendi-
tures. In 1994, the AFL-CIO's separate segregated fund made
only $2,500 in independent expenditures, and the separate segra-
gated funds of all labor organizations spent a combined total of
$104,293 on independent expenditures nationwide; however, the
AFL-CIO's fund contributed $981,439 to candidates, and labor
organization funds contributed a total of $41,867,393 directly to
candidates. See disclosure reports of AFL-CIO COPE, on file
with the Federal Election Commission; FE C Press Release, 1994
PAC Activity Shows Little Growth Over 1992 Level, Final FEC
Report Finds (Nov. 1995).

31 Aystin V. Michigan State Chamber of Commerce, 494 U.S. 652
(1990), and MCFL, 479 U.S. at 263-264, found a small class of
nonprofit, incorporated political advocacy organizations that accept
no income from other corporations or unions to be exempt only
from statutory limits on independent expenditures. In MCFL, the
Court contrasted the limitation of independent expenditures with
the regulation of contributions from political advocacy corporations
such as MCFL, id. at 259-262, and confirmed that such corporations
are subject to the same statutory prohibition on candidate con-
tributions as are other corporations, id. at 264 n.13.

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40

cluded other special accommodations to party activities.
See 2 U.S.C. 431(8)(B)(v), (x) and (xii), 431(9)
(B) (iv), (viii) and (ix), 441a(a) (4).  32  Congress de-
clined, however, to enact a proposed amendment that
would have exempted some party committees entirely from
the contribution limits. See DSCC, 454 U.S. at 35 n.11.
Congress thus endeavored to strike an appropriate balance
between the prevention of actual or apparent corruption
and the desire to "assur[e] that political parties will con-
tinue to have an important role in federal elections." Id.
at 41. This Court should reject petitioners' request to
refashion the balance struck by Congress. Cf. NRWC,
459 U.S. at 210 (observing that "the `differing structures
and purposes' of different entities `may require different
forms of regulation in order to protect the integrity of
the electoral process'" ) (quoting California Medical Ass'n
V. FEC, 453 U.S. 182, 201 ( 1981) ).39

___________________(footnotes)

32 In light of those provisions, there is no basis for petitioners'
assertion ( Br, 23, 27-28) that Section 441a prevents a party
committee from mailing letters to its supporters. See also 11
C.F.R. 100.7(b) (15), 100.8(b) (16) (exempting from the defini-
tions of "contribution" and "expenditure" payments made by state
parties to distribute brochures or newsletters, if the distribution
is done by volunteers rather than commercial vendors and a
commercial mailing list is not used).
33 The petition for a writ of certiorari argued (Pet. 14) that
Section 441a(d)'s population-based formula for calculating the
coordinated party expenditure limit in each State "refute [s] an
`anti-corruption' purpose." Petitioners appear to have abandoned
that argument in their brief on the merits In any event, the
statutory formula reflects Congress's recognition that the expense
of campaigning is generally proportional to the number of poten-
tial voters in a particular election. The formula preserves a
roughly comparable role for political parties in Senate campaigns
in each State. Determining the precise level of appropriate con-
tribution limits is a legislative judgment that does not raise con-
stitutional concerns, Bucktey V. Valeo, 424 U.S. at 30 (per curiam),
and Congress is not precluded from considering other policy objec-
tives in fashioning the legislation, see id. at 36, 84 n.112.

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  41

  B. The FECA's Restrictions On Coordinated Party
   Expenditures Also Serve A Compelling Government-
   tal Interest In Preventing Evasion Of The Limits
   On Individual And Political Committee Contribu-
   tions

The statutory limitations on coordinated party expendi-
tures also serve a separate compelling interest in prevent-
ing circumvention of the $1,000 limit on individual con-
tributions to candidates. See 2 U.S.C. 441a(a)(1) (A).
In Buckley, the Court found the Act's $25,000 yearly
limit on total contributions by an individual to all candi-
dates and political committees to be constitutional even
though it imposes "an ultimate restriction upon the num-
ber of candidates and committees with which an individual
may associate himself by means of financial support."
424 U.S. at 38 (per curiam). The Court found that
provision to be a permissible "corollary of the basic
individual contribution limitation that we have found
to be constitutionally valid" because it "serves to prevent
evasion of the $1,000 contribution limitation by a person
who might otherwise contribute massive amounts of money
to a particular candidate through the use of unearmarked
contributions to political committees likely to contribute
to that candidate, or huge contributions to the candidate's
political party." Ibid. In California Medical Ass'n v.
FEC, 453 U.S. at 198, a plurality of the Court similarly
upheld the $5,000 limit on individual contributions to
independent political committees, 2 U.S.C. 441a(a)
(1) (C), because without it "an individual or association
seeking to evade the $1,000 limit on contributions to
candidates could do so by channeling funds through a
multicandidate political committee."
The statutory restrictions at issue here serve a similar
purpose. Although individuals can contribute no more
than $1,000 to a candidate, they can contribute up to
$5,000 to a multicandidate political committee operated
by a state political party, and up to $20,000 to a political

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42

committee operated by a national political party. 2
U.S.C. 44 la (a). An individual who wished to provide
financial support to a candidate in excess of the $1,000
limit might attempt to circumvent that statutory restric-
tion by making a large contribution to that candidate's
political party, with the expectation that the party would
in turn expend the funds in support of the candidate.
Petitioners suggest (Br. 32) that the fear of such
arrangements is "implausible" because the party effectively
insulates the candidate from the contributor. Nothing in
the Act, however, precludes candidates and officeholders
from urging their contributors to make additional con-
tributions to a party committee. Indeed, such solicitation
of contributions to party committees by candidates is not
unusual.34 Party committees can, and do, work closely
with other political committees in raising funds, and large
contributors and fundraisers for a political party may

___________________(footnotes)

34 In entering into a conciliation agreement resolving a set of
administrative complaints, the FEC recently agreed that "[t] he
[Act] does not prohibit party committees from referring to and
promoting party candidates in soliciting funds for the committee
and candidates may assist party committees in soliciting funds for
the committee." See Conciliation Agreement, Matter Under Review
(MUR) 3620, at 4 Par. IV(11)) (Aug. 21, 1995). See also, e.g., Iver
Peterson, Accepting "Soft Money" As a Necessary Evil, N.Y. Times,
Dec. 29, 1994, at B5 (New Jersey Senator "Lautenberg's office
* * * is known to work closely with the state party's fund-raising
apparatus" ) ; Tom Kenworthy, House Democratic Campaign Unit
Running Into Turbulence, Wash. Post Aug. 2, 1989, at A6 ("The
party's new leadership in the House-speaker Thomas S. Foley
(Wash.), Majority Leader Richard J. Gephardt (M..} and Ma-
jority Whip William H. Gray III (Pa.) -all have committed them-
selves to active fund-raising roles for the committee") ; Associated
Press, Dens: Record Fund-Raising Qtr, Apr. 19, 1994 ("Boosted
by President Clinton's attendance at three major events, the Demo-
cratic National Committee raised nearly $10.2 million in the first
three months of 1994") ; William Presecky, Mrs. Bush says
yes, Clinton no to Du Page, Chi. Trib., Mar. 12, 1992, at 5
("ail three Democratic candidates seeking the party's nomination
for U.S. Senate" were to keynote "the party's fund-raiser").

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 43

well earn the support of party leaders when their interests
are at issue in Congress.35 Even if a large contribution
to a party committee is not specifically earmarked to sup-
port a candidate who may have solicited it, the potential
for actual or perceived quid pro quo arrangements would
be greatly increased if there were no limit on the party's
coordinated expenditures. As this Court held in Buckley,
Congress may act to ensure that the individual contribu-
tion limit is not evaded "through the use of unearmarked
contributions to political committees likely to contribute
to that candidate, or huge contributions to the candidate's
political party." 424 U.S. at 38 (per curiam). See also
Gard V. Wisconsin State Elections Boat-d, 456 N.W.2d
809, 823 (Wis.) ("By placing restrictions on the party-
related committee's ability to contribute, the corrupting
influence of large contributions to that committee, is dif-
fused."), cert. denied, 498 U.S. 982 .(1990). For this
additional reason, the FECA's limitation on coordinated
expenditures made by political parties does not violate
the First Amendment.

  C. The Statutory Restrictions On Coordinated Party
   Expenditures Are Not Unconstitutionally Vague

Petitioners contend (Br. 36-41) that Section 441a(d)
is void for vagueness unless it is construed to incorporate
an "express advocacy" test. That argument is without
merit.
 1. As we emphasize above, see pages 16-17, supra,
Section 441a(d) is not an additional restriction on polit-

___________________(footnotes)

35 "All six national party organizations have formed loose fund-
raising alliances with some of the larger and wealthier PACs,
and the parties have been successful in getting substantial amounts
of money from them. In return for their party support, PAC
officials receive regular party briefings, meet informally with
powerful representatives and senators, and get introductions and
access to other key politicians." Paul Herrnson, Party Campaigning
in the 1980s, at 45 (1988),

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 44

ical party expenditures. Rather, it provides authorization
for coordinated party expenditures that would otherwise
be prohibited by the Act's limits on contributions. in-
validation of Section 441a(d) on vagueness grounds
therefore would not assist petitioners' cause unless the
statutory restrictions on contributions were also deemed
impermissible vague. The Court in Buckley, however,
sustained the contribution limits against a vagueness chal-
lenge, see 424 U.S. at 76-78 (per curiam), and petitioners
provide no reason for the Court to revisit that holding
here. 2. The statutory provisions governing coordinated
party expenditures, as construed by the Commission's ad-
visory opinions, provide fully adequate warning as to the
nature of the prohibited conduct. People of "common
intelligence," Broadrick v. Oklahoma, 413 U.S. 601,
607 (1973), would have no difficulty understanding that
an advertisement explicitly linking an attack on the record
of an opposing candidate with his ongoing Senate cam-
paiign contained an "electioneering message." 36 In such
circumstances neither the FECA nor the Commission's

___________________(footnotes)

36 Petitioners observe (see Br. 14) that the Commission found
probable cause to believe that their expenditure on "Wirth Facts
# 1" was covered by Section 441a but did not make a similar
finding with respect to their expenditures on other advertisements
critical of then-Representative Wirth. Petitioners contend ( Br.
14-16, 39) that no meaningful difference between the advertise-
ments exists and that the Commission's disparate treatment of
them demonstrates the vagueness of the agency's standard. Unlike
the other advertisements in question, however, "Wirth Facts # 1"
expressly linked its criticisms to Wirth's ongoing Senate campaign
and explicitly challenged the integrity of Wirth's campaign state-
ments. See Pet. App. 93a-105a; J.A. 147 (at press conference
contemporaneous with broadcast of "Wirth Facts #l," Chairman
of Colorado Republican Party asserted that Wirth had "purchased
television time to baldly misstate his record on two key issues:
defense and federal spending"). That distinction is relevant to
the question whether the advertisements in question contained an
"electioneering message."

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45

construction of it can be found unconstitutionally vague,
even if the Act "may leave room for uncertainty at the
periphery." NRWC, 459 U.S. at 211.
Moreover, the statute provides a procedure for obtain-
ing an advisory opinion from the Commission, see 2
U.S.C. 437f, which enables a party committee to "re-
move any doubt there may be as to the meaning of the
law," United States Civil Service Comm'n v. National
Ass'n of Letter Carriers, 413 U.S. 548, 580 "( 1973),
with respect to a proposed expenditure. By `offer[ing] a
prompt means of resolving doubts with respect to the
statute's reach," Section 437f "mitigates whatever chill
may be induced" by the Act. Martin Tractor Co. v.
FEC, 627 F.2d 375, 384-385, 386 n.44 (D.C. Cir.),
cert. denied, 449 U.S. 954 (1980 ). The Court in Buck-
ley found the advisory opinion procedure insufficient to
alleviate the statute's vagueness problems with respect to
limitations on independent expenditures; it held that re-
liance on advisory opinions was "unacceptable because
the vast majority of individuals and groups subject to
criminal sanctions * * * do not have a right to obtain
an advisory opinion from the Commission." 424 U.S.
at 40 n.47 (per curiam). As noted in Martin Tractor,
however, Congress has since amended Section 437f to
require the Commission to provide an advisory opinion to
any "person,' 2 U.S.C. 437f (a)(1), and "the suscepti-
bility of the FECA to challenge on the grounds of vague
ness has consequently been reduced," 627 F.2d at 386
n.44.

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  46

       CONCLUSION

The judgment of the court of appeals should be affirmed.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

LAWRENCE M. NOBLE
General Counsel

PAUL BENDER
Deputy Solicitor General

RICHARD B. BADER         
Associate General Counsel 

MALCOLM L. STEWART
Assistant to the Solicitor General 

RITA A. REIMER
Attorney
Federal Election
Commission

MARCH 1996

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APPENDIX

The Federal Election Campaign Act of 1971, 2 U.S.C.
431 et seq., provides in relevant part:

 431. Definitions

When used in this Act:

*   *   *   *   *

(8) (A) The term "contribution" includes-

(i) any gift, subscription, loan, advance, or
deposit of money or anything of value made by
any person for the purpose of influencing any
election for Federal office; * * *

    *   *   *   *   *
(9) (A) The term "expenditure" includes-

(i) any purchase, payment, distribution, loan,
advance, deposit, or gift of money or anything
of value, made by any person for the purpose
of influencing any election for Federal office;
***

*   *   *   *   *

( 17) The term "independent expenditure" means
an expenditure by a person expressly advocating the
election or defeat of a clearly identified candidate
which is made without cooperation or consultation
with any candidate, or any authorized committee or
agent of such candidate, and which is not made in
concert with, or at the request or suggestion of, any
candidate, or any authorized committee or agent of
such candidate.

*   *   *   *   *

(la)

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2a

 441a. Imitations on contributions and
   expenditures

(a) Dollar limits on contributions

(1) No person shall make contributions-

(A) to any candidate and his authorized
political committees with respect to any election
for Federal office which, in the aggregate, ex-
ceed $1,000;
(B) to the political committees established
and maintained by a national political party,
which are not the authorized political com-
mittees of any candidate, in any calendar year
which, in the aggregate, exceed $20,000; or
(C) to any other political committee in any
calendar year which, in the aggregate, exceed
$5,000.

(2) No multicandidate political committee shall
make contributions-

(A) to any candidate and his authorized
political committees with respect to any election
for Federal office which, in the aggregate, ex-
ceed $5,000;
(B) to the political committees established
and maintained by a national political party,
which are not the authorized political commit-
tees of any candidate, in any calendar year,
which, in the aggregate, exceed $15,000; or
(C) to any other political committee in any
calendar year which, in the aggregate, exceed
$5,000. *  *  *  *  *

(7) For purposes of this subsection-

*   *   *   *   *

(B) (i) expenditures made by any person in
cooperation, consultation, or concert, with, or

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3a

at the request or suggestion of, a candidate, his
authorized political committees, or their agents,
shall be considered to be a contribution to such
candidate;

(d) Expenditures by national committee, State com-
mittee, or subordinate committee of State com-
mittee in connection with general election cam-
paign of candidates for Federal office

(1) Notwithstanding any other provision of law
with respect to limitations on expenditures or limi-
tations on contributions, the national committee of
a political party and a State committee of a political
party, including any subordinate committee of a
State committee, may make expenditures in connec-
tion with the general election campaign of candi-
dates for Federal office, subject to the limitations
contained in paragraphs (2) and (3) of this sub-
section.
(2) The national committee of a political party
may not make any expenditure in connection with
the general election campaign of any candidate for
President of the United States who is affiliated with
such party which exceeds an amount equal to 2 cents
multiplied by the voting age population of the United
States (as certified under subsection (e) of this
section ). Any expenditure under this paragraph
shall be in addition to any expenditure by a national
committee of a political party serving as the princi-
pal campaign committee of a candidate for the office
of President of the United States.
(3) The national committee of a political party, or
a State committee of a political party, including any
subordinate committee of a State committee, may not
make any expenditure in connection with the gen-
eral election campaign of a candidate for Federal

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  4a

office in a State who is affiliated with such party
which exceeds-
  (A) in the case of a candidate for election
to the office of Senator, or of Representative
from a State which is entitled to only one Rep-
resentative, the greater of-

    (i) 2 cents multiplied by the voting age
   population of the State (as certified under
   subsection (e) of this section); or
    (ii) $20,000; and

  (B) in the case of a candidate for election
  to the office of Representative, Delegate, or
Resident Commissioner in any other State,
$10,000. *  *  *  *  *

* S. S. Government Printing Office 1996 405017 40086

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No. 95-489

In the Supreme Court of the United States

OCTOBER TERM, 1995

COLORADO REPUBLICAN
FEDERAL CAMPAIGN COMMITTEE
AND DOUGLAS JONES, TREASURER, PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

LAWRENCE M. NOBLE
General Counsel

RICHARD B. BADER
Associate General Counsel

RITA A. REIMER
Attorney
Federal Election Commission
Washington, D.C. 20463

DREW S. DAYS, III
Solicitor General

Department of Justice
Washington, D.C. 20530
(202) 514-2217


---------------------------------------- Page Break ----------------------------------------

     QUESTIONS PRESENTED

1. Whether 2 U.S.C. 441a(d), which permits political
party committees to make a limited amount of
coordinated expenditures in excess of the contribu-
tion limits applicable to coordinated expenditures by
others, violates the First Amendment rights of party
committees.
2. Whether the court of appeals erred by giving
deference to the Federal Election Commission's con-
struction of 2 U.S.C. 441a(d).

(I)

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TABLE OF CONTENTS

                                           Page

Opinions below  . . . .  1
Jurisdiction  . . . .  1
Statement  . . . .  2
Argument  . . . .  7
Conclusion  . . . .  18

     TABLE OF AUTHORITIES

Cases:

American Land Title Ass'n v. Clarke, 968 F.2d
150 (2d Cir. 1992), cert. denied, 113 S. Ct. 2959
(1993)  . . . .   14
Austin v. Michigan Chamber of Commerce, 494
U.S. 652 (1990)  . . . .   10
Buckley v. Valeo, 424 U. S. 1(1976)
 . . . . 6, 7, 8, 9, 10, 11, 12, 14, 15, 16
Broadrick v. Oklahoma, 413 U.S. 601 (1973)  . . . . 16
California Medical Ass'n v. FEC, 453 U.S. 182
(1981)  . . . .  8, 12
Delta Air Lines v. United States, 450 U.S. 346
(1981)  . . . .  13
FEC v. Democratic Senatorial Campaign
Committee, 454 U.S. 27 (1981)  . . . . 2, 9, 11, 12, 13
FEC v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238 (1986)  . . . . 5, 10, 14
FEC v. National Conservative Political Action
Committee, 470 U.S. 480 (1985)  . . . . 8,9, 10
FEC v. National Right to Work Committee, 459
U.S. 197 (1982) . . . . 8,9,11,17
FEC v. Ted Haley Congressional Committee, 852
F.2d 1111 (9th Cir. 1988)  . . . . 13
FEC Advisory Op. 1984-15, 1 Fed. Election Camp.
Fin. Guide (CCH) Par. 5766 (May 31, 1984)  . . . .  3, 13
FEC Advisory Op. 1985-14, 2 Fed. Election Camp.
Guide (CCH) Par. 5819 (May 30, 1985)  . . . . 3, 13

(III)

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IV

Cases continued:

Helvering v. Stockholm Enskilda Bank, 293
Us. 84 (1934) . . . . 15 
Kennedy v. Shalala, 995 F.2d 28 (4th Cir. 1993) . . . .14
Kosak v. United States, 465 U.S. 848 (1984)  . . . . 13
Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C.
Cir.), cert. denied, 449 U.S. 954 (1980) . . . . 17
Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) . . . . 13, 14
United States Civil Service Comm'n v. National
Ass'n of Letter Carriers, 413 U.S. 548 (1973)  . . . . 17
Wagner Seed Co. v. Bush 946 F.2d 918 (D.C. Cir.
1991), cert. denied, 503 U.S. 970 (1992)  . . . . 14
Ward v. Rock Against Racism, 491 U.S. 781
(1989)  . . . .  16

Statutes:

Federal Election Campaign Act. of 1971,2 U.S.C.
431 et seq . . . . 2 
  2 U.S.C. 432  . . . . 3
  2 U.S.C. 434(b) (4)( H)(iv) . . . . 3,4,5
  2 U.S.C. 434(b) (6)(B)(iv) . . . . 5
  2 U.S.C. 434(e) (Supp. IV 1974) . . . . 15 
  2 U.S.C. 437c(b)(1) . . . . 2, 3
  2 U.S.C. 437d(a)  . . . . 2
  2 U.S.C. 437d(e)  . . . . 2, 3
  2 U.S.C. 437f  . . . . 2, 13, 17
  2 U.S.C. 437g  . . . . 2
  2 U.S.C. 437g(a)(l)  . . . . 2,4
  2 U.S.C. 437g(a)(2)  . . . . 2,3
  2 U.S.C. 437g(a)(4)  . . . . 5
  2 U.S.C. 437h  . . . . 3
  2 U.S.C. 441a  . . . . 4
  2 U.S.C. 441a(a)(l)(A)  . . . . 2
  2 U.S.C. 441a(a)(2)(A)  . . . . 2
  2 U.S.C. 441a(7)(B)(i) . . . . 2, 9 
  2 U.S.C. 441a(d) . . . . 2, 3, 4, 6, 7, 9, 11, 12, 14, 16
  2 U.S.C. 441a(d)(1)  . . . . 2
  2 U.S.C. 441a(d)(3) . . . . 5,16,  17

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v

Statutes-Continued:
  
2 U.S.C. 441a(d)(3)(A)  . . . . 2 
  2 U.S.C. 441a(f)  . . . . 4
  2 U.S.C. 441b  . . . . 5, 6, 12
  2 U.S.C. 441b(a)  . . . . 5, 12

Miscellaneous:

H.R. Conf. Rep. No. 1057, 94th Gong., 2d Sess.
(1976)  . . . . 12 

---------------------------------------- Page Break ----------------------------------------

IN THE SUPREME COURT OF THE UNITED STATES

 OCTOBER TERM, 1995

 No. 95-489

   COLORADO REPUBLICAN
   FEDERAL CAMPAIGN COMMITTEE
   AND DOUGLAS JONES, TREASURER, PETITIONERS

    v .

   FEDERAL ELECTION COMMISSION

   ON PETITION FOR A WRIT OF CERTIORARI
   TO THE UNITED STATES COURT OF APPEALS
   FOR THE TENTH CIRCUIT

  BRIEF FOR THE RESPONDENT IN OPPOSITION

        OPINONS BELOW
  
The opinion of the court of appeals (Pet. App. 5a-
21a) is reported at 59 F.3d 1015. The opinion of the
district court (Pet. App. 22a-36a) is reported at 839 F.
  Supp. 1448.

         JURISDICTION

  The judgment of the court of appeals was entered on
June 23, 1995. A suggestion for rehearing in bane was
denied on September 6, 1995. Pet. App. la-2a. The
petition for a writ of certiorari was filed on Septem-
ber 21, 1995. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

(1)

---------------------------------------- Page Break ----------------------------------------

 2

        STATEMENT

1. This case concerns the Federal Election Cam-
paign Act of 1971 (FECA or Act), 2 U.S.C. 431 et seq.
The Act limits contributions to candidates for federal
office. Individuals may contribute no more than
$1,000, and multicandidate political committees no
more than $5,000, with respect to any election. 2
U.S.C. 441a(a)(l)(A) and (2)(A). The Act also provides
that  "expenditures made by  any person in
cooperation, consultation,  or concert, with" a
candidate or his agents "shall be considered to be
a contribution to such candidate." 2 U.S.C.
441a(a)(7)(B)(i).
An exception to the generally applicable limits
permits the national and state committees of a
political party to make additional coordinated expend-
itures "in connection with the general election cam-
paign of candidates for Federal office." 2 "U.S.C.
441a(d)(l). In elections for the United States Senate,
the extended limit is the greater of $20,000 or 2 cents
times the voting age population of the State. 2 U.S.C.
441a(d)(3)(A). If a state party committee chooses not
to make the coordinated expenditures permitted by
law, it may assign its right to do so to a designated
agent, such as a national committee of the party. See
FEC v. Democratic Senatorial Campaign Com-
mittee, 454 U.S. 27 (1981) (DSCC). The Federal
Election Commission (FEC)l has determined that

___________________(footnotes)

1 The Commission is an independent agency charged with
the administration, interpretation, and civil enforcement of the
FECA. See 2 U.S.C. 437c(b)(1), 437d(a) and (e), 437f, and 437g.
Congress has expressly authorized the FEC to "formulate poli-
cy" under the Act, 2 U.S.C. 437c(b)(l); to institute investi-
gations of possible violations of the Act, 2 U.S.C. 437g(a)(l) and

---------------------------------------- Page Break ----------------------------------------

3

only an expenditure for a communication referring to
a "clearly identified candidate" and containing an
"electioneering message" constitutes a "coordinated
party expenditure" subject to the limitation of Sec-
tion 441a(d). FEC Advisory Op. 1985-14, 2 Fed. Elec-
tion Camp. Fin. Guide (CCH) Par. 5819 (May 30, 1985);
see FEC Advisory Op. 1984-15, 1 Fed. Election Camp.
Fin. Guide (CCH) Par. 5766 (May 31, 1984).
The FECA also requires detailed recordkeeping
and reporting of all contributions and expenditures. 2
U.S.C. 432, 444. Coordinated expenditures made pur-
suant to Section 441a(d) must be reported separately
from other contributions and expenditures. 2 U.S.C.
434(b)(4)(H)(iv).
2. Petitioner Colorado Republican Federal Cam-
paign Committee voluntarily assigned to the National
Republican Senatorial Committee its entire coordin-
ated expenditure authority ($103,248) for the 1986
Senate campaign. Pet. App. 9a. Petitioner subse-
quently spent $15,000 to broadcast a radio advertise-
ment, "Wirth Facts #l," attacking the active Senate
campaign of then-Representative Timothy E. Wirth.
The text of the advertisement read as follows:

Paid for by the Colorado Republican State Cen-
tral Committee.

Here in Colorado we're used to politicians who let
you know where they stand, and I thought we
could count on Tim Wirth to do the same. But the

___________________(footnotes)

(2); to initiate civil actions in the United States district courts
to obtain judicial enforcement of the Act, 2 U.S.C. 437c(b)(l)
and 437d(e); and to initiate actions in the federal courts to
determine the constitutionality of any provision of the Act, 2
U.S.C. 437h.

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4

last few weeks have been a real eye-opener. I just
saw some ads where Tim Wirth said he's for a
strong defense and a balanced budget. But ac-
cording to his record, Tim Wirth voted against
every major new weapon system in the last five
years. And he voted against the balanced budget
amendment.

Tim Wirth has a right to run for the Senate, but
he doesn't have a right to change the facts.

ld. at 6a-7a & n.1. At a press conference contemp-
oraneous with the broadcast of the advertisement, the
chairman of the Colorado Republican Party explained
that only after "the public know[s] what Tim Wirth's
record really is * * * will the voters be able to make
an informed decision regarding who will be Colorado's
next U.S. Senator." C.A. App. 318.
After investigating an administrative complaint
filed pursuant to 2 U.S.C. 437g(a)(l), the Commission
determined that petitioner's expenditures on "Wirth
Facts #l" were coordinated party expenditures made
"in connection with" a campaign for federal office, and
were therefore subject to the limitations of 2 U.S.C.
441a(d). Because petitioner had previously assigned
away its entire coordinated expenditure authority,
the Commission found probable cause to believe that
petitioner had violated 2 U.S.C. 441a(f), which pro-
hibits expenditures in violation of Section 441a. Be-
cause petitioner had failed to report the expenditures
as expenditures subject to Section 441a(d), the FEC
also found probable cause to believe that petitioner
had violated the reporting requirements of 2 U.S.C.

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5

434(b)(4)(H)(iv) and 434(b)(6)(B)(iv). Pet. App. 56a see
id. at 43a-46a.2
3. After conciliation efforts under 2 U.S. C.
437g(a)(4) proved unsuccessful, the Commission
authorized the filing of this civil enforcement action.
The district court granted petitioners' motion for
summary judgment. Pet. App. 22a-36a. The court
concluded that the expenditure in question had not
been made "in connection with the general election
campaign of a candidate for Federal office" within the
meaning of Section 441a(d)(3). In the district court's
view, a coordinated expenditure is made "in connec-
tion with" a federal election campaign only if the
communication in question contains "express advo-
cacy" of the election or defeat of a particular candi-
date. Pet. App. 28a-32a. The court placed substantial
reliance on FEC v. Massachusetts Citizens for Life,
Inc., 479 U.S. 238 (1986) (MCFL), which involved a
prohibition (2 U.S.C. 441 b(a)) on independent expendi-
tures by designated corporate entities "in connection
with any election to any political office." The Court
in MCFL held that "an expenditure must constitute
`express advocacy' in order to be subject to the
prohibition of  441b." 479 U.S. at 249. The district
court in the instant case, applying the canon of
statutory construction that "identical words used in
different parts of the same act are intended to have
the same meaning," Pet. App. 28a (internal quotation
marks omitted), concluded that the phrase "in connec-

___________________(footnotes)

2 The administrative complaint also challenged petitioners'
expenditures on two other radio advertisements and two pam-
phlets, all of which criticized Representative Wirth's record
without alluding to his ongoing Senate campaign. The Com-
mission did not find probable cause to believe that those expen-
ditures violated the Act. Pet. 3-4; see Pet. App. 93a-105a.

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6

tion with" should be given the same construction in
Section 441a(d)(3) as in Section 441b. Pet. App. 28a-
29a. The court rejected the FEC's position that the
phrase "in connection with," as used in Section
441a(d)(3), should be construed to cover communi-
cations that contain a "clearly identified candidate"
and an "electioneering message." See Pet. App. 29a.
The court concluded that "Wirth Facts #1" did not
contain "express advocacy" of Wirth's defeat, and that
petitioners' expenditure on the advertisement there-
fore was not covered by Section 441a(d)(3). Pet. App.
32a-35a.
4. The court of appeals reversed. Pet. App. 5a-21a.
The court first stated that "[t]he FECA does not
clearly manifest the meaning Congress intended to
attach to the `expenditures in connection with' lan-
guage in  441a(d)(3)." Id. at 10a. The court found
MCFL inapposite, since the independent expenditures
limited by Section 441b are substantially different-
both in their treatment under the FECA and in the
degree of protection afforded them by the Consti-
tution-from the coordinated expenditures at issue
here. Pet. App. 10a-14a. In light of the FEC's " `pri-
mary and substantial responsibility for administering
and enforcing' the FECA," id. at 15a (quoting
Buckley v. Va.lee, 424 U.S. 1, 109 (1976)), the court of
appeals concluded that the Commission's "construc-
tion of  441a(d) as regulating political committee
expenditures depicting a clearly identified candidate
and conveying an electioneering message is a reason-
able one to which [the court] must defer," Pet. App.
15a-16a. The court found that Representative Wirth
was a clearly identified candidate for the Senate at
the time "Wirth Facts #l" was broadcast, id. at 17a,

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7

and that the advertisement "unquestionably con-
tained an electioneering message," id. at 18a.
The court of appeals then addressed and rejected
petitioner's constitutional challenge to Section
441a(d). The court observed that "[t]he primary pur-
pose of the contribution and expenditure caps in the
FECA [is] to prevent corruption or the appearance of
corruption," Pet. App. 19a, and that "[t]he same
reasoning the Supreme Court used to uphold the con-
stitutionality of other contribution limitations ap-
plies when analyzing the constitutionality of limits
on coordinated expenditures by political committees,"
id. at 20a. The court rejected the claim that contrib-
utions from committees operated by a political party
can never be corrupting, ibid., and concluded that
"[b]y treating coordinated expenditures as contrib-
utions, the FECA effectively precludes political com-
mittees from literally or in appearance, `secur[ing] a
political quid pro quo from current and potential
office holders/" " t.d. at 21a (quoting Buckley v. Valeo,
424 U.S. at 26). The court also rejected petitioner's
argument that Section 441a(d) is a content-based
restriction on speech, finding that it is instead a
"monetary cap" applied as "a consequence of the
funding source." Pet. App. 21a.

        ARGUMENT

The decision of the court of appeals is not in
conflict with any decision of this Court or of any
other court. Indeed, petitioners do not contend that
any prior judicial decision has held Section 441a(d) to
be unconstitutional or has adopted the interpretation
of that Section espoused by petitioners.
1. a. Beginning with Buckley v. Valeo, 424 U.S. 1
(1976), this Court has recognized a sharp constitu-

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8

tional distinction between limitations on contribu-
tions to political candidates and limitations on inde-
pendent expenditures. The Court in BuckLey upheld
the FECA's limitations on contributions because
they serve a compelling interest in foreclosing oppor-
tunities for the corruption of candidates. The Court
recognized that "[t]o the extent that large contribu-
tions are given to secure a political quid pro quo from
current and potential office holders, the integrity of
our system of representative democracy is under-
mined." 424 U.S. at 26-27. The Court struck down
the Act's limitations on independent expenditures,
however, reasoning that "[t]he absence of prear-
rangement and coordination of an [independent] ex-
penditure with the candidate or his agent not only
undermines the value of the expenditure to the candi-
date, but also alleviates the danger that expenditures
will be given as a quid pro quo for improper com-
mitments from the candidate." Id. at 47. The Court
has continued to emphasize the "fundamental
constitutional difference" between contributions and
independent expenditures, FEC v. National Conser-
vative Political Action Committee, 470 U.S. 480, 497
(1985) (NCPAC), and has uniformly upheld the Act's
restrictions on contributions in candidate elections.
See, e.g., California Medical Ass'n  v. FEC, 453 U.S.
182 (1931); FEC v. National Right to Work
Committee, 459 U.S. 197 (1982) (NRWC).
Because it is "[t]he absence of prearrangement and
coordination" in an independent expenditure that
alleviates the danger of quid pro quo corruption,
Buckley, 424 U.S. at 47, Congress has validly deter-
mined that "expenditures made by any person in coop-
eration, consultation, or concert, with, or at the
request or suggestion of, a candidate, * * * shall be

---------------------------------------- Page Break ----------------------------------------

9

considered to be a contribution to such candidate." 2
U.S.C. 441a(a)(7)(B)(i). See Buckley, 424 U.S. at 46
("expenditures controlled by or coordinated with the
candidate and his campaign * * * are treated as
contributions rather than expenditures under the
Act"); NCPAC, 470 U.S. at 492 (coordinated expen-
ditures "are considered `contributions' under the
FECA, * * * and as such are already subject to [the]
$1,000 and $5,000 limitations in  441a(a)(l), (2)").
This Court has also recognized that, because of a
party committee's close relationship with the party's
candidates, all expenditures by such a committee
must be considered coordinated. See FEC v. Demo-
cratic Senatorial Campaign Committee, 454 U.S. 27,
28-29 n.1 (1981) (DSCC) ("expenditures by party
committees are known as `coordinated' expenditures"
because "[p]arty committees are considered incapable
of making `independent' expenditures in connection
with the campaigns of their party's candidates").
b. Petitioner contends (Pet. 5-6, 12-14) that Section
441a(d) must be found unconstitutional unless the
Commission can produce record evidence showing
that federal candidates have in fact been corrupted by
contributions from a political party. That argument
ignores this Court's holding in Buckley, noted by the
court of appeals in the present case (Pet. App. 21a),
that avoiding actual corruption is not the only com-
pelling interest justifying limits on contributions and
coordinated expenditures.  As the Buckley Court
recognized, "[o]f almost equal concern as the danger
of actual quid pro quo arrangements is the impact of
the appearance of corruption stemming from public
awareness of the opportunities inherent in a regime
of large individual financial contributions." Buckley,
424 U.S. at 27. See NRWC, 459 U.S. at 208 ("[I]n

---------------------------------------- Page Break ----------------------------------------

10

Buckley * *  * we specifically affirmed the
importance of preventing both the actual corruption
threatened by large financial contributions and the
eroding of public confidence in the electoral process
through the appearance of corruption."). Because the
Buckley Court found the appearance of corruption to
be inherent in the process of coordination, it did not
require evidence of actual corruption by particular
classes of contributors.3  Although the Court
assumed that "most large contributors do not seek
improper influence over a candidate's position or an
officeholder's action;' 424 U.S. at 29, it upheld the
FECA's .$1,000 limit on contributions to candidates
and political committees. The Court explained that it
is "difficult to isolate suspect contributions," and
that "Congress was justified in concluding that the
interest in safeguarding against the appearance of

___________________(footnotes)

3 There is no basis for petitioner's attempt (Pet. 16-17) to
distinguish party committees from other political committees
subject to the contribution limits upheld in Buckley. First, all
political committees are voluntary associations that can accept
contributions only in amounts specified in the Act and must
publicly report their contributions and expenditures. Second,
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990),
and MCFL, 479 U.S. at 263-264, found a small class of political
advocacy organizations to be exempt only from statutory limits
on independent expenditures. In MCFL, the Court contrasted
the limitations on independent expenditures with the regu-
lation of contributions from political advocacy corporations
such as MCFL, id. at 259-262, and confirmed that such corpor-
ations were subject to the same statutory restrictions on candi-
date contributions as were other corporations, id. at 264 n.13.
The discussion from NCPAC (470 U.S. at 498) quoted by peti-
tioner similarly referred only to independent expenditures.
Finally, the disagreement of some law review writers with
Congress's policy choices hardly renders those legislative judg-
ments unconstitutional.

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11

impropriety requires that the opportunity for abuse
inherent in the process of raising large monetary
contributions be eliminated." Id. at 30.
In dealing with contributions and coordinated ex-
penditures, the Court has "accept[ed] Congress' judg-
ment" and has refused to "second-guess a legislative
determination as to the need for prophylactic meas-
ures where corruption is the evil feared." NRWC,
459 U.S. at 210. As the court of appeals observed,
"[t]he members of Congress who enacted this law
were surviving veterans of the election campaign
process, and all were members of organized political
parties. They should be considered uniquely qualified
to evaluate the risk of actual corruption or appear-
ance of corruption from large coordinated expendi-
tures by political parties." Pet. App. 20a. Indeed, this
Court has recognized that the limits on coordinated
expenditures by political parties serve the same
purpose as FECA's other contribution limits: "the
prevention of corruption and the appearance of cor-
ruption spawned by the real or imagined coercive
influence of large financial contributions on candi-
dates' positions and on their actions if elected to
office." DSCC, 454 U.S. at 41 (citing Buckley, 424
U.S. at 25). In DSCC the Court held voluntary
agreements between state and national committees of
a political party regarding Section 441a(d) expen-
ditures to be permissible only because the Commis-
sion's decision to permit such agreements did not
expand "the limitations on the amount that can be
spent under the Act" by a political party. 454 U.S. at
41. That decision forecloses petitioner's argument
that Section 441a(d) does not serve the anti-corrup-
tion purpose that was found in Buckley to justify

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12

the statute's other restrictions on political contri-
butions.4
c. Petitioner contends (Pet. 7) that under the court
of appeals' approach, "political  speech by political par-
ties merits less protection than speech by banks,
corporations, trade unions, and the like." In fact the
reverse is true. The corporate entities subject to
Section 441b are completely prohibited from making
contributions or coordinated expenditures, 2 U.S.C.
441b(a); see California Medical Ass'n, 453 U.S. at
200-201, while Section 441a(d) "authorizes limited
expenditures by the national and state committees of
a political party in connection with a general election
campaign for federal office * * * which otherwise
would be impermissible" because of the statutory
limitation on contributions, DSCC, 454 U.S. at 28.
See also H.R. Conf. Rep. No. 1057, 94th Cong., 2d
Sess. 59 (1976) ("but for this subsection, these expen-
ditures would be covered by the contribution limi-
tations"). Political parties are subject to distinct
restrictions only in the sense that they have been

___________________(footnotes)

4 Petitioner argues (Pet,. 14) that Section 441a(d)'s popula-
tion-based formula for calculating the coordinated party expen-
diture limit in each State somehow "refute[s] an anti-corruption
purpose." The statutory formula simply reflects Congress's
recognition that the expense of campaigning is generally pro-
portional to the number of potential voters in a particular
election. The formula preserves a roughly comparable role for
political parties in Senate campaigns in each State, thus strik-
ing what Congress believed to be the appropriate balance be-
tween the prevention of actual or apparent corruption and the
desire to "assur[e] that political parties will continue to have an
important role in federal elections." DSCC, 454 U.S. at 41.
Determining the precise level of appropriate contribution lim-
its is a legislative judgment that does not raise constitutional
concerns. Buckley, 424 U.S. at 30.

---------------------------------------- Page Break ----------------------------------------

13

determined to be "incapable of making `independent'
expenditures in connection with the campaign of their
party's candidates." DSCC, 454 U.S. at 28-29 n.1.
Petitioners do not challenge that determination di-
rectly, however, nor do they cite any decision calling
it into question, and this Court in DSCC quite
clearly accepted that determination as the appro-
priate starting point for its analysis. There is conse-
quently no basis for petitioners' claim that political
parties are unfairly disadvantaged vis-a-vis other
contributors.
2. This Court recognized in DSCC that the
Commission's broad statutory powers and its "inher-
ently bipartisan" character make it "precisely the
type of agency to which deference should presump-
tively be afforded." . 454 U.S. at 37. The court of
appeals' decision in the instant case is consistent
with other court of appeals decisions that have given
deference to the Commission's construction of the
FECA as expressed in formal advisory opinions
issued pursuant to 2 U.S.C. 437f. See, e.g., FEC v.
Ted Haley Congressional Committee, 852 F.2d 1111,
1114-1115 (9th Cir. 1988); Orloski v. FEC, 795 F.2d
156, 164 (D.C. Cir. 1986).5

___________________(footnotes)

5 Petitioners' contention (Pet. 24) that Section 437f pre-
cludes deference to the Commission's advisory opinions unless
they are promulgated as regulations was neither pressed nor
passed upon below, and this Court therefore should not con-
sider it. See, e.g,, Kosak v. United States, 465 U.S. 848, 850 n,3
(1984); Delta Air Lines v. August, 450 U.S. 346, 362 (1981). In
any event, the argument is without merit. Advisory Opinions
1984-15 and 1985-14 did not adopt legislative rules of the sort
requiring a formal rulemaking, but merely interpreted the
terms of the Act "with respect to a specific transaction or
activity," as provided in Section 437f. The construction of the

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14

Petitioners contend that the Commission's reading
of Section 441a(d) is foreclosed by this Court's de-
cisions in MCFL, 479 U.S. at 249, and Buckley, 424
U.S. at 74-79, which construed other provisions of the
Act to apply only to communications that expressly
advocate the election or defeat of a clearly identifiable
candidate. The Court's construction of those pro-
visions, however, was based on the constitutional con-
cerns that would have attended any effort to impose
more stringent limitations on independent expen-
ditures. See Buckley, 424 U.S. at 78-79; MCFL, 479
U.S. at 248-249. AS we explain above, see pages 7-9,
supra, this Court has consistently recognized that
regulation of contributions and coordinated expen-
ditures is far less problematic. See Orloski, 795 F.2d
at 166-167 ("the Court limited [the express advocacy
definition] to those provisions curtailing or prohib-
iting independent expenditures. This definition is not
constitutionally required for those statutory pro-
visions limiting contributions.").  As the court of
appeals recognized, "[t]he distinction between inde-
pendent expenditures and political party expenditures
that are deemed to be contributions, and their differ-
ent treatment by the Supreme Court, negates the
necessity that `expenditures in connection with' be
construed identically in different sections of the

___________________(footnotes)

Act enunciated in those advisory opinions is analgous to an
interpretive ride, to which a reviewing court owes deference.
See, e.g., Wagner Seed Co. v. Bush, 946 F.2d 918,922 (D.C. Cir.
1991), cert. denied, 503 U.S. 970 (1992) Kennedy v. Shalala,
995 F.2d 28, 30 n.3 (4th Cir. 1993); American Land Title Ass'n
v. Clarke, 968 F.2d 150, 154 (2d Cir. 1992), cert. denied, 113 S.
Ct. 2959 (1993).

---------------------------------------- Page Break ----------------------------------------
  
15

FECA." Pet. App. 13a-14a. See Helvering v.
Stockholms Enskilda Bank, 293 U.S. 84,87 (1934).6
Application of the "express advocacy" standard to
the Act's limits on contributions and coordinated
expenditures would permit any donor-including a
corporation, union, or other interest group-to coor-
dinate its own political expenditures with a candidate
in exchange for the prospect of favorable treatment in
office. Since it is the "prearrangement and coor-
dination" with the candidate that creates the appear-
ance of corruption in coordinated expenditures (see
pages 8,9-10, supra), such an expenditure can suggest
the existence of a corrupt quid pro quo even if it is
not spent on express advocacy. As this Court has ob-
served, there would not be "much difficulty [in] de-
vising expenditures that skirted the restriction on
express advocacy of election or defeat but never-

___________________(footnotes)

6 Contrary to petitioners' contention (Pet. 21), the Buckley
Court did not apply the express advocacy test to the contri-
bution disclosure requirement of former 2 U.S.C. 434(e) (Supp.
Iv 1974).  Instead, the Court construed "contribution" to
"include not only contributions made directly or indirectly to a
candidate, political part y, or campaign committee * * * but
also all expenditures placed in cooperation with or with the
consent of a candidate, his agents, or an authorized committee
of the candidate," and found that "[s]o defined, `contributions'
have a sufficiently close relationship to the goals of the Act, for
they are connected with a candidate or his campaign." 424
U.S. at 78. It was only "[w]hen [the Court] attempted] to
define `expenditure' in a similarly narrow way" that the Court
found the "line-drawing problems" that required the express
advocacy test. Id. at 78-79. In fact, the Court did not find that
a narrowing construction was required even for independent
expenditures of political committees; rather, it concluded that
all expenditures by such committees "can be assumed to fall
within the core area sought to be addressed by Congress"
because "[t]hey are, by definition, campaign related." Id. at 79.

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16

theless benefited the candidate's campaign." Buckley,
424 UPS. at 45. Acceptance of petitioners' position
would thus substantially impair the Act's effective-
ness in reducing both the fact and the appearance of
political corruption.
Finally, petitioners contend (Pet. 17-19) that Sec-
tion 441a(d), as construed by the Commission, is
impermissible content-based and unconstitutionally
vague. As the court of appeals recognized (Pet. App.
21a), the purpose of the statutory restrictions on
coordinated expenditures is to limit the opportunity
for corrupt transactions, not the dissemination of
disfavored messages. Since the applicability of those
restrictions does not rest on "disagreement with the
message * * * conveyed]," it is sufficiently content-
neutral to satisfy constitutional requirements. Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Indeed, the "express advocacy" test proposed by peti-
tioners is no less content-based than the standard
adopted by the Commission and approved by the court
of appeals. In any event, this Court has consistently
recognized that limitations on contributions and
coordinated expenditures similar to those imposed by
Section 441a(d) [3) serve compelling governmental
interests and therefore survive strict scrutiny. See
page 8, supra.
Petitioners' vagueness argument is similarly with-
out merit. People of "common intelligence," Broad-
rick v. Oklahoma, 413 U.S. 601, 607 (1973), would have
no difficulty understanding that an advertisement
explicitly linking an attack on the record of an
opposing candidate with his ongoing Senate campaign

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17

contained an "electioneering message."7  In such
circumstances  neither  the FECA nor the
Commission's construction of it can be found
unconstitutionally vague, even if the Act "may leave
room for uncertainty at the periphery." NRWC, 459
U.S. at 211.  Moreover, the statute provides a
procedure for obtaining an advisory opinion from the
Commission, see 2 U.S.C. 437f, which enables a party
committee to "remove any doubt there may be as to
the meaning of the law," United States Civil Service
Comm'n v. National Ass'n of Letter Carriers, 413
U.S. 548, 580 (1973), with respect to a proposed
expenditure.  By "offering] a prompt means of
resolving doubts with respect to the statute's reach,"
Section 437f "mitigates whatever chill may be
induced" by the Act. Martin Tractor Co. v. FEC, 627

___________________(footnotes)

7 Petitioners observe (see Pet. 19) that the Commission
found probable cause to believe that their expenditure on
"Wirth Facts #l" was covered by Section 441a(d)(3) but did not
make a similar finding with respect to their expenditures on
other advertisements critical of then-Representative Wirth.
Petitioners contend (Pet, 19) that no meaningful difference
between the advertisements exists and that the Commission's
disparate treatment of them demonstrates the vagueness of the
agency's standard. There is no merit to that contention, Un-
like the other advertisements in question, "Wirth Facts #1"
expressly linked its criticisms to Wirth's ongoing Senate cam-
paign and explicitly challenged the integrity of Wirth's cam-
paign statements. See Pet. App. 93a-105a C.A. App. 318 (at
press conference contemporaneous with broadcast of "Wirth
Facts #1," Chairman of Colorado Republican Party asserted
that Wirth had "purchased television time to baldly misstate his
record on two key issues: defense and federal spending").
That distinction was clearly relevant to the question whether
the advertisements at issue contained an "electioneering
message."

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18

F.2 375, 384-385, 386 n.44 (D.C Cir.), cert. 
denied, 449 U.S. 954 (1980).

CONCLUSION

The petition for a writ of certiori should be denied

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

LAWRENCE M. NOBLE
General Counsel	

RICHARD B. BADER
Associate General Counsel

RITA A. REIMER
Attorney
Federal Election Commission

November 1995